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Miranda v. Barnhart

January 12, 2006

RAMON MIRANDA ON-BEHALF-OF RAYMON MIRANDA, PLAINTIFF,
v.
JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



REPORT AND RECOMMENDATION

TO THE HONORABLE LEWIS A. KAPLAN, U.S.D.J.:

Ramon Miranda (the "plaintiff") brings this action on behalf of his son, Raymon Miranda, pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). The plaintiff seeks review of the determination by the Commissioner of the Social Security Administration (the "Commissioner") finding Raymon not disabled and denying his application for children's Supplemental Security Income ("SSI") benefits. The plaintiff contends that the court should modify the Commissioner's determination to grant monthly maximum insurance and/or SSI benefits to Raymon, or alternatively to remand to the Commissioner for reconsideration of the evidence. (Compl. at 3). For the reasons stated below, I recommend that the case be remanded for further proceedings.

Background

A. Procedural History

On August 2, 2001, Raymon's mother, Helen Miranda, filed an application for SSI benefits on Raymon's behalf.*fn1 (Tr. 49-51). In the initial eligibility determination decision dated December 11, 2001, the Social Security Administration (the "SSA") found that the medical evidence demonstrated Raymon had "an emotional disorder, asthmatic attacks and a normal examination finding." (Tr. 45). In refusing to approve Raymon's application, the SSA concluded that subsequent treatment had improved Raymon's condition such that he had "no restrictions to his daily activities." (Tr. 45).

On December 20, 2001, Ms. Miranda filed a request for a hearing to contest the SSA's determination. She described the basis of her request as Raymon's need to "tak[e] 5 types of medication," participate in occupational therapy at school, and attend speech therapy. (Tr. 46). Ms. Miranda appeared pro se on Raymon's behalf at the hearing on June 4, 2002. (Tr. 32). The presiding Administrative Law Judge (the "ALJ") denied Raymon's claim on October 24, 2002 (Tr. 19, 24), finding, among other things, that Raymon was not disabled and that "allegations regarding his impairment and its impact upon his functioning [were] not entirely credible." (Tr. 23).

Ms. Miranda then requested and was denied Appeals Council review of Raymon's claim on June 23, 2004. (Tr. 5). The ALJ's ruling therefore stands as the Commissioner's final decision. The plaintiff filed this action on August 12, 2004, and the Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

B. Factual Record

Raymon was born on January 3, 1995. (Tr. 49). He is supported by his father, although when much of the record was compiled he lived with his mother. Raymon has a history of learning disabilities (Tr. 197-98), as do his siblings. (Tr. 106, 275). He is also reported to have a history of speech and language problems, middle ear infections, asthma, and right lower extremity weakness. (Tr. 197). He has been receiving speech therapy since pre-school (Tr. 241), and occupational therapy for fine motor coordination. (Tr. 197, 240). Raymon has also taken a regimen of medications for his asthma, including Flovent, Proventil, Albuterol, and Sena concentrate, as well as an antibiotic for his ear infections. (Tr. 197).

C. Evidence in the Record at the Time of the Hearing

1. Speech Impairment and Learning Disability*fn2

On May 20, 1998, Valerie Nieves Rodriguez of the Paul Institute for Mainstreaming Services, Inc. (the "Paul Institute") conducted a psychological evaluation of Raymon. (Tr. 118-21). Ms. Rodriguez's findings, reported on May 28, 1998, indicate that Raymon's cognitive functioning was "within the average range," and his overall social/adaptive functioning was found to be "within the moderately low range." (Tr. 120). Based on her findings, Ms. Rodriguez believed that Raymon would benefit from language development supportive services. (Tr. 120).

Carly-Robin Dresher, a state-licensed speech and language pathologist, evaluated Raymon on the same day as the Paul Institute visit. (Tr. 109). On the Preschool Language Scale, Third Edition, Raymon demonstrated a "moderate-severe" delay in the areas of auditory comprehension, expressive communication, and total language skills. (Tr. 109-10).

Ms. Dresher also administered the Preschool Language Scale Articulation Screener and noted that Raymon's intelligibility at the word and conversation levels was "fair." (Tr. 110). Ms. Dresher found speech delays and a limited ability to attend and concluded that the diagnostic tests revealed "severe delays across all parameters of language processing and expression." (Tr. 111). She recommended that Raymon continue to receive speech and language therapy three times per week. (Tr. 111).

On September 14, 1998, when Raymon was three and one-half years old, Nora Reid, a special educator, conducted an educational evaluation of Raymon. (Tr. 122-25). Noting that "it was extremely difficult to test him," Ms. Reid found that he had "many deficits and very little communication skills." (Tr. 122). Ms. Reid's summary indicated that Raymon was "under-stimulated and probably overprotected by his mother." (Tr. 125). All of the tested domains, with the exception of motor skills, revealed deficits. (Tr. 125). Ms. Reid found it "necessary that support services [be] provided." (Tr. 125).

Dr. Margaret Chu conducted a psychiatric consultative examination of Raymon on March 1, 1999. (Tr. 186). After noting a history of lead poisoning (Tr. 186), Dr. Chu observed that Raymon was "somewhat behind in age-related activities." (Tr. 187).

On April 9, 1999, Dr. Judith E. Belsky met with Raymon and completed a Childhood Disability Evaluation. (Tr. 52-55). Dr. Belsky found that Raymon's "impairment" was "severe, but [did] not meet, medically equal, or functionally equal the severity of a [listed impairment]." (Tr. 52). Dr. Belsky found Raymon's cognitive and communicative functional limitations to be "[l]ess than [m]arked," and found no evidence of a limitation for the Responsiveness to Stimuli, Personal, Social, or Concentration/Persistence/Pace domains. (Tr. 54). The portion of the evaluation form used to designate "established physical and mental impairments and associated symptoms" was left blank (Tr. 52), and Dr. Belsky found that "[Raymon] has speech delay with poor expressivity." (Tr. 55).

Dr. Irwin Ronson, a speech and language pathologist, conducted a speech and language review with Raymon on May 28, 1999. (Tr. 96). Dr. Ronson administered the Preschool Language Articulation Screener, remarking that Raymon displayed "[f]air intelligibility for words and conversation." (Tr. 96). Raymon's Preschool Language Scale ("PLS-3") test scores revealed "less than marked" impairments of his auditory comprehension, expressive communication, and total language skills Dr. Ronson summarized his findings by noting a "moderate speech and language impairment" that was less than marked. (Tr. 96).

Speech and language pathologist Michele Lieberman completed a New York State Office of Temporary and Disability Assistance "Request for Medical Advice" on August 20, 1999. (Tr. 60). Ms. Lieberman found that Raymon had a marked deficit "in speech/comm[unication] function as opposed to less than marked . . . [and his] overall lang[uage] skill [is] limited." (Tr. 60).

A "Dr. Dinoff" completed a Childhood Disability Evaluation Form on August 30, 1999. (Tr. 56-59). Dr. Dinoff found that Raymon had an established "learning disability" impairment, but that his disability did not "meet, medically equal, or functionally equal" a listed impairment. (Tr. 56). Dr. Dinoff found Raymon's cognitive and communicative functional limitations to be "less than marked," and found no evidence of a limitation for the Responsiveness to Stimuli, Personal, Social, or Concentration/Persistence/Pace domains. (Tr. 58). Explaining the findings, Dr. Dinoff indicated that Raymon "revealed some language problems." (Tr. 59).

A September 14, 1999, progress report completed by Loraine Cade, a speech pathologist at the Paul Institute, indicates that Raymon was receiving speech therapy two times per week for 30 minutes. (Tr. 293-94). Teachers had reported to Ms. Cade that Raymon was "very slow" in school and had not finished his assigned tasks. (Tr. 293). Ms. Cade reported that "[Raymon] has problems processing information. When the teachers ask Raymon[] to do something, he would look at them very strangely, without following any of their directions. The teachers have to repeat the questions or directions to Raymon[] several times before he is able to process the information or even begin the activity." (Tr. 293). According to Ms. Cade, these problems were similar to the difficulties that Ms. Miranda experienced when interacting with Raymon. Ms. Cade also pointed to progress in Raymon's speech and language skill development.

On February 5, 2000, Ms. Miranda reported to Juana Sosa-Mendez, A school social worker, that Raymon stuttered and had speech and language delays. (Tr. 286). Ms. Sosa-Mendez recommended "[r]elated [s]ervices only of speech and language therapy twice per week . . . provided by the Paul Institute." (Tr. 287).

Also on February 5, 2000, H. Vallescorbo, Raymon's school psychologist, completed a Confidential Psychological Report to determine Raymon's placement and services in the New York City public school system. (Tr. 274). The report noted that Raymon was then in preschool and to that point had reached all developmental milestones within normal limits with the exception of his language abilities. (Tr. 275).

In reviewing language functioning, Vallescorbo found that Raymon "has problems expressing himself verbally . . . . [He] mispronounced words and has a lack of words to identify familiar objects."*fn3 (Tr. 275). Raymon's "utterances were often unintelligible," continued Vallescorbo, and his "overall expressive and receptive language are delayed."*fn4 (Tr. 278).

To assess Raymon's intellectual capacity, Vallescorbo administered the Wechsler Preschool & Primary Scale of Intelligence, Revised ("WPPSI-R"). (Tr. 276). Raymon's test scores placed him in the "lower limits of the [l]ow [a]verage range." (Tr. 276). Raymon also tested in the low average range on the Verbal Scale.*fn5 (Tr. 276). Testing revealed Raymon's numerical abilities to be well-developed, "a [strength] for him." (Tr. 276). Vallescorbo also utilized the Stanford-Binet, Fourth Edition to assess Raymon's overall intellectual functioning, revealing results in the low average range. (Tr. 278).

After reviewing the results of a battery of other test scores, Vallescorbo summarized his findings. Testing indicated that Raymon was functioning below his age expectancy, particularly with respect to language abilities. (Tr. 276). Although tests revealed a "clos[e]-to-appropriate vocabulary," Vallescorbo also found that Raymon's verbal comprehension and concept formation were poor. (Tr. 276). Reviewing Raymon's physical functioning, Vallescorbo stated that Raymon's perceptual-motor skills and visual motor skills were adequate, but that he showed significant delays in his graphomotor skills. (Tr. 276).

On August 23, 2000, an Individualized Education Program ("IEP") was completed for Raymon. (Tr. 170-85, 215-32). Raymon was deemed eligible for assistance because of his speech impairment. (Tr. 170). The IEP recommended that Raymon be placed in general education with related services, speech and language therapy, and occupational therapy). (Tr. 170). At the same time, Raymon was cleared to "participate in all [school] activities."

(Tr. 172).

Dr. Evelyn Cumps-Bakst, who Ms. Miranda indicated was Raymon's treating physician (Tr. 81), completed a medical report for Raymon's visits to Metropolitan Hospital from April 25, 2001, to August 1, 2001. (Tr. 98-105). Raymon's first visit to Metropolitan Hospital had been when he was 17 days old; Dr. Cumps-Bakst's first date of treatment was on April 25, 2001, when Raymon was six years old. (Tr. 98). Dr. Cumps-Bakst's "treating diagnoses" included a speech disorder*fn6 that had been diagnosed in April or May of 1997 and encopresis*fn7 that was reportedly improving with Senokot.*fn8 (Tr. 98-99). Raymon was also noted to be hyperactive at home but well-behaved in school. (Tr. 101). Dr. Cumps-Bakst saw no behavior suggestive of a "significant psychiatric disorder." (Tr. 99).

Dr. Cumps-Bakst's summary indicates that Raymon's were cognitive skills were age-appropriate; his communication skills were deemed to be "decreased" due to an "extensive speech delay." (Tr. 100-01). Dr. Cumps-Bakst reported that Raymon's "activities"*fn9 were "not affected" by his impairment. (Tr. 100). Evaluating Raymon's level of attention and concentration, Dr. Cumps-Bakst opined that he "pays attention to my suggestions but [his] school teacher would be better [situated] to evaluate this [aspect of functioning]." (Tr. 103).

On April 30, 2001, Raymon's initial IEP was revised. (Tr. 295-306). He was again found eligible for special services due to a speech impairment. (Tr. 295). Raymon was to continue to attend general education classes and receive supplemental services, occupational therapy, and speech and language therapy.*fn10 (Tr. 295).

Dr. Lynn A. Sider evaluated Raymon's speech and language functioning on August 24, 2001. (Tr. 188). She found Raymon to be alert, well related, playful, and friendly, occasionally displaying evidence of distractibility. (Tr. 189). Raymon's oral peripheral speech mechanism was found to be "within functional limits," and his auditory skills were deemed "adequate for conversational purposes." (Tr. 189). Dr. Sider administered a CELF-3 test, for which the Total Language Score of 69 and Expressive Language Score of 57 were each classified as falling within the "very low range of functioning." (Tr. 190). Raymon's Receptive Language score was somewhat better at 84, though still within the low range. (Tr. 190). In summarizing Raymon's performance on the administered formalized testing, Dr. Sider found Raymon to be in the "below average range." (Tr. 192). Dr. Sider concluded that Raymon had a "severe expressive language delay." (Tr. 193).

On September 17, 2001, Dr. Robin Bryant met with Raymon and administered the Wechsler Intelligence Scale for Children, Third Edition ("WISC-III") and the Test of Nonverbal Intelligence, Third Edition ("TONI-III"). (Tr. 194). Raymon's TONI-III test yielded a score of 85, placing him in the low average range of functioning and the sixteenth percentile for his age. (Tr. 195). In Dr. Bryant's view, Raymon might be able to perform tasks on a higher level if he were not hindered by his speech delays. (Tr. 196). Raymon was found to be "mentally deficient" with respect to his long-term memory for learned information and expressive vocabulary. (Tr. 196). Dr. Bryant concluded that Raymon's basic intellectual, personal, and social functioning appeared moderately to seriously impaired overall due to expressive and receptive speech and language delay, although Raymon would be able to accomplish many age-appropriate tasks in school. (Tr. 196). Dr. Bryant's overall prognosis was "guarded to fair." (Tr. 196).

On February 8, 2002, Raymon's IEP was again reviewed. (Tr. 297). The IEP contains an observation that "Raymon[] speaks English with limited proficiency. Teacher indicates he is currently functioning below his age and grade levels. His absences interfere with current performance." (Tr. 299). Raymon's behavior was noted to be good both at home and school, although his interaction with his peers was thought to be restricted due to his inability "to initiate conversations[] or expand on a given topic." (Tr. 300).

On September 18, 2001, Dr. Tomasit Virey evaluated Raymon's impairments (Tr. 197). Dr. Virey's report indicates that at least some of the information was obtained from Ms. Miranda, whose reliability he noted as "fair." (Tr. 197). Raymon was described as a playful, friendly and cooperative child with a normal affect and mental status. (Tr. 198). Raymon displayed the ability to answer questions in an age-appropriate manner and his speech was noted to be "slightly unclear but understandable, comprehensible, audible and sustainable." (Tr. 198). Summarizing his findings, Dr. Virey listed Raymon's impairments as a speech and language problem, asthma, and weakness of the right lower extremity. (Tr. 199). Raymon's ability to do age-related activities was reported to be moderately affected, and his prognosis was listed as fair. (Tr. 199).

Frances Brenner, a parent-child development specialist at Metropolitan Hospital, submitted a letter dated May 29, 2002, indicating that Raymon had been attending counseling sessions with her for approximately six months. (Tr. 210). She further stated that Raymon's speech and occupational therapies ...


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