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Swan v. Astrue

August 11, 2010

ROXANNE SWAN O/B/O R.M.M., PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION And ORDER

BACKGROUND

A. PROCEDURAL HISTORY

Plaintiff filed an application for SSI on behalf of her grandson, R.M.M.,on March 21, 2006. This application was denied and Plaintiff submitted a timely request for a hearing before an Administrative Law Judge (ALJ). On September 24, 2008, Plaintiff and R.M.M. appeared, with counsel, before ALJ Bruce R. Mazzarella. On November 25, 2008, ALJ Mazzarella issued a decision denying R.M.M.'s application. This became the final decision of the Commissioner on March 16, 2009, when the Appeals Council denied Plaintiff's request for review. Plaintiff filed this action on May 20, 2009.

B. FACTS

Plaintiff, R.M.M.'s paternal grandmother, obtained legal guardianship of R.M.M. when he was an infant due to drug abuse and neglect by his biological parents. T. at 155. Plaintiff alleges that R.M.M. is disabled due to attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder (ODD), speech delay, and borderline I.Q. R.M.M. has friends roughly his own age, can make new friends, and generally gets along with others. However, Plaintiff stated that R.M.M. frequently gets into arguments when playing with kids in the neighborhood. T. at 288. Plaintiff stated that R.M.M. joined a football team but quit after getting in a fight with a child there. T. at 303. The record reflects that most of R.M.M.'s severe behavioral problems occur in the home; his behavior in school is generally acceptable.

R.M.M., was age 9 on the date of his SSI application and 11 on the date of the ALJ's decision. At the time of the hearing, he attended the fifth grade in a mainstream classroom with special services provided under a section 504 plan. See T. at 216-19. R.M.M. had a consultant teacher, received reading instruction in a smaller class with a special education teacher, and had various required testing accommodations. He also received speech therapy two times per week and met with the school psychologist.

A questionnaire assessing R.M.M's functioning was completed on April 28, 2006 by his second grade teacher at the request of the Commissioner. R.M.M.'s teacher noted that he was having several problems in acquiring and using information,*fn1 attending and completing tasks, and in caring for himself.*fn2 T. at 124-29.

R.M.M.'s writing and reading performance was noted to be below grade level despite a 4:1 student-to-teacher ratio in reading.

R.M.M. completed a psychological assessment on January 27, 2006 with a school psychologist and was determined to have a full scale IQ of 78. T. at 136. R.M.M. was also evaluated by a speech-language pathologist, Melanie Rongo, who opined that he had moderate delays in expressive language and language structure/content as well as difficulty with directions containing more than one linguistic concept. T. at 134. An initial assessment for counseling was completed at the Monsignor Carr Clinic on March 9, 2006. He was diagnosed with ADHD, ODD, nocturnal enuresis (bed wetting), and parent-child relational problems. R.M.M. began counseling with a therapist at Monsignor Carr and saw a psychologist on a monthly basis.

The most recent report cards in the record were for the 2007-2008 school year, when R.M.M. was in fourth grade. These show R.M.M. needed improvement in every activity assessed for reading, writing, listening & speaking, and mathematics. T. at 220-22. R.M.M. also received several less than satisfactory marks in life skills assessed including following rules, demonstrating self-control, understanding and following directions, and making good choices/resolving conflicts well. T. at 229. These report cards again noted that R.M.M. was reading and writing at below grade level. R.M.M. was reassessed by the school's 504 committee at the end of the 2007-2008 school year and it was recommended that all educational accommodations be continued with the possibility of additional accommodations due to R.M.M.'s lack of academic progress. T. at 219. This recommendation was made based on reports from general education and special education teachers, a psychologist, a speech therapist, and the school psychologist. Id. (reports listed do not appear in the record).

STANDARD OF REVIEW

A. REVIEW OF COMMISSIONER'S FINAL DETERMINATION

42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based on the denial of Social Security benefits. Matthews v. Eldridge, 424 U.S. 319, 320 (1976). Additionally, the section directs that when considering such a claim, the court must accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Section 405(g) thus limits the court's scope of review to determining whether or not the Commissioner's findings are supported by substantial evidence. See Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. ...


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