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Nelson v. Colvin

United States District Court, E.D. New York

December 31, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

TAMARA NELSON, Plaintiff, Pro se, Brooklyn, NY.

For Defendant: Karen T. Callahan, LORETTA E. LYNCH, United States Attorney, Eastern District of New York, Brooklyn, NY.


John Gleeson, United States District Judge


When Tamara Nelson was four years old she went into a coma for four days. R. 407. She was diagnosed with diabetes mellitus type I, R. 407, and she has taken insulin four times per day ever since. R. 289. Based on that diagnosis, she was found to be disabled in 1996, when she was five years old, and she was awarded Social Security Income benefits. R. 400.

Tamara left school after eighth grade in 2005, when she was fifteen years old, at the principal's request. R. 409-10. The principal asked her mother to sign a release form and take Tamara out of school because she was always sick due to her diabetes and because she could not talk to people at school. R. 409. That was the end of Tamara's education; she has been at home with her mother and sister ever since. R. 410.

Long before it became one of the reasons for her leaving school, Tamara was unable to speak outside her home. The record suggests that Tamara's muteness has been a problem since 1999. See R. 318 (2011 report reflecting " a consistent failure to speak in specific social situations for almost 12 years"). Her inability to speak outside of her home causes her considerable anxiety, impairs her " ability to relate adequately with others, " and standing alone, that is, without consideration of her other severe impairments, " significantly interfer[ed] with her ability to function on a daily basis" as early as 2009. R. 239-40 (February 2009 report of examining psychiatrist, Dr. Heidi Van Horne).

Tamara's physical and nonexertional problems continued to mount after she was withdrawn from school. As the Commissioner of Social Security (the " Commissioner") admits, her severe impairments -- in addition to diabetes and selective mutism -- include hyperthyroidism, Grave's disease, depression, and irregular heart rhythm. See R. 27, 426. It is also undisputed that Tamara suffers from blurred vision, see R. 385, 412-13, though the Commissioner does not acknowledge this.

When Tamara turned eighteen years old, the Commissioner was required to reassess her eligibility for social security benefits. Despite all of her limitations, Tamara was found not disabled. In this action, she seeks review of the Commissioner's denial of her application for Social Security Income benefits under the Social Security Act (the " Act").

In the ALJ's decision, he concluded that Tamara could be a hand packager, assembler of small products, or retail price marker. R. 32. But the vocational expert testified to the exact opposite regarding small product assembly once Tamara's specific limitations were taken into account, and her testimony on the price marking job was equivocal. R. 416-17. And the ALJ acknowledged that the combination of physical impairments and the eighth grade education constituted a " significant barrier to jobs" if Tamara's muteness is " not controllable." R. 418-19.

The ALJ found Tamara's muteness " mysterious, " and admitted he did not know if it was " controllable, " but he nonetheless concluded that Tamara was " choosing not to" speak. R. 413-14. Since the record establishes (1) an inability to speak stretching back 13 years before the ALJ's decision, (2) a request from Tamara's middle school principal seven years before the ALJ's decision that Tamara be permanently removed from school based in part on her inability to speak there, (3) Tamara did not speak at her hearings or in court and communicates with her doctors only through her mother, and (4) the muteness causes Tamara anxiety, there is simply no basis for ALJ's conclusion that her muteness might be " intentional." See R. 318, 410, 414. Yet the Commissioner persists in that view even in this Court; her counsel contended at oral argument that " we may all be disabled if we just didn't want to talk to people." Tr. 8 (Nov. 7, 2014). That position reflects a callous disregard of Tamara's condition and the record before me.

Finally, the Commissioner ignored the escalating effects of Tamara's diabetes. Before the second hearing in front of the ALJ, Tamara submitted medical records showing she was " not responding to current treatment." R. 372 (Sept. 26, 2011 visit). Then, in the months before the ALJ's decision, her doctor twice wrote as follows: " The problem is getting worse. Risk factors include: African American race. She has been managed with insulin. Pertinent negatives include blurred vision, constant hunger, excessive thirst, foot ulcers, frequent infections, frequent urination, increased fatigue, chest pain, dyspnea, nocturia, dysesthesias, slow healing wounds/sores, tooth/gum disease, weight loss, weight gain, diarrhea, burning of extremities, hypoglycemic episodes or heartburn." R. 382 (March 15, 2012 visit), R. 385 (April 18, 2012 visit). Yet the ALJ ignored those statements even as he relied on other statements in the same reports.

There is no indication here that Tamara " just [doesn't] want to talk to people." An array of very serious afflictions combines to impose an insuperable barrier to employment. Thus, I remand for the sole purpose of calculating benefits.


A. Facts and Procedural History

Tamara was born in October 1990. R. 94. As mentioned above, she was found to be disabled at age five. After she turned eighteen years old, the Commissioner was required to redetermine her eligibility for benefits under the criteria used to determine initial eligibility for adults. See 42 U.S.C. § 1382c(a)(3)(H)(iii). To be entitled to benefits as a disabled adult, Tamara needed to show she met the income and resource requirements of 42 U.S.C. § § 1382a and 1382b, and that she was " unable to engage in any substantial gainful activity by reason of a physical or mental impairment" that is expected to last for at least one year. 42 U.S.C. § 1382c(a). When the Commissioner reviewed Tamara's case under the adult disability standard, Tamara was initially found no longer eligible for benefits. R. 41-44. After Tamara requested reconsideration, a hearing before a hearing officer was held on November 18, 2009. The hearing officer determined that Tamara was no longer disabled under the adult disability standard. R. 82-107. Tamara thereupon requested a hearing before an ALJ.

On May 18, 2011, and June 14, 2012, Tamara appeared before ALJ Edward Hein to contest the decision that she was no longer disabled. R. 394, 425. On both occasions, Tamara appeared without counsel but with her mother, Maureen Nelson, who spoke on behalf of her daughter. See R. 396-98, R. 425. In a decision dated August 31, 2012, the ALJ found that Tamara's disability ended on April 22, 2010. R. 32. On December 20, 2013, Tamara's request for review of the ALJ's decision was denied, R. 5-8, at which point it became the final decision of the Commissioner.

On February 20, 2014, Tamara filed a pro se complaint requesting review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). The Commissioner moved for judgment on the pleadings upholding her decision to terminate Tamara's benefits because she did not satisfy the adult disability standard. I heard oral argument on November 7, 2014. At oral argument, Tamara was accompanied by her mother, who spoke on her behalf. For the reasons that follow, the Commissioner's motion is denied and the case is remanded solely for the calculation and award of benefits.

B. The ALJ's Decision

1. The Legal Standards

The Act provides that a person is disabled if he or she " is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than twelve months." Additionally, an individual is disabled " only if [her] physical or mental impairment or impairments are of such severity that [she] . . . cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . ." 42 U.S.C. § 1382c(a)(3)(B); see also Melville v. Apfel, 198 F.3d 45, 50-51 (2d Cir. 1999).

The Social Security Administration's regulations prescribe a sequential five-step analysis for determining whether a claimant is disabled:

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Commissioner next considers whether the claimant has a " severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him disabled without considering vocational factors such as age, education, and work experience; the Commissioner presumes that a claimant who is afflicted with a " listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe ...

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