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January 13, 2003


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Plaintiff Rosa Duran brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her son's claim for supplemental security income ("SSI") benefits.*fn1 The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Duran opposes the motion and has cross-moved for judgment on the pleadings. Alternatively, Duran has requested that the matter be remanded for a new hearing. The parties have consented to this matter being determined by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's motion is denied; Duran's motion is granted in part and denied in part.


A. Duran's Claim for Benefits

Duran filed an application for SSI disability benefits on behalf of her son, Luis Duran, on October 3, 1994. R. 44-50.*fn2 She alleged that Luis was disabled due to attention deficit hyperactivity disorder ("ADHD"), speech and language delays, and frequent ear infections. R. 23-26, 51, 55, 61, 67. The application was denied initially and again on reconsideration. R. 52-60. Duran then requested a hearing before an administrative law judge ("ALJ"), R. 61-64, which was held on June 11, 1996. R. 18. Duran appeared at the hearing before ALJ Susan L. Biro without counsel and testified through an interpreter. R. 18-35. Dr. Robert Berk, a medical expert, also attended and testified at the hearing. R. 30-34. Luis was not present as he was in the hospital having his appendix removed. R. 20-21.

The June 11 hearing did not result in a decision, apparently due to changes in the law concerning the definition of disability for minors. R. 313. Thus, on May 1, 1997, Duran agreed to attend a supplemental hearing before ALJ Louis V. Zamora. R. 317. This hearing was held on June 18, 1997, where Duran again appeared without counsel and testified through an interpreter. R. 36-43. Luis was present and "active" at the hearing. R. 11, 41. On August 27, 1998, ALJ Zamora ruled that Luis was not disabled. R. 11-17. This decision became final on June 6, 2001, when the Appeals Council denied Duran's request for review. R. 4-5.

On September 5, 2001, Duran filed the instant complaint on behalf of Luis seeking review of the denial of his claim.

B. Evidence Presented at the First and Second Hearing

1. Testimony

Luis was born on November 24, 1991 and lives with his mother and three siblings. R. 23. At the time of the first hearing in June 1996, Luis was four years old and had been attending school for two years. R. 26. During the first year of school — when he was two years old — Luis received speech therapy and psychological counseling and his behavior was "better." R. 26-27. However, he did not receive professional help in the second year and became "rebellious." R. 27. Duran indicated during the hearing that Luis was scheduled to have an evaluation later in the week, the results of which were expected to call for regular therapy and medication. R. 24-25. When asked what she thought qualified Luis for benefits, Duran replied, "Problems in school. He doesn't participate like other students in school because he hits the teacher. He doesn't respect — and his mind is not right for that. It's not that he's crazy, but he can't function in a group." R. 23-24. Duran further testified that while Luis did not at that time take medication to "calm him down," he did take "[a] lot of antibiotics because he gets a lot of infections" and that, when taking antibiotics, "he hits everybody that's in front of him. He gets very rebellious . . . [and] cannot go to school during those days." R. 24-25. Indeed, Luis had been suspended during the previous month for punching the teacher in the stomach. R. 28-29.

Duran further testified that Luis's ability to read and write and communicate was good (although she could not understand everything he said); his relationship with her was good; he got along well with all but one of his siblings; he had friends in school but not in the neighborhood; he was toilet trained and able to feed, dress and bathe himself; and he enjoyed playing with dolls and could watch cartoons for up to two hours, after which he would run around and break things. R. 27-30.

Dr. Berk testified after Duran. He stated that the records provided to him indicated that Luis previously had a language problem but that — according to Duran's own statements — the problem "seems to have been cleared up" and that Luis appears "to enjoy talking and communicates without any difficulty." R. 31. Dr. Berk further noted that the psychiatric evaluation scheduled after the hearing may raise the possibility of an attention deficit disorder but that Luis's past history did not indicate any such problem. R. 31. In addition, Dr. Berk testified that he saw no medical condition resulting in a cognitive impairment; that there was no impairment in motor skills and a "less than mild" impairment in social skills; and that there was no impairment in personal behavioral skills, the violence against his teacher notwithstanding. R. 32-33.

At the second hearing, held in June 1997 when Luis was five years old, Duran indicated that Luis had begun taking "medication to calm him down." R. 40-41. Duran testified that Luis's enrollment in special education classes had improved his speech but that his reasoning and ability to "analyze what he hears" were still impaired. R. 41-42. When asked if Luis could dress himself Duran replied "[n]ot totally." R. 42. However, Duran noted that Luis cleans his room and "helps his brother." R. 42. Luis was present at the hearing but was asked few questions. R. 41.

2. Prior Medical History

The first medical evidence in the record is found in the March 17, 1994 "Pediatric Infant Initial Evaluation" report from Lincoln Medical & Mental Health Center ("Lincoln Medical"). R. 95-98. At two years and four months, Luis was found to be "an alert, active, cooperative boy with short attention span and easily distractible who is constantly jabbering." R. 98. Although "normal" in all other respects, Luis was said to have "[s]ignificant speech and language deficits." R. 97-98.

On March 30, 1994, Luis underwent a psychological evaluation at the request of Duran, who was concerned about his speech problems and hyperactivity. R. 266. Luis was cooperative and remained seated throughout the exam and no hyperactivity was noted. R. 266. Further, as in the March 17, 1994 evaluation, Luis was again found to function at age level or better in all non-verbal areas. R. 266-69. His expressive language skills, however, were delayed by more than thirty-three percent and he was "unable to pronounce even simple words in an intelligible manner and has learned to rely on gesture, pantomime, and the prosody of vocal pattern to convey his message." R. 266, 268. The doctor noted that the profile was suggestive of verbal apraxia, R. 269, "a speech disorder in which phonemic substitutions are constantly used for the desired syllable or word." Stedman's Medical Dictionary 117 (27th ed. 2000).

On April 8, 1994, Luis had an additional evaluation. R. 243-44. The "team diagnostic impression" was that Luis was age level in all respects except language skills, which were delayed and consisted of "virtually no intelligible speech." R. 244. Following a subsequent examination on April 15, 1994, Dr. Sandra Runes, Chief Psychologist at Lincoln Medical, similarly noted that his "[e]xpressive language is severely delayed with virtually no intelligible speech and an inability to initiate even simple sounds." R. 242. Dr. Runes further observed that while Luis had "[s]ome attentional problems," he also possessed "[g]ood social and adaptive skills." R. 242.

Luis underwent a psychosocial evaluation on May 10, 1994, when he was nearly two and one half years old. R. 109-14. On the Vineland Adaptive Behavior Scales, his socialization skills were approximately six months below age level, his daily living skills were age level, and his motor skills were nearly two years above age level. R. 111. However, Luis was approximately one year below age level with respect to his communication skills. R. 111. Also on May 10, 1994, Educational Evaluator Barbara Alexander examined Luis and noted that Luis was a "friendly child who was cooperative with all tasks given to him." R. 115. Although his attention span was "somewhat short," Luis was "able to complete tasks given to him." R. 115. Alexander noted that Luis had difficulty in communicating and that he became "easily frustrated" when he was unable to make himself understood. R. 115. His social/emotional development appeared to be close to age expectancy, as was his cognitive development in non-verbal areas. R. 115. However, his fine motor skills were delayed by approximately six months, "possibly due to a lack of experience with the materials presented," and his language development was delayed by twelve to fifteen months. R. 116. It was the evaluator's conclusion that "Luis be placed in a special education program with a language based curriculum." R. 116.

On May 20, 1994, Luis underwent a bilingual speech and language evaluation. R. 117. The evaluation was conducted in Spanish, the only language spoken in the Duran home. R. 117, 119. As the assessment materials used in the evaluation were not available in standardized form for Luis's bilingual/bicultural background, the results were only useful for "comparative purposes" and were to serve as "estimates of abilities." R. 119. It was noted that Luis "exhibited a moderate to severe expressive and receptive language delay" that was characterized by "restricted vocabulary, limited syntactical skills, reduced comprehension of age expected semantic/syntactic skills, lack of the age expected morphological markers and immature social use of language." R. 119. Further, his "limited attention span, ...

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