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C.L.J. v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

August 26, 2016

C.L.J., a minor by his mother, RAYCHELLE MARBLEY, Plaintiff,
CAROLYN W. COLVIN, Commissioner of the Social Security Administration, Defendant.


          Hon. William T. Lawrence, Judge

         Plaintiff's 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.


         Marbley 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.


         C.L.J. 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 days.

         On 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 setting.” Id.

         On 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.

         Three 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.

         On June 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.

         On July 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 deviation.

         On 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.

         On July 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 record.

         III. APPLI ...

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