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Sirvetta N. Basnett v. Commissioner of Social Security

October 31, 2011


The opinion of the court was delivered by: Magistrate Judge James R. Knepp II



Plaintiff Sirvetta Basnett, on behalf of her minor child, appeals the administrative denial of supplemental security income (SSI) benefits under 42 U.S.C. § 1383. The district court has jurisdiction over this case under 42 U.S.C. § 1383(c)(3). The parties have consented to the exercise of jurisdiction by the undersigned in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 15). For the reasons given below, the Court affirms the Commissioner's decision denying benefits. Background

Medical History

Plaintiff filed for Supplemental Security Income (SSI) benefits on September 26, 2003, alleging her child has been disabled since birth. (Tr. 89). Plaintiff's minor child was born on April 16, 2003 (Tr. 89), and was immediately treated for fetal tachycardia. (Tr. 437). Two days later, the child was diagnosed with a moderate patent ductus arteriosus (PDA), a patent foramen ovale, and mild pulmonary hypertension. (Tr. 301). Dr. Mark Sivakoff saw the child in June of 2003 and determined that the PDA had likely closed or was considerably small, having not heard a murmur while examining him. (Tr. 272).

At two months old, the child was seen by Dr. Walter Chwals who noted that his right scrotal sack was substantially bigger than his left. (Tr. 268). However, Dr. Chwals concluded that surgery was not necessary to correct this because such conditions usually resolve naturally through childhood. (Tr. 268). Also as an infant, the child had jaundice and a hernia. (Tr. 193). In addition, the record shows the child has eczema. (Tr. 355, 613).

In 2006, after a behavioral observation, Dr. Dennis Drotar wrote that the child's "behavioral patterns are indicative of a clinically significant behavioral disorder." (Tr. 193). Dr. Drotar noted the child was too young at the time for a formal diagnosis, but said his behaviors were "characteristic of children with ADHD" and will necessitate psychological intervention. (Tr. 193). Shortly thereafter, the child was examined at University Hospital for tonsilitis, whereupon the examining physician wrote on his chart "needs psychiatrist eval? bipolar" and "ADHD . . . needs behavioral meds". (Tr. 218).

In 2008, the child was examined by Dr. Shenandoah Robinson for frequent headaches. (Tr. 304-305). After ordering a CT, Dr. Robinson concluded the child's headaches were not caused by a significant structural problem. (Tr. 305). In a letter to the child's primary care physician, Dr. Robinson said the child "was mildly hyperactive [but] generally well-behaved during the visit." (Tr. 304). Around the same time, the child was hospitalized after Plaintiff brought him to the emergency room at University Hospital for his asthma. (Tr. 350-351). The child had been coughing, sneezing, wheezing, and maintaining a fever for 5 days at home. (Tr. 354). During this hospitalization, the child was given prednisone, albuterol nebulizers, and singulair. (Tr. 352). Later, in April 2008, the child was taken to the emergency room again, this time at Euclid Hospital, for dyspnea, chest pain, and wheezing caused by his asthma. (Tr. 524, 526). While there, he was once again prescribed a steroid, prednisolone, for treatment, but was discharged the same day. (Tr. 527, 531). Also in April 2008, the child fell on his ankle and was seen at University Hospital for it, whereupon the physician noted a rash and itch on his skin, symptoms of his eczema. (Tr. 369).

Between hospitalizations, the child was seen by Dr. Denise Bothe for his behavioral problems. Dr. Bothe wrote in her assessment of the child that he "does qualify for the diagnosis of attention deficit hyperactivity disorder." (Tr. 333). She recommended counseling for Plaintiff to help her with techniques for managing the child's behavioral difficulties. (Tr. 333). However, a few months later, Dr. Bothe essentially retracted her ADHD diagnosis, saying "[The child] may qualify for the diagnosis of [ADHD, but t]ypically, ADHD is a diagnosis given when symptoms cause dysfunction and are pervasive in more than one setting, such as home and school." (Tr. 497). Dr. Bothe therefore wanted the child to begin kindergarten to get input from his teachers about his behavior and learning abilities. (Tr. 497).

Administrative Hearings

On June 10, 2008, Plaintiff appeared with counsel and her minor child before the ALJ. (Tr. 607). The ALJ asked the child a total of seven questions before questioning Plaintiff. (Tr. 607-608). Plaintiff testified that the child is restless, has headaches, and often complains that he cannot breathe due to his asthma. (Tr. 611). Because the medical records were incomplete and contradictory, the hearing was rescheduled and resumed on June 27, 2008. (Tr. 625). Plaintiff then testified that the child had to be taken to the emergency room in the interim because of breathing problems. (Tr. 591). She told the ALJ the child takes singulair at night for his asthma and naproxen for his allergies. (Tr. 613). The child also uses albuterol every four to six hours or as needed. (Tr. 612).

Dr. Arthur Newman testified as a medical expert. (Tr. 622). Dr. Newman was unable to testify to the child's severe impairments because he took issue with the records supplied to him by the child's psychologist. (Tr. 592-593). Furthermore, the medical records were too incomplete as to the child's prescription history for him to conclude whether the child's asthma constituted a severe impairment. (Tr. 593). Nonetheless, Dr. Newman did testify that, based on his observation of the child at the hearing, he could attest to the child's hyperactivity. (Tr. 597).

Standard of Review

In reviewing the denial of Social Security benefits, the Court "must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record."Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). "Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Besaw v. Sec'y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner's findings "as to any fact if supported by substantial evidence shall be conclusive." McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. ยง 405(g)). Even if substantial evidence or indeed a preponderance ...

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