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MacE v. Colvin

United States District Court, N.D. New York

February 19, 2015

CHRISTOPHER MACE o/b/o A.M., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.[1]

MEMORANDUM AND ORDER

WILLIAM G. YOUNG, District Judge. [2]

I. INTRODUCTION

Christopher Mace ("Mace") brings this action pursuant to 42 U.S.C. § 405(g) on behalf of A.M., [3] his minor son, seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying Supplemental Security Income ("SSI") benefits to A.M. on the basis that he was not disabled. Mace requests that this Court reverse the Commissioner's decision and remand for immediate calculation of benefits. The Commissioner has filed a motion for judgment on the pleadings and requests that the decision be affirmed.

A. Procedural History

Mace filed an application for SSI on behalf of A.M. on April 9, 2008, with an alleged disability onset date of February 1, 2004. Soc. Sec. Admin. R./Tr. ("Admin. R.") 125-28, ECF No. 9.[4] The application was denied on September 9, 2008, and Mace filed a timely request for a hearing. Id. at 62-66. Accompanied by counsel, Mace and A.M. appeared and testified at the hearing on October 14, 2010. Id. at 40-60. On December 3, 2010, an Administrative Law Judge (the "hearing officer") issued an unfavorable decision finding that A.M. was not disabled within the meaning of 20 C.F.R. 415.924(a). Id. at 11-34. Mace timely requested review by the Appeals Council, which denied his appeal on July 19, 2012. Id. at 1-8. On September 5, 2012, Mace filed a claim in this Court against the Commissioner seeking reversal of the Commissioner's decision denying A.M.'s claim for benefits. Compl., ECF No. 1. The Commissioner answered on January 2, 2013. Def.'s Answer, ECF No. 8. On February 19, 2013, Mace filed a brief in support of his action seeking reversal of the Commissioner's denial of benefits. Pl.'s Br., ECF No. 11.[5] The Commissioner filed a brief in in response on April 1, 2013. Br. Supp. Comm'r's Mot. J. Pleadings ("Def.'s Br."), ECF No. 12.

B. Factual Background

A.M. was born on September 22, 1998, meaning he was ten years old when Mace filed his claim in 2008 and twelve years old at the time the hearing officer issued her decision in 2010. Admin. R. 17. Thus, as contemplated by the functional equivalence categories laid out in 20 C.F.R. § 416.926a(g)(2), he was a school-age child in 2008 and an adolescent in 2010.

1. Educational Records

a. Behavior Rating Scale Report by Dr. Clark: September 2005

When A.M. was about seven years of age, Mace began to grow very concerned about his behavior at home and sought a behavior report. Admin. R. 141. Dr. Leslie S. Clark ("Dr. Clark"), the school psychologist, interviewed Mace, who explained the various difficulties he was facing with A.M. at home. Id . Mace stated that A.M. was constantly lying, that he suffered from inappropriate urination, and that he had angry outbursts and difficulty sleeping. Id . Dr. Clark spoke to A.M.'s kindergarten teacher, Mrs. Gillan, who said that he had a desire to do well and could be successful when he understood what he had to do. Id. at 141-42. Despite this, she said that he exhibited negative behavior within the classroom and needed motivation and support to complete his work. Id. at 142. A.M.'s first grade teacher, Mrs. Massia, noted that he was a strong speller, but was easily distracted and had difficulty completing work. Id . After reviewing behavior rating reports completed by Mace and Mrs. Massia, Dr. Clark concluded that A.M. exhibited the profile of a child with attention deficit hyperactivity disorder, combined type ("ADHD"). Id. at 144. She also noted that his inappropriate urination, emotional outbursts, and difficulty sleeping were areas of concern. Id . Dr. Clark suggested that A.M. continue with small group instruction and continued counseling support both inside and outside school. Id . She suggested that Mace consider whether medical intervention was required. Id.

b. Individualized Education Plan (IEP): 2007-2008 Academic Year

In June 2007, A.M. received his first Individualized Education Plan ("IEP"), which listed his disability as "Other Health Impairment." Id. at 129. He was provided with testing accommodations such as extended time and a quiet location to complete tests, permission to read aloud to himself, and permission to have his tests (except reading comprehension) read aloud to him. Id. at 130. He was also provided with assistance from a special education teacher for two daily sessions, each of which was thirty minutes in duration. Id. at 129.

c. IEP: 2008-2009 Academic Year

Another IEP was put in place for the 2008-2009 academic year. Id. at 169. A.M.'s special education teacher assistance was increased to three forty-two-minute sessions every day. Id . Regarding testing accommodations, the IEP provided for A.M. to take tests in a quiet location with few distractions. Id. at 170.

d. Ms. Proulx Questionnaire: May 2008

Ms. Proulx, A.M.'s special education teacher, filled out a teacher questionnaire regarding his functioning in May 2008. Id. at 174-81. Ms. Proulx saw A.M. three times a day (in a group of five other students) for reading, writing, and math assistance. See id. at 174. She found him to have serious problems in reading and comprehension, in expressing ideas in written form, and in applying problem-solving skills in class discussion. Id. at 175. With respect to attending and completing tasks, Ms. Proulx found him to have "obvious" problems in organizing his own things or school materials. Id . She noted that he had no problems in interacting and relating with others. Id. at 177. Ms. Proulx further noted that A.M. had "slight" problems in moving about and manipulating objects, particularly with regard to fine motor skills such as handwriting, cutting, and gluing. Id. at 178. She found that he had no problems in taking care of himself and that he regularly took his ADHD medication. Id. at 179-80.

e. IEP: 2009-2010 Academic Year

Pursuant to his IEP for the 2009-2010 academic year, A.M. was provided with one forty-two-minute session with a consultant teacher and two forty-two-minute sessions in the resource room every day, along with two thirty-minute occupational therapy sessions each week. Id. at 234-35. He continued to receive testing accommodations including a quiet room and having directions explained to him. Id. at 235. He was provided with continued support in reading comprehension, writing, and math in a small group setting. Id. at 236. It was also noted that he continued to have trouble with motor tasks and that his hands shook while carrying his lunch tray. Id.

f. IEP: 2010-2011 Academic Year

In the 2010-2011 academic year, A.M.'s IEP was modified to contain two daily forty-two-minute sessions with a consultant teacher for science and social studies, and three daily forty-two-minute sessions for reading, writing, and math with a special class group in a 12:1:1 setting. Id. at 248. A.M. continued to receive testing accommodations as in the previous IEP. See id. at 249. He still had trouble and increased anxiety with fine motor tasks. Id. at 250.

g. Ms. Metcalf Questionnaire: October 2010

Ms. Metcalf, A.M.'s consultant teacher, filled out a teacher questionnaire in October 2010. Id. at 255-62. At that time, Ms. Metcalf was with him for six periods per school day, and had known him for about four weeks. Id. at 255. With regard to acquiring and using information, she found him to have an "obvious" problem in comprehending and doing math problems. Id. at 256. In the domain of "attending and completing tasks, " she found him to have an "obvious problem" in changing from one activity to another without being disruptive, in completing work accurately without careless mistakes, in working without distracting himself or others, and in finishing work at a reasonable pace. Id. at 257. With regard to "moving about and manipulating objects, " she found him to have an "obvious" problem with dexterity and with moving and manipulating things. Id. at 259.

h. IEP: 2011-2012 Academic Year

In 2011, A.M. received three daily sessions with a consultant teacher in his regular classrooms, two daily sessions in a special class with a 12:1:1 teacher ratio, and one daily session in a resource room. Id. at 379. He was also permitted the use of a calculator and word processor in addition to his previous accommodations. Id . Additionally, he was exempted from the school's requirement that students study a language other than English. Id. at 381.

2. Medical Records

a. Consultations with Dr. Schuessler

In February 2004, A.M. was brought to the pediatric clinic at the Cerebral Palsy Association of the North Country for a consultation with Dr. Donald Schuessler ("Dr. Schuessler"). Id. at 305-06. He was diagnosed with oppositional defiant disorder ("ODD"), and Dr. Schuessler recommended a behavior modification approach which emphasized consistency. Id.

A.M.'s next visit was in September 2005, at which time Mace explained that A.M. exhibited vulgar, inappropriate, violent, and disrespectful behavior at home. Id. at 303. Dr. Schuessler noted that he appeared to have ADHD and sleep problems in addition to his ODD. Id. at 304. Dr. Schuessler prescribed 0.1 mg of Clonidine and 10 mg of Ritalin, and he strongly recommended that Mace engage in a vigorous behavior modification approach. Id.

During A.M.'s third visit in March 2006, Dr. Schuessler found marginal progress in his sleep problems and apparent improvement with regard to his ADHD and ODD issues. Id. at 302. He increased A.M.'s Clonidine prescription to 0.2 mg and continued his Ritalin. Id . In June 2006, Dr. Schuessler found that A.M. was doing well with regard to his sleep problems and ADHD issues and that his ODD ...


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