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CARBALLO EX REL. CORTES v. APFEL

February 4, 1999

ALISUBEL CARBALLO ON BEHALF OF HERIABERTO CORTES, PLAINTIFF,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sweet, District Judge.

  OPINION

In this action brought by plaintiff Alisubel Carballo on behalf of her minor child, Heriaberto Cortes ("Heriaberto"), pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision by defendant Kenneth S. Apfel, Commissioner of the Social Security Administration (the "Commissioner"), denying the application of Carballo's child for Supplemental Security Income ("SSI") benefits based on disability, both Carballo and the Commissioner have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Carballo has also moved for remand based on the existence of new evidence. For the reasons set forth below, Carballo's motion is granted, the Commissioner's is denied, and the case is remanded to the Commissioner for further proceedings in accordance with this opinion.

Prior Proceedings

On May 8, 1995, Carballo submitted an application for SSI benefits on behalf of Heriaberto. Following a denial of her application both in the initial proceeding and on reconsideration, Carballo requested a hearing before an Administrative Law Judge (the "ALJ").

The hearing before the ALJ was held on July 3, 1996. Carballo and Heriaberto appeared at the hearing and testified without the assistance of legal counsel and with the assistance of an interpreter. On July 26, 1996, the ALJ issued a decision finding that Heriaberto was not disabled at any time through the date of the ALJ's decision and denied his application for benefits. On August 22, 1997, the Appeals Council denied Carballo's request for review, and the ALJ's decision became the final decision of the Commissioner.

Carballo filed the complaint in this action on January 12, 1998, and an amended complaint on February 10, 1998. The instant motions were filed by the Commissioner and Carballo on September 10, 1998, and November 2, 1998, respectively. Oral arguments were held on November 18, 1998, at which time the motions were deemed fully submitted.

Facts

Heriaberto was born on January 5, 1987. He was eight years old when his SSI application was filed. Carballo alleges that he has been disabled by a learning disability since April 9, 1994.

The administrative record in this case consists of various Social Security Administration ("SSA") forms and notices, the testimony of Carballo and Heriaberto at the July 6, 1996, hearing before the ALJ, and school and academic records relating to Heriaberto's impairments. There is also a report of a consultive examination prepared by a consulting psychologist retained by the Commissioner.

I. Testimony

At the hearing, Carballo testified that Heriaberto was nine years old and lived with herself and a seven year old brother. He had no physical health problems. In school, Heriaberto was in special education and Carballo had recently been told that he would not be promoted at the end of the year. She described Heriaberto as unable to read.

Carballo appeared most concerned about problems Heriaberto had with retention and memory. She stated that he did not retain information and would forget a new word half an hour after learning it. Heriaberto could not remember the names of his cousins in Puerto Rico with whom he had been raised. He did not know the names of his grown older siblings.

Carballo also mentioned Heriaberto's difficulties with speech and talked about some apparent emotional problems. She reported that Heriaberto had speech and language problems, including a limited vocabulary and communication skills, and that he needed her assistance in dressing and washing.

Following Carballo's testimony, the ALJ asked Heriaberto a series of questions about his family life, school experiences, and daily activities. The transcript reflects that Heriaberto's responses were inaudible more than half of the time, and otherwise generally monosyllabic or nonexistent. In response to a question by the ALJ, Carballo explained that Heriaberto had always had speech difficulties similar to those he displayed at the hearing.

II. Records Relevant to Cognitive Impairment

Various school records confirm that Heriaberto's intellectual capacity is limited. On January 4, 1995, Heriaberto was examined by a psychologist, Lourdes Rodriguez ("Rodriguez"). This examination was conducted at the request of Carballo because of her concern about Heriaberto's lack of academic progress. Heriaberto was quiet and did not speak readily. He had difficulty expressing himself orally, and these problems affected his performance throughout the assessment. Testing performed by Rodriguez described Heriaberto as having a verbal IQ in the borderline range, a performance IQ in the average range, and a full scale IQ in the low average range. Heriaberto did worst on subtests for fund of general information and short-term auditory memory where his scores were "deficient." These difficulties were viewed as likely to "interfere with the acquisition of basic academic skills." (Tr. at 120.)

The 23 point spread between his verbal and performance scores was described as significant and indicative of a learning disability. SSA's consulting psychologist, Dr. Margaret Chu ("Chu"), likewise viewed Heriaberto's intellectual functioning as "borderline." (Tr. at 134.)

Tests of perceptual-motor performance revealed a visual-motor age somewhat above Heriaberto's chronological age, and his short-term visual memory was said to be adequate. Heriaberto's social functioning was said to be affected by his communication difficulties.

Other school records indicate that Heriaberto's learning disability has essentially prevented him from acquiring any of the skills involved in reading and writing. On January 8, 1995, three days after his eighth birthday, Heriaberto underwent a bilingual education evaluation by Rafael Padilla ("Padilla") He was then in the second grade and the middle of his third year of public schooling. Padilla noted that Heriaberto had a limited attention span and was easily distracted. Pursuant to the evaluation, the most dramatic results were in reading and writing. When tested in Spanish, he consistently performed at the "readiness," — i.e., beginning kindergarten — level. In English, Heriaberto was unable to register any meaningful test scores:

  [O]verall reading skills are on a Readiness grade
  level in Spanish and unable in English. His ability
  to read vocabulary letters and words in [sic] were
  scored on a Below Pre-primer (Readiness) grade level
  range in Spanish, and unable to read or respond in
  English. . . . His Oral reading comprehension
  [scores] were low and delayed and in great delays and
  deficits. . . . He is in the process of learning
  letter/sound relations, has not learned any word
  attack or phonetic skills needed to

  decode words. . . . In Spelling skills subtest, he
  scored on a Readiness grade range level in Spanish.
  He has not learned word attack, phonic skills
  therefore was unable to do encoding or decoding
  learned words from their sounds.

(Tr. at 125-26.) In another document, Heriaberto is described as using his fingers to read letters, not words and as unable to write the alphabet.

With respect to mathematics, Heriaberto's overall scores were at the K.3, i.e., third month of kindergarten, level. The evaluation concluded that Heriaberto was "functioning below age expectancy in all his academic subjects." (Tr. at 129.) The evaluator, however, cautioned that these results must be interpreted with caution because of the absence of any local norms or any standardized procedures for testing bilingual children.

Heriaberto's poor academic performance is reflected at many other places in the record. The school psychologist, Rodriguez, whose report is discussed above, noted that Heriaberto, at age eight, had difficulty expressing his thoughts, was unable to read or write, and did not even know the letters of the alphabet. Following the testing in January 1995, the New York City Public Schools classified Heriaberto as learning disabled and recommended full-time special education to address his "significant academic delays." (Tr. at 100-03.) Heriaberto was put in a special class with bilingual instructional services and speech and language therapy.

At the end of the 1994-1995 school year, Heriaberto's second grade teacher described his overall performance as "very poor." (Tr. at 92.) At the end of the following year, his third grade teacher noted that he had made progress in math but still "has difficulty recognizing letters, simple sounds and words, and remembering recently covered material." (Tr. at 149.) Yet another teacher, reporting near the end of the 1996-1997 school year, when Heriaberto was in the third grade for the second time, described him as a "slow learner." (Tr. at 159.)

III. Records Relevant to Communicative Impairment

In 1994 and 1995, Heriaberto also received extensive formal and informal assessments of his expressive and receptive language skills. A bilingual speech-language evaluation was conducted on February 23, 1995. At that time, Heriaberto was in a bilingual general education classroom. He had little or no English language comprehension or expression. His receptive language skills in Spanish were approximately two and one-half years delayed, putting these skills somewhat under two-thirds of age expectancy.*fn1 Expressive Spanish language skills were better, ranging from one and one-half years delayed to two years delayed. The examiner characterized these delays as "mild to moderate" for the expressive category and "moderate" for the receptive category. (Tr. at 132.)

Apart from formal test results, the administrative record contains various other indications of Heriaberto's communication problems. An informal language assessment conduction in connection with his March 1995 Individualized Education Program described his expressive and receptive language skills as "poor." (Tr. at 106, 124-25.) Heriaberto had poor syntax and fluency, poor articulation, and was described as engaging in limited conversation with short and simple incomplete sentences. He also had what were described as language processing difficulties. Rodriguez, the school psychologist, noted that Heriaberto had difficulty expressing his thoughts, used words incorrectly, and had word retrieval problems. Rodriguez felt Heriaberto's communication problems were evident throughout the assessment and affected his performance. Rodriguez was concerned that they were also affecting his social adjustment with peers.

Teacher comments echoed these assessments. The second grade teacher, Ana Maria Vasquez ("Vasquez"), noted speech problems, especially in English. The third grade teacher, Steven Cruz ("Cruz"), also remarked that Heriaberto had difficulty expressing himself. The third grade teacher in the next school year, again Vasquez, reported that he did not use age-appropriate vocabulary.

  IV. Records Relevant to Concentration, Persistence, and
      Pace

The administrative record additionally contains a number of references to difficulties Heriaberto experienced in the area of concentration, persistence, and pace.

In a form submitted to the SSA shortly prior to the hearing before the ALJ, Carballo stated that Heriaberto was "immature" and "easily distracted." "He frequently day dreams and has difficulty staying on task. He is inattentive during class instruction." (Tr. at 87.)

Padilla, the education evaluator, described Heriaberto's behavior in the testing situation as follows:

  Heriaberto Cortez . . . presented as a student who
  has poor and limited attention and retention span and
  [is] easily distracted. Heriaberto is a boy who needs
  constant approval, praise, support, and constant
  repetition. . . . He has a tendency to loose [sic]
  focus and concentration of what was explained or
  asked. . . .
  . . . [A]t times questions had to be repeated, has
  poor and limited retention, poor concentration and
  attention span, is very easily distracted. . . . [H]e
  needs lots of encouragement, praise, clarifications
  and support.

(Tr. at 124-25.)

Chu, SSA's consulting psychologist, seconded these views:

  Patient is not very cooperative. He is concentrating
  on playing with his toy, he seems to be distracted
  and not participating in the interview. . . . [He is]
  oblivious to the environment. His intelligence is
  estimated to be borderline. Patient's attention and
  concentration are poor in relating to interview and
  surroundings. He is able to concentrate in his toys
  and playing.

(Tr. at 134.) Chu's diagnostic impressions included communication disorder, not otherwise specified, learning disability, and "rule out ...


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