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Oliver v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

February 18, 2015

CARMEN OLIVER, O/B/O, C.B.O., a minor Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

R. STEVEN WHALEN, Magistrate Judge.

In this cessation of benefits case, Plaintiff Carmen Oliver ("Plaintiff") brings this action on behalf of her minor daughter, C.B.O. ("Claimant") under 42 U.S.C. §405(g), challenging Defendant Commissioner's determination that Claimant was no longer disabled as of October 1, 2010. Both parties have filed summary judgment motions which have been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I recommend that Defendant's Motion for Summary Judgment be GRANTED and that Plaintiff's Motion for Summary Judgment be DENIED.

PROCEDURAL HISTORY

Claimant was previously found disabled on March 1, 2002 and awarded was Childhood Supplemental Security Income ("SSI") (Tr. 11). On November 3, 2011, Defendant determined that Plaintiff was no longer disabled as of October 1, 2010 (Tr. 11). Plaintiff requested an administrative hearing, held on September 21, 2012 in Livonia, Michigan (Tr. 39). Administrative Law Judge ("ALJ") Henry Perez, Jr. presided (Tr. 39). Plaintiff and Claimant, represented by attorney Joshua Moore, testified (Tr. 42-45, 46-53). On November 16, 2012, ALJ Perez found that Claimant's disability ended on October 1, 2010 (Tr. 29). On January 8, 2014, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision on March 7, 2014.

BACKGROUND FACTS

Claimant, born June 19, 1999, was 13 when ALJ Perez issued his decision (Tr. 19, 29). She alleges ongoing disability due to mental retardation, seizures, and an affective disorder.

A. Plaintiff's Testimony

Plaintiff offered the following testimony:

Her daughter ("Claimant") suffered from epilepsy, asthma, and a comprehension disorder (Tr. 42). Claimant needed academic instructions "broke[n] down" into steps by a special teacher (Tr. 43). Claimant used an inhaler for a respiratory condition (Tr. 43). Claimant had been experiencing asthma the past summer and had sought emergency treatment two weeks earlier (Tr. 43-44). Claimant was unable to comprehend more than one conversation at once (Tr. 44). She last had a seizure (mild) about four months before the hearing (Tr. 45). The second most recent seizure was approximately 16 months before the hearing (Tr. 49-50). Claimant sought emergency treatment for asthma in May, 2011, November, 2011, and September, 2012 (Tr. 49). Claimant had just started learning algebra and was "struggling, " but did not appear to experience difficulty in other courses at present (Tr. 51). Due to the history of seizures, Plaintiff was not able to participate in organized sports (Tr. 51).

B. Claimant's Testimony

Claimant offered the following testimony:

She had trouble following more than one conversation at a time (Tr. 46). The asthma created exertional fatigue (Tr. 46). She did not always understand academic instructions and sought extra help from a "resource room teacher" who would give her individualized attention (Tr. 46). She did not feel bad about requiring extra help but noted that on occasion she became "emotional" while interacting with her mother (Tr. 47).

In response to questioning by the ALJ, Plaintiff stated that she was right-handed and currently in eighth grade (Tr. 48). She required "resource room" help with "mostly" math (Tr. 48). Plaintiff acknowledged that her writing could be "sloppy" (Tr. 48). She denied current problems keeping up with her class (Tr. 51). Her teachers sometimes expressed impatience with her inability to understand concepts the first time they were explained (Tr. 52). She got along with her classmates and had friends at school (Tr. 52). She was able to finish her homework (Tr. 52).

C. Medical and Academic Evidence[1]

1. Treating and Academic Sources

March, 2010 academic records show that Claimant experienced problems in vocabulary, reading comprehension, and in certain areas of mathematics (Tr. 235). Claimant was "secure" or "developing" in writing, spelling, and basic multiplication (Tr. 235). She exhibited good social skills (Tr. 236). The same month, Claimant sought treatment for a finger injury (Tr. 342). Bassam Bashour, M.D. noted that Claimant had failed to follow up with treatment for asthma since the previous November, noting that she was "doing quite well" with current treatment and did not experience asthma symptoms frequently (Tr. 342, 358-359). In April, 2010, an evaluation found that Claimant experienced average reading skills, "low average" oral language skills, and low range mathematical skills (Tr. 246-247, 255, 259). Claimant was "mainstreamed" in all classes (Tr. 278). Her assessment noted that she was frequently absent or tardy "due to medical conditions" (Tr. 279). A May, 2010 evaluation recommended placement in the general curriculum (Tr. 240). The evaluation states that she did not require special education, but required extra time for tests and the use of a math calculator (Tr. 240-241, 271-272). Claimant was deemed able to participate in mainstream physical education (Tr. 241). The same month, treating notes state that her asthma was under control (Tr. 291, 340). The following month, Dr. Bashour reiterated that Claimant's asthma was ...


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