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KITTLES EX REL. LAWTON v. BARNHART

February 19, 2003

BETTY KITTLES ON BEHALF OF FINESS LAWTON, PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff Betty Kittles appeals the denial of Supplemental Security Income ("SSI") for her minor daughter, Finess Lawton. In the alternative, plaintiff requests a remand of the case for further administrative proceedings. Both parties move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, this case is remanded to the Commissioner for consideration under the Final Rules.

BACKGROUND

A. Procedural History

Finess Lawton was born on August 8, 1993. She is currently nine years old. Plaintiff Betty Kittles first applied for SSI benefits for Finess in March 1995, when Finess was 19 months old. Tr. 101-6. This application was denied, and plaintiff did not file for reconsideration. Tr. 78. Plaintiff re-applied in May 1998, when Finess was four years old. Tr. 122. In this application, plaintiff reported that Finess suffered from a learning disability and a speech impairment, and that she was prone to violence, hyperactivity and temper tantrums. Id. Finess had been receiving speech and occupational therapy since September 1995. Tr. 139. This second application was also denied in September 1998 and again on reconsideration in April 1999. Tr. 81-84, 87-90.

Plaintiff petitioned for a hearing, which took place on May 2, 2000. Tr. 50-74. ALJ Seymour Fier ruled on June 9, 2000 that Finess was not disabled and thus ineligible for SSI. Tr. 24-32. The ALJ's decision became final when plaintiff's request for review to the Appeals Council was denied on July 15, 2001. Tr. 5-7. This action followed.

B. Treatment and Educational Background

In May and June of 1995, when Finess was nearly two years old, she was evaluated by doctors at New York Hospital for participation in the Early Intervention Program.*fn1 Tr. 177-86. Finding developmental delays in Finess' personal, social, fine motor, gross motor and language skills, Dr. Evelyn Lipper recommended placement in a "special education preschool program which includes speech, physical, occupational therapy and special education." Tr. 179. Finess was subsequently referred to the Apple School, "a preschool program for learning and enrichment" of United Cerebral Palsy of Queens, which she attended from September 1995 until June 1998. Tr. 66, 219, 215. She then attended a special education class for kindergarten, first and second grade at the La Guardia Family College school, continuing to receive regular speech/language and occupational therapy. Tr. 53, 66.

Evidence from Teacher Evaluations

At the Apple School, Finess was classified as a "preschool student with a disability." Tr. 241. On May 8, 1996, she was evaluated by Dr. Carol Mirochin. Tr. 270-71. Putting Finess through a series of tests including the Bayley Scales of Infant Development and the Vineland Adaptive Behavior Scales, Dr. Mirochin found that at 33 months, Finess displayed mental development equivalent to a child of 25 months and cognitive and language ability of between 19 and 21 months. Tr. 270-71. Dr. Mirochin noted that while Finess appeared friendly and alert, she also "tended to speak in a soft voice" and "was at times inarticulate and unintelligible." Tr. 271. At other times, however, commands that Finess directed at her such as "Get that ball" were "loud and clear." Id. While Finess was "cooperative" with the testing, "she seemed to have some difficulty understanding what was expected of her." Id.

Clinical observations from a February 13, 1998 report present a similarly mixed picture. On the one hand, the report indicates that "Finess coordinates numerous form-content-usage interactions" such as "I like to eat in the restaurant like this." Tr. 234. The report continues to observe that:

There are, however, deficits in syntax and morphology, for examples [sic]: there is omission of the capula, there is no use of auxiliary verbs (can, will, be), and no use of whclauses. There is also some echolalia*fn2 as well as perseveration. In addition, there is difficulty with topic maintenance. Expressive vocabulary remains deficient. Tr. 234.

Moreover, the Expressive One-Word Picture Vocabulary Test indicated a language age of two years and seven months, at a time when Finess was four years and eight months old. Id.

Speech pathologist Linda Salata made similar findings when evaluating Finess on March 3, 1998. Tr. 224-25. While she found that Finess had exhibited growth in receptive and expressive vocabulary, Finess' expressive vocabulary was "still significantly below the norms." Tr. 225.

On March 25, 1998, occupational therapist Adrienne Shapiro issued a progress report on Finess. Tr. 222-23. She indicated that Finess was "verbal and engages easily with toys." Tr. 222. However, Shapiro remarked that Finess was also "easily distracted and needs verbal prompts to resume the task at hand." Id. She also commented that Finess "continues to display sensory processing difficulties in the area of tactile and vestibular awareness." Id. Finess had "difficulty manipulating a child's scissors and was unable to cut out any shapes or cut on a 6' line." Id. Shapiro opined that Finess' graphomotor skills were delayed, as she could not copy a cross and a square and her assembly of block designs was "poor." Id. Furthermore, Finess appeared "mildly defensive to light touch" and "does not tolerate someone too close behind her." Id.

On March 23, 1998, Finess' preschool teacher, Lisa Rossdale, conducted a teacher evaluation / classroom observation of Finess. Tr. 219-21. Rossdale observed that with respect to motor development, Finess was ambulatory and able to ride on an "adapted tricycle with straps on her feet which are secured to the pedals." Tr. 219. Finess could color inside the lines of a coloring book and could cut with a scissor, but could not "maintain her attention long enough to cut on lines." Id. Finess' visual attention span would "fade[] in and out." Id. Rossdale noted that eyeglasses had been prescribed for Finess. Id.

Regarding activities of daily living, Rossdale observed that although Finess could feed herself independently, she would often need to be reminded that she was eating. Id. Finess was toilet trained and could dress and undress herself when going to the bathroom. However, sometimes, Finess would "stand motionless in the room until she is told, several times, to take off her coat and hat." Id.

With respect to Finess' language development, Rossdale remarked that Finess seemed to "`tune in' and `tune out' frequently during the day." Tr. 220. When she was verbally refocused, however, she would "immediately join[] in with the group lesson or activity, answer[] questions and sing[] songs." Id. When "really focusing on others," Finess could maintain simple conversations with others. At other times, though, Finess would remain mute, exhibit echolalic language, and engage in "very strange dialogues." Id.

Rossdale observed that Finess could work on puzzles, string beads and stack nesting cups. Id. She could label 21 letters of the alphabet and recognize her written name and count by rote from 1 to 10. However, Finess "is having problems with sequencing skills" and her comprehension skills "need improvement." Id. Finally, Rossdale noted that Finess was becoming more socially involved with her classmates, but that her behavior was still "somewhat compulsive, overbearing and unusual." Tr. 221.

Rossdale conducted a second observation of Finess on April 27, 1998, presenting a mixed report much like her first. Tr. 231-33. While she stated that "Finess is an outgoing little girl with a good sense of humor," Rossdale also noted that Finess was "extremely possessive" of her one best friend to the point of requiring intervention. Tr. 231. Rossdale remarked that Finess "speaks up for herself," although mentioned that "[s]he sometimes needs to be reminded that she must tell us what is upsetting her, rather than crying." Tr. 232.

In May 1998, her teachers determined that Finess' current educational services-speech and occupational therapy-should be continued. Tr. 226-30. In June 1998, Finess graduated from the Apple School. Tr. 255.

On July 17, 1998, Kathy Toal, a supervising teacher at Apple, filled out a New York State Division of Disability Determination form that was submitted as part of Finess' June 1998 SSI application. Tr. 255-59. On the form, Ms. Toal indicated that Finess did not exhibit "poor frustration tolerance behaviors such as fighting, tantrums, crying episodes, etc.," peer relating or discipline problems, or any problems completing tasks in a timely manner or age inappropriate behavior. Tr. 255-57. Regarding Finess' speech problems, Ms. Toal referred to attached "Educational and Speech reports," which it appears from the record are the reports written by Finess' teachers and therapists cited above. Tr. 258.

In the fall of 1998, Finess began attending kindergarten at the La Guardia Family College. Tr. 286. The school classified Finess as "Speech Impaired," placed her in a class of 10 students and prescribed ongoing speech and occupational therapy. Tr. 261-64. On January 27, 1999, Finess' kindergarten teacher Shannon Kiley filled out the same Division of Disability Determination form that Kathy Toal submitted as part of Finess' SSI application. Tr. 286-90. Ms. Kiley made the same observations as Ms. Toal regarding Finess' appropriate social interaction and frustration tolerance behaviors. Tr. 287-88. However, Ms. Kiley noted that Finess did have problems in the effective completion of tasks in a timely manner. Tr. 288. Moreover, Ms. Kiley remarked that "Finess' expressive language is mildly delayed. She has difficulty with word finding for labeling and expressing her needs." Tr. 289. While Ms. Kiley found that Finess' "articulation is clear and is able to be understood when her volume is increased," she also relayed that "[w]hen speaking Finess uses a very low volume and needs to be reminded to speak louder." Id. Additionally, she stated that, "Finess exhibits difficulty answering abstract questions and following multi-step directions. She rarely initiates spontaneous speech or a conversation with adults and some peers." Id.

On March 14, 2000, Finess' first grade teacher, Kristen Swanson, filled out an "Educational/Psychological Report" for Finess' SSI application. Tr. 294-97. Ms. Swanson indicated that Finess did not exhibit perceptual or thinking disturbances, problems with impulse control, trouble interacting appropriately with peers or teachers, or a generally pervasive mood of unhappiness or depression. Id. She did note, however, that "[o]cassionally Finess isolates herself from her peers. When asked for an explanation of her actions, she has difficulty verbalizing it." Tr. 295. Additionally, she reported that Finess had problems with the timely completion of tasks, stating that "Finess gets twice the amount of time to take tests. She often needs extra time to complete her work (journal writing, projects, reading activities, etc.)." Id. Moreover, Swanson observed that Finess had problems with concentrating and remaining focused, sometimes falling asleep in class and having difficulty answering questions related to the activity she was engaged in. Id. Swanson also pointed out that Finess exhibited emotional lability,*fn3 crying when there was a lot of noise in the classroom. Id.

Regarding Finess' academics, Swanson stated that Finess was not reading and writing at a age-appropriate level, but was instead reading and writing at a kindergarten level and performing math at "lower-level 1st grade." Tr. 296. Finess' speech and language function displayed "a mild-moderate receptive language delay and a moderate expressive delay." Tr. 296. As she stated, "Finess has great difficulty with processing and word retrieval." Id. Finess' vocal quality, pitch and fluency were all adequate and intelligible, although her volume would sometimes decrease depending on the social situation and her fluency would be shortened due to difficulties with context and word retrieval. Tr. 296-97. Furthermore, in situations where Finess felt comfortable, such as with ...


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