United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON JUDICIAL REVIEW
William T. Lawrence, Judge
mother, Raychelle Marbley, requests judicial review of the
final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying her
application on behalf of her minor son, C.L.J., for
Supplemental Social Security Income (“SSI”) under
Title XVI of the Social Security Act (“the Act”).
The Court, having reviewed the record and the briefs of the
parties, now rules as follows.
filed an application for SSI on September 23, 2011, alleging
that C.L.J. became disabled on April 1, 2011, due to mixed
expressive and receptive language delays with bilateral ear
dysfunction, failure to thrive/developmental delay, and
borderline intellectual functioning. Her application was
denied initially and upon reconsideration. Thereafter, she
requested and was granted a hearing before an administrative
law judge (“ALJ”). The hearing was held on July
10, 2013, before ALJ Mark C. Ziercher. At the hearing, C.L.J.
was represented by Melissa Davidson, an attorney, and Marbley
testified. On February 25, 2014, the ALJ rendered his
decision in which he concluded that C.L.J. was not disabled
as defined by the Act. The Appeals Council upheld the
ALJ's decision and denied the request for review.
Subsequently, this action for judicial review ensued.
EVIDENCE OF RECORD
was born premature at 35 weeks on October 25, 2010. On
August, 26, 2011, a multidisciplinary team determined that
C.L.J. was eligible for services from First Steps because he
was -2 standard deviations in gross motor function and -1.5
standard deviations in fine motor function. The team found
that C.L.J. “display[ed] weakness in his abdominal
muscles that are impacting his ability to sit with good
posture, assume hands and knees and crawl.” Record at
213. On September 9, 2011, C.L.J. was admitted to the
hospital for poor weight gain and treated for failure to
thrive. C.L.J. gained weight at the hospital and was
discharged after two days. On September 30, 2011, C.L.J. was
admitted to a Shadeland Family Care Center for an upper
respiratory infection. At this visit, the nurse practitioner
noted that C.L.J. had gained 12 ounces in the last three
weeks. However, his weight remained at the 0 percentile and
his height had dropped from the 13th to the 7th percentile.
On October 25, 2011, C.L.J. was seen at Shadeland for a
twelve month check-up. During this evaluation, the nurse
practitioner noted that C.L.J. had gained 6.4 ounces in seven
November 30, 2011, C.L.J. was administered a BAYLEY-III. The
test indicated that C.L.J. likely had Mixed
Receptive-Expressive Language Disorder, Borderline
Intellectual Functioning, Gross Motor Delay, and a GAF of 50.
The examiner opined that C.L.J.'s “language delay
interferes with his ability to understand, remember and carry
out simple directions.” Id. at 353. The
examiner also wrote that C.L.J. “is able to relate to
others, non-verbally, on a superficial basis in a social
December 27, 2011, C.L.J. underwent a consultative
examination which noted delays in his articulation and
expressive language as well as a severe delay in receptive
language. The examiner expressed no concerns with
C.L.J.'s hearing, voice, fluency, or oral-motor function.
However, the report noted that C.L.J. only spoke one word:
“dada.” Id. at 381.
medical experts with the state's Disability Determination
Services initially reviewed C.L.J.'s medical record
between December 14, 2011, and January 13, 2012, and
concluded his impairments did not medically or functionally
equal any listing. These experts concluded that C.L.J. had a
marked limitation in acquiring and using information and had
less than marked limitations in attending and completing
tasks, interacting and relating with others, moving and
manipulating objects, caring for himself, and health and
physical well-being. Subsequently, three other medical
experts with the Disability Determination Services reviewed
C.L.J.'s medical record between February 23, 2012, and
February 26, 2012, and concluded again that his impairments
did not medically or functionally equal any listing. During
the second review, the medical experts opined that C.L.J. had
no limitations regarding the attending and completing tasks
and caring for himself domains.
1, 2012, First Steps issued a progress report regarding
C.L.J. The report stated that C.L.J. had made excellent
progress, and he was able to sit well, maintain and play on
his hands and knees, and stand briefly and walk with a push
toy. The report also noted he had difficulty weight shifting
to walk smoothly, was uncontrolled with one hand-held assist,
and required moderate assistance to transition from floor to
standing. Finally, the report indicated that C.L.J. remained
in the 5th percentile for length.
18, 2012, a First Steps team member assessed C.L.J. and
determined he was still eligible for the program. The
assessment indicated that he had -2 standard deviations
scores in fine motor, gross motor, adaptive, social
communication, and social categories. The evaluation also
noted that C.L.J.'s cognitive score was -1 standard
March 4, 2013, C.L.J. underwent an audiology evaluation which
revealed bilateral flat, middle ear dysfunction in both ears.
The examiner found C.L.J.'s “[s]oundfield responses
in the moderately-severe to moderate range in at least better
ear, with possible conductive component.” Id.
at 439. The examiner noted that C.L.J.'s hearing might
improve if it was due to the temporary middle ear
dysfunction. However, if C.L.J. experienced “frequent
or persistent middle ear fluid and infections, an
Ear-Nose-Throat (ENT) physician may need to be consulted
regarding possible treatment options, including pressure
equalization (P.E.) tubes and antibiotics.”
Id. at 442.
13, 2013, Marbley testified before ALJ Ziercher. At the
hearing, Marbley reemphasized C.L.J.'s difficulties
communicating and the recent problems with his hearing.
Marbley also stated that C.L.J. now attends KinderCare. On
August 8, 2013, a teacher at C.L.J.'s school, KinderCare,
partially completed an assessment regarding his functioning.
The questionnaire noted that C.L.J. did not speak, but
concluded that all other domains seemed age appropriate. On
September 3, 2013, C.L.J. had bilateral myringotomies with
the insertion of ventilation tubes. His follow-up appointment
was scheduled for a year later and is not a part of the