Annette Jackson On Behalf of K.J. v. Astrue
| Decision Date | 16 August 2010 |
| Docket Number | Civil Action File No. 1:09-CV-174-TWT |
| Parties | Annette JACKSON on behalf of K.J., Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Jaya Perry Shurtliff, Olinsky & Shurtliff, Syracuse, NY, Kathleen Marie Flynn, Kathleen M. Flynn, Attorney at Law, Decatur, GA, for Plaintiff.
Neeli Ben-David, U.S. Attorney's Office, Atlanta, GA, for Defendant.
This is an action seeking review of a decision by the Commissioner denying the Plaintiff's application for Social Security disability benefits. It is before the Court on the Report and Recommendation [Doc. 18] of the Magistrate Judge recommending reversing the decision and remanding for reevaluation by the ALJ. The Court approves and adopts the Report and Recommendation as the judgment of the Court. The decision of the Commissioner is REVERSED and the case is REMANDED for reevaluation.
Attached is the Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), N.D. Ga. R. 72.1(B) and 83.9(A), and Standing Order 08-01 (N.D. Ga. June 12, 2008). Let the same be filed and a copy, with a copy of this order, be served upon counsel for the parties, or if not represented, then directly upon said party.
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within fourteen (14) days of service of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to any transcripts if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir.1983).
The Clerk is directed to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.
IT IS SO ORDERED.
Annette Jackson, on behalf of K.J. ("Plaintiff"),1 brought this action pursuant to § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying the application for Supplemental Security Income ("SSI") Benefits. For the reasons stated below, the undersigned RECOMMENDS that the Commissioner's final decision be REVERSED AND REMANDED.
Plaintiff initially filed an application for SSI benefits on April 27, 2005, alleging disability commencing on January 1, 2001.2 [ See Record (hereinafter "R") 14, 54-57, 64]. Plaintiff's application was denied initially and on reconsideration. [R34-35]. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ") on November 3, 2005.[R42]. An evidentiary hearing was held on June 30, 2008. [R424-45]. Following the hearing, the ALJ issued an unfavorable decision on July 23, 2008. [R14-25]. Plaintiff sought review of the ALJ's decision. [ See R419-23]. The Appeals Council denied Plaintiff's request for review on October 17, 2008, rendering the ALJ's decision the final decision of the Commissioner. [R7-9].
Plaintiff then filed a civil action in this Court on December 19, 2008, seeking review of the Commissioner's final decision. Annette Jackson on behalf of K.J. v. Michael J. Astrue, Civil Action File No. 1:09-CV-00174-TWT-AJB. [Doc. 2]. The answer and transcript were filed on September 14, 2009. [Docs. 8-9]. Plaintiff filed the initial brief on October 19, 2009, [Doc. 12], and the Commissioner filed a response on November 18, 2009, [Doc. 14]. Plaintiff filed a reply brief on December 3, 2009. [Doc. 15]. The undersigned held a hearing for oral arguments on February 4, 2010. [ See Doc. 17]. The matter is now before the Court upon the administrative record, oral argument, and the parties' pleadings and briefs and is ripe for review pursuant to 42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g).
A May 2005 Function Report for a Child between 6 and 12 indicated that Plaintiff did not have problems talking clearly, but she mispronounced words sometimes. [R79]. Plaintiff could not repeat stories or tell jokes, and she would need to have instructions re-explained. Plaintiff could, however, deliver messages, explain her actions, use sentences with "because," "what if," or "should have been," and talk with family and friends. [R80]. Plaintiff could: read capital letters and small letters; read simple words; read and understand simple sentences; read and understand stories in books or magazines; print letters and her name; write in longhand; add and subtract with numbers greater than 10; tell the day of the week and month; and tell time. Plaintiff could not spell most 3-4 letter words, write a simple story, or explain money. [R81]. Plaintiff could perform most physical activities such as running, throwing a ball, riding a bike, dressing dolls, and jumping rope, but she could not swim. [R82]. Plaintiff's impairments affected her behavior with other people in that Plaintiff could not play team sports and she was easy to influence. Plaintiff could, however, make friends and get along with adults and teachers. [R83]. Plaintiff's impairment affected her ability to help herself and take care of her needs by preventing her from combing her hair, picking up toys, hanging up clothes, and accepting criticism. Despite these problems, Plaintiff could use zippers and buttons, tie shoe laces, use utensils to eat, help around the house, obey safety rules,and get to school on time. [R84]. Plaintiff's ability to pay attention was limited in that Plaintiff could not finish tasks she started or complete homework. Plaintiff kept busy on her own, worked on arts projects, and sometimes completed chores. Plaintiff had low self esteem because she could not keep up with other students in spelling and reading. [R85]. Plaintiff was in special education classes, and she was two grade levels behind. [R86].
In an August 2005, Disability Report-Appeal, Plaintiff's guardian (her grandmother) reported that Plaintiff had a learning disability and speech problems, which prevented her from making progress in school. [R70]. Plaintiff had to be reminded to tend to personal needs, and she would forget quickly. Plaintiff was easy to distract. Plaintiff had low self esteem and depression. [R74].
Social Worker Jackie Haar completed a Social Work Psychological Assessment on January 18, 2005. [R340]. The form indicated that Plaintiff had no support from her nuclear family or from social/recreational family activities. Plaintiff was delayed in her communication skills. Plaintiff had financial difficulties in that she was on Medicaid and food stamps. Plaintiff suffered neglect when her mother had cared for her. Plaintiff had educational issues because she was only in the third grade but was supposed to be in the fifth grade. [R341]. Plaintiff's grandmother noted that she was concerned about Plaintiff's self-esteem. [R343].
On July 28, 2005, speech language pathologist Sharonda Coleman-Singleton performed a Speech Language Evaluation of Plaintiff. [R334-35]. Plaintiff's test results were as follows: 18th percentile in listening comprehension; 16th percentile in oral expression; 14th percentile in oral composite, 25th percentile in receptive one-word vocabulary test; and 5th percentile in expressive one-word vocabulary. Based on these results, Coleman-Singleton found that Plaintiff's language and receptive vocabulary skills were within the "typical range" as compared to peers, but that her expressive vocabulary skills were "somewhat disordered." Plaintiff demonstrated difficulty with grammar and semantics. Coleman-Singleton did not recommend speech/language therapy for Plaintiff. [R335].
On August 12, 2005, non-examining speech pathologist Patricia M. Higgins completed a Childhood Disability Evaluation Form. [R327-33]. Higgins found that Plaintiff had a moderate language impairment, [R327], which resulted in less than marked limitations in the domain of acquiring and using information due to problems with expressive language, [R329].
Non-examining psychologist David Williams, Ph.D., completed a Childhood disability evaluation form on August 17, 2005, finding that Plaintiff's impairments involving language and moderate learning disability were severe but did not meet or equal a Listing. [R320]. Williams noted that Plaintiff was in special education classes, but she had average IQ with learning disabilities in processing, math, and spelling. Williams determined that this did not meet or equal a Listing. [R325].3
On September 2, 2005, Plaintiff saw Dr. Ruth Shim for a history of a depressed, sad mood, being withdrawn, limited interaction with family and friends, and school difficulties, including being held back inthe fourth grade. Dr. Shim's evaluation note indicated that Plaintiff: was oriented to person, place, situation and time; was neat in appearance; made tight associations; acted appropriately; had intact cognition; was cooperative; had fair insight, judgment, and memory; had normal speech; and had appropriate thought content. Dr. Shim noted that Plaintiff was initially withdrawn and distractible, but she became interactive and imaginative. Dr. Shim diagnosed Plaintiff with depressive disorder NOS. [R302].
Dr. Shim saw Plaintiff on September 16, 2005, and...
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