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Rozler v. Colvin

United States District Court, W.D. New York

December 23, 2014

TIFFANY ROZLER, o/b/o A.E.R.S., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

DECISION and ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Represented by counsel, Tiffany Rozler ("Plaintiff") has brought this action on behalf of her infant son ("AERS") pursuant to Title XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying AERS's application for Supplemental Security Income ("SSI"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. ยงยง 405(g), 1383(c).

II. Procedural History

Plaintiff submitted an application for SSI on behalf of AERS on September 16, 2008. T.64, 124-27.[1] After it was denied on November 5, 2008, T.64-68, Plaintiff requested a hearing before an administrative law judge. Plaintiff and AERS appeared with their non-attorney representative before William E. Straub ("the ALJ") on November 16, 2010. T.31-63. After considering AERS's claim de novo, the ALJ issued an unfavorable decision on December 6, 2010. T.11-26. Plaintiff requested review of the hearing decision by the Appeals Council, which was denied June 22, 2012. T.6-9. On February 27, 2013, the Appeals Council extended the time within which Plaintiff could file a civil action to October 19, 2012. This action followed.

Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

III. Summary of the Administrative Transcript

A. Pre-Application Date Academic and Medical Records

AERS underwent a psychological evaluation by Amanda R. DeSio, B.A. and Lisa D. Dekeon, Ph.D. on November 29, 2006, at his home. He was approximately two years-old at the time and had been referred due to concerns regarding frequent temper tantrums, difficulty following directions, easy frustration, and high activity level. He had received special education services through Early Intervention ("EI") since the summer of 2006.

The evaluators found that AERS was easily engaged in formal testing, but required frequent redirection in order to stay on task and complete the evaluation. The test results were likely an underestimate of his of cognitive abilities due to his difficulty in attending to tasks appropriately. Results of the social/emotional development testing were considered accurate. Due to inattention and frustration, AERS could not complete the Stanford-Binet Intelligence Scales, Fifth Education. He quickly became uninterested, requiring frequent prompting to respond to each item. Abbreviated Battery IQ was 94 (the average range) and at the 35 percentile. The evaluator noted that the Abbreviated Battery results should be interpreted with caution. Pre-academic skills were inconsistent and negatively affected by his inattentive behaviors. AERS's speech was sometimes difficult to understand, especially when he spoke loudly and rapidly. In social/emotional development, AERS appeared to have difficulty waiting his turn or waiting for the evaluator to prepare materials between tasks. His mother expressed concern about his behavior and described him as a very unpredictable child who had frequent temper tantrums and was easily frustrated. The evaluators observed that AERS rarely persisted in an activity he found challenging. He played in an aggressive manner, frequently banging and throwing toys. On testing using the Child Behavior Checklist, there were severe difficulties (two standard deviations above the mean) in Attention Problems, Aggressive Behavior, Externalizing Problems, and Total Problems. T.165. The evaluators recommended that AERS be considered for services provided by the Committee on Preschool Special Education due to his delays in social and emotional development.

The educational evaluation conducted in conjunction with the psychological evaluation revealed that AERS's poor attending skills and self-directed behaviors were negatively affecting his pre-academic skill development. During the evaluation he was self-directed and impulsive. He had a hard time "catching on" to what was expected of him and often responded before listening to directions. He was unwilling to change the way he was doing something when provided with a suggestion to do it differently. When he could not complete a task successfully, he would often yell, shut down, or throw what he was working on. Taking information provided by his mother into account, AERS was given credit for academic skills through the 30-month level, which was below-age expectations. Results of the evaluation indicated statistically significant scores in the areas of attention problems and aggressive behavior. There were borderline clinical scores in the emotionally reactive, withdrawn and sleep problems domains. His mother described AERS's behavior as unpredictable, explosive, and difficult to manage; it was difficult to take him places, and even within the home he required frequent redirection and very close supervision. According to his mother, he had not shown improvement in behavior or social skill development through the five months of EI that he had received. Rather, he continued to have difficulty attending to tasks, handling frustration and playing appropriately. The evaluators felt that AERS would benefit from enrollment in a small, highly structured classroom setting with firm limits and clear consequences for negative behavior. Therefore, special education services were indicated.

An Occupational Therapy Evaluation administered on December 13, 2006, revealed that AERS's fine motor skills were in the second percentile. He showed definite difficulty regulating and controlling his physical activity and had a very limited ability to self-regulate. Due to his high activity level, AERS had difficulty with fine motor tasks even during the moments he did attempt them (e.g., his hands would shake noticeably). He could not engage in "graded" levels of activity, which would allow a "winding down" period and the emergence of fine and visual motor skills. Thus, his high and impulsive, activity level was retarding the development of fine and visual motor skills. He was not imitating age-appropriate activities, was unable to regulate his activity level, and was unsuccessful transitioning to a sedentary task. As a result, direct occupational therapy ("OT") services were recommended.

Pursuant to his Preschool Individualized Education Plan ("IEP") for January 14, 2008, through December 18, 2008, AERS was placed in a small, special education class for an extended school year and received OT twice per week. Socially, AERS was highly active and impulsive and displayed a very short attention span. His teacher reported minimal interaction with his peers; he had difficulty playing alongside them and sharing. Often, AERS refused to participate in group activities, and his behavior was noncompliant and unpredictable. Tantrums occurred at least several times per day. When he had a tantrum, he would cry, throw objects and furniture, kick and punch the wall, bang his head on the wall, make comments about hating school, threaten to hurt himself. The evaluators observed that AERS needed to develop age-appropriate emotional regulation skills.

In the area of physical development, AERS continued to exhibit significant sensory processing delays. He was in constant motion and could not maintain prone position for more than 30 seconds without readjusting. He required a structured environment and a great deal of behavior management, such as reinforcement and frequent prompts and redirection to complete tasks.

B. Post-Application Date Academic and Medical Records

AERS was admitted to Child and Adolescent Treatment Services ("CATS") on September 10, 2008. Intake notes with a psychiatrist (whose name is illegible) show complaints by Plaintiff concerning AERS's aggression and "out of control behavior". Plaintiff stated that AERS "had been kicked out of Head Start". He was impulsive, irritable, hyperactive, and had sleep disturbance. Diagnoses were Attention Deficit Hyperactivity Disorder ("ADHD") and Oppositional Defiant Disorder ("ODD").

In a Childhood Disability Evaluation form dated November 5, 2008, nonexamining state agency physician J. Meyer, M.D. opined that AERS had "marked" limitations in the domain of attending and completing tasks and "no limitation" in the other domains, including acquiring and using information and interacting and relating with others. T.240-41. Dr. Meyer concluded that AERS's combination of impairments, while severe, did not meet or medically equal any listed impairment.

On November 5, 2008, an IEP Annual Review indicated that AERS's cognitive skills appeared age appropriate. T.259. He was socializing with peers, but needed adult verbal prompts to share, take turns, and not be bossy. Per his mother, AERS did not sleep several nights per week. When his mother brought him to school (as opposed to his taking the bus), AERS was observed to be crying, screaming for his mother and throwing a tantrum. T.259. If he presented with a task that he perceived to be difficult, he would become frustrated. However, with positive encouragement he would complete the task. Many times with age appropriate self help skills AERS would refuse to do it. AERS benefitted from a structured environment with a daily routine and needed a lot of positive feed back and encouragement to try activities he perceived as challenging. T.259-60, 275. He frequently tried to challenge adult authority, but with positive verbal prompts, he would change his demeanor. AERS was placed in special education classes five days per week. OT services were discontinued after evaluation on November 13, 2008. T.264-66.

AERS's preschool IEP for the period from January 5, 2009, through June 25, 2009, indicated that he was placed in a 12:1 classroom. It was noted that, as far as social development, AERS needed to attempt perceived challenges without becoming frustrated ...


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