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Braggs v. Berryhill

United States District Court, E.D. Louisiana

February 12, 2019

JAQUANA BRAGGS ON BEHALF OF B.B.
v.
NANCY A. BERRYHILL, Acting Commissioner OF THE SOCIAL SECURITY ADMINISTRATION

         SECTION: “B” (1)

          IVAN L. R. LEMELLE, JUDGE

          REPORT AND RECOMMENDATION

          Janis van Meerveld, United States Magistrate Judge

         The plaintiff, Jaquana Braggs on behalf of the minor child B.B., seeks judicial review, pursuant to Section 405(g) of the Social Security Act (the “Act”), of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying B.B.'s claim for supplemental security income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3). The matter has been fully briefed on cross-motions for summary judgment. For the following reasons, IT IS RECOMMENDED that the Motion for Summary Judgment filed by the plaintiff (Rec. Doc. 15) be DENIED; and the Motion for Summary Judgment filed by the Commissioner (Rec. Doc. 20) be GRANTED.

         Procedural Background

         On March 5, 2015, an application for SSI was filed on behalf of B.B. asserting a disability onset date of January 1, 2011. The following illnesses, injuries, or conditions were alleged: attention deficit hyperactivity disorder. On September 9, 2015, B.B.'s claim was denied by the state agency. The Disability Determination Explanations concluded the “[m]edical evidence shows that [B.B.] has been diagnosed with ADHD. However, he is taking medication. He can perform activities normal for his age. His condition does not render him totally disabled at this time.” R. at 98.

         Plaintiff obtained counsel and requested a hearing before an Administrative Law Judge (“ALJ”), which was held on November 16, 2016. On January 13, 2017, the ALJ issued an adverse decision. Plaintiff timely appealed to the Appeals Council, which denied review on November 20, 2017.

         On January 24, 2018, filed a Complaint in federal court to review the Commissioner's decision. (Rec. Doc. 1). The Commissioner answered and filed the administrative record. (Rec. Docs. 11, 12). The parties filed cross-motions for summary judgment. (Rec. Docs. 15, 20). Plaintiff is represented by counsel.

         Evidence in the Record

         Testimony

         A hearing took place before the ALJ on November 16, 2016. R. at 32. B.B. was represented by counsel, and his mother was also present at the hearing. R. at 32.

         B.B. testified that he likes school “sometimes” because he likes reading and math, but he gets frustrated when he gets something wrong on a test or in his work. R. at 40. B.B. testified that he has about ten friends at school and that he gets along well with them. R. at 41. He testified that he has gotten in trouble in class with his teachers and that the most recent time was the previous week for talking out of turn and being disrespectful. R. at 41. He said that happens every month or week. R. at 42.

         B.B. testified that he has daily chores of cleaning the toilet, cleaning his room, and making his bed. R. at 43. But he said his older sister or his mother have to remind him to do his chores. R. at 44. He testified that he bathes himself and can remember to do that on his own, but that he needs to be reminded to brush his teeth and get dressed every day. R. at 45.

         B.B.'s mother Jaquana Braggs also testified. She reported that she noticed a problem with B.B.'s functioning when he began pre-kindergarten and she received reports from school that he was impulsive and was not focusing. R. at 49. She testified that at the time of the hearing, B.B. was in fourth grade, but he was reading at a second-grade level. R. at 56. She said he had a reading comprehension problem. R. at 56. She explained that B.B. has been on a 504 Plan at school for three and a half years and that he gets accommodations like being pulled out in small groups, help with testing, and extra time on his classwork and on his tests. R. at 49. She testified that she did not think the interventions he was receiving were enough. R. at 59.

         Ms. Braggs testified that B.B. sees his psychiatrist Dr. Cochran once a month and his therapist Mr. Keith twice a week. R. at 53. Ms. Braggs testified that she has to give B.B. Adderall for ADHD every day so that he will be able to focus at school. R. at 52, 54. Without that, she said, she will get a phone call reporting that B.B. is being disrespectful and when she speaks to him over the phone he will say he is not disrespecting his mother, but he will be talking back and not listening. R. at 52.

         Ms. Braggs testified that B.B.'s ADHD symptoms have improved with his medication, but he still has issues with symptoms. R. at 55. She agreed with the assessment that B.B. had experienced 90% improvement with medication. R. at 60. But she noted that she has to remind him to complete his homework. R. at 56. She testified that B.B. does not play well with other children because he wants people to listen to him and he wants to direct them, but when they do not listen to him he gets aggressive. R. at 57. She said he can play sports, but when he does not win he wants to argue and fight. R. at 57. Ms. Braggs testified that B.B. does not get along well with his teachers, who say he is disrespectful and talks back. R. at 58. She testified that B.B. has been developing mood swings, and that she has discussed this with his psychiatrist and they are monitoring him for now. R. at 60.

         Ms. Braggs testified that B.B. has chores at home, but he cannot complete them independently. R. at 58. Ms. Braggs testified that B.B. cannot take feedback or accept losing a game. R. at 50. She said he shows aggressiveness and mood swings towards her. R. at 50. He blows his breath and stomps and walks away. R. at 50. Sometimes he gets in physical fights with his peers around his neighborhood, and as a result, Ms. Braggs said she had been keeping B.B. inside more. R. at 50-51.

         As to other issues, Ms. Braggs testified that B.B. sleepwalks. R. at 51. Ms. Braggs also testified that B.B. had hearing problems as a young child and had several surgeries since the age of 3. R. at 52. She said the surgery went well, although he cannot have water in his ears. R. at 53.

         Medical Records

         B.B.'s first quarter report card dated September 26, 2013, from ReNEW Schaumburg Elementary includes the following behavior comments “[y]our child's behavior is directly affecting their education. It is a daily struggle to have your child stay focused and on task. Your child is often instigating situations such as talking, distracting other students, and leaving their desk without permission.” R. at 293.

         On December 3, 2013, B.B. underwent a psychiatric evaluation with Dr. Stephen R. Cochran at the Center for Hope. R. at 483. B.B.'s mother reported that B.B. had been diagnosed with ADD with ADHD at the Guidance Center. R. at 483. She said B.B. had been having problems with hyperactivity, attention, and focus since pre-kindergarten. R. at 483. She reported that B.B. was talking out in class, was being disruptive, and was disrespectful of authority. R. at 483. During the examination, B.B.'s attitude was cooperative. R. at 484. Dr. Cochran noted an impression of ADHD with probable underlying mood disorder. R. at 485.

         B.B.'s second grade report card for Q1 (generated on September 25, 2014) reports a grade of C in English Language Arts, an incomplete for math, and a C for nonfiction. R. at 347. B.B's Section 504 Individual Accommodation Plan (“IEP”) dated September 22, 2014, assigns B.B. accommodations including increased time for classwork and tests, breaks, small group testing, and preferential seating. R. at 351.

         B.B. was seen at the Rapid Treatment Program and Children's Hospital for ADHD. R. at 358. Dr. Maryling G. Walker, a licensed medical psychologist, issued a report on January 15, 2015, listing the results of an assessment that had been completed on July 2, 2014. R. at 358. Dr. Walker reported B.B.'s verbal intelligence was in the average range and his performance was in the borderline range. R. at 358. His word reading, sentence completion, and math computation were average. R. at 358. His spelling was low average. R. at 358. Formal educational assessment was recommended to rule out a disorder of written language. R. at 358. It was also recommended that B.B. be assessed for a 504 plan or other interventions. R. at 358.

         Meanwhile, on March 3, 2015, in conjunction with the application for disability benefits, Ms. Braggs completed a Function Report for B.B. on March 3, 2015. R. at 164. She reported that B.B. has friends his own age and generally gets along with school teachers, but cannot make new friends, get along with other adults, or play team sports. R. at 170. She explained that when B.B. plays with other children he “gets controlling and when things don't go his way he starts hollering.” R. at 170. She reported that he can use a zipper by himself, button clothes by himself, take a bath or shower without help, brush his teeth, comb or brush his hair, wash his hair by himself, choose clothes by himself, eat using a knife, fork, and spoon, hang up clothes, and get to school on time.

         R. at 171. She reported that he could not obey safety rules like looking for cars before crossing the street, he does not help around the house, he does not do what he is told most of the time, and he does not accept criticism or correction. R. at 171. She reported that B.B. can keep busy on his own and work on arts and crafts projects, but he cannot finish things he starts, complete homework, or complete chores most of the time. R. at 172. She explained that he has a short attention span that is causing him to be behind in his school work. R. at 172. If he feels something is too hard, he does not want to stick with it and he gets bored and disturbs others. R. at 172.

         A referral form dated March 26, 2015, from John Dibert Community School at Phyllis Wheatley notes that B.B.'s parent was seeking a new agency for medication management and counseling. R. at. 311. It is unclear who filled out the form, but it appears to be an individual with the Children's Bureau of New Orleans. R. at. 311. In the checkbox section of the form, numerous disruptive and high-risk behaviors are marked including frequent defiance; blaming, denying, and not accepting responsibility; sudden angry outbursts; mood swings; ...


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