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COLON v. APFEL

March 7, 2001

PEDRO COLON C/O DAISY FLORES, PLAINTIFF,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM AND ORDER (Vacating and Remanding Determination by Commissioner of Social Security)

This appeal, by a minor child through his parent, asks me to reverse a determination by the Commissioner of Social Security that plaintiff's alleged disability was not sufficiently severe to entitle him to Supplementary Security Income benefits. The Commissioner moved for summary judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), and then withdrew the motion and substituted a motion to remand the matter to him for further review. Apparently, a medical report which he had considered was not previously shown to plaintiff for plaintiff's comment. Plaintiff cross-moved for judgment on the pleadings and, alternatively, for interim benefits pending the Commissioner's determination.

I hold, for the reasons discussed below, that the decision of the Commissioner is deficient, not only for the reason the Commissioner concedes, but also because of the Administrative Law Judge's basic failures to provide a meaningful hearing and a reasoned decision applying the statute and regulations to the conditions of this minor child. The Congressional amendments of 1996 and the implementing regulations of 1999, although substantially restrictive, did not eliminate Supplementary Security Income for disabled children. Nor did they relieve the Administrative Law Judge of the affirmative duty to develop a complete and fair evidentiary record, Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); Echevarria v. Secretary, 685 F.2d 751, 755 (2d Cir. 1982), and to provide rational explanation relating his findings to the complete record. 20 C.F.R. § 404, Subpt. P, App. 1, 12.00(C), (D) (1999).

I therefore reverse the Commissioner's determination, and grant the Commissioner's substituted motion to remand this matter pursuant to sentence four of 42 U.S.C. § 405(g), but upon the enlarged grounds set out in this decision, in order to permit review upon a complete record of the issues of disability. Plaintiff's motions for judgment and, alternatively, for interim benefits are both denied.

I write in order to summarize the changes made in 1996 by Congress and by the 1999 implementing regulations in the scheme for awarding Supplemental Security Income to disabled children, and to outline the factors that the Administrative Law Judge should have considered, but failed to consider.

THE RECORD IN THE SOCIAL SECURITY ADMINISTRATION

Plaintiff, a minor child born May 18, 1990, filed for disability benefits on October 24, 1996. A 24-year old step-brother was learning disabled and was not working. Another half-brother was emotionally disturbed, and resided in a group home. His mother was "nervous," "obese," and "screams and threatens the children all the time." (R. at 135).

Plaintiff alleges that he suffered from severe attention deficiency hyperactive disorder, Tourette's syndrome, and other disabilities, including speech impairment, learning disabilities and psychiatric maladies. He had been rejected from kindergarten because of uncontrollable temper tantrums, throwing "all kinds of objects," yelling, screaming, and reporting "something in his head." (R. at 135). He was generally disobedient, fearful and prone to "uncontrollable tantrums." (R. at 150). After spending his kindergarten year at home, he was admitted in the fall of 1996 to a combined kindergarten and first grade class in special education. He could not identify simple words such as "cat," and was unable to spell his name, count beyond five, follow simple instructions, or repeat his address. (R. at 171). If asked to repeat three spoken words after five minutes, he was unable to do so without reminder-clues. His play with matches almost set fire to a mattress. He slept poorly, was fearful of being left alone or at school, and was restless while in the company of others. His academic skills were considered "too delayed" even for a special education setting, and he was recommended for a "full time small class setting for language/academic behavioral deficits with speech and language therapy and counseling." (R. at 96, 98).

Aided by a small class of 12, a structured setting, and therapy, plaintiff seemed to progress. He learned to count to ten, recognize colors, play with a computer, and seemed happy. (R. at 99). Short-term and long-term goals were set for him in a report dated November 14, 1996. To illustrate: by the following year, March and June, 1997, plaintiff was to demonstrate phonetic skills in identifying letters to pictures and objects, comprehension skills with respect to ideas and stories, library skills to find books, early writing skills by telling a story, counting skills in relation to series of words and objects, ability to read a clock, and other skills in relation to objects, seasons, body parts and more. (R. at 100-03.) The record does not indicate whether and to what extent plaintiff's development met those goals, or even if an inquiry was made in relation to such goals. (R. at 100). Plaintiff scored "low average" in IQ tests, but the record contains no explanation of his score on the test or its taking.

Plaintiff's case of Tourette's syndrome manifested itself in repeated throat-clearing noises, but monthly visits to a neurologist and medication seemed to allay the noisome tic. (R. at 125). He was scheduled to visit a psychiatrist, Dr. Sotolongo, on July 10, 1997, but the record does not indicate a report of the visit until over a year later, on September 25, 1998, after the hearing.

Plaintiff's hearing before the Administrative Law Judge on September 18, 1998 was brief and uninformative. The hearing lasted but 20 minutes, opening at 10:30 a.m. and concluding at 10:50 a.m. No information was developed as to the extent of his learning and behavioral disabilities, or their cause, or whether improvements had been shown or were reasonably to be expected.

Plaintiff appeared pro se, by his mother. He was then in the second grade of special education. His mother testified that she took him once a week to a therapist and once every two weeks to a psychiatrist, and that he had recently changed his therapist, but the Administrative Law Judge failed to pursue what could be learned from either therapist or psychiatrist, or why the record before him failed to contain any report from either therapist or psychiatrist. The judge's questions about plaintiff's asthma from which plaintiff did not suffer, and about plaintiff's bilingual education when he did not attend bilingual education, suggested an unfamiliarity with the record that resulted in a failure to ask questions that might have elucidated the issues of impairment that had to be evaluated. Plaintiff's mother, Daisy Flores, testified that plaintiff yelled and cried for any little thing, blamed others for telling him to be bad in school, set a mattress on fire, fought with other kids, ignored his teachers, feared the dark, threatened to kill himself, and ran around aimlessly to the point of even falling down a flight of stairs, but the Administrative Law Judge asked no questions to evaluate the information given to him. Ms. Flores described a medication that was given to her son, and told the judge that "sometimes [it] don't even work" and that "different medication . . . doesn't really do much," (R. at 34), but no questions were asked to learn the type of medication, or the substitute medication, or even if the medication was to allay the throatclearing-tic associated with plaintiff's Tourette syndrome, or to combat plaintiff's hyperactivity and behavioral problems.

The Administrative Law Judge closed the hearing twenty minutes after he opened it, asked Mrs. Flores to submit an identification of plaintiff's medications, and said that he would read the report of the psychiatrist, Dr. Sotolongo.

Dr. Sotolongo's evaluation (presumably, a consultative examination),*fn1 dated July 31, 1997, was issued by Bronx-Lebanon Hospital's Department of Psychiatry on September 25, 1998, more than a year after the visit on which it reported.*fn2 (R. at 192). Based on the patient-history given by plaintiff's mother as to plaintiff's hyperactivity, anxiety, and behavioral conditions along the lines already described, and without any reference to prior school, psychiatric or neurological records, Dr. Sotolongo reported, by checking relevant categories on a pre-printed form, as follows:

CATEGORIES ON FORM REPORTED OBSERVATIONS
Physical Appearance: Appears chronological age
Motor Behavior: Overactive, Fidgety
Speech Behavior: Speech clearly articulated
Relatedness: Relates well to the interviewer, Cooperative, Good eye contact
Mood-Affect: Normal range mood
Suicidal/Homicidal ideation/potential: No suicide or homicidal ideation or planning
Thought and Perception: No abnormalities in thought content or process
Language: Adequate receptive and expressive language
Cognitive Functioning (when applicable): Low Average
Characteristic of Play (when applicable): Spontaneous, goal directed, creative ...

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