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Barnett v. Commissioner of Social Security

United States District Court, Sixth Circuit

May 23, 2013

Stephanie Barnett o/b/o D.B., a minor, Plaintiff,
v.
Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

VERNELIS K. ARMSTRONG, Magistrate Judge.

I. INTRODUCTION

Plaintiff Stephanie Barnett ("Plaintiff") seeks judicial review pursuant to 42 U.S.C. § 405(g) of Defendant Commissioner's ("Defendant" or "Commissioner") final determination denying her claim for Supplemental Security Income ("SSI"), filed on behalf of her minor son, D.B., under Title XVI of the Social Security Act, 42 U.S.C. § 1381 (Docket No. 1). Pending are the parties' Briefs on the Merits (Docket Nos. 17 and 18). For the reasons that follow, the opinion of the Commissioner is affirmed.

II. PROCEDURAL BACKGROUND

On June 26, 2009, Plaintiff filed an application on behalf of her son for a period of SSI under Title XVI of the Social Security Act, 42 U.S.C. § 1381 (Docket No. 12, p. 119 of 605). Plaintiff's claims were denied initially on August 27, 2009 (Docket No. 12, p. 68 of 605), and upon reconsideration (Docket No. 12, pp. 79-81 of 605). Plaintiff thereafter filed a timely written request for a hearing on March 4, 2010 (Docket No. 12, p. 82 of 605).

On April 19, 2011, Plaintiff, along with her son D.B., appeared with counsel for a hearing before Administrative Law Judge James Dixon ("ALJ Dixon") (Docket No. 12, pp. 37-61 of 605). ALJ Dixon found D.B. to have a severe combination of asthma, borderline intellectual functioning, mixed receptive-expressive language disorder, and attention deficit hyperactivity disorder ("ADHD") with an application date of June 26, 2009 (Docket No. 12, p. 18 of 605)

Despite these limitations, ALJ Dixon determined that, based on all the evidence presented, D.B. had not been disabled within the meaning of the Social Security Act at any time from the application date through the date of his decision (Docket No. 12, p. 31 of 605). ALJ Dixon found that while D.B. suffered from a marked limitation in acquiring and using information, he suffered "less than marked" or "no" limitation in the remaining functional equivalence domains, namely: (1) attending and completing tasks; (2) interacting and relating with others; (3) moving about and manipulating objects; (4) caring for himself; and (5) health and physical well-being (Docket No. 12, pp. 24-31 of 605). Plaintiff's request on behalf of D.B. was therefore denied (Docket No. 12, p. 31 of 605).

On September 6, 2012, Plaintiff filed a Complaint in the Northern District of Ohio, Eastern Division, seeking judicial review of the denial of D.B.'s claim for SSI (Docket No. 1). In her pleading, Plaintiff alleged that the ALJ erred by: (1) finding that D.B.'s intellectual impairment does not meet the criteria of Listing 112.05(D), mental retardation; and (2) failing to find "marked limitations" in more than one of the six functional equivalence domains (Docket No. 17). Defendant filed its Answer on December 13, 2012 (Docket No. 11).

III. FACTUAL BACKGROUND

A. THE ADMINISTRATIVE HEARING

An administrative hearing convened on April 19, 2011, in Cleveland, Ohio (Docket No. 12, pp. 37-61 of 605). D.B., represented by Katherine Braun, appeared and testified (Docket No. 12, pp. 43-45 of 605). Also present and testifying was Plaintiff, D.B.'s mother (Docket No. 12, pp. 41-43, 45-61 of 605).

1. D.B'S TESTIMONY

At the time of the hearing, D.B. was eight years old and in the second grade (Docket No. 12, p. 43 of 605). D.B. testified that he did not have any problems at school, was doing "good, " and was earning top grades (Docket No. 12, pp. 43-44 of 605). When asked about his relationship with his siblings, D.B. stated that they do not get along because his siblings yell at him (Docket No. 12, pp. 44-45 of 605).

2. PLAINTIFF'S TESTIMONY

At the time of the hearing, Plaintiff resided with her oldest son, age twenty, her daughter, age seventeen, her granddaughter, age one, D.B, age eight, and her fiance (Docket No. 12, p. 52 of 605). Plaintiff indicated that she had filed four previous applications for disability on behalf of her son, but had never before made it to the administrative hearing level (Docket No. 12, pp. 45-46 of 605). When asked by the ALJ what entitles D.B. to disability, Plaintiff stated that, while her son is physically developing normally, he is also "developing slow and learning slow" (Docket No. 12, pp. 46, 58 of 605). Plaintiff indicated that D.B. suffered from complications with asthma and ADHD (Docket No. 12, p. 46 of 605).

With regards to his asthma, Plaintiff indicated that D.B. last had to go to the hospital for an asthma attack in June or July of 2010 (Docket No. 12, p. 47 of 605). She also indicated that D.B. had missed twenty-four days of school because of asthma attacks and his subsequent need for at-home nebulizer treatments (Docket No. 12, p. 54 of 605).

Plaintiff testified that D.B. had recently been diagnosed with ADHD and indicated that D.B. has difficulty in school, often failing to bring home his homework, having behavioral issues in class, and bringing a mouse to school (Docket No. 12, pp. 47, 49-51 of 605). With regard to his home life, Plaintiff stated that D.B.

[c]rawls around over the floor, he makes sounds, he doesn't follow directions..., he talks back to me, he doesn't listen, he's not able to wash himself up in the morning when he has to get ready for school... you have to repeat it over and over what to do. He doesn't want to clean his room up, he gets a tantrum, he goes in his brother's and sister's room and steals their personal items and say he didn't do it. He steals food at home and hides everything up in his room. And I tell him, over and over, he can't do that. He cries a lot, like a baby.

(Docket No. 12, p. 48 of 605). Plaintiff indicated that D.B. cannot wash himself or brush his teeth without supervision and has difficulty remembering what he just read (Docket No. 12, pp. 57-59 of 605).

B. EDUCATIONAL RECORDS

1. TEACHER REPORTS

On January 9, 2008, at the request of the Bureau of Disability Determination ("BDD"), D.B.'s Pre-Kindergarten teacher, Kelly McIntyre ("Ms. McIntyre"), completed a request for information and teacher questionnaire (Docket No. 12, pp. 147-56 of 605). Ms. McIntyre indicated that D.B. had not been assessed for special class placement and did not receive special instruction (Docket No. 12, p. 155 of 605). She was most concerned about D.B.'s social and emotional development, noting that D.B. was "starving for attention" (Docket No. 12, pp. 148, 150 of 605). Ms. McIntyre reported that D.B. had a hard time focusing for longer than ten minutes, got frustrated, and often needed more time than his classmates to regroup (Docket No. 12, pp. 149, 152 of 605). The teacher indicated that D.B.'s physical conditions did not affect his learning (Docket No. 12, p. 153 of 605).

On November 3, 2009, Kristin Towarnicke ("Ms. Towarnicke"), D.B.'s first grade teacher, also completed a request for information and teacher questionnaire at the request of the BDD (Docket No. 12, pp. 200-11 of 605). Ms. Towarnicke noted that D.B. did not receive special instruction but he did go to the school resource room for fifteen minutes each day (Docket No. 12, p. 208 of 605). It was noted that D.B. had missed nine days of school in the quarter, but Plaintiff had indicated to Ms. Towarnicke that D.B. had no asthma complications (Docket No. 12, p. 200 of 605). Ms. Towarnicke stated that when D.B. takes his ADHD medications, he "functions well" in the classroom, " is "pleasant and work[s] to relate to others, " and functions as a "typical student" (Docket No. 12, pp. 201-06 of 605). Ms. Towarnicke was pleased with D.B.'s progress (Docket No. 12, p. 205 of 605).

On February 4, 2011, Alexis Pohlman ("Ms. Pohlman"), D.B.'s second grade teacher, completed a teacher questionnaire (Docket No. 12, pp. 309-12 of 605). Ms. Pohlman reported that D.B. was in a regular education classroom but was being evaluated for special education placement (Docket No. 12, p. 309 of 605). D.B. had missed twenty-four of the past one hundred days of school (Docket No. 12, p. 310 of 605). Ms. Pohlman noted that D.B. was limited in reading, writing, and math, and rarely finished an activity alone (Docket No. 12, p. 310 of 605). D.B. was always given extra assistance, instruction, and time to complete tasks (Docket No. 12, p. 310 of 605). Ms. Pohlman also reported that D.B.'s classroom behavior could be very disruptive, including excessive talking and noises (Docket No. 12, p. 312 of 605). Ms. Pohlman suggested that D.B.'s behaviors were done in an attempt to get her attention (Docket No. 12, p. 312 of 605).

2. EVALUATION TEAM REPORT

On March 3, 2011, a team of teachers, including Ms. Pohlman, school district representatives, and school psychologists, conducted a multi-factored evaluation of D.B.'s academic performance and need for special education (Docket No. 12, pp. 268-304 of 605). D.B.'s scores are summarized as follows:

Category Range/Grade Level Reading/Letter Word Identification 2.3 grade level (average) Reading/Comprehension low average range Math Calculation 2.3 grade level (average) Math/Applied Problems borderline ninth month of kindergarten level Writing/Spelling 2.2 grade level (average) Writing/Writing Samples 1.2 grade level (below average)

(Docket No. 12, pp. 273-74 of 605). Based on these scores, the team determined that D.B. would not be able to transition to a regular third grade classroom and would instead require intensive specialized instruction and a modified curriculum (Docket No. 12, p. 274 of 605).

In addition to these educational needs, the team reported that D.B.'s classroom behavior was very disruptive (Docket No. 12, p. 279 of 605). He was rarely able to work independently, did not complete most assignments, and had difficulty focusing on lessons (Docket No. 12, p. 279 of 605). The report also indicated that D.B. sought attention through his behavior (Docket No. 12, p. 279 of 605). The team ...


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