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Carol Miles O/B/O J.M v. Michael J. Astrue

April 8, 2011


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Plaintiff Carol Miles brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her son's claim for supplemental security income ("SSI") benefits. The parties consented to have this matter be decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The Commissioner has moved for judgment on the pleadings and dismissal pursuant to Fed. R. Civ. P. 12(c). Miles opposes the motion and has cross-moved for judgment on the pleadings. Alternatively, Miles has requested that the matter be remanded for a new hearing. For the reasons stated below, the Commissioner's motion for judgment on the pleadings is denied and plaintiff's motion for judgment on the pleadings is granted. The case is remanded for the calculation of benefits.


A. Procedural History

Carol Miles filed for disability benefits on behalf of her son J.M. on February 15, 2005. See Administrative Record (annexed to Answer, filed June 1, 2010 (Docket # 7)) ("R.") at 125-28. Her application was denied. R. 65. Miles filed a second application on December 15, 2005, when J.M. was 6 years old, R. 58-67, which was denied on March 6, 2006, R. 32. A hearing was held before an Administrative Law Judge ("ALJ") on November 20, 2007. R. 410-55. The ALJ found that J.M. was not disabled, R. 11-31, and the Appeals Council denied Miles' request for review on October 24, 2009, R. 5-7.

B. Miles' December 15, 2005 Application J.M. was born on January 23, 1999. R. 65. From February 15, 2005, the date of J.M.'s first application, R. 125, through March 25, 2008, the date of the ALJ's decision, R. 11, J.M. was between six and nine years old, R. 65.

In her application for benefits, Miles stated that her son had "problems talking clearly," and that his speech could only sometimes "be understood by [other] people." R. 73; see R. 71-79. She also indicated that J.M. could "[r]ead and understand[] simple sentences," but that he could not "[w]rite a simple story with 6-7 sentences," "[a]dd and subtract numbers over 10," "[u]nderstand[] money," or "[t]ell[] time." R. 75. Miles stated that J.M.'s physical abilities were not limited, R. 76, but that he had no friends his own age, could not make new friends, and did not play team sports, R. 77. Miles indicated that her son was able to dress himself, eat by himself, pick up his own toys, and obey safety rules. R. 78. She stated that J.M. did what he was told most of the time and that he was able to "pay attention and stick with a task," R. 78, 79, but that he did not or could not brush and wash his hair, choose clothes by himself, hang up his clothes, help around the house, or accept criticism, R. 78.

C. Miles' Testimony

At the hearing before the ALJ, Miles testified that J.M. had "problems sitting still" and holding pencils, books, and forks properly. R. 423-24. J.M. could, however, hold a fork or pencil properly if reminded how to do so. R. 424. Miles testified that J.M. had recently started taking Ritalin, and that he was taking Melatonin which was helping him sleep "much . . . better."

R. 425-26. Before J.M. started speech therapy he could not say anything. R. 428. In speech therapy he learned to say "little things" and to speak in sentences "[s]omewhat." R. 428. J.M. did not like to play with others either at home or at school. R. 429-30. He enjoyed playing video games and had an imaginary friend named "Jim." R. 430-31. J.M. could read books at the second-grade level, but could not comprehend what he was reading and was "having a hard . . . time with arithmetic." R. 432-33. J.M. was often depressed because he wanted friends but did not know how to make them, and J.M.'s sister would help him with homework because he was not able to do his homework by himself. R. 436.

D. J.M.'s Testimony

J.M. also spoke at the hearing. R. 438-55. J.M. told the ALJ that he liked art class at school because he got "to color everything . . . [with] marker and crayons," R. 439, and that his favorite class in school was phonics, R. 440. J.M. told the ALJ the name of a book he had read recently and described the storyline. R. 440. In response to the ALJ's question of why the children at school did not like him, J.M. stated: "[b]ecause they might think that I am different."

R. 443. J.M. acknowledged that his friend "Jim" was imaginary. R. 443-44. E. School Records

J.M.'s Individualized Education Plan ("IEP") from the New York City Board of Education states that his "speech and language difficulties are significant and interfere with his academic performance." R. 101. Within the IEP, J.M.'s academic performance was classified "at the borderline range," R. 98, while a "social/emotional assessment revealed that [he was] capable of developing rapport [and] interacting with adults," R. 98-A. The report explained that the social implication "of his language difficulties may be increased [and] unexpressed anger."

R. 98-A. He was reported to be in good health physically. R. 99. J.M. was placed in general education with speech and language services. R. 96-97.

An IEP dated May 17, 2006, noted that J.M. showed strength in non-verbal abstract reasoning, but weakness in verbal comprehension. R. 283. An evaluation of J.M.'s social/emotional performance stated that he was a "quiet, sensitive child" who was "shy, lonely," and had "difficulty making friends." R. 284. J.M. was put into general education with speech therapy, as his skills were "not low enough to qualify [him] for special" education classes. R. 289.

The IEP dated September 7, 2006, recommended J.M. for special education classes with speech therapy, counseling and extended time on state and local assessments. R. 174, 185, 187. An assessment of his social/emotional performance reported that J.M. had "some ability to connect with others," but that he manifested signs of depression. R. 177. The report stated that J.M.'s behavior did "not seriously interfere with instruction" and could be addressed by the special education classroom teacher. R. 177. He was, however, ultimately switched to general education classes with additional services at Sacred Heart Private School. R. 175, 313, 316-19. An IEP report dated October 2, 2007, recommended that J.M. attend general education classes with special education teacher support. R. 332. This report also stated that while J.M.'s overall level of general intellectual functioning fell within the average range, his math reasoning ability fell within the borderline range. R. 334. His social skills were reported to be "slightly below those expected of someone his age," and it was stated that he presented with feelings of anxiety and depression. R. 335. The report recommended small group counseling. R. 335.

On January 9, 2006, J.M.'s first-grade teacher, Marianne Pekowitz, completed a form for the New York State Office of Temporary and Disability Assistance -- Division of Disability Determinations. R. 163-70. She indicated that J.M. was performing at a first grade level in reading and math, but at a kindergarten level in written language. R. 163. She reported that J.M. had a "serious problem" providing organized oral explanations and adequate descriptions, expressing ideas in written form, and applying problem-solving skills in class discussions; that he had an "obvious problem" understanding and participating in class discussions; and that he had a "slight problem" reading and comprehending written material, comprehending and doing math problems, learning new material, and recalling and applying previously learned material.

R. 164. Pekowitz also noted that J.M. "tend[ed] to daydream," that he "need[ed] to be reminded of his tasks, and that he "receive[d] extra help from the classroom aide." R. 164. She assessed him as having a "slight problem" completing homework assignments, R. 165; a "very serious problem" making and keeping friends; and a "serious problem" playing cooperatively with other children. R. 166. She reported "obvious problem[s]" in other activities, including relating experiences and telling stories, using language appropriate to the situation and listener, introducing and maintaining relevant and appropriate topics of conversation, and taking turns in a conversation. R. 166. She noted that he was "a loner" who did "not associate with his peers,"

R. 166, and indicated that she understood very little of his speech, R. 167.

Pekowitz completed a Childhood Functional Questionnaire on June 5, 2006, R. 302, in which she indicated that J.M. had difficulty in acquiring and using information. R. 303. She stated that J.M. "require[d] supervision and reminder[s] regarding task[s] . . . to be completed independently," R. 303, but noted that he was "a good boy" who had "[n]o behavioral problems," R. 305. She further reported that J.M. did "not have friends," and that he would sometimes join the group without participating in activities. R. 306. Finally, Pekowitz indicated that J.M. had difficulty moving about and manipulating objects. R. 306-07.

On December 7, 2006, J.M.'s second-grade teacher, Christina Germano, completed a student progress evaluation for J.M. R. 313, 318. In this evaluation she indicated that J.M. was passing his classes and performing at an average level in all subjects. R. 313. Germano reported that J.M. needed to "work on staying focused, on task, and . . . organized." R. 313. On February 9, 2007, Germano completed a report in which she assessed J.M.'s spelling as grade equivalent, his word recognition as average, his math and written language skills as below average, and his reading comprehension as unsatisfactory. R. 316. She reported J.M.'s speech was hard to understand, R. 316, and that he was quiet, easily frustrated, and shy, but happy, polite, and cooperative, R. 317. With regard to his peer relations, Germano reported that J.M. "[f]ollow[ed] group norms," and with regard to his relationship with teachers and other adults, she reported J.M. was polite and cooperative, although she noted he had difficulty concentrating and needed much structure and supervision. R. 317. She also indicated that he sometimes failed to finish things he had started, was restless or hyperactive, had difficulty following directions, R. 317, was particularly weak in math and reading, and enjoyed computers and phonics, R. 318. On March 3, 2007, Germano again evaluated J.M. R. 319. In this report she indicated J.M. was passing all of his subjects except for religion, that he was "easily distracted during class," and that he "need[ed] to be more organized." R. 319. She evaluated his test/quiz scores, thinking/problem solving, concentration/attention, interest in studies, and neatness and organization as needing improvement, while in all other areas he received an evaluation of either satisfactory/meets expectations or very good. R. 319.

Megan Killelea, a psychologist with the New York City Department of Education, evaluated J.M. on September 18, 2007. R. 327-30. She stated that J.M. "presented as a very friendly eight-year-old boy with pervasive speech delays." R. 327. She noted that during the examination she "found it difficult to understand [him] and [she] frequently asked him to repeat himself." R. 327. She reported that he "demonstrated immature speech patterns and his behavior during testing, although not disruptive, was typical of someone approximately two years younger than his stated age." R. 327. Killelea also noted that J.M. appeared comfortable in the testing environment and that he "willingly answered questions and engaged in conversation when prompted." R. 327. His "attention was relatively good, although during the end of the testing scenario he verbalized his fatigue ...

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