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Price v. Astrue

United States District Court, E.D. New York

August 6, 2014

MARY PRICE o/b/o AN., an Infant, Plaintiff,
MICHAEL J. ASTRUE, as Commissioner of Social Security, Defendant

Decided Date: August 1, 2014

For Mary Price, on behalf of Anthony Nimmons, Plaintiff: Michael D. Hampden, LEAD ATTORNEY, Legal Services for Children, Inc., New York, NY.

For Commissioner of Social Security, Defendant: Kenneth M. Abell, LEAD ATTORNEY, United States Attorneys Office, Brooklyn, NY; SOCIAL SECURITY ADMINISTRATION - GENERIC, Social Security Administration.

Page 424


NINA GERSHON, United States District Judge.

Plaintiff Mary Price brings this action seeking court review of the July 2, 2009 final decision of the Commissioner of Social Security (the " Commissioner" ), by which her application for Supplemental Security Income benefits, made on behalf of her infant grandson, was denied. The Commissioner now moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Also moving under Rule 12(c), plaintiff seeks a judgment reversing the Commissioner's determination and remanding for further proceedings. She also requests that, upon remand, the matter be assigned to a different Administrative Law Judge.

For the reasons set forth below, the Commissioner's motion is denied and plaintiff's motion is granted in part and denied in part.

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I. Factual and Medical Background before the Administrative Law Judge (" ALJ" )

Plaintiff's infant grandson (" A.N.," or, the " Child" ) was born June 12, 2002, two months prior to his due date and weighing in at only two pounds. As a result of his mother's substance abuse during her pregnancy, A.N. was born addicted to crack cocaine. ( See A.R. 225-26.[1] He remained in the hospital for a month and a half following his birth, during which time he was tube-fed. ( Id. at 163; 171.) He suffered from many ear infections during his early years, and a slight hearing impairment was diagnosed at age two. ( Id. at 171.) A.N. was treated at Woodhull Medical Center for an injury to his cheek in 2006 and for an injury to his hand in 2007. Neither injury was determined to be traumatic. ( See id. at 152, 154, 164, 165.)

A.N. reached most motor developmental milestones within normal limits, but his language development was slightly delayed. ( See id. at 171, 211, 215, 225-26.) In light of this delay, and some behavioral problems he exhibited at daycare, the Child was referred for a psychological examination on April 24, 2006.[2] The evaluation included testing on the Wechsler Preschool and Primary Scale of Intelligence -- Third Edition (the " WPPSI-III" ) and the Vineland Adaptive Behavior Scales -- Second Edition (the " Vineland Scales" ), as well as clinical observation and an interview with A.N.'s mother. ( See A.R. 211-212.) The psychologist-evaluator concluded that A.N.'s socialization and communication skills were delayed by at least a year and his cognitive skills were at the low normal range, while his daily living and motor skills were within normal limits. ( Id. at 215.) Further assessment, including a speech and language assessment on May 24, 2006 and an educational assessment conducted June 8, 2006, revealed that A.N. had " attention difficulty" and delays in all domains other than motor development. ( See id. at 216-24.) Therapy and special education services were recommended, both of which commenced in July 2006, upon A.N.'s entry into a pre-kindergarten special education program which was to run for the duration of the 2006-07 school year. ( See id. at 209-10; 217-24.)

Two reports were issued toward the end of the 2006-07 school year. The first, an Individualized Education Program (" IEP" ) dated April 20, 2007, concluded that A.N. demonstrated several skills at age appropriate

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limits and that he had " made great progress since the beginning of the intervention," but also that he " sometimes loses focus easily" and " requires much repetition and review . . . in order to learn and maintain concepts/readiness, and skills." ( Id. at 168-69.) The April 20, 2007 recommendation was that, although his behavior " no longer seriously interferes with instruction," he continues to require the assistance of a Special Education Itinerant Teacher (" SEIT" ) and related services. ( Id. at 170, emphasis in original.) The IEP recommended that the Child be classified as a " Preschool Student with Disability," although the disability was not specified.[3] ( Id. at 166.)

The following month, A.N. was again evaluated to ascertain his readiness for kindergarten. Pursuant to assessments made by his school psychologist, his regular classroom teacher and his SEIT, the IEP team concluded on May 3, 2007 that the Child was " hyperactive and impulsive, which often interferes with his ability to attend and complete tasks." ( Id. at 205, emphasis added.) The team recommended that A.N. " receive a classification of Other Health Impairment" and stated that he " would benefit from a more structured instruction environment such as a Special Class in a Specialized School (12:1:1) to address academic and social emotional difficulties." [4] ( Id.) The IEP team also recommended counseling, speech and language therapy, and " psychiatric evaluation to assess hyperactive and aggressive behaviors." [5] ( Id.)

The remaining evidence reflecting the time period prior to plaintiff's application for SSI benefits on A.N.'s behalf is the IEP dated May 12, 2008, which sets forth the team's recommendations for the 2008-09 school year. The IEP team again recommended a classification of " Other Health Impairment" and further recommended a " small class in a community school with related services (12:1:1)" for the Child's first grade year. (A.R. 137, 145.[6]) The May 12, 2008 report indicates that A.N. " is a very energetic student [who] is responding better to authority . . . [and] is receptive to being redirected." ( Id. at 140.) Although there had been

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" some inappropriate behaviors" over the course of the school year, A.N. had " made some progress in this area." ( Id. at 140.) The 2008 report also provides that the Child had achieved some academic success, but that his performance was at the 70% rate in reading and writing and the 50% rate in math, and that he " requires much repetition and review of information being presented." ( Id. at 139.) The record does not contain any other evidence of A.N.'s academic, medical or behavioral progress throughout the 2007-08 school year.

In April 2008, A.N. received a diagnosis of Attention Deficit Hyperactivity Disorder (" ADHD" ) and began taking medications including Adderall and amphetamine salts in connection with this diagnosis the following month.[7] Although the Record does not contain direct evidence from the diagnosing doctor, there appears to be no dispute as to either the diagnosis or the medications. Rather, the diagnosis, the medications, and the name of the treating doctor are all set forth in attachments to the Administrative Record, which are entitled " Medications -- Undated" (Exhibit 9E), " Recent Medical Treatment" (Exhibit 10E), and " Medications" (Exhibit 11E). ( See A.R. 131-36.) These exhibits appear to be the completed forms submitted by plaintiff in connection with her initial appeal, and in advance of the November 2008 hearing. They are consistent with one another insofar as they indicate that A.N. was being treated by a doctor named " Farhan Matin," and that this doctor had diagnosed the Child with ADHD. ( See id.) Although these exhibits contain three slightly inconsistent lists of medications,[8] it does not appear that these slight discrepancies are material to the dispute before the court.[9]

In August 2008, shortly after plaintiff filed her claim for SSI benefits, A.N. was evaluated by two consulting physicians at the request of the Social Security Administration (the " Administration" ): Christopher Ricci, Ph.D. (" Dr. Ricci" ), performed a Child Psychiatric Evaluation on August 4; and Mindy Singer, M.A. (" Ms. Singer" ), conducted a Speech and Language Evaluation on August 8. ( See A.R. 225-33.) Also in August 2008, A.N.'s file was submitted to two additional, non-examining consultants for review. Upon such review, G. Peters, Ph.D. (" Dr. Peters" ), a psychologist, issued an opinion dated August 11, in which he concluded that A.N.'s impairment

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was severe but did not medically or functionally equal the SSA listings; and C. Liddie (" Mr. Liddie" ), a speech language pathologist, issued an opinion dated August 13, in which he apparently approved the conclusions of Dr. Peters and added his own, similar conclusions relating specifically to A.N.'s speech and language development. ( See id. at 234-49.)

By Notice dated August 14, 2008, the Administration denied plaintiff's claim for SSI benefits, citing the reports of Doctors Ricci and Peters and of Speech Pathologists Singer and Liddie. ( See A.R. 64.) The only medical records cited in this Notice were the 2002-2007 records from Woodhull Medical Center, reflecting the ear infections and injuries discussed previously. The Administration concluded that, even though the evidence shows that the Child had a behavior problem, the problem appears to have " stabilized" with treatment, and, notwithstanding certain " ...

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