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Steward v. Astrue

April 8, 2010

RODERICK STEWARD, BY AND THROUGH HIS GUARDIAN AD LITEM, SHANIKKIA HOLLEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Roderick Steward ("Plaintiff"), by and through his Guardian ad Litem Shanikkia Holley, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for 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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his application on May 13, 2005, alleging disability since June 2, 1999, due to seizures and blackouts. AR 124, 128. Plaintiff was seven years old at the time of filing. AR 124. After Plaintiff's application was denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge ("ALJ"). AR 23-27, 30-34, 35-36. ALJ Edward Steinman held a hearing on September 8, 2008, and denied benefits on September 30, 2008. AR 5-17, 276-304. The Appeals Council subsequently denied review. AR 4.

Hearing Testimony

ALJ Steinman held a hearing on September 8, 2008, in Bakersfield, California. Plaintiff appeared with his attorney, Geoffrey Hayden. Plaintiff's mother appeared and testified, as well as medical expert William Rack, M.D. AR 276.

Shanikkia Holley, Plaintiff's mother, testified that as her son gets older, he gets more headaches and nosebleeds. Plaintiff gets nosebleeds two to three times per week, and both his nosebleeds and headaches are caused by physical activity. AR 281-282. He also gets nosebleeds at home if it is hot in the house, though it still depends on what he's doing. Plaintiffs gets headaches, which last about an hour, two to three times a week. AR 282. Plaintiff's doctor has not prescribed any medication for the headaches and told him to take Tylenol. AR 284-285. His headaches go away when he lays down and goes to sleep. AR 282-283.

Plaintiff has not blacked out in about six months and Ms. Holley explained that she keeps him out of any situations where he could blackout. AR 287. When he blacked out six months ago, his older brother head-butted him while they were playing. Ms. Holley brought Plaintiff inside, "got him out of" it, gave him Tylenol and made him sit down for a while. AR 288. This made him feel better. AR 289.

Ms. Holley testified that Plaintiff was in sixth grade, in regular classes. He received speech and language assistance in the past, but was no longer receiving such assistance. Though he was now doing better, Plaintiff continues to stutter "a little bit." AR 285.

Plaintiff is allowed to go to recess, but Ms. Holley does not allow him to play football or other sports until they know what's going on with his head. AR 285. Plaintiff was doing well in school and getting good grades. He gets along well with his two brothers and his sister and has friends that he plays with after school. AR 286.

Ms. Holley explained that at home, Plaintiff doesn't give her too many problems and is a good kid. He is assigned chores and is able to complete them. AR 286-287.

Plaintiff testified that he last had a headache the day before the hearing and it "hurt[] bad." He usually takes one Tylenol and then goes to sleep. When he wakes up, his head stops hurting. AR 290. Prior to that headache, his last headache was about a week ago. AR 291. He thought his headaches occurred once or twice a week. AR 291. During recess, he plays basketball and sometimes plays "tagger," and he does not feel ill when he plays outside. AR 291. He has friends in school and gets along with them. He also gets along with his brothers and his sister. AR 292.

When questioned by his by attorney, Plaintiff testified that he gets nosebleeds at school but does not go to the nurse. When he has headaches, he sees "black things" and spots. AR 293. He rated his headache pain at a five or six out of ten. His ears sometimes ring when he gets headaches. AR 294.

Medical expert Dr. Rack testified that he did not think that Plaintiff had a seizure disorder. Testing did not reveal evidence of a disorder and he is not being treated for a seizure disorder. Plaintiff's headaches could be migraines or related to musculoskeletal issues or tension. The headaches did not last long and did not appear to be related neurologically to a physical examination abnormality. AR 299. Dr. Rack explained that the irregularity mentioned in the MRI would not likely be related to the headaches, but he recommended a repeat scan.*fn2

Dr. Rack did not believe that Plaintiff had an impairment that met or equaled a listed impairment. AR 299. Dr. Rack also did not see any marked impairments in any of the domains examined in determining whether Plaintiff had a functionally equivalent impairment. He also did not believe that Plaintiff had any "less than marked" impairments. Dr. Rack believed that Plaintiff's impairment was non-severe. AR 300.

When questioned by Plaintiff's attorney, Dr. Rack testified that Plaintiff's nosebleeds may be related to an irregularity in his nose and did not necessarily represent something wrong neurologically. Although it was possible that it was neurological, such a connection would be rare. AR 301. Dr. ...


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