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Brown v. Colvin

United States District Court, N.D. Illinois, Eastern Division

July 29, 2015

NINA L. BROWN, o/b/o S.J.B., a minor, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SHEILA FINNEGAN, Magistrate Judge.

Plaintiff Nina L. Brown, proceeding pro se, is seeking to recover Supplemental Security Income ("SSI") on behalf of her minor daughter, S.J.B., under Title IX of the Social Security Act. 42 U.S.C. § 1382c(a)(3)(C). The Acting Commissioner of Social Security ("Commissioner" or "Defendant") denied the application for benefits at all levels of administrative review, prompting this appeal. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed cross-motions for summary judgment. After careful review of the record, the Court now grants Defendant's motion, denies Plaintiff's motion, and affirms the decision to deny S.J.B. benefits.[1]


Plaintiff applied for SSI on July 18, 2011, alleging that her then 6-year-old daughter S.J.B. had been disabled since February 8, 2007 due to attention deficit hyperactivity disorder ("ADHD"). (R. 185, 220). The Social Security Administration denied the application initially on September 7, 2011, and again on reconsideration on November 29, 2011. (R. 75-80, 84-88). Plaintiff filed a timely request for hearing, and on August 23, 2012, she and S.J.B. both appeared before Administrative Law Judge Joel G. Fina (the "ALJ"). (R. 45). The ALJ heard testimony from Plaintiff and S.J.B., who were represented by counsel, and from medical expert Lawrence James Hagerman, M.D. ("ME Hagerman"), a board-certified pediatrician. (R. 44, 63).

To accommodate Plaintiff's request to submit some additional medical and school documents, the ALJ kept the record open and then held a supplemental hearing on April 15, 2013. This time, the ALJ heard testimony from Plaintiff, who was still represented by counsel, and from Kathleen M. O'Brien, Ph.D. ("ME O'Brien"), a board-certified forensic psychologist. (R. 164, 452). Shortly thereafter, on May 2, 2013, the ALJ found that S.J.B. is not disabled because she does not have an impairment or combination of impairments that meets or functionally equals the listings. (R. 22-37). The Appeals Council denied Plaintiff's request for review on April 17, 2014, (R. 11-13), and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.

In support of her request for reversal or remand, Plaintiff argues that (1) she has submitted new and material evidence to this Court supporting a remand under sentence six of 42 U.S.C. § 405(g); and (2) the ALJ's decision to deny benefits is not supported by substantial evidence.


S.J.B. was born on December 11, 2004 and was 8 years old on the date of the ALJ's decision. (R. 185). At the time of the August 23, 2012 hearing, S.J.B. was living with her mother in a shelter and was about to start attending the second grade at Dewey Elementary School. (R. 49-50, 61). The record reflects a generally insecure living situation with frequent periods of homelessness and relocations. (R. 237, 257, 307, 346, 349).

A. Medical and Educational History

1. May 10, 2010 through July 18, 2011

The first available record is from May 10, 2010 when Plaintiff took 5-year-old S.J.B. for a psychiatric evaluation with Deirdre Dupre, M.D., at Advocate Illinois Masonic Behavioral Health Services. Plaintiff reported that she and S.J.B. had been living in a shelter since February 2010 and S.J.B. was exhibiting some troubling behaviors, including hitting her teachers and intentionally declining to follow instructions. She was also physically aggressive with other children, and had difficulty controlling her anger, sharing and compromising. (R. 342, 348-49). During the examination, S.J.B. was cooperative, friendly, and interpersonally connected with good eye contact, but also hyperactive and minimally attentive. She demonstrated linear thoughts, intact attention, good mood, and fair judgment and insight, as well as normal affect, orientation and memory. (R. 344, 349). Dr. Dupre diagnosed rule out ADHD and rule out adjustment disorder, and discussed starting S.J.B. on medication after she was evaluated by a primary care physician. (R. 349-50).

When Plaintiff took S.J.B. to see Dr. Dupre again on May 27, 2010, S.J.B. continued to have attention and behavior issues, but her exam was essentially normal with no evidence of hyperactivity. Dr. Dupre affirmatively diagnosed ADHD and prescribed methylphenidate CD (brand name Metadate). (R. 356). S.J.B. did very well with the medication and showed improvement at her next two appointments with Dr. Dupre on June 9 and July 20, 2010. (R. 351, 353). By October 2010, however, Plaintiff and S.J.B. had moved to Georgia so all treatment with Dr. Dupre ceased. Plaintiff and S.J.B. lived in a shelter in Georgia until June 2011, at which point they moved back to Chicago. (R. 362, 381). There are no records from that eight-month period, but Plaintiff applied for disability benefits on July 18, 2011, shortly after their return.

2. August 2011 through December 2011

On August 10, 2011, Laura J. Higdon, Ph.D., conducted a Psychological Evaluation of 6-year-old S.J.B. for the Bureau of Disability Determination Services ("DDS"). (R. 362-65). Plaintiff reported that S.J.B. had finished Kindergarten in Georgia and did not participate in any special education programs. (R. 363). S.J.B. last took Metadate in December 2010, but Plaintiff said she planned to find S.J.B. a psychiatrist for further medication management. (R. 362, 365). On examination, S.J.B. was somewhat hyper but demonstrated intact thought process, clear speech, and adequate eye contact, and she was generally cooperative and responsive to questioning. (R. 364). Dr. Higdon diagnosed ADHD. (R. 365).

A little less than a month later, on September 6, 2011, Donald Henson, Ph.D., completed a Childhood Disability Evaluation Form of S.J.B. for DDS. (R. 366-67). Dr. Henson found that S.J.B. has less than marked limitation in attending and completing tasks and interacting and relating with others, and no other limitation in any functional domain. (R. 368-69). Shortly thereafter, on September 23, 2011, S.J.B.'s First Grade teacher at Washington Irving Elementary School, Claire Martin, completed a Teacher Questionnaire regarding S.J.B.'s functioning. (R. 237-44). Ms. Martin confirmed that S.J.B. did not receive any special services or an Individualized Education Program ("IEP") while in Georgia, and that she was similarly enrolled in regular education at Irving. (R. 237, 244). Ms. Martin identified no problems in any domain and stated that S.J.B. was "conducting herself age appropriate" and "her academics are developing adequately." (R. 244).

On October 18, 2011, Plaintiff took S.J.B. back to Dr. Dupre seeking treatment for her aggressive, impulsive, "abnormal" behavior. (R. 379, 381). More than a year had passed since S.J.B.'s last appointment, and Plaintiff reported that her daughter was being disruptive in class, talking back to teachers, and being aggressive with other children by grabbing and hitting them. She was also having difficulty establishing friendships, though Plaintiff acknowledged that could be due to the recent moves. (R. 381). At the same time, Plaintiff confirmed that S.J.B. had been "much better" while on medication. (Id. ). Dr. Dupre noted that S.J.B. exhibited minimal attention, but her behavior and functioning was otherwise normal with no evidence of hyperactivity. (R. 379-80).

At a follow-up appointment on November 16, 2011, Plaintiff told Dr. Dupre that S.J.B. had enrolled as a First grader in regular education classes at Prairie Oak Elementary School. (R. 402). On examination, S.J.B. was cooperative and friendly with good eye contact, though at times she spoke "harsher/more direct[] than needed." She exhibited linear thought process, intact attention, good mood, and fair judgment and insight, and Dr. Dupre once again diagnosed ADHD. (R. 403). Dr. Dupre recommended that Plaintiff work with a primary care physician to get S.J.B. back on medication. (R. 403). Two days later, on November 18, 2011, Michael J. Schneider, Ph.D., affirmed Dr. Henson's finding that S.J.B. has less than marked limitation in attending and completing tasks and interacting and relating with others, and no limitation in any other domain of functioning. (R. 388-91).

In November and December 2011, S.J.B. received two Red Light Behavior Notes from her First Grade teacher, Bonnie Polis. Ms. Polis reported that S.J.B. was having difficulty following directions in class, threw cards at another student, and was disruptive during a holiday program. The notes requested that Plaintiff speak to S.J.B. about following directions and being kind and respectful. (R. 274, 275).

3. 2012

Plaintiff took S.J.B. back to see Dr. Dupre on January 9, 2012, and complained that her daughter was still having difficulty with focus and attention despite exhibiting a stable mood. Dr. Dupre put S.J.B. back on Metadate to help control her ADHD. (R. 405, 415). The following month, on February 2, 2012, Ms. Polis wrote a general letter addressed "To Whom It May Concern" describing S.J.B. as "highly distractible" and disruptive in class. Ms. Polis noted that S.J.B. bullied other children, refused to take responsibility for her bad behavior, and craved "constant attention." (R. 298).

In a Teacher Questionnaire completed on February 17, 2012, Ms. Polis reported that S.J.B. did not have any problems acquiring and using information or moving about and manipulating objects, (R. 289, 292), but she had some obvious and serious to very serious problems in the other functional domains. For example, she would blurt out comments or answers without waiting to be called upon and then try to shift blame onto someone else. (R. 290). She also hit other children and said "cruel and rude" things to them. (R. 291, 295). Ms. Polis stated that S.J.B.'s significant problem areas included paying attention, focusing, refocusing to task, waiting to take turns, changing activities without being disruptive, working without distracting others, playing cooperatively with other children, making and keeping friends, seeking attention appropriately, following rules, taking turns, interpreting the meaning of facial expressions, asking permission, respecting/obeying adults in authority, handling frustration appropriately, being patient when necessary, identifying and appropriately asserting emotional needs, and responding appropriately to changes in her own mood. (R. 290-91, 293).

Not surprisingly, Plaintiff told Dr. Dupre on February 27, 2012 that S.J.B. was still having behavioral difficulties at school, even on the Metadate. Dr. Dupre switched her to Focalin, which S.J.B. took until April 2012. (R. 413, 418). Then on May 23, 2012, S.J.B. received a four-day lunch detention for saying inappropriate things of a sexual nature to other students. (R. 300). Plaintiff took S.J.B. back to see Dr. Dupre on July 25, 2012, explaining that since stopping the medication, S.J.B. was having increased difficulties with attention, compliance, impulsivity and interpersonal issues. (R. 418). On examination, S.J.B. was hyperactive with minimal attention, but everything else was normal. (R. 416, 428). Dr. Dupre once again prescribed Focalin to help with S.J.B.'s ADHD, (R. 418), and by August 22, 2012, her behavior was under control aside from a continuing tendency towards rudeness. (R. 430).

On October 1, 2012, Plaintiff's counsel submitted a note to DDS from Lisa Davis, S.J.B.'s Second Grade teacher at her new school, Dewey Elementary. (R. 312). Ms. Davis stated that S.J.B. often talked to peers when she should have been working independently or following teacher lessons. She also communicated in an uncaring way and rolled her eyes. That said, when S.J.B. was focused, she could respond to questions and prompts appropriately and complete her work. (R. 313).

On October 16, 2012, Don White, Ph.D., performed a Psychological Evaluation of S.J.B. for DDS. (R. 432-34). Dr. White found that S.J.B. exhibited adequate "Adaptive Behavioral Functioning" except in the area of "Interpersonal/Social" interactions. She showed no impairment in "Immediate, Recent or Remote Memory Functioning, " and adequate "Fund of Information, " "Ability to do Calculations, " and "Ability to Analyze and Synthesize Data." Dr. White observed adequate abstract thinking and fair judgment, and diagnosed ADHD. (R. 434).

A couple months later, on December 13, 2012, S.J.B. switched schools from Dewey Elementary to Helge A. Haugan Elementary. (R. 324). ...

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