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Arsenault v. Colvin

United States District Court, S.D. New York

February 13, 2015

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

Howard D. Olinsky, Esq., Olinsky Law Group, Syracuse, New York, For Plaintiff.

Leslie A. Ramirez-Fisher, Assistant U.S. Attorney, Southern District of New York, New York, New York, For Defendant.


SHIRA A. SCHEINDLIN, District Judge.


Lynn Arsenault brings this action on behalf of her daughter A.P.L. pursuant to the Social Security Act (the "Act")[1] seeking judicial review of the final decision by the Commissioner of Social Security (the "Commissioner") denying her application for Supplemental Social Security Income ("SSI") disability benefits. Arsenault has moved for judgement on the pleadings, and the Commissioner has filed a cross-motion. For the reasons set forth below, the Commissioner's motion is GRANTED and the decision denying benefits is affirmed.


A. Procedural History

On January 25, 2011, Arsenault filed an application for SSI benefits on behalf of A.P.L., a child under 18, alleging disability due to bipolar disorder, attention deficit disorder, and attention deficit hyperactivity disorder ("ADHD") with an onset date of April 1, 2008.[2] The claim was denied upon initial review on April 8, 2011.[3] Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ").[4] ALJ Carl Stephan presided over this hearing on April 20, 2012.[5] A.P.L. and Arsenault, who were represented by counsel, both testified at the hearing.[6] On May 8, 2012, the ALJ issued a decision finding that "claimant has not been under a disability within the meaning of the Social Security Act since January 25, 2011."[7] The ALJ's decision became the final decision of the Commissioner on June 17, 2014, when the Appeals Council denied Arsenault's request for review.[8] Arsenault then commenced this action.

B. Administrative Record

The administrative record consists of non-medical evidence, medical evidence, and hearing testimony.

1. Non-Medical Evidence

A.P.L. is a seventeen-year-old girl who lives with her mother, her sister, her mother's partner, and her mother's partner's grandchild.[9] She was born on March 23, 1997 and was fourteen years old at the time the SSI application was filed.[10] She is not employed and attends regular education classes at her local school accompanied by a special education teacher who works with her in each class.[11] While A.P.L. performed below-average on all state mandated tests, she achieved good grades in school and was one point away from honor roll status in the semester during the hearing.[12] A.P.L. plays multiple sports, including softball and cheerleading, five days a week, often spending up to twelve hours at school.[13]

At the hearing, Arsenault described A.P.L.'s behavior as manic and emotional.[14] She testified that A.P.L. would viciously fight with her, throw items around the house, and force her to call the police in order to restrain her.[15] A.P.L. was hospitalized in 2004 and 2009 after threatening family members.[16] However, Arsenault testified that although A.P.L.'s behavior had improved and that she was functioning adequately in school, she continued to bring her "chaos" home.[17] Arsenault also testified that A.P.L. had only one friend, [18] that she did not attend to her personal hygiene or get up to go to school without supervision, [19] and did not dress appropriately.[20] However, A.P.L. performed chores around the house and would dress and clean herself.[21] Arsenault noted that A.P.L. had not received treatment for her alleged bipolar disorder since 2011, both because A.P.L. was to busy to see a doctor and because she refused to take her medication.[22]

A.P.L. was disciplined numerous times throughout the 2011-2012 school year. On April 6, 2011, A.P.L. received a three-day out of school suspension after using a school computer to write a threatening note to three students.[23] On April 15, 2011, Arsenault filed a New York State Incident report claiming A.P.L. had jumped out of a moving car in the school parking lot after she did not get her way at a school function.[24] Because of this, A.P.L. was not permitted to attend a school field trip to Washington D.C.[25] On September 26, 2011, Edward Kossmann, the principal of A.P.L.'s school, wrote a letter home advising Plaintiff that A.P.L. received a one-day in school suspension for lying, and intentional destruction of school property.[26]

A.P.L. testified that she did not have any friends and did not like her teachers and coaches.[27] She stated that she enjoyed cheerleading, soccer and basketball.[28] Although she did not know how she was doing in school, she said she did not generally perform very well.[29]

2. Medical and Academic Evidence

a. Astor Home for Children

In February 8, 2005, at age seven, A.P.L. was presented to the Astor Home for Children ("Astor") for intake and diagnostic summary.[30] From March 2005 through August 2009, A.P.L. received therapy and psychiatric services, including medication management at Astor.[31] Tami VanWagnen-Getzke, A.P.L.'s evaluator, found her to be hyperactive, have tangential and disorganized thoughts, and feelings of worthlessness.[32] A.P.L had been sexually abused at age five.[33] She inconsistently attended therapy and the Astor staff transferred her to "medical only" services on several occasions.[34]

Astor discharged A.P.L. in August 2009 to live with her grandparents.[35] A.P.L. was diagnosed, inter alia, with bipolar II disorder, and was prescribed various anti-psychotic medications.[36]

b. Jennifer Obrizok

In 2010, A.P.L. returned to live with her mother and re-enrolled in her former school.[37] In 2010, she underwent a psycho-educational evaluation as part of her special education triennial reevaluation.[38] Jennifer Obrizok, a certified school psychologist, conducted the Wechsler Individual Achievement Test III ("WIAT-III") and the Wechsler Intelligence Scale for Children-IV ("WISC-IV").[39] She found that A.P.L. was organized, and that she completed homework on a consistent basis, but that she needed a considerable amount of review, structure, and academic support.[40] She was ...

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