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Hairston v. Commissioner of Social Security

United States District Court, S.D. New York

October 14, 2014

DENISE M. HAIRSTON, o/b/o S.N., [1] Plaintiff, -

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Denise M. Hairston, Plaintiff, Pro se, New York, NY.

For Commissioner of Social Security, Defendant: Fergus John Kaiser, LEAD ATTORNEY, U.S. Social Security Administration, New York, NY; John E. Gura, Jr, LEAD ATTORNEY, David Stuart Jones, U.S. Attorney's Office, SDNY (86 Chambers St.), New York, NY.

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FRANK MAAS, United States Magistrate Judge.

Pro se plaintiff Denise M. Hairston (" Hairston" ) brings this action pursuant to Section 205(g) of the Social Security Act (" Act" ), as amended, 42 U.S.C. § 405(g), seeking review of a final decision of the Commissioner of the Social Security Administration (" Commissioner" ) denying the application of her minor daughter, S.N., for Supplemental Security Income (" SSI" ) benefits. The parties have consented to my exercise of jurisdiction over the case for all purposes pursuant to 28 U.S.C. § 636(c). (ECF No. 32).

The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF No. 33). Although the motion is unopposed, a careful review of the record shows that it must be denied. Accordingly, as I previously indicated in an order dated September 29, 2014, (ECF No. 37), this case will be remanded to the Commissioner for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).

I. Background

A. Procedural History

On January 24, 2012, Hairston protectively filed an application for SSI benefits

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on behalf of S.N., alleging that S.N. became disabled on January 5, 2011. (Tr. 90-98).[2] The application was denied initially on April 13, 2012. (Id. at 55). Hairston then requested a de novo hearing before an Administrative Law Judge (" ALJ" ), which was held before ALJ Wallace Tannenbaum on December 13, 2012. (See id. at 31-54, 56-58). Hairston and S.N. both appeared at the hearing and testified without the assistance of an attorney or other representative. (Id. at 9, 32). Medical expert Dr. Matilda B. Brust also was present and testified. (Id. at 32). On November 26, 2012, the ALJ issued a decision denying S.N.'s application for SSI benefits. (Id. at 6-26). That ruling became the final decision of the Commissioner on May 6, 2013, after the Appeals Council denied Hairston's request for review. (Id. at 1-5). Hairston then timely commenced this action on May 15, 2013. (ECF No. 2).

After the Commissioner filed her motion on June 16, 2014, Hairston's opposition papers were due by July 16, 2014. (ECF Nos. 28, 33). Despite the passage of more than two additional months, Hairston has not responded to the motion; the motion is therefore deemed fully submitted.

B. Relevant Facts

1. Non-Medical Evidence

a. Testimonial Evidence

S.N. testified that she was born on June 18, 1997, making her fifteen years old at the time of the hearing. (Tr. at 35). She lived with her mother, Hairston, in an apartment in Manhattan. (Id. at 34). S.N. was in the ninth grade at the Urban Assembly for Young Women in Business. (Id. at 35-36). She described herself as a " [p]retty good student" who aspired to join the military. (Id. at 36, 42). After school, S.N. was required to participate in an a program she identified by the acronym " CASES," which made a guidance counselor and group therapy available to her because she had gotten into " trouble with the law." (Id. at 37-40, 44-45).[3]

S.N. testified that she used a computer, enjoyed reading and music, and socialized with friends. (Id. at 39-40). In response to a question posed to her by Dr. Brust, S.N. admitted to having been " involved" with marijuana, but denied any involvement with alcohol or other drugs. (Id. at 50-51). S.N. indicated that she was not seeing a therapist or psychiatrist at the time of the hearing, but was receiving medical treatment for migraines. (Id. at 41). S.N. claimed that she had suffered from migraines for " some period" and that the medication she was receiving for her migraines failed to alleviate her pain. (Id. at 41-42).

During her own testimony, Hairston acknowledged that S.N. was a good student who had a full social life. (Id. at 43, 46-47). Hairston testified, however, that S.N. suffered from " debilitating" migraines. (Id. at 48). Hairston also disclosed that on April 29, 2012, S.N. had been raped by a stranger. (Id. at 45). As a consequence of this incident, S.N. was participating in a mental health treatment program which included weekly home visits by a social worker. (Id. at 45-46). Hairston described this program as " the highest level of home care that you can get," and stated that it was intended to " keep [S.N.] in [the] house rather than commit her mentally" due to her " severe depression." (Id. at 52).

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Hairston concluded her testimony by indicating her belief that her daughter was " not functioning properly." (Id. at 53).

b. School Records

On February 27 and March 12, 2006, approximately six years prior to Hairston's application for SSI benefits on behalf of S.N., S.N. underwent a psycho-educational evaluation with school psychologist Odette Martinez based on a " parental request." (Id. at 192). At the time of the evaluation, S.N. was eight years old and in the third grade. (Id.). The purpose of the evaluation was to " determine the suitability of special education services and/or appropriate educational placement." (Id.). As part of the evaluation, Martinez conferred with S.N.'s classroom teacher, Ms. Chau, who reported " some concerns" relating to S.N.'s " academic abilities and emotional issues," but also described S.N. as " highly verbal" and " well liked by her peers." (Id.). Chau noted that S.N. had difficulties with reading comprehension, decoding, math problem-solving, spelling, and organizing and planning writing projects. (Id.). Chau also expressed concern with S.N.'s " tardiness and attendance," and found her organizational and planning skills not age-appropriate. (Id. at 192, 197).

Martinez observed S.N. to be " friendly and socially related." (Id. at 193). S.N.'s eye contact was " adequate" and she " smiled and engaged in social conversation" during the observation period, even making several jokes. (Id.). S.N.'s attention and concentration were " constant with all tasks," and she needed " little redirection." (Id.). Her verbal responses were age-appropriate, and she generally complied with all test directions. (Id.). Martinez administered a number of assessment tests, including the Wechsler Intelligence Scale for Children - Fourth Edition (" WISC IV" ), and the Wechsler Individual Achievement Test (" WIAT II" ). (Id.). Martinez described S.N.'s WISC IV scores as " average" for perceptual reasoning and processing speed, and " high average" for verbal comprehension and working memory, thus giving rise to an " average" full-scale score. (Id. at 193, 198). Martinez noted S.N.'s relatively low academic performance, and highlighted her weaknesses in the areas of reading and decoding. (Id.). Martinez apparently attributed these shortcomings to the fact that S.N. was " coping with internalized anxiety caused by demands and challenges of h[er] environment (school and home)." (See id. at 198).

During this same period, on March 3, 2006, psychologist Ellen M. Armitage conducted a " classroom structured observation" of S.N., based on Hairston's concerns regarding S.N.'s academic progress. (Id. at 199). Armitage described S.N. as " fully engaged with the class activities" in her third-grade general education classroom. (Id .). Three months later, on June 5, 2006, speech language pathologist Sherry Bell of RCM Technologies conducted a speech and language evaluation of S.N. (Id. at 187-91). Bell found S.N. to be " an alert, cooperative girl with a good attention span and motivation to perform well." (Id. at 187). S.N.'s response time on tests was " within normal limits" and she generally was able to provide such personal information as her age, school, and grade. (Id. at 189). Her semantic skills were " in the [a]verage range" and she " seemed to enjoy communicating." (Id. at 189-90). Her " [c]onnected speech was organized, on topic and sequenced appropriately." (Id. at 190). Bell opined that S.N. had " more than adequate academic related auditory processing skills and expressive language skills." (Id.). Bell's report noted, however, that S.N. had been " held over." (Id. at 187).

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On May 18, 2007, when S.N. was ten years old, the New York City Board of Education created an Individualized Education Program (" IEP" ) for her. (See id. at 176-86). The IEP recommended that S.N. be placed in a " collaborative team teaching" setting, with a staff ratio of twelve to one, and be afforded testing accommodations. (Id. at 176, 184). The IEP also noted that S.N. was " functioning slightly below grade level standards," and had difficulty organizing her thoughts. (Id. at 178). Nevertheless, S.N. was described as an " enthusiastic learner and a hard worker." (Id.). Her reading comprehension was average, she was able to answer " high level thinking questions," and she was able to work well " independently and in small groups." (Id.). The IEP noted that S.N. generally was in good health, but had asthma and allergies treated with medication. (Id. at 181).

On May 17, 2012, after Hairston filed S.N.'s application for SSI benefits, S.N.'s special education and resource room " teacher/coordinator," Mr. Ramirez, completed a teacher questionnaire for the New York State Office of Temporary and Disability Assistance. (See id. at 137-144). At the time, Mr. Ramirez had known S.N. for three years. (Id. at 137). In the questionnaire, Mr. Ramirez expressly disclaimed any " unusual degree of absenteeism" on the part of S.N. (Id. at 137, 143). Mr. Ramirez also was asked to respond to a series of questions concerning S.N.'s activities in five specific domains of function by indicating whether she had " no problem," " a slight problem," " an obvious problem," " a serious problem," or a " very serious problem" in accomplishing the activities in each domain. Mr. Ramirez reported that S.N. had some level of difficulty with respect to each of those domains. (Id. at 138-142). Nevertheless, Mr. Ramirez failed to provide any anecdotal information in the portions of the form that requested him to explain his assessments. (See id. at 138-42). His responses thus consist simply of circling numbers to indicate the level of problem he believed existed with regard to each activity.

In the domain of attending and completing tasks, Mr. Ramirez opined that S.N. had a " very serious problem" sustaining attention during play or sports activities and working at a reasonable pace, a " serious problem" carrying out multi-step instructions, and an " obvious problem" focusing long enough to finish an assigned activity or task. (Id. at 139). He believed that S.N. had a " slight problem" refocusing to a task when necessary, but " no problem" paying attention when spoken to directly, carrying out single-step instructions, waiting to take turns, changing from one activity to another without disruption, completing homework and class assignments, completing work accurately without careless mistakes, and working without distracting herself or others. (Id.).

In the domain of interacting and relating with others, Mr. Ramirez indicated that S.N. had a " very serious problem" playing cooperatively with other children, a " serious problem" making and keeping friends, and an " obvious problem" relating experiences, telling stories, and interpreting facial expressions, body language, hints, and sarcasm. (Id. at 140). He also indicated that S.N. had slight problems expressing anger appropriately and introducing and maintaining relevant and appropriate topics of conversation, but no problem seeking attention and asking permission appropriately, following classroom rules, respecting those in authority, using language appropriate to the situation and listener, taking turns in conversation, and using adequate vocabulary and grammar. (Id.).

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In the domain of moving about and manipulating objects, Mr. Ramirez stated that S.N. had " very serious problems" in nearly all of the listed activities, including moving her body from place to place, manipulating objects, and demonstrating strength, coordination, and dexterity. (Id. at 141). The only activity for which Mr. Ramirez suggested that S.N. had less than a " very serious problem" was " [p]lanning, remembering, [or] executing controlled motor movements." As to those activities, he indicated that S.N. had only a " serious problem." (Id.).

In the domain of caring for herself, Mr. Ramirez indicated that S.N. had a " serious problem" caring for her physical needs such as dressing and eating, but a less than serious problem regarding all other activities. (Id. at 142). He indicated that she had no problem at all taking care of her personal hygiene and using good judgment regarding personal safety and dangerous circumstances. (Id.).

c. Child Function Report and Other Correspondence

On January 24, 2012, as part of the application for S.N.'s SSI benefits, Hairston completed a Child Function Report. (See id. at 105-15). Hairston noted that although S.N. used eyeglasses, her vision was " [s]till blurry." (Id. at 108). Hairston further contended that S.N.'s daily activities were limited because her " severe migraines" kept her out of school. (Id. at 110). Although Hairston indicated that S.N. was able to perform all of the communication functions listed in the Function Report, such as answering the telephone and making calls, telling jokes and riddles accurately, asking for what she needed, and talking with friends and family, she also stated that " many of these abilities [we]re more limited" when S.N. was experiencing a migraine. (Id.). Hairston noted that S.N.'s progress in understanding and using what she had learned was not limited, and that S.N. did not have any limitations in her physical abilities. (Id. at 111). Hairston stated that S.N.'s impairments affected her social behavior, but indicated only that S.N. did not play team sports. (Id. at 112). Hairston also noted that S.N.'s ability to " pay attention and stick with a task" was limited, but did not specify any category of tasks that S.N. could not perform. (Id. at 114). Finally, Hairston said that S.N.'s ability to care for her own personal needs and safety was limited, but indicated only that S.N. did not take prescribed medications. Hairston did note, however, that S.N. cared for her own personal hygiene, washed and put away her own clothing, helped around the house, cooked for herself, arrived to school on time, studied and did her homework, used public transportation independently, accepted criticism and correction, stayed out of trouble, obeyed rules, avoided accidents, and asked for help when needed. (Id. at 113).

On February 9, 2012, with Hairston's assistance, S.N. answered a series of questions regarding the pain caused by her migraines (" Pain Questionnaire" ). (See id. at 129-136).[4] The completed Pain Questionnaire indicates that S.N. first experienced migraines in 2009, and continued to receive treatment for those migraines from her treating physician, Dr. Benjamin, through 2012. Asked about the type of pain that she experienced during her migraines, S.N. answered " [i]t feels like a hammer is hitting my head." (Id. at 129). S.N. also described the pain as a " stabbing pain" with an intensity (presumably on a

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ten-point scale) of nine. (Id. at 131). The frequency of the migraines was described as " sometimes everyday, sometimes once or twice a week," and lasting " all day." (Id. at 129-30). S.N. reported experiencing approximately fifteen migraines a month, or three per week. (Id. at 131). A " headache calendar" attached to the Pain Questionnaire indicates that S.N. had twelve migraines in January, and six headaches in the first half of February. (Id. at135-36). The responses to the Pain Questionnaire indicate that the migraines affected all of S.N.'s daily activities, and resulted in numerous absences from school, including more than fifty in 2011. (Id. at 131, 133).

2. Medical Evidence

a. Physical Condition

i. Treating Source

S.N. treated with Dr. Taisha Benjamin of the William F. Ryan Community Center Network from at least February 2010 to June 2012. (See id. at 201-18, 283). During the first documented visit, on February 22, 2010, Dr. Benjamin noted that S.N. reported a history of migraines. She directed that S.N. take four hundred milligrams of ibuprofen every six hours to treat her migraines and referred S.N. to a pediatric neurologist to identify the cause of her migraines. (Id. at 218). By November 10, 2010, S.N. was reporting that her migraines occurred twice per week, and that her prescribed medication provided " no relief." Dr. Benjamin's diagnosis was " [m]igraine, other, without mention of intractable migraine." (Id. at 210). Over the course of her treatment of S.N., Dr. Benjamin also prescribed two daily five hundred milligram tablets of Naprosyn[5] and eventually increased her dosage of Ibuprofen to eight hundred milligrams every six hours. (Id. at 204, 210). Nonetheless, Dr. Benjamin noted several times that S.N.'s migraines were not " intractable." (Id. at 204, 210). During an appointment on November 10, 2010, S.N. reported that the migraines occurred twice per week, and that the prescribed medication provided " no relief." (Id. at 209).

During an appointment on May 7, 2010, Dr. Benjamin assessed S.N. with obesity. (Id. at 216). Dr. Benjamin's assessment of obesity continued throughout her treatment of S.N., although there were signs of improvement. (See id. 203-16). For example, on May 23, 2011, S.N. visited Dr. Benjamin for a weight check which revealed ...

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