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Rios v. Colvin

United States District Court, S.D. New York

October 16, 2014

YESSENIA RIOS on behalf of J.C., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


VALERIE CAPRONI, District Judge.

Yessenia Rios ("Plaintiff") brought this action pro se on behalf of her son, J.C., pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. ยง 405(g), seeking review of a final decision of the Commissioner ("Commissioner") of the Social Security Administration ("SSA") denying J.C.'s application for Supplemental Security Income ("SSI") benefits.[1] The Commissioner moved for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Commissioner's motion is GRANTED.


a. Procedural History

Plaintiff filed for SSI on September 8, 2011, claiming that her four and a half year old son was disabled because of attention deficit hyperactivity disorder ("ADHD"), speech delay, and asthma. R. 48.[2] Her claim was denied on December 12, 2011. R. 11. Plaintiff requested a hearing, which was held before an administrative law judge ("ALJ") on January 30, 2012. R. 11.[3]In an opinion dated February 3, 2012, the ALJ concluded that J.C. was not disabled within the meaning of the Act. R. 8. The Appeals Council denied Plaintiff's request for review on July 16, 2012, making the February 3, 2012, opinion the final decision of the Commissioner. R. 1. Plaintiff commenced this action by timely filing a form complaint on September 13, 2012. R. 2. The Commissioner filed a motion for judgment on the pleadings on April 13, 2014. R. 19.

b. Facts

At the time of his application for SSI, J.C. was on medication to treat asthma, from which he had suffered since he was one year old. R. 104, 164. Plaintiff claimed that in addition to asthma, J.C. had a history of behavior and speech problems. R. 35, 104. He had been discharged from preschool due to his bad behavior and had received speech therapy in the past. R. 106, 108. At the time of the SSI application, J.C. was no longer enrolled in speech therapy. R. 108.

J.C. underwent multiple clinical and medical evaluations to assist in the determination of whether he was disabled. On November 7, 2011, Dr. Howard Tedoff, Ph.D., conducted a Child Intelligence Evaluation. R. 156-159. According to the Intelligence Evaluation, J.C. had an overall IQ of 80, which put him in the ninth percentile. R. 156. J.C. was able to follow and attend to "some age-appropriate directions and complete some age-appropriate tasks." R. 156. J.C. was a "very active child" but his "manner of relating, social skills and overall presentation were adequate." R. 157. Dr. Tedoff concluded that although the "results of [J.C.'s] examination do not appear to be consistent with cognitive problems that would significantly interfere with his ability to function on a daily basis, " "there may be some language processing issues and behavioral problems that may require some special education intervention." R. 159. Dr. Tedoff diagnosed J.C. as having ADHD, asthma, congestive cough and anemia. R. 169.

Mindy Singer, a speech and language pathologist, conducted a speech and language evaluation. R. 160-63. Singer noted that J.C. had a "variable attention span, " with "significant difficulty maintaining consistent focus on structured language tasks." R. 160. He "became increasingly distractible, fidgety, and impulsive" as the exam went on. R. 160. Singer concluded that J.C. had "normally developing receptive language and a mild expressive language delay." R. 161. Singer specifically noted that her evaluation of J.C.'s speech was inconsistent with the assertions that his mother had made in the disability application. R. 162. Singer diagnosed J.C. with mild expressive language delay and poor attending and focusing skills; she determined that speech and language services were not recommended at that time. R. 162.

Dr. William Lathan, M.D., conducted a pediatric examination of J.C. the same day. R. 164-67. Dr. Lathan observed that J.C.'s general appearance, behavior, ability to relate to the examiner, and attention span were all normal for his age. R. 165. J.C. did not appear to suffer from cyanosis[4] or respiratory distress, R. 165, his chest and lungs were clear, and his chest wall excursion and movements were normal, R. 166. Dr. Lathan concluded that J.C. did not have any physical or speech impairments and could participate fully in age-appropriate educational, social, and recreational activities. R. 167. As with any child with asthma, Dr. Lathan observed that J.C. may experience "periods of diminished functional capacity secondary to bronchial asthma." R. 167.

Subsequently, Dr. James McKnight, child psychiatrist with the Jewish Board of Family Services ("JBFS"), completed a questionnaire about J.C.'s treatment history. R. 170-77. Dr. McKnight noted that J.C. had begun treatment on October 3, 2011, and had participated in five weekly visits to JBFS. R. 171. Dr. McKnight noted that, at intake, J.C. spoke spontaneously with appropriate volume, but his ability to use words to express his thoughts was somewhat limited. R. 174. J.C. reported feeling angry but appeared happy. R. 174. He was "very reactive, showing extremely limited tolerance for frustration" and "became angry quickly." R. 174. J.C. "moved from thing to thing, not sustaining focus for any period of time." R. 174. Dr. McKnight noted that J.C. did not appear to have an age-appropriate fund of knowledge. R. 174. He also noted that J.C. acknowledged his behavioral problems but had limited judgment and did not otherwise accept responsibility for his behavior. R. 174. Based on J.C.'s symptoms, including hyperactivity, impulsiveness, being easily distracted, and aggressive behavior, Dr. McKnight's initial clinical impression suggested a diagnosis of ADHD, combined type, and he ruled out oppositional defiant disorder ("ODD"). R. 173. Dr. McKnight also noted that J.C. had been evaluated at Montefore Medical Center, and those results indicated mixed receptive expressive language disorder. R. 173.

Dr. M. Puttanniah, a consulting pediatrician, reviewed J.C.'s records and completed a Child Disability Evaluation Form, dated December 8, 2011. R. 178-85. Dr. Puttanniah noted that J.C.'s impairments were asthma, obesity, ADHD, and mild expressive language delay, and concluded that these impairments were severe but did not meet, medically equal, or functionally equal the listings set forth in the Act. R. 180, 185. Dr. Puttanniah found that J.C. had a marked limitation in the domain of attending and completing tasks, less than marked limitation in the domains of acquiring and using information and interacting and relating with others, and no limitation in the domains of moving about and manipulating objects, caring for himself, and health and physical well-being. R. 182-83.

Before the hearing with the ALJ on January 30, 2012, Plaintiff provided nine "incident reports" that she had received from J.C.'s daycare program for incidents that occurred between December 22, 2011, and January 25, 2012; she said that her daycare provider would not provide her with official records because J.C. had been dismissed for behavioral problems. R. 152, 200-08. Shortly before the hearing, the New York City Department of Education had approved an Individualized Education Plan ("IEP") for J.C. that placed him in special education classes for two and a half hours daily, occupational therapy twice a week for thirty minutes, and counseling once a week for thirty minutes. R. 186-99. J.C. began special schooling in January 2012. R. 31.

At the administrative hearing, Plaintiff testified that J.C. had started school pursuant to the IEP in mid-January 2012 and had to miss some school because of asthma; Plaintiff did not provide any dates or documentation of such asthma attacks. R. 31. Although J.C. was on medication to treat his asthma, R. 33, he was not taking any medication for ADHD, R. 33.[5] Plaintiff testified that J.C. had been receiving therapy at JBFS once a week since early October and also at the new special education school where he was enrolled. R. 34. According to Plaintiff, J.C. and his younger brother did not get along well because J.C. was "too aggressive." R. 35. Plaintiff reported that the boys constantly fought and the fights frequently ...

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