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Ldr v. Colvin

United States District Court, N.D. Indiana, South Bend Division

March 17, 2015

LDR, a minor by his mother and guardian, ROSHONDA R. WAGNER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JON E. DEGUILIO, District Judge.

On September 11, 2013, Plaintiff LDR, a minor, brought this lawsuit by his mother and guardian, Roshonda R. Wagner, seeking review of the final decision of the Defendant Commissioner of Social Security (Commissioner) [DE 1]. The Commissioner filed an Answer on March 7, 2014 [DE 14]. On July 12, 2014, LDR's counsel filed his opening brief [DE 22], to which the Commissioner responded on November 10, 2014 [DE 30]. LDR's reply was filed on November 25, 2014 [DE 31]. Accordingly, the matter is now ripe for decision. Jurisdiction is predicated on 42 U.S.C. §§ 405(c) and 1383.

I. Procedural History

On September 25, 2009, Roshonda Wagner applied for Supplemental Security Income on behalf of her son, LDR, alleging that his disability began on April 1, 2008 (Tr. 118-123). His application was denied initially on January 4, 2010, and again upon reconsideration on February 7, 2011 (Tr. 66-69, 75-77). After at least twice receiving written notices of her right to be represented (Tr. 81-87, 96-109), on January 24, 2012, Ms. Wagner waived the right to representation at the hearing which was held before Administrative Law Judge Jennifer Fisher (Tr. 30-62, 112-113). On April 18, 2012, ALJ Fisher issued a decision denying the claim (Tr. 11-25). The Appeals Council denied a request for review on July 16, 2013, making the ALJ's decision the final decision of the Commissioner (Tr. 1-6).

II. Facts

In seeking disability for her son, Ms. Wagner claims that LDR suffers from severe asthma, ear infections, and behavioral issues. The ALJ agreed that LDR suffered from severe impairments, including asthma, sleep apnea (OSA), language delay, and behavior disorder. But the ALJ believed that his impairments did not meet, medically equal, or functionally equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 416.924, 416.925, 416.926, 416.926a. As a result of the three-step process employed for determining whether an individual under the age of eighteen is disabled, see 20 C.F.R. § 416.924(a), the ALJ determined that LDR was not entitled to disability benefits-a decision which is now before the Court for review.

A. Medical Background

Shortly after his birth on March 19, 2008, LDR suffered from tracheomalacia (abnormal collapse of the tracheal walls), exertional dyspnea (breathlessness), and difficulty with asthma (Tr. 241, 246). In April, Dr. Andrew G. Lapadat, M.D., LDR's pediatrician, prescribed albuterol (Tr. 196) and referred LDR to Dr. Michael Agostino, M.D., in order to treat his throat and breathing problems (Tr. 191).

Dr. Agostino noted that at eight weeks old, LDR breathed noisily and with mild distress when active (Tr. 182-191). Dr. Agostino observed that LDR's epiglottis was in a tight omega shape, a condition seen in laryngomalacia (congenital softening of the tissues of the voice box). Dr. Agostino had LDR discontinue his breathing treatments and required him to sleep as upright as possible. At four months old, LDR was emitting a high-pitched crowing sound when he inhaled. Holding him upright relieved the noise but albuterol did not. Dr. Agostino diagnosed LDR with congenital anomaly of the larynx.

In August 2008, Dr. Lapadat diagnosed the dry patches on LDR's back, chest, abdomen, and upper arms as eczema (Tr. 194). In November 2008, LDR was noted as having a prolonged upper respiratory infection marked by coughing and wheezing, along with a body rash[1] (Tr. 192, 230-231). The following month, LDR had renewed stridor (a harsh vibrating noise when breathing caused by obstruction of the windpipe or larynx) and high-pitched inhalation (Tr. 241).

At LDR's 12-month physical, Dr. Lapadat observed that LDR's ears were still bothering him (Tr. 226), and LDR's suffering from bilateral otitis media continued (Tr. 220, 222, 224). By September and October 2009, LDR had multiple visits to the doctor on account of ear infections, fussiness, and banging of his head (Tr. 217-218). In October, LDR was actually taken to the emergency room for banging his head and a high fever likely associated with a virus (Tr. 200, 206).

Dr. Lapadat referred LDR to Savita Collins, M.D. (of the South Bend Clinic's Department of Otolaryngology), for an evaluation of his chronic otitis media with effusion (fluid remaining in the middle ear for a long time or returning over and over again) (Tr. 200-202). On October 21, 2009, Dr. Collins evaluated LDR and observed bilateral effusion with more mucoid effusion on the left than the right. LDR's head banging was associated with the pain he felt from infection and nasal drainage. Sound field testing results showed scores in the 20 to 30 dB (decibel) range, with LDR having a speech reception threshold of 10.[2] Dr. Collins noted that the fluid from behind LDR's eardrums had not cleared since May, even with approximately six courses of antimicrobial therapy and rocephin injections. Because LDR had effusions for over three months with ineffective treatment, Dr. Collins recommended ear tube placement despite the risks. On November 3, 2009, Dr. Collins performed LDR's ear surgery involving pressure equalization tube placement in both ears (Tr. 209-211, 233).

The following day, Dr. Lapadat wrote in relevant part:

[LDR] is a 19-month-old patient here at Bristol Street Pediatrics who has a past medical history significant for tracheomalacia as well as mild intermittent asthma. He also has a history of recurrent otitis media.... Of his chronic issues, his tracheomalacia has resolved. His asthma is, again, mild, intermittent, and requiring treatments on an as needed basis only at this point, and hopefully once he has tubes or outgrows his chronic ear problems that will not be a problem either. I see no reason why he will not lead a fully healthy, normal, productive life.

(Tr. 213).

Three consultive examinations were then performed (Tr. 234-252), along with the completion of a disability evaluation form by state agents (Tr. 253-258). Specifically, Clinical Psychologist Hugh Van Auken Sr.'s November 11, 2009, consultative examination involved testing of LDR via the Bayley Scales of Infant and Toddler Development (Tr. 234-239). All of LDR's scores fell at or below the 25th percentile, and LDR specifically ranked in the third percentile for language and in the one-tenth percentile for his social-emotional skills. LDR's overall skill level combined to form a General Adaptive Composite score that fell only in the second percentile. Psychologist Van Auken summarized his findings by stating:

Consultation findings reveal the presence of significant delays in language, social-emotional, and adaptive behavioral development for [LDR]. His level of functioning in these areas appears to lag behind more than 95% of his age mates. [LDR] evidences very poor receptive and expressive language skills, speaking only one word. He also appears to be an active, impulsive lad evidencing weaknesses in social, behavioral, and psychological functioning relative to his age mates.

Psychologist Hugh Van Auken's diagnostic impression was that LDR suffered from cognitive disorder NOS (characterized by suboptimal language, social-emotional, and adaptive behavioral development), along with frequent ear infections and asthma.

On December 10, 2009, Ralph Inabnit, D.O., conducted a physical examination of LDR, which resulted in his concluding that LDR suffered from asthma, bronchospasm, chronic otitis media, myringotomy (eardrum) tubes bilaterally, and possible speech delay (Tr. 240-248). He recommended speech ...

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