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Brown v. Colvin

United States District Court, Third Circuit

August 27, 2013

CHAUNTIEMARIE BROWN, on behalf of Q.B., a minor, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.[1]


GREGORY M. SLEET, District Judge.


The plaintiff Chauntiemarie Brown ("Brown"), who appears pro se, appeals from the decision of the defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("the Commissioner"), denying the application Brown filed on behalf of her son, Q.B., for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act (the "Act"). 42 U.S.C. § 1381 et seq. The court has jurisdiction pursuant to 42 U.S.C. § 405(g).[2]

Currently before the court is Brown's opening brief for an award of benefits, construed as a motion for summary judgment, and the Commissioner's motion for summary judgment. (D.I. 15, 19.) For the reasons set forth below, Brown's motion will be denied and the Commissioner's motion will be granted.


A. Procedural History

Q.B. was born on June 20, 2006. Brown filed a claim for SSI on behalf of her son, Q.B., on August 1, 2008, alleging disability since June 20, 2006, due to an imperfect anus, two missing vertebrae, and VACTERL association.[3] (D.I. 11, Tr. 30, 70-76.) Brown's application was denied initially and on reconsideration. ( Id. at 28-39.) Thereafter, Brown requested a hearing which took place before an administrative law judge ("ALJ") on June 24, 2010. Counsel represented Brown at the hearing, and Brown testified on Q.B.'s behalf. ( Id. at 773-92.)

On July 21, 2010, the ALJ issued an unfavorable decision, finding Q.B. not disabled from August 1, 2008 (the date of the SSI application) to the date of her decision. ( Id. at 9-27.) Brown sought review by the Appeals Council, but it denied her request for review and, therefore, the ALl's decision became the final agency decision subject to judicial review. ( Id. at 4-6.) On February 8, 2013, Brown, proceeding pro se, filed the current action for review of the final decision. (D.I. 2.)

B. Background

1. Medical history

Q.B. was born with an imperforate[4] anus and VACTERL association. (OJ. II, Tr. 145, 167, 186.) A diverting colostomy was performed, and Q.B. was discharged home with home health care services recommended. ( Id. at 186-88, 191-92, 260.) In September 2006, Q.B. underwent a posterior saggital analrecoplasty to reconstruct his perianal area. ( Id. at 360-61.) Post-surgery he was doing well at home, and the incision was healing well ( Id. at 596-97, 600-01.) On December 1, 2006, Q.B. underwent an elective take down of the looped colostomy. ( Id. at 414-18.)

Treatment notes from 2007 indicate that Q.B. ate well, was growing, gaining weight, was active, and his voiding and stooling patterns were normal. ( Id. at 532, 534, 536, 538, 554, 556.) Q.B. was status post Pena for imperforate anus with good medical control, and was healing properly. ( Id. at 532, 554.) Brown was instructed to add Benefiber or Pectin to his diet and to limit intake of bananas, apples, white bread, and rice. ( Id. at 535.) Q.B. met his developmental milestones. ( Id. at 548, 559, 577.) Examination revealed that Q.B. had normal muscle strength, no thoracic prominence, and no neurological or musculoskeletal deficits. ( Id. at 549, 557, 577, 579.)

On January 2, 2008, Brown reported to orthopedic surgeon Peter Gabos ("Dr. Gabos") that Q.B. was doing very well and he continued to meet all of his milestones (including walking and running without delay or difficulties). ( Id. at 530.) Q.B. had mild right lower thoracic curvature, with no midline deformity, no significant prominences of the thoracic or lumbar regions, neurovascularly intact, and motor strength 5/5 in the bilateral lower extremities with equal muscle tone. ( Id. at 531.) Dr. Gabos indicated that Q.B. was "doing well, "... "no treatment indicated yet." ( Id. ) The impression was congenital hemivertebrae at T9 and stable curvature. ( Id. )

On January 7, 2008, pediatrician Nelson Santos ("Dr. Santos") performed a routine check-up of Q.B. ( Id. at 527.) Brown reported no concerns. ( Id. ) Q.B.'s sleeping was within normal limits; his voiding and stooling patterns were normal; and he was well-developed and well-nourished with a healthy weight. ( Id. at 527-28.) Dr. Santos noted no musculoskeletal deformities or neurological deficits. ( Id. at 528.) Q.B. could run, kick a ball, and walk upstairs holding a hand; feed himself with spoon; tum a single page; remove his clothes; identify some body parts; use at least four to ten words; do prodeclarative pointing; and begin to pretend play. ( Id. at 529.) His assessment was a well toddler with healthy weight and normal development. ( Id. at 528.) On January 15, 2008, Brown told Stephen P. Dunn, M.D. ("Dr. Dunn"), that Q.B. continued to have multiple stools per day that were mushy in consistency, but he ate well and his activity level was normal. ( Id. at 525.) Dr. Dunn noted that Q.B.'s abdomen was soft and non-tender with no masses, his incision was well-healed, and his anus was not prolapsed. ( Id. )

In February 2008, Brown filled out a function report wherein she indicated that Q.B. had no problems with talking, understanding, and learning; his physical abilities were not limited; his impairment did not affect his behavior with other people; and his ability to help take care of his personal needs was not limited. ( Id. at 95-100.) An August 2008 Function Report submitted by Brown was very similar to the February 2008 report with the exception that Brown indicated Q.B.'s impairment affected his behavior with others. ( Id. at 112-18.) In that regard, Brown indicated that Q.B. was affectionate towards his parents, played next to (but not with) other children, and could play catch or simple games with other children. ( Id. at 117.)

Dr. Dunn saw Q.B. on April 16, 2008. ( Id. at 522.) Q.B. was "very active, " growing, gaining weight, and "eating everything in [sight]." ( Id. at 522-23.) He had four to five mushy stools per day. ( Id. at 522.) Q.B.'s bowel regimen consisted of Benefiber and prune juice. ( Id. at 523.) An x-ray showed a large amount of stool in Q.B.'s colon, but no obstructions. ( Id. at 524.) Vilma Davis, AR.N.P. ("Davis"), noted that Q.B. was eating, drinking, and sleeping well; he had no diarrhea and was not vomiting; and was alert, cooperative, and playful. ( Id. at 520-521.)

Q.B. had a follow up appointment with Dr. Gabos on July 2, 2008 for his congenital scoliosis and congenital hemivertebrae at T9. ( Id. at 505-506.) The child was doing well, there was no back or lower extremity pain, tingling, numbness, or weakness. ( Id. at 506.) On examination, he was well-nourished and well-developed and appeared his stated age; his neck had a full range of motion; he had a mild right lower thoracic curvature; he had no evidence of shoulder height asymmetry or pelvic obliquity; he was nontender to palpation over the spinous process and paraspinal musculature; he had full and symmetric range of motion at his hips; he ambulated with a non-antalgic gait; he had no neurological deficits; and his reflexes were normal ( Id. at 506-07.) Dr. Gabos recommended no treatment and stated that Q.B. could participate in all activities without restriction. ( Id. at 507.)

Dr. Santos evaluated Q.B. for a routine check-up on July 7, 2008. ( Id. at 500.) Q.B.'s diet was well-balanced, his sleeping was within normal limits, and his voiding and stooling patterns were normal. ( Id. ) Q.B. had a healthy weight and normal physical development, and he had no musculoskeletal or neurological deficits. ( Id. at 501.) Brown reported that Q.B. participated in physical activity at least one hour each day; he could kick a ball, go up and down stairs one at a time, copy a line with a crayon, remove his clothes, use two-word sentences, and imitate adults. ( Id. at 504.)

On July 15, 2008, Brown told Dr. Dunn that she had no complaints and that Q.B. was not having significant problems with constipation. ( Id. at 499.) Q.B. was well-developed and in no distress; he was walking and moving normally; his neoanus was well-formed with minimal prolapse along the left margin; and a rectal examination was normal. ( Id. )

On September 8, 2008, Dr. Dunn noted that Q.B. was taking Senokot daily and had been having "reasonably good stools." ( Id. at 663.) Brown reported that Q.B. had some blood in his diaper, but no episodes of abdominal pain. ( Id. ) On examination Q.B. looked well; he was very active and very chatty; his abdomen was soft; and his neorectum had a small amount of prolapse on the left side. ( Id. ) A film indicated that Q.B. had quite a bit of stool in his upper abdomen, for which Dr. Dunn recommended Q.B. take a capful of MiraLAX® once or twice a day until he was fully cleaned out, but Q.B. did not need an enema. ( Id. )

In September 2008, state agency physician Dr. Sandra Hassink ("Dr. Hassink") filled out a "Child Disability Evaluation Form" after reviewing Q.B.'s records. ( Id. at 490-95.) Dr. Hassink found that Q.B. had an impairment or combination of impairments that were severe, but did not meet, medically equal, or functionally equal the listings. ( Id. at 490.) Dr. Hassink indicated that Q.B. had a "less than marked" limitation in the domain of health and physical well-being, but no limitation in any of the remaining five of domains of functioning for purposes of evaluating functional equivalence. ( Id. at 492.) In October 2008, after reviewing Q.B.'s records, state agency physician Dr. Jose Acuna ("Dr. Acuna") affirmed Dr. Hassink's findings. ( Id. at 633-37.)

On October 2, 2008, Dr. Dunn determined that Q.B. was having problems with constipation. ( Id. at 496.) An abdominal x-ray showed moderate gas within Q.B.'s bowels, a moderate amount of stool in his colon and rectum, but no abnormal masses or calcifications. ( Id. ) Dr. Dunn noted that Q.B. "look[ed] well and [was] in no distress." ( Id. ) His abdomen was soft with no masses or distention. ( Id. ) Q.B. was not receiving any supplements to aid with stooling, and Dr. Dunn started Q.B. on Senokot. ( Id. )

In November 2008, Q.B. was experiencing constipation, and Brown was instructed to start a children's Fleet enema for four nights and give Q.B. two squares of ex-Iax® every night. ( Id. at 650-52.) Brown was unable to follow the recommended regimen, and Q.B. continued to have multiple stools per day. ( Id. at 650.) During a December 2008 examination, Dr. Dunn noted that Q.B.'s abdomen was flat without masses or tenderness, the left side of the colon was reasonably clean, and he was stable on his current regimen. ( Id. at 647.) Dr. Dunn assisted Brown in filling out an SSI application, and opined that Q.B. has "been denied SSI without appropriate cause as far as I can ...

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