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Romero v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, London

January 8, 2018

PAMELA ROMERO, on behalf of SB. G. Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          DANNY C. REEVES, UNITED STATES DISTRICT JUDGE.

         Plaintiff Pamela Romero (hereafter, "Romero" or the "Plaintiff) and Defendant Nancy A. Berryhill (hereafter, the "Defendant" or the "Commissioner") have filed cross-motions for summary judgment. [Record Nos. 1');">1');">1');">14, 1');">1');">1');">16] Romero challenges the Commissioner's finding that her minor child (hereafter, "SGB") is no longer disabled. She contends that benefits should be awarded or, in the alternative, that the matter should be remanded for further proceedings. However, the Commissioner asserts that the decision to discontinue benefits is supported by substantial evidence and should be affirmed. For the reasons that follow, the Romero's motion will be denied and the Commissioner's motion will be granted.

         I. PROCEDURAL HISTORY

         Romero's daughter, SGB, was born in September 1');">1');">1');">1999. [Administrative Transcript, "Tr., " 44] SBG had severe developmental delays with respect to speech and language as a young child. [Tr. 250] She was awarded Supplemental Security Income ("SSI") benefits in February 2003 based on these limitations. The Commissioner reevaluated SBG's claim when she was 1');">1');">1');">12 years old and determined that SBG was no longer disabled. [Tr. 55-56] The decision was upheld on reconsideration and by an Administrative Law Judge ("ALJ") following an administrative hearing. [Tr. 78] The Appeals Council denied the Romero's request for review on May 24, 201');">1');">1');">17. As a result, Romero has exhausted her administrative remedies and this matter is ripe for review under 42 U.S.C. §§ 1');">1');">1');">1383(c)(3) and 405(g).

         II. BACKGROUND

         SBG began receiving SSI benefits on February 1');">1');">1');">12, 2003, due to a communication disorder. [Tr. 52] At nearly four years old, she was able to say "mommy" and "daddy, " but no other intelligible words. [Tr. 53] When SBG's eligibility for benefits was reviewed in 201');">1');">1');">12, she was a healthy sixth grader who had only received treatment for typical childhood illnesses. [Tr. 268-291');">1');">1');">1] Romero completed a continuing disability questionnaire on SBG's behalf and listed "autism" as the condition that limited the child's ability to do the same things as other children her age. [Tr. 1');">1');">1');">175]

         Timothy Baggs, Psy. D., performed a psychological consultative examination in March 201');">1');">1');">12. [Tr. 293] Romero advised Baggs that SBG had been diagnosed with autism seven years ago, but was not receiving any psychiatric or psychological treatment. [Tr. 296] She also told Baggs that SBG engaged in pica behavior but, on further inquiry, Baggs determined that this had not occurred in several years. [Tr. 295]

         Baggs administered the Weschler Intelligence Scale for Children-IV ("WISC-IV") and the Wide Range Achievement Test-IV. [Tr. 293-302] The WISC-IV results suggested that SBG was functioning intellectually in the low-average range. [Tr. 297] The Wide Range Achievement Test-IV indicated that SBG's ability to read, spell, and perform math computations was several grade levels below her actual grade at the time. [Tr. 298] Specifically, her reading grade equivalent was 3.9; spelling was 4.0; and math computation was 2.2. [Tr. 298] Baggs did not believe that SBG's symptoms were consistent with autism but, instead, with a "very mild pervasive developmental disorder and/or [a] learning disability related to reading and mathematics." [Tr. 301');">1');">1');">1]

         Kara Kolenda, M.A., performed a speech evaluation in April 201');">1');">1');">12. [Tr. 305] Kolenda found that SBG's vocal quality and fluency were normal during spontaneous communication. [Tr. 306] She demonstrated no articulation errors and her speech was completely intelligible at all times during the assessment. Id. SBG possessed normal language ability for all tasks and her ability to follow directions and understand varying degrees of complex input was adequate. Id. Ultimately, Kolenda concluded that SBG had normal communication abilities which should support performance of all academic, vocational, and social tasks. Id.

         Romero was notified on May 1');">1');">1');">14, 201');">1');">1');">12, that SBG was no longer disabled under the Social Security Act (hereafter, the "Act") and, therefore, no longer qualified for SSI. [Tr. 59] Later that month, SBG presented to Cumberland River Behavioral Health Center for mental health treatment. [Tr. 322] Romero advised the clinician that SBG had been diagnosed with autism when she was five, that she had difficulty following directions, fought with her siblings, was disrespectful, and received poor grades. [Tr. 322] SBG participated in individual and group therapy over a period of several years at Cumberland River. Treatment notes describe her as happy and talkative, attentive and alert, and as showing positive social skills. [Tr. 355] Although the SBG's judgment was described as marginal, her therapist found her to be "verbal, active, friendly, [and] cooperative." [Tr. 356] SBG received treatment through at least 201');">1');">1');">15, during which she continued to address stress management and social skills. [Tr. 392-396]

         In the meantime, Romero requested an administrative hearing before an ALJ. The request for a hearing was granted and Romero appeared without a representative in June 201');">1');">1');">15. [Tr. 85, 35] The ALJ explained Romero's right to have a representative present and discussed with her various options for obtaining representation. [Tr. 35-36] Romero indicated that she wished to postpone the hearing to secure representation. [Tr. 36] The ALJ agreed and the hearing was rescheduled for November 201');">1');">1');">15.

         But Romero still had not obtained a representative when the hearing resumed five months later. The hearing proceeded, during which Romero was the sole witness. She testified that SBG was "not very sociable" and did not like people because they made her nervous. [Tr. 45] She reported that SBG was taking Risperidone, but could not focus, had a habit of pulling her hair, and could not shower on her own. [Tr. 45-47] Further, Romero added that SBG had "sad spells" and heard voices. [Tr. 50] Romero also reported that SBG was not doing well in school and was failing "about three subjects." [Tr. 45-46]

         The ALJ issued a written decision on May 2, 201');">1');">1');">16. He concluded that SBG's ability to communicate was normal as of May 1');">1');">1');">1, 201');">1');">1');">12, and, accordingly, she was no longer disabled as a result of a communication impairment. [Tr. 1');">1');">1');">19] The ALJ further determined that SBG had the severe impairments of developmental disorder and oppositional defiant disorder, but that neither impairment met, medically equaled, nor functionally equaled a listed impairment. Accordingly, SBG was deemed not disabled under the Act. [Tr. 23-28]

         III. ...


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