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Walsh v. Colvin

United States District Court, N.D. New York

March 25, 2014

TRISHAUNA WALSH on behalf of S.J.W., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.[1]


WILLIAM G. YOUNG, District Judge [2].


Trishauna Walsh ("Walsh") brings this action on behalf of S.J.W., [3] her minor son, pursuant to 42 U.S.C. § 405(g). Walsh seeks judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") to deny S.J.W.'s application for Supplemental Security Income benefits ("SSI"). Compl. ¶¶ 1, 7, ECF No. 1. Walsh challenges the decision of an Administrative Law Judge (the "hearing officer") that S.J.W. was not disabled within the meaning of 42 U.S.C. § 1382c(a)(3)(C). Admin. R. 55, ECF No. 8.

A. Procedural Posture

On December 10, 2009, Walsh applied for SSI on S.J.W.'s behalf. Admin. R. 122. Walsh indicated that S.J.W.'s disability began on November 25, 2009. Id . On March 8, 2010, the Regional Commissioner determined that S.J.W. did not qualify for SSI because he was not disabled. Id. at 85-87. Walsh filed a request for a hearing before a hearing officer on or about March 12, 2010. Id. at 91. On January 25, 2011, Walsh and S.J.W. appeared before the hearing officer. Id. at 61-66. After the hearing officer asked Walsh if she would like a postponement to obtain counsel, Walsh requested a postponement. Id. at 64. Walsh, now represented by counsel, appeared before the hearing officer a second time on March 30, 2011. Id. at 68. Walsh was examined by the hearing officer on this date, id. at 72-77, and the hearing officer left the record open for ten days to receive additional documentation from S.J.W.'s pediatrician, id. at 72, 82. On April 25, 2011, the hearing officer issued a decision finding that S.J.W. was not disabled. Id. at 55. Walsh appealed the hearing officer's decision to the Social Security Administration's Appeals Council ("Appeals Council") in June 2011, id. at 35-36, and on April 3, 2012, the Appeals Council denied Walsh's request for review, id. at 1. Walsh filed this action for review of the Commissioner's decision in this Court on June 8, 2012.[4] Compl.

B. Factual Background[5]

S.J.W. is currently a nine-year old boy who lives with his mother, Walsh, and two older brothers. Admin. R. 43, 72-73. When Walsh applied for SSI on her son's behalf, he was five-years old. Id. at 122. At birth, S.J.W. failed his initial hearing screening and later evaluations of his hearing confirmed that he had hearing loss. Id. at 332. S.J.W.'s hearing loss is variously described in the record as "mild to moderate, " id., "[m]oderately severe, " id. at 286, and "profound, " id. at 299. Because of his hearing loss, S.J.W. wears hearing aids in both ears. Id. at 207. His teachers use an FM system to assist his hearing. Id.

1. Early Intervention Program

S.J.W. was referred to the Saratoga County Early Intervention Program ("EIP") because of Walsh's concerns about his speech development. Id. at 332. On July 11, 2006, when he was twenty months old, he was evaluated by a three-member team from "Early Start, " an organization which provides speech language therapy services. Id. at 332-36. The team reported that S.J.W. was not yet using verbalizations to meet his needs and wants, and that he was unable to follow simple directions without visual cues. See id. at 335. They also assessed S.J.W.'s communication skills through two tests, the Preschool Language Scale-3 ("PLS-3") and the communication DAYC sub-test. Id . S.J.W.'s score on the PLS-3 indicated his language age was equivalent to a fourteen month old, and his score on the DAYC communication sub-test indicated that his performance was equivalent to a twelve month old. Id . The Early Start team concluded that he had a thirty-three percent delay in his communication skills. Id. at 336.

As a result of their evaluation, the Early Start team concluded that S.J.W. was eligible for EIP services. Id . He received a variety of services through the EIP, including speech therapy twice a week and teaching for the hearing impaired. See id. at 314. At some point prior to S.J.W.'s hearing on March 30, 2011, he stopped receiving EIP services, although he appears to have received other support services from the school through other programs. Id. at 77-78.

2. Treating Sources or Potential Treating Sources

a. Dr. Merecki

Since just after birth, S.J.W.'s pediatrician has been Dr. Eugene Merecki ("Dr. Merecki"). Id. at 76, 260. The Commissioner received two submissions from Dr. Merecki. The first was an evaluation form Dr. Merecki completed on January 6, 2010, at the request of the New York State Office of Temporary and Disability Assistance ("NYOTDA"). Id. at 275-79. On this form, Dr. Merecki indicated that S.J.W. has had moderate bilateral hearing loss since birth and a delayed speech pattern. Id. at 275. Dr. Merecki also wrote that S.J.W. has temper tantrums "out of frustration with not being able to hear (understand)." Id. at 277. Likewise, Dr. Merecki described S.J.W.'s emotional, communication, and sensory skills as "delayed." Id. at 278. He opined, however, that S.J.W.'s cognitive and motor skills were "age appropriate." Id. at 277-78. Dr. Merecki also completed a second form to evaluate S.J.W.'s areas of functioning on March 29, 2010. Id. at 299. On this form, Dr. Merecki indicated that S.J.W. had a "mild" cognitive limitation and "marked" limitations in both his social skills, i.e. in his ability to "interact[] and relat[e] with others" and in his overall health and physical well-being. Id . Dr. Merecki explained that S.J.W.'s social limitations and poor physical well-being stemmed from a "[d]elay in communication due to profound hearing loss."[6] Id.

b. Ms. Guerin, M.S. CCC-SLP

At the time the hearing officer heard the relevant evidence, S.J.W. was receiving speech and language therapy three times a week at his elementary school. Id. at 215, 253. He was also recieving services from a teacher for the deaf and hard of hearing. Id. at 221. At the time, his speech pathologist was Alison Guerin, M.S. CCC-SLP ("Ms. Guerin"). Id. at 214-15. Ms. Guerin conducted a speech and language evaluation of S.J.W. on October 7, 2010. Id. at 214. In her evaluative report, Ms. Guerin described S.J.W. as "friendly" and "cooperative, " and stated that although his speech articulation skills are "below average" for his age and gender, he had made some improvement in his sound production. Id. at 215-17. Ms. Guerin conducted a number of tests to assess S.J.W.'s vocabulary and language ability. Id. at 216-18. On some of the tests, S.J.W. scored at the "low average, " "average, " or even "above average" performance level. Id. at 216-17. S.J.W.'s performance, however, was worse on the majority of the tests Ms. Guerin conducted, which usually placed him at the "below average" level. Id . For instance, on an evaluation of general language ability, the Clinical Evaluation of Language Fundamentals-4 ("CLEF-4"), S.J.W. scored in the second percentile on three subtests, namely "Concepts and Following Directions, " "Recalling Sentences, " and "Expressive Vocabulary." Id . Likewise, he scored in the fifth percentile on the Peabody Picture Vocabulary Test-4 ("PPVT-4") and in the eighth percentile on the Goldman Fristoe Test of Articulation-2 ("GFTA-2"). Id.

In her evaluation, Ms. Guerin noted that while S.J.W. was "able to identify common nouns and verbs, " he had difficulty identifying uncommon and more abstract nouns. Id. at 216. He also "missed special and temporal concepts" such as "between, " "before, " and "after." Id. at 217. Although S.J.W. had little difficulty identifying the relationships between pictures which Ms. Guerin showed to him, "[h]e demonstrated difficulty" in explaining the relationship. Id . By way of example, Ms. Guerin noted that while S.J.W. was able to determine that there was a relationship between a letter and a stamp, when she asked him what the relationship was, he said "notes." Id . Ms. Guerin explained that S.J.W.'s "receptive language skills (what he understands) [were] considerably higher than his expressive language skills (what he says)." Id . Nevertheless, she concluded that, overall, both his expressive and receptive language skills were "below average for his age." Id. at 218.

S.J.W.'s test results also led Ms. Guerin to the conclusion that he "demonstrated significant difficulty following directions, " id. at 217, and at times "needed to be redirected and reminded to maintain his attention to the task at hand, " id. at 218. Ms. Guerin did relate, however, that S.J.W. was "easily redirected" when off track and was hard working and cooperative. Id.

3. Other Evidence in the Record

a. Grasso-Megyeri's Assessment

NYOTDA also referred S.J.W. to Dawn Grasso-Megyeri, M.S. CCC-SLP ("Ms. Grasso-Megyeri"), for a speech and language assessment, which was completed on February 9, 2010. Id. at 282. Ms. Grasso-Megyeri stated in her evaluation that the parameters of S.J.W.'s voice, i.e., "pitch, quality, intensity, and rate, " were appropriate and observed that "[i]n a quiet setting, with his hearing aids on, [S.J.W.] was able to respond appropriately through audition only." Id. at 283. She administered the Preschool Language Scale-4 ("PLS-4") test and the GFTA-2. Id. at 283-84. S.J.W.'s total language score on the PLS-4 placed him in the twenty-first percentile, which indicated that his "expressive and receptive language skills [were] developing within normal limits." Id. at 283-84. On the GFTA-2, S.J.W.'s score was in the twenty-sixth percentile, id. at 284, which was higher than the score obtained in Ms. Guerin's subsequent administration of the test, id. at 217. Ms. Grasso-Megyeri also reported that S.J.W.'s pragmatic language skills were age appropriate and that "[b]oth in and out of context, [S.J.W.'s] speech intelligibility was considered very good at [ninety-five] percent of the time." Id. at 284. She diagnosed S.J.W. with a "[m]ild articulation delay." Id. at 285. Ms. Grasso-Megyeri concluded that S.J.W. "was able to communicate effectively" and that his test results indicated that his "expressive and receptive language skills... are developing within normal limits." Id. at 284-85. She judged his prognosis to be "good" and recommended that he stop receiving speech and language therapy, although she "strongly recommended" that he continue to receive audiological care. Id. at 285. Ms. Grasso-Megyeri indicated that S.J.W. was "cooperative and attentive" during the test she administered. Id. at 284.

b. Dr. Cevera's Evaluation

On February 23, 2010, at NYOTDA's request, Dr. John Cevera ("Dr. Cevera") evaluated S.J.W. Id. at 286-87. Dr. Cevera submitted a brief report, in which he stated that S.J.W. was "a pleasant young boy who communicates well in no distress." Id. at 286. Dr. Cevera reviewed an audiogram of S.J.W.'s hearing and concluded that he suffered from "[m]oderately severe symmetric [hearing] loss." Id . Dr. Cevera noted that S.J.W. experienced some improvement in his hearing because of his hearing aids. Id . An audiogram of the tests conducted by an audiologist in Dr. Cevera's office was added to the administrative record. Id. at 288-89.

c. Dr. Fuhrman's Evaluation

On March 4, 2010, Dr. Fuhrman evaluated evidence in S.J.W.'s case at the request of the NYOTDA.[7] Id. at 290-97. Dr. Fuhrman marked a box on an evaluation form to indicate that in his opinion, S.J.W. had a "severe" impairment, but that S.J.W.'s impairment did not meet or medically or functionally equal the listed impairments in 20 C.F.R. § 416.924. Id. at 292. Dr. Fuhrman also indicated that S.J.W.'s limitation in the domain of "acquiring and using information" was "less than marked." Id. at 294. Likewise, he concluded that despite the fact that S.J.W. at times needed directions to be repeated to him, his limitation in the domain of "attending and completing tasks" was also less than marked. Id . Dr. Fuhrman opined that S.J.W. had no limitations in the domain of "interacting and relating with others, " id., and that S.J.W. suffered from limitations that were less than marked in the domain of "health and physical well-being" because of his hearing loss, speech delay, and history of asthma, id. at 295.

d. Kernan's Evaluation

On October 4, 2010, Renee Kernan, M.S. ("Ms. Kernan") gave a number of additional tests to S.J.W. as part of the reevaluation process of his elementary school's Committee on Special Education. Id. at 207-11. Ms. Kernan is a certified school psychologist. Id. at 211. Ms. Kernan described S.J.W.'s personality as "outgoing and happy, " although she noted that "[h]e has some moments of frustration due to his disability." Id. at 207. S.J.W. "required prompts to stay on task and to listen to directions" and was observed to "jump[] from subject to subject" in conversation. Id . S.J.W. took an intelligence quotient ("IQ") test, the Wechsler Preschool and Primary Scale of Intelligence - Third Edition ("WPPSI-III"). Id. at 208. S.J.W.'s verbal intelligence quotient score ("VIQ") placed him within the borderline range, which "indicat[ed] significant difficulty with retrieving/using background knowledge to solve problems as well as difficulties in his ability to understand... and express himself through oral language." Id. at 209. Ms. Kernan wrote that S.J.W.'s low verbal IQ may have been influenced by his overall impulsivity and difficulty hearing. Id. at 208. His performance intelligence quotient ("PIQ") was somewhat higher, "within the low average range." Id. at 209. S.J.W.'s processing speed index ("PSI"), however, was within the average range, and thus, as Ms. Kernan noted, an area of relative strength for him. Id . His full scale intelligence quotient, derived from a combination of his VIQ, PIQ, and PSI, was calculated as in the upper end of the borderline range. Id. at 212.

Ms. Kernan also gave S.J.W. the Adaptive Behavior Assessment System - Second Edition ("ABAS-II"), which evaluated his "ability to perform self-help skills and function independently within the school environment." Id. at 210. This evaluation revealed that S.J.W. has significant weakness in his "conceptual skills" area, and that he would likely "require[] substantially more support than other students his age." Id . It also indicated, however, that he had "adequate skills" in the areas of "community use, school living, health and safety, self-care, and social skills." Id.

e. Audiologist Winderl

S.J.W.'s audiologist is Erin Winderl, Au.D., CCC-A ("Dr. Winderl"). Id. at 76, 362. She has regularly evaluated S.J.W.'s hearing to outfit him for hearing aids. Id. at 357-62. On November 23, 2010, Dr. Winderl reevaluated S.J.W.'s hearing and observed that he suffered from "mild to moderately severe" bilateral hearing loss. Id. at 362. An audiogram of this test was added to the administrative record. Id. at 362-63.

f. School Records and Teacher Questionnaire

The academic year at S.J.W.'s elementary school is divided into three grading periods. See id. at 234. When the hearing officer made his decision on the application for SSI, the record contained a copy of S.J.W.'s first grade report card which showed his progress for the first two grading periods of the academic year. Id. at 233-37. The marks on S.J.W.'s report card indicated that his progress was generally "below teacher expectations" in areas involving, inter alia, reading, writing, listening, and speaking, id. at 234, although his progress in other areas, including handwriting, music, and social skills, "me[t] teacher expectations, " id. at 234-36. For the second grading period, S.J.W.'s classroom teacher commented that S.J.W. found first grade challenging, but that he had "a positive attitude and works hard." Id. at 237. According to the teacher, he had made friends in his class, but "had difficulty in completing independent tasks." Id . S.J.W.'s Academic Intervention Services teacher, Holly Rummel-Jackson ("Ms. Rummel-Jackson"), indicated that in the second grading period he was meeting expectations in various reading activities. Id. at 238. In S.J.W.'s evaluation for that same grading period, another teacher wrote that S.J.W. would benefit from using sign language more to help with his communication difficulties, noting that he was very responsive to sign language in a one-on-one setting. Id. at 232. In a related vein, Kathy Hyndman, S.J.W.'s teacher for the deaf and hard of hearing, recommended increasing the amount of deaf and hard of hearing services he received.[8] Id. at 253.

On January 8, 2010, at NYOTDA's request, S.J.W.'s kindergarten teacher, Kristin Scott ("Ms. Scott") completed a questionnaire about S.J.W. Id. at 160-69. Ms. Scott's evaluation of S.J.W.'s abilities was generally more positive than those of his treating sources. Ms. Scott wrote that S.J.W. was a "very sweet little boy" who "work[ed] very hard in school." Id. at 167. She described his reading level as "low average" and his written language and math level as "average." Id. at 160. Ms. Scott observed that S.J.W. had problems in the domain of acquiring and using information. Id. at 161. On the questionnaire, for this domain, she rated him as having an "obvious problem" in comprehending oral instructions and as having a "slight problem" in "understanding school and content vocabulary, reading and comprehending written material, understanding and participating in class discussions, expressing ideas in written form, and recalling and applying previously learned material." Id . In all other activities in this domain, Ms. Scott observed that he had no problems. Id . Ms. Scott also opined that S.J.W. had problems in the domain of attending and completing tasks. Id. at 162. She viewed S.J.W. as only having a "slight problem" in two activities falling within this domain, specifically those of "refocusing on task when necessary" and "carrying out multi-step instructions." Id . For all other activities involving attending and completing tasks, Ms. Scott noted that S.J.W. had no issues. Id . Further, Ms. Scott opined that S.J.W. had no problems interacting and relating with others. Id. at 163-64. She also wrote that she could understand almost all of S.J.W.'s speech on both known and unknown topics of conversation. Id. at 164.

g. Walsh's Testimony

Walsh testified about S.J.W.'s difficulties at the March 30, 2011, hearing.[9] Id. at 68-82. She explained that because of S.J.W.'s hearing loss and speech delays he "struggles in school." Id. at 73. Walsh stated that S.J.W. had the most difficulty in math and that he was "struggling" in spelling, but noted that he was "finally doing better" in reading at school. Id. at 78. Walsh was somewhat uncertain about S.J.W.'s academic program during her testimony. She referred to S.J.W. as being in "special ed., " id. at 72; see also id. at 77, yet simultaneously described him as attending a "[r]egular school with a lot of services, " id. at 72. Walsh later explained, however, that S.J.W. is frequently pulled out of his classroom for services like occupational and speech therapy. Id. at 75-76. She admitted that she herself was unclear about exactly what educational services S.J.W. received at school, explaining that "I don't understand all of [S.J.W.'s IEP], [10] it's kind of new to me." Id. at 76.

Walsh acknowledged that S.J.W. was able to hear when he wears his hearing aids. Id. at 74. She also indicated that she could usually understand S.J.W.'s speech, but that "he says a lot of words wrong because he hears them wrong." Id. at 75. Additionally, Walsh testified to S.J.W.'s difficulty in paying attention and completing tasks without prompting. Id. at 78-79.

Walsh emphasized S.J.W.'s social challenges in her testimony. According to her, S.J.W. experiences "a lot of frustrations interacting with other children because either he can't understand them or they can't understand him." Id. at 74. Specifically, Walsh claimed that S.J.W.'s communication difficulties led to hostility between him and his brothers, see id. at 76, and friction with other children on the school bus, id. at 73-74. Although Walsh ...

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