United States District Court, E.D. Louisiana
JAQUANA BRAGGS ON BEHALF OF B.B.
NANCY A. BERRYHILL, Acting Commissioner OF THE SOCIAL SECURITY ADMINISTRATION
L. R. LEMELLE, JUDGE
REPORT AND RECOMMENDATION
van Meerveld, United States Magistrate Judge
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.
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.
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.
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.
in the Record
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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; ...