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F.M. v. Astrue

July 27, 2009


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff F.M., on behalf of B.M., an infant, commenced this action against defendant Commissioner of Social Security on October 31, 2008, seeking review of defendant's decision denying a claim for Supplemental Security Income disability benefits under Title VI of the Social Security Act. Plaintiff claimed that B.M. was disabled due to deafness in one ear and recurrent temporary deafness in the other ear, asthma, severe receptive and expressive language delays, borderline intellectual functioning, and a language disorder not otherwise specified. Now before the Court is the defendant's motion for remand for further administrative proceedings and plaintiff's cross-motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and 42 U.S.C. § 405(g). For the reasons stated below, plaintiff's motion is granted, and defendant's motion is denied.


The following facts are drawn from the complaint, the transcript of the record of proceedings before the Commissioner and the parties' submissions in connection with this motion.

B.M. was born on September 5, 1997 and is presently 11 years old. Transcript of administrative record at 209, 491 ("Tr."). Spanish is his first language. Tr. 704-5. B.M. suffers from unilateral deafness secondary to congenital left ear atresia.*fn1 Tr. 462, 310. B.M.'s left external ear is deformed with a small canal. Tr. 301. B.M. has suffered from recurrent otitis media*fn2 in his right ear that has resulted in temporary hearing loss in that ear and operations for myringotomy*fn3 and insertion of tympanostomy tubes.*fn4 Tr. 184, 309-310. Due to his hearing impairment, B.M. wears a frequency-modulated ("FM") unit (hearing assistive device) in school. Tr. 478, 510.

The New York City Department of Education has identified B.M. as a student with a disability and has provided him with special education services since preschool. Throughout the disability period, B.M. has been placed in a collaborative team teaching class with one special education teacher and one general education teacher, and has received speech and language therapy and hearing education services. B.M.'s teachers have consistently described him as suffering numerous difficulties in carrying out basic classroom tasks such as understanding instructions and finishing assignments, although his behavior is good and he relates well with children and adults.

In the following sections, I first identify the criteria by which childhood disability is assessed by the Social Security Administration. I then describe the evaluations, reports, and testimony relevant to the determination of B.M.'s disability in this case.

A. SSI Framework for Determination of Childhood Disability

Since 1974, disabled children under the age of eighteen from low-income families have been entitled to receive cash benefits known as SSI under Title XVI of the Social Security Act. In order to qualify for SSI: (1) the child's income and assets (including those imputed from the child's parents) must fall below a specified amount and (2) the child must be "disabled," that is, the child must have 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 twelve months." 42 U.S.C. § 1382(a)(3), (c)(i).

The SSA regulations set forth a three-step "sequential evaluation process" for determining whether a child is disabled.

20 C.F.R. § 416.924. The first step inquires whether the child is engaged in "substantial gainful activity." If yes, the child is not disabled. 20 C.F.R. § 416.924(a). If no, the evaluation continues to the second step which inquires whether the child has any "severe" impairment, defined as more than a "slight abnormality or combination of slight abnormalities that causes no more than minimal functional limitations." 20 C.F.R. § 416.924(c). If the child does not have a severe impairment, he is not disabled. If the child does have a severe impairment, the third step in the sequential analysis requires a determination of whether the child has an impairment or combination of impairments that "meet, medically equal, or functionally equal" the listed impairments located in Appendix 1 to Part 404, Subpart P of 20 C.F.R. 20 C.F.R. § 416.924(d). If yes, the child is disabled; if no, the child is ineligible for SSI benefits. Id.

At issue in this case are limitations that are alleged to be "functionally equal" to a listed impairment. In order to determine a plaintiff's functional equivalence, the Commissioner looks at six areas, known as 'domains,' of "[b]road areas of development or functioning." 20 C.F.R. § 416.926a(b)(1). These domains are: (i) acquiring and using information; (ii) attending and completing tasks; (iii) interacting and relating with others; (iv) moving about and manipulating objects; (v) caring for oneself; and (vi) health and physical well-being. Id. For each domain, the Commissioner rates the degree of limitation, if any, as "less than marked," "marked," or "extreme." 20 C.F.R. §§ 416.926a(d)& (e). A child is deemed to be disabled if he has an "extreme" limitation in one domain, or "marked" limitations in two or more domains. 20 C.F.R. §§ 416.926a(d).

A child has a "marked" limitation in a domain when the impairment "interferes seriously with [the child's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2). The Commissioner finds a "marked" limitation when the child has a valid score that is two standard deviations or more below the mean (but less than three standard deviations) on a comprehensive standardized test designed to measure ability or functioning in that domain, and the child's day-to-day functioning in domain-related activities is consistent with that score. Id. A child has an "extreme" limitation in a domain when the impairment interferes "very seriously" with the ability to independently initiate, sustain, or complete activities; a standardized test showing three standard deviations below the norm signifies an "extreme" limitation. 20 C.F.R. § 416.926a(e)(3).

"For a child to have a marked or extreme limitation in a particular domain, not all activities or functions encompassed by the domain need be impaired. For instance, a twelve-year old child could have a marked or extreme limitation in the domain of acquiring and using information if he had a serious learning disability which had prevented him from learning to read and write even though he was of normal intelligence and had good verbal communication skills." McClain v. Barnhart, 299 F. Supp. 2d 309, 315 (S.D.N.Y. 2004) (citing Quinones v. Chater, 117 F.3d 29, 31-32, 36 (2d Cir. 1997)); see also § 416.92a(e)(2)(i). "Alternatively, when a child suffers from multiple impairments within a single domain, each of which, when considered separately, imposes a less-than-marked limitation, the combined result nonetheless may be marked or extreme." Id. (citing Encarnacion v. Barnhart, 191 F. Supp.2d 463, 474 (S.D.N.Y. 2002)).

An Administrative Law Judge ("ALJ") may not rely on test scores alone when deciding whether a child is disabled. 20 C.F.R. § 416.924a(a)(1)(ii). Rather, she must consider test scores together with other information obtained about the child's functioning, including evidence of classroom performance and the observations of school personnel and others. 20 C.F.R. § 416.926a(e)(4). An ALJ may ask for and consider opinions from medical experts on the nature and severity of a claimant's impairment(s). 20 C.F.R. § 416.927(f)(2)(iii). The medical conclusion of non-examining sources may constitute substantial evidence in support of a denial of benefits. See Diaz v. Commissioner of Social Security, 59 F.3 307, 313 n.5 (2d Cir. 1995).

B. Evaluations, Reports and Testimony

1. Consultive Evaluations

Between June and September of 2005, B.M. underwent four consultative examinations at the request of the Social Security Administration.

On June 13, 2005, Victor Lamberto, M.D. conducted a pediatric examination of B.M. that revealed significant hearing loss due to the absence of the ear canal in the left ear and abnormalities of the right ear with recurrent infections. Tr. 302.*fn5 On July 15, 2005, Joseph Bumatay, M.D. conducted an ear, nose, and throat evaluation of B.M. and concluded that he had normal hearing in his right ear, but "total deafness" in his left ear. Tr. 310.

In August, 2005, psychologist Arlene Rupp-Goolnick, Ph.D. conducted a child intelligence evaluation and diagnosed B.M. with a learning disorder not otherwise specified and borderline intellectual functioning. Tr. 316. During the evaluation, Dr. Rupp-Goolnick observed that B.M.'s motor behavior was restless, that he worked exceedingly slowly, and that his attention and concentration fluctuated. Tr. 315. He had expressive and receptive language difficulties and required the repetition of instructions because of difficulty in recall and in understanding. Id. Dr. Rupp-Goolnick concluded that B.M. could not attend to, follow or understand age-appropriate directions or complete age-appropriate tasks, and noted that he did not ask questions or request assistance in an age-appropriate manner, although he was able to adequately maintain appropriate social behavior (such as being cooperative and friendly). Id. at 315-16. Dr. Rupp-Goolnick administered the Test of Nonverbal Intelligence ("TONI") and determined that B.M.'s IQ was 75, noting that the TONI tends to over-inflate IQ at the lower end of the scale. Tr. 315. Dr. Rupp-Goolnick concluded that the results of her evaluation appeared to be "consistent with cognitive problems, and this may significantly interfere with B.M.'s ability to function on a daily basis." Tr. 316.

In September, 2005, New York State licensed speech-language pathologist Mindy Singer conducted a speech and language evaluation of B.M. and diagnosed him with severe receptive and expressive language delays.*fn6 Tr. 320. Ms. Singer observed that B.M. had a variable attention span, did not spontaneously engage in conversation, had delayed grammatical and syntax development, had difficulty interpreting spoken directions, had difficulty understanding the relationships between related words, and difficulty recalling sentences and formulating sentences. Tr. 318-19. His eye contact was poor and he did not follow conversational shifts. Tr. 320. However, his intelligibility and articulation were good. Id. Ms. Singer administered the Clinical Evaluation of Language Fundamentals, Fourth Edition("CELF-4") to assess expressive and receptive ...

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