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CRUZ v. BARNHART

August 23, 2005.

KATHERINE CRUZ, as Natural Guardian o/b/o ANTHONY VEGA, an Infant Plaintiff,
v.
JO ANNE B. BARNHART, as Commissioner of Social Security Defendant.



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

On behalf of her infant son, Anthony Vega ("Vega"), plaintiff Katherine Cruz ("Cruz") filed this action on December 14, 2004, pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability benefits. The Commissioner moves for remand on the ground that the Administrative Law Judge ("ALJ") did not properly explore Vega's psychological problems or consider related clinical records. Cruz cross-moves for judgment on the pleadings, contending that the record establishes that Vega meets the Social Security Administration's ("SSA") listing for mental retardation in individuals under eighteen. In the alternative, Cruz moves for remand to the Commissioner. For the reasons stated below, Cruz's motion for judgment on the pleadings is granted.

  Background

  The following facts are taken from the administrative record.

  Social History

  Vega was born on February 3, 1998. During her seventh month of pregnancy, Cruz was hospitalized for three weeks due to a leak of amniotic fluid; Vega was born, however, during Cruz's ninth month of pregnancy, and she experienced no problems in delivering him. Cruz has acknowledged drinking into her third or fourth month of pregnancy because she was not aware that she was pregnant.

  Until Vega was approximately eighteen months old, he and Cruz lived with Vega's father, who has a history of drug and alcohol abuse and was physically abusive toward Cruz. According to Cruz, Vega not only heard frequent arguments between her and Vega's father, but also witnessed physical violence. When Cruz "decided that she would not continue to put up with the violence," Cruz moved back home with her mother. As of the time of the hearing, Vega lived with Cruz, Cruz's mother, three brothers, and Cruz's daughter. Cruz has described her own dominant languages as both English and Spanish, and given his home environment, Vega understands Spanish. Vega's first language is English, however, and he communicates in English with his family and friends.

  While Vega met many developmental milestones as an infant or toddler, throughout his life, Vega has not been able to "use words to express his wants or needs." Instead, as Cruz has described to several professionals, he often "grunts, points, takes adults to what it is he wants" or has tantrums. Vega is understood only by Cruz, who nonetheless has difficulties understanding him. According to some observations, Vega is "very hyper" and needs "constant adult one to one supervision," particularly given his tendency to "dart off" outside the home. Cruz also reports that Vega regularly urinates on himself and cannot dress himself without assistance.

  Vega has also exhibited violent tendencies throughout his young life. Although he has been assessed to be "friendly and not afraid of strangers," Cruz asserts that Vega regularly hit his sister and "smack[ed] her in the face" for not sharing her toys. Cruz has also explained that Vega "screams all the time," "hits people in the street," and "picks up anything and everything, not caring if it hurts someone or not." Vega has participated in play therapy "to address the violence he experienced at home." Medical and Evaluative History

  The earliest health records included in the administrative record are from Vega's March 14, 2000 well-child examination by Dr. Allison Cohen ("Dr. Cohen"), a resident at Mount Sinai Hospital. Dr. Cohen noted that Cruz "was concerned about [Vega's] speech" and that Vega was "still only saying Mama/Dada [and] grunting to express wants." Dr. Cohen further reflected that as Vega "seems not to be progressing," she would refer him to an early intervention program.

  Pursuant to Dr. Cohen's referral, on May 16, 2000, Conchita J. Fluitt ("Fluitt") of the Marathon Infants and Toddles Program ("Marathon") performed a bilingual educational evaluation of Vega, employing the Carolina Curriculum for Handicapped Infants and Infants at Risk as her primary testing protocol. Fluitt observed that Vega, who was then two years and three months of age, did not exhibit "difficulties with transition and processing language" and was neither delayed cognitively nor in terms of his receptive language development. He also was assessed to have age-appropriate "self help" skills. Fluitt opined, however, that Vega demonstrated signs of delay in terms of his socio-emotional development. Fluitt also determined that Vega was significantly delayed with respect to his expressive language capacity, especially as his speech was "unclear and difficult to understand" and was limited to one word utterances. On a form she completed pursuant to her evaluation, Fluitt rated Vega as having a 33 percent or more delay in communication and a 25 percent or more delay in his social and emotional development. Given these results, Fluitt concluded that early intervention services were appropriate for Vega.

  Another professional associated with Marathon, Carol Nelson ("Nelson"), also assessed Vega in May 2000, performing a "bilingual speech and language evaluation" in Cruz's home. Nelson observed that Vega communicated using vowel sounds, eye contact, and gestures, and that while he responded to both English and Spanish, he could not verbalize in either language. Overall, based on her "informal evaluation through play and conversation," Nelson opined that Vega had "low average language comprehension abilities and expressive language abilities at the 7-9 month level." On this basis, she concluded that he was delayed by at least 67 percent in expressive language and recommended English speech/language therapy. On the basis of these two evaluations, in December 2000, Vega began to receive services, including daily classes, one-on-one speech therapy three times each week, and social work services, from New York City's Early Intervention Program.

  On December 21, 2000, Dr. Cohen again examined Vega. Her notes from that visit express that Vega was "potty trained" but that his speech was limited to five to six words. On May 10, 2001, when Vega was three years old, Dr. Cohen saw Vega for a third time and observed that Vega's speech was "hard to understand." In response to Cruz's description of Vega's "heavy breathing" and frequent coughing when sick, Cohen noted that Vega's symptoms could be either asthma or seasonal allergies. Several months later, on June 7, 2001, Dr. Cohen evaluated Vega and completed a related report for the New York State Office of Temporary and Disability Assistance. As Vega failed to "meet development milestones for [his] age," she diagnosed him with "developmental and speech delay" but concluded that Vega neither presented signs of a significant psychiatric disorder nor demonstrated physical or neurological abnormalities.

  On June 27, 2001, a three-year, four-month-old Vega was assessed by Dr. Emma Florez ("Dr. Florez") of Diagnostic Health Services, Inc. ("DHS"). According to Dr. Florez's report, Vega was "toilet trained at the age of 29 months," was capable of dressing and undressing by himself, and "alternates feet on stairs, eats by himself, follows commands, understands taking turns, and holds a crayon in an adult fashion." On this basis, she determined that Vega's "[e]ating, feeding, dressing, playing, and home activities are at full range." Nevertheless, Dr. Florez noted Vega's limitations in two areas. First, Dr. Florez discussed Vega's "behavioral problem[s]," which she described in terms of his hyperactivity, aggression, and frequent fighting with his sister. More significantly, Dr. Flores stated that while Vega's first words were at two years old, "he does not say any sentence as yet" and "says only about ten words." As a result, she concluded that he would need "intensive and prolonged speech therapy." Overall, Dr. Florez's impression was one of "[d]elayed speech development" and "[s]econdary hyperactivity." On the same day, Vega was also evaluated at DHS by Harry Wakslak, Ph.D. ("Dr. Wakslak"), a psychologist. Contrary to Dr. Florez, Dr. Wakslak reported that Vega was not toilet trained and "wears Pampers," and that he could not "dress himself." As for Vega's communication skills, Dr. Wakslak determined that despite being "alert and responsive to external surroundings," Vega neither could talk nor respond to questions "in a functional manner." He also noted that throughout the session, Vega was "defiant, oppositional, and somewhat hyperactive." Dr. Wakslak explained that as Vega "refused to follow simple step commands and body identifications," he could not properly assess Vega's receptive language skills. Dr. Wakslak did evaluate Vega, however, on Raven's Progressive Matrices Test, finding that Vega functioned between the fifth and tenth percentiles. Dr. Wakslak reported that "[t]his level of performance places him within the borderline level of intelligence (IQ 73)." On the whole, therefore, Dr. Wakslak concluded that Vega exhibited "[b]orderline intelligence" and both expressive and receptive language dysfunction requiring "ongoing speech and language therapy." In addition, Dr. Wakslak opined that Vega would "benefit from participating in a full-time special education early intervention program."

  Approximately one month later, on July 20, 2001, Vega was evaluated by Nori E. Wallshein, a speech pathologist at the Manhattan Speech and Language Center. Wallshein administered several tests to Vega. Using the Preschool Language Scale-3 ("PLS-3"), Wallshein found Vega to display an approximate thirty-month delay in auditory comprehension skills and an eighteen-month delay in his expressive communication skills. Among the tasks Vega could not complete were "following simple directions without gestural cues," "answer[ing] what, where, and yes/no questions," and "produc[ing] basic sentences." Wallshein then attempted to administer the Goldman-Fristoe Test of Articulation-2, but abandoned that test when Vega "did not label or imitate the test terms." Nevertheless, she assessed his speech to be "intelligible approximately 75% of the time during spontaneous speech." In assessing his language skills, Wallshein concluded that Vega's "mean length of utterance is mildly delayed for his chronological age" and that he "exhibited moderate delays in his morphological-syntactic skills." On the other hand, Wallshein found that Vega was "beginning to respond to contingent queries and to make rapid topic changes." Surmising that Vega's delayed speech and language development could be the result of recurrent ear infections, Wallshein concluded that Vega's potential for improvement was "good" given that "children with similar delays have demonstrated improvement with speech and language therapy and parental involvement."

  In fall 2001, Vega approached the end of his eligibility for Early Intervention services and required new evaluations to qualify for services through the Committee on Preschool Education ("CPSE") of the New York City Board of Education. On the basis of a referral from CPSE, on September 5, 2001, Vega was evaluated by three professionals at the Village Child Development Center ("VCDC"). First, Eileen M. Laide ("Laide"), a bilingual speech-language pathologist with VCDC, performed a bilingual speech and language evaluation. At the outset, Laide noted that Vega communicated through "one through four word utterances, gesture, social affective signaling, vocalizing, and crying." She also observed that while Vega had been "exposed to some Spanish," his home environment was "predominantly English-speaking" and that his Spanish language skills were "quite limited." In evaluating Vega's behavior, Laide found him to "particularly resist book tasks as test items became more challenging for him," stated that he occasionally refused to answer test items that he perceived as difficult, and determined that he had "tremendous difficulty processing questions." On the basis of the Westby Play Scale, she assessed his play skills as equivalent to 24 months.

  Laide's efforts to test Vega's language skills offered mixed results. On one hand, her attempt to administer the Expressive One Word Picture Vocabulary Test-Revised had to be discontinued after Vega failed to achieve "a basal score of six correct responses at the two-year-old level." Laide also administered the PLS-3 Spanish edition, cautioning that "the results of these tests must be interpreted cautiously since they were neither developed nor normed on bilingual populations." On the basis of the PLS-3, Laide assessed Vega to have a receptive language capacity of 30-35 months, constituting a 25 percent delay, and an expressive language capacity of 24-29 months, amounting to a 33 percent delay. In particular, Laide deemed Vega's grammatical development to be "quite delayed" and observed that "he was unable to produce basic sentences when ...


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