Keene v. Astrue

901 F. Supp. 2d 339, 2012 WL 5269624, 2012 U.S. Dist. LEXIS 152612
CourtDistrict Court, N.D. New York
DecidedOctober 24, 2012
DocketNo. 10-cv-00360 (WGY)
StatusPublished
Cited by4 cases

This text of 901 F. Supp. 2d 339 (Keene v. Astrue) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keene v. Astrue, 901 F. Supp. 2d 339, 2012 WL 5269624, 2012 U.S. Dist. LEXIS 152612 (N.D.N.Y. 2012).

Opinion

DECISION and ORDER

WILLIAM G. YOUNG, District Judge.1

I. INTRODUCTION

Helena Keene brings this action on be[341]*341half of her son, J.T.2 under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (“the Commissioner”) that denied her claims for Supplemental Security Income (“SSI”) benefits. Compl., ECF No. 1.

A. Procedural Posture

Helena Keene (“Keene”) applied for SSI benefits on behalf of J.T. on February 9, 2007. Admin. R. at 89-92, ECF No. 9. On May 30, 2007, the Regional Commissioner denied Keene’s application. Id. at 60-63. Keene filed a request for a hearing by an Administrative Law Judge (the “hearing officer”) the following day. Id. at 43. On April 24, 2009, the hearing officer issued a decision finding that J.T. was not disabled. Id. at 43-56. After the Appeals Council denied Keene’s request for further review on January 27, 2010, the hearing officer’s decision became final. Id. at 1-4.

On March 26, 2010, Keene filed the present action with this Court to review the decision of the Commissioner pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). See Compl. 1-4. The government filed an answer, Def.’s Answer, ECF No. 8, and both sides filed briefs in support of their respective positions. Issues Presented Review (“Pl.’s Mem.”), ECF No. 17; Mem. Law Supp. Def.’s Mot. J. Pleadings (“Def.’s Mem.”), ECF No. 19.

B. Facts of Record

1. Background

J.T. was born on February 28, 1999. Admin. R. at 46. J.T., while physically healthy, is a child with an attention deficit hyperactivity disorder (“ADHD”). Id. at 47. In November 2002, the Albany County Health Department, prompted by Keene’s concerns regarding delays in J.T.’s overall development, conducted a Multidisciplinary Evaluation of the three-year-old child. Id. at 222. Testing revealed deficiencies in intelligence and achievement, see id. at 223, 226, 230, in social and emotional functioning, see id. at 223, 226-27, 230, in fine motor skills, see id. at 223, 227, 230, and in all communication skills, see id. at 224, 228-29, 231. After meeting the criteria to receive services through the Committee on Preschool Special Education, J.T. was recommended to receive speech and language therapy, occupational therapy, and other special education services in a structured setting. Id. at 231-32.

2. Mental Impairments

a. Treating Physician

J.T. has received primary health care from the Whitney M. Young, Jr. Health Center since birth. Id. at 116. On May 25, 2005, at age six, J.T. was diagnosed with ADHD, and his pediatrician, Dr. Estrella Esguerra (“Dr. Esguerra”), prescribed him medications (including Ritalin). Id. at 182.

At a doctor’s visit on March 20, 2007, after Keene informed the doctor that J.T.’s medication had not been working, Dr. Esguerra prescribed J.T. 27 mg of Concerta, continued a preexisting dosage of 5 mg of Ritalin to be taken at noon, and added Clonidine to help with sleep issues. Id. at 203-04. On April 12, 2007, the doctor noted that J.T. had a decreased appetite and had lost weight. Id. at 161-62. Because J.T. often became quiet and stared after taking his medication, Dr. Esguerra [342]*342recommended discontinuing the noon dose of Ritalin. Id. At a doctor’s visit on May 15, 2007, Keene and J.T.’s teacher informed Dr. Esguerra that Concerta “does not work for [J.T.].” Id. at 163. Dr. Esguerra herself observed that J.T. was very active during the appointment and noted his short attention span. Id. at 164. The doctor then prescribed 20 mg of Ritalin per day, with 10 mg of Ritalin to be taken in the afternoon. Id.

Doctor’s notes from October 22, 2007, indicated that J.T.’s daily dosage of Concerta had risen to 36 mg.3 Id. at 394. J.T.’s school nurse, however, noted that Concerta did not work well and that the school was out of that medication. Id. The doctor’s notes also indicated that J.T. was still hyperactive, had problems focusing, is easily distracted, took too long to complete his homework, and experienced difficulty interacting with peers. Id. Even though J.T.’s teachers were concerned about his continued symptoms and were unable to control him, the teachers noted that J.T.’s “[g]rades [were] doing well.” Id. In assessing J.T.’s general appearance, Dr. Esguerra observed that J.T. was “alert, active, pleasant, well nourished and hydrated.” Id. Dr. Esguerra questioned J.T.’s compliance with regard to taking his medication but nevertheless proceeded to prescribe him 36 mg and 0.1 mg of Concerta and Clonidine, respectively. Id.

On December 12, 2007, Dr. Esguerra again noted that J.T.’s school reported being out of required medication and was requesting a three-month supply of said medication. Id. at 392. J.T.’s teachers reported that they were happy with his progress, remarking that J.T. had problems when he was not on medication. Id. Nonetheless, J.T. still had trouble focusing, and even though he had many friends, he continued to experience difficulty interacting with peers and had mood swings. Id. J.T.’s mother reported that J.T. sometimes complained of feeling dizzy after taking Clonidine. Id.

Dr. Esguerra’s treatment notes, dated April 15, 2008, revealed that Keene expressed concern over J.T.’s inability to gain weight and picky eating habits. Id. at 401. J.T. was still described as hyperactive and lacked meaningful friendships, but his teachers were happy with his progress and had no complaints. Id. As a result, the dosage of Concerta was continued at 36 mg, but Clonidine was discontinued because J.T. was sleeping better. Id.

During a doctor’s visit on September 18, 2008, Keene again expressed concern about J.T.’s weight. Id. at 399. Consequently, Dr. Esguerra proposed decreasing the dosage of Concerta to 27 mg daily. Id. at 400. During this visit, the doctor observed that J.T. was able to tell time, read for pleasure, and had a sense of humor. Id. at 399.

J.T. next visited Dr. Esguerra on December 12, 2008. Id. at 397-98. The doctor was again told that J.T.’s medication was not working and that his hyperactivity had increased. Id. at 397. Further, J.T. was having difficulty focusing in school and exhibited behavioral problems such as “acting out,” being “disrespectful to adults,” and being “impulsive.” Id. J.T. was increasingly disruptive in class, did not listen well, and had hit other students “because they bother[ed] him.” Id. (internal quotation marks omitted). Dr. Esguerra diagnosed ADHD and behavioral problems (specifically, aggression and possible oppositional defiant disorder), as well as insufficient weight gain. Id. at 397-98. The doctor recommended starting Risper

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Bluebook (online)
901 F. Supp. 2d 339, 2012 WL 5269624, 2012 U.S. Dist. LEXIS 152612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keene-v-astrue-nynd-2012.