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Leslie Solis v. Michael J. Astrue

June 30, 2011

LESLIE SOLIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh

NOT FOR PUBLICATION

OPINION

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before the Court upon the appeal of Sandra Perdomo ("Perdomo") on behalf of her minor child Leslie Solis ("Leslie" or "Plaintiff") from the final decision of the Commissioner of Social Security ("Commissioner"), denying Plaintiff's claims for child Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("SSA"). This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 1383(c)(3). No oral argument was heard pursuant to Rule 78 of the Federal Rules of Civil Procedure.

As detailed below, the final decision entered by Administrative Law Judge ("ALJ"), Richard L. De Steno, is affirmed in part and remanded in part.

I. BACKGROUND

A. PROCEDURAL HISTORY

On October 28, 2004, Ms. Perdomo filed an application on Leslie's behalf for SSI, alleging disability beginning September 1, 2002. (Administrative Transcript ( "Tr.") at 103). Plaintiff's claim was initially denied on August 31, 2005 (Tr. at 45-47), and again upon reconsideration on June 1, 2006. (Tr. at 52-55). Thereafter, Plaintiff filed a timely written request for a hearing before an ALJ on June 29, 2006. (Tr. at 56-57). On March 25, 2008, a hearing was held before the Honorable Richard L. De Sterno, ALJ (Tr. at 27), and on May 30, 2008 the ALJ denied Plaintiff's claims. (Tr. at 27-41). Plaintiff sought review of the decision, but the Appeals Council denied her request on December 24, 2008. (Tr. at 7-11). On May 12, 2009, Plaintiff filed a timely complaint with this Court seeking judicial review.

B. FACTUAL HISTORY

1. The Findings of the Administrative Law Judge

ALJ De Sterno made the following six findings regarding Plaintiff's application for SSI: (1) the claimant was born on April 8, 1998. Therefore, she was a preschooler on October 28, 2004, the date the application was filed, and is currently a school-aged child; (2) the claimant has not engaged in substantial gainful activity at any time relevant to this decision; (3) the claimant has severe impairments involving an attention deficit hyperactivity disorder ("ADHD"); (4) the claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 ("listings"); (5) the claimant does not have an impairment or combination of impairments that functionally equals the listings; and (6) the claimant has not been disabled, as defined in the SSA, since October 28, 2004, the date the application was filed. (Tr. at 30-41).

2. Plaintiff's Medical History and Evidence

Plaintiff alleges that she has been disabled since September 1, 2002, as a result of suffering from ADHD and associated learning and behavioral disabilities. Plaintiff's medical history and the evidence pertaining to her impairments are summarized below.

i. General Medical History

Leslie's medical records show that she has had no prior hospitalizations or chronic illnesses; however, Ms. Perdomo reports that Leslie suffers frequently from common childhood ailments. (Tr. at 201, 448-50). Conflicting reports make it difficult to ascertain whether Leslie was developmentally delayed in her infant and toddler years. Early psychiatric reports and educational evaluations show that Leslie reached developmental milestones within the average range as an infant and toddler. (Tr. at 185, 255). In a 2005 psychiatric report, Dr. Jan S. Cavanaugh ("Dr. Cavanaugh") reported Leslie's infancy and toddler development to be within the average range based on the fact that she sat at twelve (12) months, stood at sixteen (16) months, walked at two (2) years, said her first words at eighteen (18) months, and was toilet trained at thirty (30) months. (Tr. at 255). In contrast, a University of Medicine and Dentistry of New Jersey ("UMDNJ") Crisis Clinic 2007 report notes speech, walking, and toilet training delays. (Tr. at 410).

According to Ms. Perdomo, Leslie began exhibiting speech and cognitive delays when she was three years old. (Tr. at 201). At the date of the alleged disability onset (as reported in Leslie's SSI application), Leslie was four years and five months of age. (Tr. at 103). Leslie was diagnosed with ADHD on July 7, 2004 by Dr. E. C. Gaudenror, a psychiatrist at SERV Behavioral System, Inc., after Ms. Perdomo reported concerns about Leslie's speech delays, inattention, and hyperactivity.

(Tr. at 304-12). Leslie was prescribed ten (10) milligrams ("mg") of Ritalin, a rapid-release prescription drug used to control common ADHD symptoms, twice daily. Id. at 312, 355. On October 20, 2005, Dr. Caroline Hayes-Rosen, a medical doctor at the UMDNJ, prescribed twenty-seven (27) mg of Concerta, an alternative extended release prescription ADHD medication, in lieu of Ritalin to control Leslie's ADHD symptoms more effectively. (Tr. at 234).

ii. Psychiatric History

Leslie has no history of psychiatric hospitalizations or outpatient psychiatric treatment. (Tr. at 254). Her family has no history of psychiatric or cognitive problems, and there is no family history of drug/alcohol, physical, sexual or emotional abuse. (Tr. at 255). Leslie was first psychologically examined by Dr. E.C. Gauderer on July 7, 2004. (Tr. at 309). Dr. Gauderer reported that Leslie was a "pleasant, cooperative, and outgoing" child with no issues regarding hygiene or appearance. (Tr. at 311). Dr. Gauderer assessed Leslie's mood and cognition as normal, reported that her thought processes and content were intact, and indicated that she did not have delusions, hallucinations, or suicidal impulses. Id. Leslie exhibited "OK" recent and remote memory, "OK" cognitive abstraction abilities, and age-appropriate insight. Id. Dr. Gauderer's clinical impression was that Ms. Perdomo was "overwhelmed by the complexities of the medical/developmental/learning issues of her three children," and recommended special education classes for Leslie. Id. Dr. Gauderer diagnosed Leslie with Axis I learning disabilities with associated ADHD and assessed her a global functioning*fn1 ("GAF") at 65, indicating that Leslie was "generally functioning pretty well." (Tr. at 312). Dr. Gauderer prescribed Ritalin and recommended that Leslie start psychotherapy. Id.

On November 16, 2004, Leslie was referred to Pediatric Neurologist Dr. Sue X. Ming for further psychological evaluation and management of her ADHD symptoms and associated behavioral problems. (Tr. at 201). Dr. Ming noted that Leslie showed some improvement in her hyperactivity after taking Ritalin for nine months. Id. A physical examination indicated that Leslie's motor strength, cranial nerves, and sensory functions were normal. Id. at 202. Dr. Ming determined that Leslie should continue the Ritalin treatments and speech and behavioral therapy. Id. Subsequent physical and psychological examinations conducted on April 11 and 15, 2005 at the North Hudson Community Action Corporation Health Center ruled out mental retardation and ADHD, but noted that Leslie's developmental delays were under continued investigation. (Tr. at 251-53).

On December 19, 2005, Leslie saw Dr. Cavanaugh for consultative psychiatric and intelligence evaluations. (Tr. at 254-58, 259-63). Leslie was on medication during the examinations. (Tr. at 275). At the time, Leslie was seven years eight months of age. (Tr. at 254). The psychiatric evaluation revealed that: Leslie's speech was not age appropriate; her thought processes were often incoherent; her attention and concentration were severely impaired due to her hyper nature; her recent and remote memory skills were severely impaired due to her inability to focus; and her judgment and insight were poor. (Tr. at 256). Intelligence testing revealed a standardized intelligence ...


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