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MILLER v. CHATER

August 10, 1995

DEMETRIUS MILLER, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: HECKMAN

REPORT AND RECOMMENDATION

 This matter was referred to the undersigned by the Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). Plaintiff initiated this action to seek review of the final decision of the Secretary of Health and Human Services (the "Secretary") *fn1" establishing June 1, 1992 as the onset date for Supplemental Security Income ("SSI") benefits. The Secretary has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the following reasons, the Secretary's motion should be denied.

 BACKGROUND

 Plaintiff was born on July 27, 1973 (T. 31). *fn2" He alleges disability due to mental retardation. *fn3" He completed ninth grade in a special educational setting (T. 248). He worked during the summers of 1989 and 1990 for the Mayor's Summer Youth Program (T. 257).

 The medical evidence shows that plaintiff was evaluated on April 15, 1986 by Rev. Stephen Gerencser, a certified psychologist. The revised Wechsler Intelligence Scale for Children ("WISC-R"), Bender Gestalt, and Slosson Short Reading Tests were administered. Rev. Gerencser reported plaintiff's WISC-R scores as Verbal I.Q. of 68, Performance I.Q. of 65, and Full I.Q. of 64 (T. 210). Rev. Gerencser concluded that plaintiff demonstrated functioning on the mild retardation (defective) level (T. 211).

 On March 31, 1992, Dr. Thomas C. Dickinson administered a battery of tests, including the Wechsler Adult Intelligence Scale ("WAIS"). Plaintiff obtained scores of 72 Verbal I.Q., 69 Performance I.Q., and 70 Full Scale I.Q., placing him in "the lower end of the borderline mentally retarded range of ability" (T. 229). On the Vineland Adaptive Behavior Scale ("VABS") plaintiff scored at the seven-year five-month level for communicative skills, the ten-year seven-month level for daily living skills, and the eleven-year six-month level for socialization skills (T. 230). His overall adaptive behavior composite score was 49 (id.). Dr. Dickinson concluded that plaintiff functioned in the borderline mental retardation range with moderate to serious social and educational limitations. Discussions with plaintiff and his mother showed adjustment disorder with depression and limited social contacts. There was no frank thinking or emotional disturbance. Plaintiff was able to manage his own personal and financial affairs, but was also quite dependent on his mother. Dr. Dickinson recommended that plaintiff be referred for appropriate job evaluation, training and placement (id.).

 On June 15, 1992, plaintiff was admitted to the City of Buffalo Substance Abuse Services counseling program (T. 234). He tested positive for cannabis-cocaine on seven occasions during June and July of 1992 (T. 236). He reported that he used cocaine-laced marijuana twice a week and drank three cans of beer a day (T. 234). He denied any health or psychiatric problems (T. 235). He was terminated from the counseling program on August 3, 1992 for excessive absenteeism, non-compliance with agency rules and regulations and failure to have a physical completed within 21 days of admission (T. 233).

 On October 1, 1992, Dr. Daniel J. Willis performed a mental status examination on behalf of the New York State Office of Disability Determinations. In Dr. Willis' opinion, plaintiff was "grossly disabled in multiple facets of his life" (T. 239). He showed very little or no insight as to his limited functional status, inability to carry through on simple tasks, and poor judgment as evidenced by frequent cocaine, marijuana and alcohol use. Dr. Willis considered plaintiff "quite socially dysfunctional" (id.).

 Non-medical evidence shows that at the age of 9 years, when he was in the third grade at Martin Luther King School, he had difficulty learning and performing at grade level (T. 202). On October 28, 1982, School Psychologist Morris Cohen reported that plaintiff obtained an I.Q. score of 74 on the Stanford Binet Intelligence Scale, which indicated functioning within the mentally retarded range of intelligence (T. 203). He showed signs of primitive development in many areas of his personality. Transfer to a special educational program was recommended (id.).

 An Individualized Educational Program ("IEP") report dated November 18, 1982 indicated that plaintiff had deficits in all academic areas. With respect to social development, plaintiff demonstrated no behavioral problems, and was quiet and pleasant. He was in good health. He exhibited a short attention span, and required a smaller, more structured setting to perform (T. 204). On January 10, 1983, he was placed in a self-contained class for educable mentally retarded students at School 51 (T. 198).

 On May 11, 1990, plaintiff's teacher reported that he seemed to have lost interest in school and was apparently "running with the wrong crowd" (T. 224). His attendance was irregular, but he "could function well within 53 program when present if he improved his attitude" (T. 225). An undated checklist attached to this report indicated that plaintiff was performing at an "ability appropriate" or "above average" level in all areas of academic achievement and social development, except that he was at a "developing" level with respect to student/teacher relationship (T. 226).

 In a report dated June 18, 1990, Educational Specialist Jacqueline Campbell indicated that plaintiff's classroom performance was adversely affected by irregular attendance. His teachers reported poor attitude and waning interest in school since the previous year. He was doing "especially well" in service station technology until attendance became a problem (T. 222).

 In a report dated July 10, 1990, School Psychologist Stephen W. Shanley summarized plaintiff's previous psychological assessments which indicated that he was slow, concrete, sociable and polite. His drawings demonstrated low self-esteem. He had some math skills, but irregular attendance reduced actual academic growth (T. 220).

 On July 16, 1990, social worker M. Jacobs reported that plaintiff was able to make friends easily, and had many neighborhood friends. He helped around the house with chores. He was not a behavior problem at home or in school (T. 223).

 An IEP review printout dated August 21, 1990 indicated that plaintiff was functioning at an "ability appropriate" level in all areas of social development (T. 216).

 Plaintiff's application for SSI benefits was denied initially (T. 75-78). However, upon reconsideration of his application in light of the expanded rules for determining child's benefits as set forth in Sullivan v. Zebley, 493 U.S. 521, 107 L. Ed. 2d 967, 110 S. Ct. 885 (1990), *fn4" plaintiff was awarded SSI benefits with an onset date of June 1, 1992 (T. 137-144).

 Plaintiff requested a review of the decision on reconsideration to the extent that it established June 1, 1992 as the onset date. A hearing was held on June 4, 1993 before Administrative Law Judge ("ALJ") Stanley A. Moskal, Jr., at which plaintiff and his mother testified (T. 245-260). On July 15, 1993, ALJ Moskal issued his decision finding that plaintiff was not entitled to SSI benefits prior to June 1, 1992 (T. 15-21). The ALJ's decision became the final determination of the Secretary on May 26, 1994, when the Appeals Council denied plaintiff's request for review (T. 3-4). Plaintiff filed this action on July 19, 1994 seeking review of the Secretary's determination.

 DISCUSSION

 The Social Security Act states that, upon review of the Secretary's decision by the district court, "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g) (1991). Substantial evidence is defined as evidence which a "reasonable mind might accept as adequate to support a conclusion. . . ." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). Under these standards, the scope of judicial review of the Secretary's decision is limited, and the reviewing court may not try the case de novo or substitute its findings for those of the Secretary. Richardson, supra, 402 U.S. at 401. The court's sole inquiry is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Secretary. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

 The Secretary's determination cannot be upheld, however, when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Grey v. Heckler, 721 F.2d 41, 44 (2d Cir. 1983); ...


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