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Rivera v. Colvin

United States District Court, S.D. New York

February 13, 2014

CARMEN RIVERA, as Natural Guardian o/b/o S.M.H., an Infant, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

RONALD L. ELLIS, Magistrate Judge.

TO THE HONORABLE COLLEEN McMAHON:

I. INTRODUCTION

Plaintiff Carmen Rivera ("Rivera"), on behalf of her daughter S.M.H., seeks federal judicial review of a decision of the Commissioner of the Social Security Administration (the "Commissioner"), pursuant to Section 205(g) of the Social Security Act (the "Act"), as amended, 42 U.S.C. § 405(g). On January 11, 2012, Rivera filed a motion for judgment on the pleadings. (Pl.'s Mem. in Supp. of Mot. for J. on the Pleadings ("Pl. Mem.").) The Commissioner asked the Court to deny Rivera's motion, and to remand the case for further administrative proceedings. (Def.'s Mem. of Law in Supp. of the Comm'r's Mot. for Remand and in Opp'n to Pl.'s Mot. for J. on the Pleadings ("Def.'s Mem.").) For the reasons set forth below, I recommend that Rivera's motion be GRANTED, that Defendant's motion be DENIED, and that the case be remanded solely for the purpose of calculating benefits.

II. BACKGROUND

A. Procedural History

On November 30, 2007, Rivera filed an application for Supplemental Security Income ("SSI") on behalf of S.M.H. with the Social Security Administration (the "SSA"). (Admin. Record ("A.R.") at 71-77.) The application was denied on February 28, 2008. (A.R. at 46-49.) On February 5, 2009, a hearing was held before Administrative Law Judge Robin Artz (the "ALJ" or "Artz"), at which Rivera and S.M.H. appeared without counsel. ( Id. at 9, 21-40.) The ALJ issued an unfavorable decision on February 24, 2009. ( Id. at 6-20.) Proceeding pro se, Rivera requested review by the Appeals Council on March 18, 2009. ( Id. at 5.) On July 10, 2009, she secured counsel, Id. ) The Appeals Council denied Rivera's request for review on June 6, 2011, making the ALJ's decision the final decision of the Commissioner. ( Id. at 1-3.) On July 15, 2011, Rivera filed the present Complaint. (Doc. No. 1.) The Commissioner answered on November 30, 2011. (Doc. No. 11.) On January 11, 2012, Rivera moved for judgment on the pleadings. (Doc. No. 14.). The Commissioner moved to remand on February 17, 2012 (Doc. No. 16), and Rivera filed a Reply. (Doc. No. 19.)

B. ALJ Hearing and Decision

1. Testimony by Rivera and S.M.H. at the Hearing

On February 5, 2009, a hearing was held before the ALJ, at which Rivera and S.M.H. were the only two witnesses. (A.R. at 21-40.) Rivera testified that her daughter was born on May 28, 1994. ( Id. at 23.) At the time of the hearing, S.M.H. was fourteen years old and in the seventh grade, having been held back twice in the fifth grade. ( Id. at 24, 32.) She was reading at a second or third grade level. ( Id. at 13.) Rivera testified that S.M.H. struggled in school and that a social worker from the Association to Benefit Children ("ABC") conducted weekly home visits to help S.M.H. with her studies. ( Id. at 27.) S.M.H. was also attending weekly "intense therapy." sessions with Wendy Krause[1] to address her "anger problems at home, following the rules." ( Id. at 36.)

Rivera and S.M.H. testified that S.M.H. regularly cuts school, and has been suspended for cutting. (A.R. at 32, 33, 35.) Rivera theorized that S.M.H. "acts up" because "she doesn't understand the work which makes it complicated for her because she feels embarrassed and she gets up and leaves the classroom." ( Id. at 32-33.) Rivera had been asking for help from the school "for over three years." ( Id. at 33.) Rivera testified that S.M.H. received an Individualized Education Program ("IEP") in December 2006 and that her daughter had a "learning disability." ( Id. at 38.) Despite the IEP, Rivera said that the school "just... ignored it." ( Id. at 39.)

S.M.H. testified that when she is not in school, she likes to "watch TV, " "talk on the phone, " and "hang out outside." ( Id. at 37.) She said she only "hang[s] out" with one person, her friend Nicole. (A.R. at 37.) When asked by the ALJ if she has other friends that she sometimes sees, S.M.H. replied, "sometimes but not really." Id. )

2. Evidence of S.M.H.'s Disability

S.M.H. was born at Metropolitan Hospital in 1994. ( Id. at 180.) Her speech development lagged and she received speech therapy through Early Intervention services. Id. ) Beginning in first grade, S.M.H. had "difficulties learning the alphabet, " and with reading and math. ( Id. at 174.) She attended summer school every year following the third grade. Id. ) In February 2005, after S.M.H. repeated fifth grade for the third time, she started to receive counseling and preventive services at ABC "to address her academic failure." (A.R. at 138.) In a January 14, 2008 letter, ABC case worker Jessica Levy wrote that S.M.H. "has consistently demonstrated difficulty in concentrating and completing assignments." Id. ) Levy worked with Rivera to request an evaluation by the New York Department of Education Committee on Special Education, which conducted an IEP. ( Id. at 138, 174.)

a. 2006 IEP

Between October 20 and December 7, 2006, when S.M.H. was twelve years old, an IEP team observed S.M.H. and summarized its recommendations. ( Id. at 163-84.) School psychologist Juan Capó administered several standardized tests, including the Wechsler Intelligence Scale for Children, Fourth Edition ("WISC-IV") and the Wechsler Individualized Achievement Test, Second Edition ("WIAT-II"), and authored a Psychoeducational Report. ( See id. at 173-77.) On the WISC-IV, S.M.H.'s full scale score was seventy-eight, indicating her abilities were "borderline with higher potential." ( Id. at 173.) Her verbal comprehension and working memory scores were both "borderline." Id. ) On the WIAT-II, she scored mostly "low average" or "below average" scores, with a sixty-seven in both numerical operations and reading comprehension, indicating "far below average" results. (A.R. at 176.) Dr. Capó summarized: "[S.M.H.] had significant discrepancies between cognitive domains that are indicative of a language based disorder." ( Id. at 177.) In her IEP, S.M.H. was classified as learning disabled. ( Id. at 163.) Recommended services were" education with special education teacher support services five periods weekly for comprehension and math." Id. ) Dr. Capó described S.M.H. as "friendly, cooperative, and motivated to do well in a novel setting, " ( Id. at 167, 175.)

b. S.M.H.'s School Behavior

On December 7, 2007, S.M.H.'s Sixth Grade Dean, Ms. Carmona, wrote a letter to memorialize S.M.H.'s "inappropriate behaviors" toward her classmates and teachers. ( Id. at 157.) Carmona wrote that S.M.H. "has generally displayed oppositional and immature behavior in school." (A.R. at 157.) She recounted "aggressive behaviors, " such as "throwing food in the lunchroom, slapping another student, and playing around at inappropriate times." Id. ) Carmona wrote that S.M.H. "constantly argues" with her teachers "when she does not get her way, " called one teacher "a bitch, " and threw a penny at another teacher. Id. ) She said S.M.H. was receiving "at-risk counseling 1-2 times a week." Id. )

On January 21, 2008, S.M.H.'s teacher, Ms. Aviles, filled out a Parent Conference Form in which she requested a conference with Rivera. ( Id. at 154.) Aviles wrote that the reason for the conference was that "[S.M.H.] was cutting class today. Agent Stitchell reported she cuts constantly. The cutters log shows ...


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