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Moore v. Astrue

March 24, 2009


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Rodnisha J. Moore ("Rodnisha"), by and through her guardian ad litem Latasha Williams (hereinafter referred to as "Plaintiff"), seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for child's supplemental security income, pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.*fn1


Plaintiff filed her application on December 31, 2003. AR 71-74, 85. After being denied both initially and upon reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 29-34. A hearing was held on August 2, 2007.*fn3 AR 195-209. The ALJ issued a decision denying benefits on August 11, 2007. AR 13-22. On December 13, 2007, the Appeals Council denied review. AR 4-6.

Hearing Testimony

ALJ Webster held a hearing on August 2, 2007, in Bakersfield, California. Rodnisha appeared with her attorney Geoffrey Hayden and her mother Latasha Williams. AR 197. Plaintiff testified that Rodnisha's date of birth was February 15, 1995, making her twelve years old at the time of the hearing. AR 199. Plaintiff testified that Rodnisha has behavioral problems that began in the third grade. AR 199. She reported that Rodnisha was to see a psychiatrist through the Kern County Medical Health clinic, but that an appointment had not yet been made. According to Plaintiff, Rodnisha saw a psychiatrist while attending elementary school. AR 200.

Rodnisha has four siblings and lives with Plaintiff, a single mother. She fights with her siblings, and is constantly in trouble at school for "outbursts" and a failure to cooperate. Plaintiff reported Rodnisha had been suspended as many as ten times that year. The suspensions were the result of "not cooperating, yelling, fighting with the kids." AR 201. Rodnisha's grades are "D's and C's." AR 202. She attends regular classes, rather than special education classes. AR 205. She has never been held back a grade, and is currently attending middle school. AR 206. Rodnisha does not finish things she starts because she forgets. She can read, but not "big words." AR 202. She threatens other children and has threatened to harm a sibling. AR 203-204. When Rodnisha becomes angry she will react by "tear[ing] up stuff." AR 204. She gets in fights with the other children at school. AR 204-205. Rodnisha has been diagnosed with Attention Deficit Hyperactivity Disorder but does not take any prescription medications for the disorder. Plaintiff reported that she intends to see that Rodnisha is prescribed such medications, but she did not yet have an appointment scheduled. AR 203. She believes Rodnisha is getting worse. AR 205. Plaintiff testified that Rodnisha had difficulty getting "certain words out" and stutters. Plaintiff believes Rodnisha's speech problems are worsening. AR 205-206. Plaintiff believes Rodnisha misses a lot of school because she is often suspended for several days at a time. AR 206.

Medical Record

A Teacher Questionnaire dated May 1, 2004, completed by Rodnisha's third-grade teacher, Ms. Luther, provides that Rodnisha has difficulty in acquiring and using information, ranging from "no obvious problem" to "very serious problem." Regarding attending and completing tasks, Rodnisha's scores varied from "slight problem" to "very serious problem." Interacting and relating with others were consistently rated as "serious problem" or "very serious problem." Rodnisha had no difficulty moving about and manipulating objects. As for caring for herself, Rodnisha's teacher provided ratings that varied from "slight problem" to "very serious problem." AR 141-148.

On May 21, 2004, Michael G. Musacco, Ph.D., completed a psychological review of Rodnisha. AR 149-153. He reported a Verbal IQ of 81, Performance IQ of 73, and Full Scale IQ of 75. AR 151. The Full Scale IQ score falls in the Borderline range; however, Dr. Musacco cautioned that Rodnisha put forth a "poor effort" and her scores "may underestimate [her] actual intelligence." AR 151. Dr. Musacco's diagnosis of Disruptive Behavior Disorder NOS accounted for her history of significant interpersonal problems and misbehavior, resulting in suspensions from school. Rodnisha admitted that she often has an "'attitude.'" AR 152. The doctor cautioned that he did not believe Rodnisha performed to the best of her abilities and considered a diagnosis of Malingering. He could not rule out such a diagnosis. AR 153.

On June 9, 2004, a speech-language evaluation was performed by speech pathologists Sherry Belluomini and Dianne Fonssagrives of Kern Speech Pathology. AR 154-155. Following a number of tests, which reflected no abnormality in fluency, oral structures or articulation, yet did evidence a delay in oral expression and listening comprehension, it was recommended that Plaintiff request a speech/hearing evaluation through Rodnisha's school for further assessment of her language and cognitive abilities. If a "true language delay" were detected, services could be provided through the school system. AR 155. The report also indicates that the results may not be an accurate reflection of Rodnisha's language skills because she often had to be redirected and was not focused. It was also noted that Rodnisha clearly was capable of more advanced vocabulary but would report that she did not know the name of images such as that associated with a "'house.'" AR 155.

On June 21, 2004, state agency medical consultant George W. Bugg, M.D., prepared a Childhood Disability Evaluation Form concluding that Rodnisha was less than markedly limited in her ability to acquire and use information, attend and complete tasks, and interact and relate with others. AR 156-161.

Luyen T. Luu, M.D. also prepared a Child Disability Evaluation Form, on October 8, 2004. Dr. Luu concluded that Rodnisha had no limitations in moving about and manipulating objects, caring for herself, or health and physical well-being. In the areas of acquiring and using information, attending and completing tasks, and interacting and relating with ...

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