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Barlet v. Berryhill

United States District Court, M.D. Pennsylvania

September 20, 2017

Christina Barlet Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security Defendant.

          MEMORANDUM

          RICHARD P. CONABOY UNITED STATES DISTRICT COURT.

         I. Background.

         We consider here the appeal of Christina Barlet, on behalf of her minor daughter, Elizabeth Barlet, from a decision of the Social Security Administration (“SSA”) or (“Agency”) that denied her application for Supplemental Security Income (“SSI”)benefits. The application was denied administratively on December 12, 2013. After a hearing before the Administrative Law Judge (“ALJ”), the claim was denied by a written decision dated August 25, 2015. The Appeals Council affirmed the ALJ's decision by letter dated December 15, 2016. The Appeals Council's affirmance constitutes a “final decision” by the Agency from which Plaintiff timely appeals. This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 1383(c)(3). The parties have briefed the issues (Docs. 12, 13 and 14) and this case is now ripe for dispostion.

         II. Testimony Before the ALJ.

         The hearing before the AlJ occurred on May 19, 2015. Plaintiff testified as did Christina Marie Barlet (claimant's mother), Rick Barlet (claimant's father), John Kowalski of Luzerne County Children and Youth Services, and Jane Miller, also of Luzerne County Children and Youth Services.

         A. Plaintiff.

         The Plaintiff's testimony may be summarized as follows. She was eleven years of age at the time of the hearing and a student in the fifth grade at the Lake Lehman School District. Her favorite subject is math. Her least favorite subject is reading. She gets extra help in school with both math and reading. The extra help consists of allowing her extra time to complete her assignments. She also is allowed time to snack to help control her diabetic condition. Her mother helps her with her homework. (R.42-43).

         Plaintiff stated that she participates in gym class but is restricted in that regard because she cannot touch latex balls or gym mats. She gets along well with her fellow students and her teachers in her own estimation. She states that she has not been subjected to any disciplinary measures in school. (R.44).

         Plaintiff takes insulin at least twice daily and administers it herself. She also takes Levothyroxine and allergy medications. These medications can make her tired and, at times, hyperactive. She lives at home with her mother, father, and two younger brothers. She has three cats at home and takes care of them personally. She also cleans her bedroom and bathroom and does not experience any physical problems when doing so. She no longer has the assistance of a mobile therapist and has less help from a TSS worker than had formerly been the case. (R.45-47).

         B. Christina Marie Barlet.

         The testimony of Christina Marie Barlet, Plaintiff's mother, may be summarized as follows. Her daughter takes multiple medications including: Lantus, Novolog, insulin syringes and test strips, Lancet, Ketostix, Levothyroxine, Ventolin, Albuterol, Econazole cream, Flonase, and Benadryl. These medications are basically for control of Plaintiff's diabetes and asthmatic/hyperallergic conditions. In addition, Plaintiff's blood sugar level must be frequently monitored and her diet frequently adjusted to address fluctuations in her blood sugar level. (R.47-50).

         Plaintiff's treating physician was Dr. Stone until October of 2014 when he stopped practicing medicine. Dr. Cook assumed her care in November of 2014. She also saw several doctors at Northeast Counseling Services, but, because of changes in government reimbursement practices, she can no longer go there. Dr. Cook and a Dr. Long, who also sees the Plaintiff, are affiliated with Geisinger Medical Center. She sees one or the other every two months or more often if she gets sick. She also sees Dr. Delregno for vision problems and Dr. Trovitch, a pediatric endocrinologist. (R.50-51).

         Plaintiff's grades fluctuate. Her mother attributes this in part to the fact that she misses a lot of school due to her illnesses. At the time of the hearing, Plaintiff had already missed more than 20 days in the current school year. Plaintiff is identified as a special needs student and her schooling is governed by an individualized educational program. (“IEP”). A special education teacher helps Plaintiff in reading and math and assists her when she takes tests. Also, Mrs. Barlet must meet with cafeteria staff at the beginning of the year to make them aware of her child's dietary restrictions and to find out what she must personally supply to meet her child's needs. Every time there is a field trip Mrs. Barlet must attend because the school will not furnish a nurse for that purpose. She must also meet frequently with the principal, guidance counselors, and her child's teachers regarding her child's special problems. These problems include attention deficit disorder. Plaintiff cannot take the medications normally prescribed for attention deficit disorder because of her allergy to gluten (Celiac disease). As a result, she is at times “hyped up” and “antsy” and this results in behavioral problems. At other times, if her blood sugar level gets too low or her asthma flares, she must be monitored in the nurse's office. (R.52-54).

         Plaintiff's mother states that she is physically capable of dressing herself but that she often needs help with her personal hygiene. She must often be reminded to shower and her mother must monitor her in the shower to make sure she showers effectively. Plaintiff is very aggressive in her interactions with her younger brothers and is very inconsiderate at times. Mrs. Barlet attributes these behaviors to her child's diabetes and attention deficit disorder. When her child had access to the TSS worker her behavior improved. Because medical assistance no longer pays for the services of a TSS worker, she has been unable to provide for these services. (R.56-57).

         Mrs. Barlet testified further that she had brought John Kowalski and Jane Miller from Luzerne County's Office of Children and Youth Services for purposes of securing their testimony. She stated that they were instrumental in forcing her child's school to develop a more comprehensive IEP to meet her needs. Before Mr. Kowalski and Ms. Miller became involved, the school was largely unresponsive to her child's special needs. Mrs. Barlet also noted that the school has been habitually resistant to supplying her child with things she requires such as certain food items, glucose tests, alcohol wipes to test her sugar, latex-free erasers, special art supplies, and latex-free gloves. She also testified that she must constantly educate school personnel regarding her daughter's numerous special needs. (R.58-59).

         C. Rick Barlet.

         Rick Barlet, Plaintiff's father, also testified regarding the difficulties they have experienced getting cooperation from school authorities to adapt to their daughter's special needs. He emphasized particularly their struggle with the cafeteria staff's inattention to the problems caused by even lightly touching any of the foods served to their daughter with latex gloves. When such cross-contamination occurs, their daughter experiences a severe allergic reaction secondary to her Celiac disease that often results in her missing school. He stated that his wife is often on the phone with the school nutritionist to find out what was served for lunch on days when their daughter comes home sick. On these occasions, it is often the case that her daughter was served food containing gluten, a substance she cannot tolerate. (R.60-62).

         D. Luzerne County Children's Services.

         The final two witnesses were John Kowalski and Jane Miller, both employees of the Luzerne County Bureau of Children Services. Mr. Kowalski testified that he had been assigned to Plaintiff's case in December of 2012 due to her diabetic condition. He is a life-long diabetic himself and has lost he eyesight as a result of the disease. He stated that his task was to help Plaintiff “as much as I possibly could in terms of diabetic control, diet, education, and her situation at school for accommodations...”. He explained further that Plaintiff is a very brittle diabetic whose health is further complicated by her latex allergy and Celiac disease. He stated that Plaintiff's eyesight had already been affected by the disease and her struggle with the disease will be something that will go on for as long as she lives. He has tried to teach her to make better dietary choices and to be strictly compliant with her insulin regimen. He stated further that Plaintiff's parents have gone beyond what would be expected of the parents of a diabetic but that doing so has been very costly to them. He urged the AlJ to find in Plaintiff's favor because that result “would help her and her parents in the long run, and in the short run as well.” (R.66-68).

         Jane Miller was the final witness. She stated that she was employed by Luzerne County Children and Youth Services as a “special education advocate”. She helps the families of students with special problems with issues involving their schooling. She corroborated Mr. Kowalski's assessment that Plaintiff's brittle diabetes, Celiac disease, and latex allergy pose very complicated problems both at school and in the home. She stated that she was instrumental in helping Plaintiff's parents persuade her school to provide an IEP that is more truly reflective of the child's needs. She stated that since the IEP had been created she had not heard from either the school or the family. For this reason she assumed that the accommodations were proving to be beneficial. (R.69-70).

         III. ...


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