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Vereen v. Commissioner of Social Security

May 27, 2008




A. Procedural History

Plaintiff Rhana D. Vereen ("Plaintiff") filed an application for Supplemental Security Income ("SSI") on behalf of her minor son, RDR, on April 26, 2004. Administrative Transcript ("AT") 49-51 (Dkt. No. 9). The application was initially denied. AT 25, 30-33. A request was made for a hearing. AT 34. A hearing was held before an Administrative Law Judge ("ALJ") on November 2, 2004. AT 249-62. In a decision dated June 7, 2005, the ALJ found that RDR was not disabled. AT 13-23. The Appeals Council denied Plaintiff's request for review on August 19, 2005. AT 4-6. Plaintiff, proceeding pro se, commenced this action on October 13, 2005 pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision. Dkt. No. 1.

B. Contentions

Plaintiff disagrees with the ALJ's decision that RDR is not disabled. Dkt. Nos. 1, 16. Defendant argues that the Commissioner's determination is supported by substantial evidence in the record, and must be affirmed. Dkt. No. 12.

C. Facts

Plaintiff's son, RDR, was born in 2001. AT 49, 66. Plaintiff alleges that RDR is disabled due to asthma, attention deficit hyperactivity disorder ("ADHD"), motor skill delays, and developmental delays. AT 89. Plaintiff alleges that RDR became disabled on August 1, 2001. AT 49.

From August 14, 2001 to October 2, 2003, Plaintiff treated with Tahera Haq, M.D. of Syracuse Community Health Center. AT 145-70. Dr. Haq diagnosed Plaintiff as suffering from asthma and prescribed Xopenex.*fn1 See id. On October 2, 2003, Dr. Haq noted that Plaintiff's asthma is "stable."*fn2 AT 146.

On January 1, 2002, RDR was treated at the emergency department of Upstate Medical University. AT 126-29. RDR was diagnosed as suffering from an upper respiratory infection. Id. On January 27, 2002, RDR returned to the emergency room for treatment of reactive airways disease, and an upper respiratory infection. AT 124-25.

On March 31, 2003, RDR underwent a consultative examination by Kalyani Ganesh, M.D. AT 192-95. Dr. Ganesh diagnosed RDR as suffering from asthma and a history of hyperactivity. AT 195. Dr. Ganesh concluded that RDR's physical development is normal and RDR's activities are age appropriate, but that RDR's speech is not intelligible. Id.

On September 4, 2003, RDR underwent an evaluation by Loraine Graham, R.N. of the MLW Developmental Education Center. AT 141-44. Nurse Graham described RDR as "interactive" and "cooperative," but noted that RDR "appears to be struggling with his motor abilities. He may also be exhibiting subtle differences in his receptive language abilities. He is well connected with his mother and appears eager to try new tasks. [RDR] is most content when engaged in problem[-]solving activities." AT 143.

On October 1, 2003, RDR was evaluated by Anne Collier, an occupational therapist. AT 171-76. Ms. Collier recommended that RDR receive occupational therapy services due to immaturities in sensory processing. AT 175.

Also on October 1, 2003, RDR was evaluated by Tara Pienkowski, a special education teacher, and Wendy Dorfman, a physical therapist. AT 177-82. It was found that RDR qualifies for Early Intervention Services due to a delay in age-appropriate cognitive skills as well as "non-optimal performance overall" during behavioral testing. AT 182.

On April 29, 2004, Lisa Acruw, an occupational therapist, and Diane Slowick, a special education teacher, recommended that RDR continue to receive occupational therapy due to his sensory impairments, and "special instruction" due to deficits in attention to tasks and processing verbal information. AT 104.

However, on May 12, 2004, RDR was discharged from Special Education Services. AT 114. Ms. Slowick noted that RDR was "functioning at his age level in all areas." Id.

On June 7, 2004, RDR underwent a second consultative examination by Dr. Ganesh. AT 188-91. Dr. Ganesh diagnosed RDR as suffering from asthma and a history of hyperactivity. AT 191. Dr. Ganesh concluded that RDR's physical development is normal; his speech is intelligible; and he is able to participate in age-appropriate activities. Id.

Also on June 7, 2004, RDR underwent an evaluation by Dennis Noia, Ph.D., a psychologist. AT 197-201. Dr. Noia found that the results of the examination are consistent with some minor delays in adaptive functioning and low average intelligence. AT 200.

On June 21, 2004, Manrique Quinto, M.D., an agency review physician, completed a Childhood Disability Evaluation Form. AT 203-208. Dr. Quinto indicated that RDR has a less than marked limitation in the functional domain of Health and Physical Well Being. AT 206. Dr. Quinto found no other limitations. AT 205-06.

On December 8, 2004, RDR underwent a speech/language evaluation by Jordia O'Connor, a speech/language therapist. AT 231-32. Ms. O'Connor found that RDR exhibits delays in receptive and expressive language skills. AT 232. Ms. O'Connor also found that the intelligibility of RDR's speech is decreased. Id.

A Preschool Student Evaluation Summary Report dated December 9, 2004 indicates that RDR's cognitive skills are in the low average range; his socialization skills are an area of weakness; and he has fine motor delays, difficulty functioning in the classroom, and exhibits delays in receptive and expressive language skills. AT 213-15. It was recommended that RDR undergo occupational therapy. AT 214.

On December 9, 2004, RDR was evaluated by various members of the Early Childhood Program of the Syracuse City School District. AT 233-44. It was found, inter alia, that RDR's overall cognitive skills are in the low average range; his behaviors are significant for attention problems; and he exhibits delays following multi-step directions. AT 242-43. It was recommended that RDR be designated as a "Preschooler with a Disability" and receive special language therapy, occupational therapy, and the services of a special education teacher. AT 243-44.

On January 28, 2005, RDR was evaluated by Teresa Hargrave, M.D. of Syracuse Community Health Center. AT 245-48. Dr. Hargrave diagnosed RDR as suffering from learning disabilities in speech and sensory integration which are improved with intervention; "mother/child interaction issues exacerbated by mom's new pregnancy;" and reactive airway disease; and noted that RDR is "large for age with chronic tonsillar and adenoidal hypertrophy with probable obstructive sleep apnea contributing to behavioral problems and cognitive problems." AT 247. Dr. Hargrave assigned RDR a score of eighty on the Global Assessment of Functioning ("GAF").*fn3 AT 248.

An Individualized Education Program ("IEP") dated February 18, 2005 indicates that RDR is eligible for special services. AT 211-12. Specifically, RDR is eligible for special education services, occupational therapy, and speech/language services. Id.


A. Standard of Review

Under 42 U.S.C. §§ 405(g) and 1383(c)(3),*fn4 the proper standard of review for this Court is not to employ a de novo review, but rather to discern whether substantial evidence supports the Commissioner's findings and whether the correct legal standards have been applied. SeeRivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991);Urtz v. Callahan, 965 F. Supp. 324, 325-26 (N.D.N.Y. 1997) (citing, inter alia,Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Succinctly defined, substantial evidence is "more than a mere scintilla," it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938).

The ALJ must set forth the crucial factors supporting the decision with sufficient specificity. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Where the ALJ's findings are supported by substantial evidence, the court may not interject its interpretation of the administrative record. Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988); 42 U.S.C. § 405(g). Where the weight of the evidence, however, does not meet the requirement for substantial evidence or a reasonable basis for doubt exists as to whether correct legal principles were applied, the ALJ's decision may not be affirmed. Johnson, 817 F.2d at 986.

B. Determination of Childhood Disability

In 1996, Congress significantly altered the childhood disability terrain, for purposes of eligibility for SSI benefits under the Social Security Act, by enacting the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA"), Pub. L. No. 104-193, 110 Stat. 2105 (1996).*fn5 In accordance with the PRWORA, which took effect on August 22, 1996, an individual under the age of eighteen is disabled, and thus eligible for SSI benefits, if he or she has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

42 U.S.C. § 1382c(a)(3)(C)(i). That definitional provision goes on to exclude from coverage any "individual under the age of 18 who engages in substantial gainful activity. . . ." 42 U.S.C. § 1382c(a)(3)(C)(ii). By regulation, the agency has prescribed a three-step evaluative process to be employed in determining whether a child can meet the statutory definition of disability. 20 C.F.R. § 416.924; Kittles v. Barnhart, 245 F. Supp. 2d 479, 487-88 (E.D.N.Y. 2003); Ramos v. Barnhart, 02 Civ. 3127, 2003 WL 21032012, at *7 (S.D.N.Y. May 6, 2003). The first step of the test, which bears some similarity to the familiar, five-step analysis employed in adult disability cases, requires a determination of whether the child has engaged in substantial gainful activity. 20 C.F.R. § 416.924(b); Kittles, 245 F. Supp. 2d at 488. If so, then both statutorily and by regulation the child is ineligible for SSI benefits. 42 U.S.C. § 1382c(a)(3)(c)(ii); 20 C.F.R. § 416.924(b).

If the claimant has not engaged in substantial gainful activity, then the second step requires an examination of whether the child suffers from one or more medically determinable impairments that, either singly or in combination, are severe -- that is, which causes more than a minimal functional limitation. 20 C.F.R. § 416.924(c); Kittles, 245 F. Supp. 2d at 488; Ramos, 2003 WL 21032012, at *7. If the existence of a severe impairment is discerned, the agency must next determine whether it meets or equals a presumptively disabling condition identified in the listing of impairments set forth by regulation, 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "listings"). Id. Equivalence to a listing can be either medical or functional. 20 C.F.R. § 416.924(d); Kittles, 245 F. Supp. 2d at 488; Ramos, 2003 WL 21032012, at *7. If an impairment is found to meet, or qualify as medically or functionally equivalent to, a listed disability, and the twelve month durational requirement is satisfied, the claimant will be deemed disabled. 20 C.F.R. § 416.924(d)(1); Ramos, 2003 WL 21032012, at *8.

Under final regulations which became effective on January 2, 2001, and materially altered the test dictated under the superceded interim rules, seeKittles, 245 F. Supp. 2d at 488-89, analysis of functionality is informed by consideration of how a claimant functions in six areas which are denominated as "domains," and described as "broad areas of functioning intended to capture all of what a child can or cannot do." 20 C.F.R. § 416.926a(b)(1); Ramos, 2003 WL 21032012, at *8. Those prescribed domains include:

(i) [a]cquiring and using information;

(ii) [a]ttending and completing tasks;

(iii) [i]nteracting and relating with others;

(iv) [m]oving about and manipulating objects;

(v) [c]aring for [oneself]; and

(vii) [h]ealth and physical well-being.

20 C.F.R. § 416.926a(b)(1). A finding of disability is warranted if a "marked" limitation, defined as when the impairment "interferes seriously with [the claimant's] ability to independently initiate, sustain, or complete activities," 20 C.F.R. § 416.926a(e)(2)(i), is found in two of the listed domains. 20 C.F.R. § 416.926a(a); Ramos, 2003 WL 21032012, at *8. Functional equivalence also exists in the event of a finding of an "extreme" limitation, meaning "more than marked," representing an impairment which "interferes very seriously with [the claimant's] ability to independently initiate, sustain, or complete activities," 20 C.F.R. § 416.926a(e)(3)(i), in one domain. 20 C.F.R. § 416.926a(a); Ramos, 2003 WL 21032012, at *8.

C. ALJ Johnson's Findings

Using the three-step disability evaluation, ALJ Jon K. Johnson found that 1) RDR has not engaged in any substantial gainful activity; 2) RDR has severe impairments; 3) RDR's impairments do not meet, medically equal, or functionally equal any of the listed, presumptively disabling conditions set forth in Appendix 1 of the Regulations. AT 17-23. The ALJ evaluated RDR's functional abilities in the six domains established by 20 C.F.R. ยง 416.926a(b)(1) and found that RDR has a ...

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