United States District Court, E.D. Kentucky, Southern Division, London
PAMELA ROMERO, on behalf of SB. G. Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
C. REEVES, UNITED STATES DISTRICT JUDGE.
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.
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).
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]
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]
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."
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.
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]
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
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]
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]