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Brown v. Astrue

August 4, 2008


The opinion of the court was delivered by: Norman A. Mordue, Chief U. S. District Judge



In this action, plaintiff Barbara Brown, on behalf of her minor stepson, Shaquille, moves, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), for a review of a decision by the Commissioner of Social Security denying Shaquille's application for childhood disability benefits. (Dkt. No. 1). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.


Shaquille was born on July 1, 1995 and was 8 years old at the time of the administrative hearing on June 25, 2004. (Administrative Transcript at p. 34, 40).*fn2 Shaquille resides at 6 Bogart Terrace in Albany, New York with plaintiff, his stepmother and legal guardian. (T. 33). Shaquille was diagnosed with post traumatic stress disorder with psychosis, possible ADHD, dysthymia and depressive disorder.*fn3 (T. 90, 153). Plaintiff claims Shaquille became disabled on December 1, 1996.*fn4 (T. 40).

A. Medical Evidence

1. Joan Franco - Child Therapist

On February 18, 2003, Ms. Franco, a therapist at the County of Albany Crime Victim and Sexual Violence Center, prepared a Telephone Memorandum regarding a call received from plaintiff. (T. 166). Plaintiff stated that Shaquille came to live with her and his biological father in June 2002. (T. 169). Plaintiff stated that Shaquille recently disclosed to her that he was sexually abused by his biological mother's boyfriend. (T. 166). Plaintiff also claimed that Shaquille witnessed the murder of his 22 month old sister by his biological mother's ex-boyfriend. (T. 169).

From February 2003 until January 2004, Shaquille attended one-hour counseling sessions with Ms. Franco on a weekly basis.*fn5 (T. 179). The types of services provided during these sessions are described as "crisis intervention" and "criminal justice". (T. 173-179). On July 17, 2003, Ms. Franco wrote a letter to Albany County Mental Health describing her work with Shaquille. (T. 138). Shaquille underwent an evaluation at Albany County Mental Health at the request of Ms. Franco. Ms. Franco stated that she treated Shaquille weekly regarding his sexual abuse, nightmares and behavioral difficulties. (T. 138). Ms. Franco described Shaquille as "guarded" with a "muted demeanor" and "flat affect". (T. 138). Ms. Franco stated that Shaquille "engaged in conversation freely and is able to speak about his abuse". (T. 138). Ms. Franco stated that Shaquille had been hearing voices and noises which he described as "scary". (T. 138).

In September 2003, Ms. Franco noted that plaintiff called with an "update on Shaquille's condition". (T. 177). Plaintiff advised that Shaquille was suspended from school and that his behavior had "regressed". (T. 177). Ms. Franco noted "Shaquille has not been seen in many weeks" and that Shaquille was receiving bi-weekly therapy from Vera Imperiale at Patriot Psychiatric Group. (T. 177). In January 2004, Shaquille had his last visit with Ms. Franco. (T. 179).

2. Albany County Mental Health

On March 14, 2003, Barbara Gabriel-Catalano, a social worker at Albany County Mental Health ("ACMH"), prepared a telephone memorandum regarding a call received from plaintiff.

(T. 86). Plaintiff advised Ms. Gabriel-Catalano that Shaquille was abused when he was 4 or 5 and that he just began receiving counseling from Joan Franco at Crime Victims. (T. 86). Plaintiff advised that she was concerned because Shaquille "heard voices" during the night. (T. 86). Ms. Gabriel-Catalano told plaintiff that Shaquille should continue to receive counseling from Ms.

Franco and that plaintiff should "call back if she felt [counseling] was unsuccessful". (T. 86). On March 20, 2003, plaintiff telephoned regarding Shaquille's difficulty sleeping, behavior and continuing nightmares. (T. 85). At the conclusion of the conversation, Ms. Gabriel-Catalano scheduled Shaquille for an evaluation. (T. 85).

On April 4, 2003, Jennifer Eslick, a staff social worker, prepared a telephone memorandum indicating that Shaquille missed his scheduled appointment due to weather conditions. (T. 84). Ms. Eslick spoke with plaintiff and noted that Shaquille's situation was no longer a "crisis" but that Shaquille still had headaches and nightmares. (T. 84). Ms. Eslick noted that Shaquille was receiving counseling through his school and with Ms. Franco. (T. 84). Ms. Eslick recommended that Shaquille seek treatment from his primary care doctor for his headaches and that Shaquille should continue with counseling. (T. 84).

On June 25, 2003, Shaquille was evaluated by Ms. Gabriel-Catalano at the plaintiff's request. (T. 135). Plaintiff advised Ms. Gabriel-Catalano that Shaquille heard voices, hallucinated and experienced nightmares that he described as "scary and dangerous". (T. 135). Plaintiff advised that Shaquille had difficulties in school and that he was manipulative and untruthful. (T. 135).

Upon examination, Ms. Gabriel-Catalano noted that Shaquille provided "one word" answers and appeared "depressed and angry". (T. 136). Shaquille reported hearing adult voices and stated that "the devil tried to take over his head". (T. 136). Ms. Gabriel-Catalano recommended "the Healy House for stabilization" or Patriot Psychiatric for an evaluation. (T. 136). Ms. Gabriel-Catalano also provided plaintiff with information regarding special education services. (T. 136).

3. St. Peter's Hospital Clinic - Pediatrician

On February 27, 2003, Shaquille was treated at St. Peter's Hospital Clinic. (T. 82). The attending physician, Mark Osborn, M.D., noted that Shaquille recently told his stepmother that he had been sexually abused by his mother's former boyfriend on a daily basis. (T. 82). A nurse practitioner noted that Child Protective Services was involved and that Shaquille was undergoing educational testing to "rule out any learning disability".*fn6 (T. 83). Upon examination, the nurse practitioner noted that Shaquille was a "pleasant child" with "normal growth". (T. 83). The nurse noted the presence of two small circular scars on Shaquille's mid back but noted that Shaquille denied ever being burned. (T. 116).

On June 20, 2003, Shaquille returned to St. Peter's Hospital Clinic for a "stuffy nose" however, the attending nurse noted that "therapist feels he needs more intensive psychiatric intervention - having hallucinations". (T. 111). The nurse diagnosed Shaquille with "PTSD". (T. 112).*fn7

4. Patriot Psychiatric Group

On July 24, 2003, Shaquille underwent an initial evaluation at Patriot Psychiatric Group by Vera Imperiale, NPP.*fn8 (T. 162). Plaintiff provided Shaquille's history of abuse and difficulties in school. (T. 160). Plaintiff stated that Shaquille could not stay focused and that he recently moved schools but that he had not improved. (T. 160). Plaintiff advised that Shaquille was "aggressive" when he played with other children, heard voices, and was manipulative and dishonest. (T. 160).

Nurse Imperiale performed a mental status examination and found that Shaquille displayed normal speech, thought processes and knowledge. (T. 158). Nurse Imperiale noted that Shaquille did not display any delusions or suicidal/homicidal tendencies. (T. 158). Nurse Imperiale diagnosed Shaquille with post traumatic stress disorder, depressive disorder and past abuse and prescribed Paxil.*fn9 (T. 162).

On August 7, 2003, a progress note prepared by Nurse Imperiale indicated that Shaquille was "calming" while on medications but that he still had visual hallucinations. (T. 156). Nurse Imperiale prescribed Risperdal for Shaquille's hallucinations.*fn10 (T. 156). On September 3, 2003, plaintiff indicated that Shaquille's affect was "stiff" and that he did not smile. (T. 155). Nurse Imperiale changed Shaquille's medications and prescribed Zyprexa and Zoloft.*fn11 (T. 155). On September 29, 2003, Shaquille stated that he "felt fuzzy" but that "the voices went away" and he was able to sleep. (T. 154). The nurse noted that Shaquille "put a boy in a headlock and choked him yesterday", that he was accused of "stealing and lying in school" and that "kids at school pick on him". (T. 154). Nurse Imperiale increased Shaquille's dosage of Zoloft. (T. 154). In October 2003, Nurse Imperiale noted that Shaquille's behavioral problems at school were continuing. (T. 153). Nurse Imperiale noted that Shaquille may suffer from ADHD and requested that Shaquille's teacher complete ADHD "scales". (T. 153). In November 2003, Nurse Imperiale noted that Shaquille no longer heard voices and that he was "better in school". (T. 152).

In December 2003, Shaquille stated that he "knocked 2 kids heads together in school". (T. 151). Nurse Imperiale noted that Shaquille denied hearing voices but plaintiff indicated that Shaquille's behavior was still poor. (T. 151). Shaquille said he was happy but "hit the kids for no reason". (T. 151). Upon examination, Nurse Imperiale noted that Shaquille's mood was neutral and that he appeared embarrassed by his actions. (T. 151). The nurse diagnosed Shaquille with depressive disorder with psychosis and mood instability and increased his medications. (T. 151).

In March 2004, Nurse Imperiale noted that Shaquille had not been seen since December 2003. (T. 150). Plaintiff stated Shaquille's anger had increased and that "the voices and hallucinations had returned". (T. 150). Nurse Imperiale noted that Shaquille suffered from an increase in psychosis and increased his dosage of Zyprexa. (T. 150).

On June 9, 2004, Shaquille had his last visit at Patriot Psychiatric. (T. 148). Nurse Imperiale noted that Shaquille was "doing better" and that he was "no longer seeing monsters but still heard voices". (T. 148). Nurse Imperiale advised plaintiff to discontinue Zyprexa in the morning and prescribed Seroquel.*fn12 (T. 148).

B. Academic Records and Evaluations

1. Academic Year 2002 - 2003 - Second Grade

According to the evidence in the record, Shaquille was in second grade at Giffen Elementary School (P.S. 18) in Albany. Shaquille's progress records indicate that he read "above grade level" but that he needed improvement in all literacy skills and work habits/behaviors. (T. 119).

Shaquille's disciplinary records from the 2002 - 2003 school year indicate that Shaquille was suspended from school for one day for fighting and for three days for stealing. (T. 130, 132). Disciplinary records also indicate that Shaquille had been absent/tardy on several occasions. (T. 131).

2. Academic Year 2003 - 2004 - Third Grade

Shaquille began third grade at Giffen Elementary School. On September 16, 2003, Shaquille was suspended from school for one day for choking a student in the bathroom. (T. 133).

On October 19, 2003, Shaquille's teacher, Elizabeth Schofield, completed a NICHQ Vanderbilt Assessment Scale and noted that Shaquille "very often" talked excessively, blurted out answers, lost his temper, lied to obtain goods or avoid obligation and stole items of nontrivial value.*fn13 (T. 123). Ms. Schofield also indicated that Shaquille had "somewhat of a problem" with written expression, relationships with peers, disrupting class and completing assignments. (T. 124).

Shaquille's Mid-Year Progress Records indicate that he transferred to Montessori Magnet School.*fn14 In the progress reports, Shaquille's teacher described Shaquille as "a very bright child when he chooses to put effort into a task" and noted that "he has come a long way since he came to MMS". (T. 122). Shaquille's teacher noted that he often rushed through work and became angry when asked to fix his work. (T. 122). Shaquille's teacher further stated that "he sometimes takes things that aren't his which makes it difficult for the class to trust him" and that "he needs to work on writing and peer relationships". (T. 122A). Shaquille's teachers noted that he displayed "satisfactory" effort with interactive skills including working and cooperating with others, being courteous and respectful to others, respecting his environment and following school rules. (T. 122).

In March 2004, Shaquille underwent a Psychoeducational Evaluation by the school psychologist, Margaret Capozzola, at plaintiff's request. (T. 125). Plaintiff provided Mrs. Capozzola with details regarding Shaquille's behavioral issues, prior abuse, hallucinations, nightmares and family situation. (T. 125). Mrs. Capozzola noted that Shaquille's biological father was in jail. (T. 125). Plaintiff advised that Shaquille experienced anxiety attacks after spending the afternoon with his biological mother. (T. 125). Mrs. Capozzola consulted with Shaquille's teachers who stated that Shaquille "stole and lied" with no displays of remorse. (T. 125). The teachers also advised Mrs. Capolozza that Shaquille engaged in inappropriate sexual conversations with his peers. (T. 125).

Mrs. Capozzola performed a series of standardized tests and found that Shaquille's full scale IQ was 93. (T. 126). Mrs. Capozzola observed Shaquille in his classroom setting and noted that he displayed disruptive behavior which the teacher indicated was common. (T. 127). Mrs. Capozzola noted that Shaquille was "excited to join the examiner" and "quickly made himself comfortable and began conversational speech". (T. 127).

Mrs. Capozzola recommend that Shaquille have a "special friend at school" as he needed to "feel connected and cared about at school". (T. 128). Mrs. Capozzola noted that Shaquille required significant teacher interaction and close contact with home to make sure he met the demands of school. (T. 129). Mrs. Capozzola noted that she would discuss Shaquille's eligibility for special education services with the Committee for Special Education. (T. 128).

3. Academic Year 2004 - 2005 - Fourth Grade*fn15

In November 2004, the Committee on Special Education met to review Shaquille's educational plan. (T. 221-236). The 2004-2005 Individualized Education Program (IEP) classified Shaquille as having an "emotional disturbance" and the Committee recommended that Shaquille be placed in Special Education Programs, specifically in a self contained classroom setting with counseling. (T. 227, 234). The IEP committee noted:

- Requires significant amount of teacher instruction to remain focused and to complete assignments.

- Close contact between home and school needs to be maintained.

- States that nobody likes him.

- Wants to be the center of attention.

- Often will say things of an inappropriate ...

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