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Vazquez ex rel. J.V. V. Colvin

United States District Court, W.D. New York

March 18, 2015

JAZMIN VAZQUEZ, on behalf of J.V. Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff Jazmin Vazquez ("Vazquez" or "plaintiff") brings this action on behalf of her minor son ("J.V.") pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for Supplemental Security Income Benefits ("SSI"). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 13).

Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 11, 12). For the reasons set forth below, I hereby vacate the decision of the Commissioner, and this claim is remanded solely for the calculation and payment of benefits.

BACKGROUND

I. Procedural Background

On September 28, 2007, plaintiff protectively filed an application for SSI benefits on behalf of J.V. (Tr. 221-23, 244).[1] On January 10, 2008, the Social Security Administration denied the application for benefits, finding that J.V. was not disabled.[2] (Tr. 92-95). Plaintiff requested a hearing before an administrative law judge, and the claim for benefits was dismissed on October 6, 2009, after plaintiff and J.V. failed to appear at the scheduled hearing. (Tr. 78-84, 98-105). On June 22, 2010, the Appeals Council remanded the claim for further proceedings, determining that the hearing notices had been sent to the wrong address. (Tr. 87-88).

While the previous claim was pending before the Appeals Council, on March 1, 2010, plaintiff filed another application for SSI benefits on J.V.'s behalf alleging disability due to Attention Deficit Hyperactivity Disorder ("ADHD") and aggression. (Tr. 226-29, 277). On April 20, 2010, the Social Security Administration denied the application for benefits, finding that J.V. was not disabled. (Tr. 85). Plaintiff requested and was granted a hearing before Administrative Law Judge David S. Lewandowski (the "ALJ"). (Tr. 49, 179-83). The ALJ conducted a hearing on the pending applications on August 23, 2011, during which J.V. was represented by his attorney, Katherine Courtney, Esq. (Tr. 28-67, 176). In a decision dated October 26, 2011, the ALJ found that J.V. was not disabled and was not entitled to benefits. (Tr. 29-42).

On June 26, 2013, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (Tr. 1-7). In the denial, the Appeals Council noted that it had considered medical records from Genesee Mental Health Center dated through March 3, 2011. (Tr. 2, 5). The Appeals Council declined to consider an undated teacher evaluation and records from the Rochester City School District that post-date the ALJ's determination. (Tr. 2). Plaintiff commenced this action on July 17, 2013, seeking review of the Commissioner's decision. (Docket # 1).

II. Non-Medical Evidence

A. Application for Benefits

J.V. was born in 1998 and is now sixteen years old. (Tr. 244). Vazquez reported that J.V. has difficulty seeing and wears glasses or contact lenses, but has no difficulty hearing and does not suffer from any physical limitations. (Tr. 267, 271). According to Vazquez, J.V.'s ability to communicate is limited; as examples, she noted that he is unable to deliver phone messages, repeat stories, tell jokes or riddles accurately, or explain why he did something. (Tr. 269). J.V. reportedly cannot read capital or small letters of the alphabet, read and understand stories, spell most three or four letter words, write a simple story with six or seven sentences, or make correct change using money. (Tr. 270). Additionally, Vazquez reported that J.V. does not have friends his own age and has difficulty making new friends, noting that he likes to spend time with children who are older than he is. (Tr. 272).

Vazquez reported that J.V. has difficulty picking up his toys, hanging up his clothes, helping with household chores and accepting criticism or correction. (Tr. 273). According to Vazquez, J.V. needs repeated reminders about his responsibilities and responds with an attitude when corrected or told what to do. ( Id. ). According to Vazquez, J.V. is not able to stay busy on his own, finish projects or complete his chores. (Tr. 274). Vazquez reported that J.V. becomes frustrated with homework and needs one-on-one attention and assistance in order to complete it. ( Id. ).

B. Academic Evidence (School Records and Teacher Questionnaires)

1. First Grade (2005-2006)

School records indicate that J.V. scored well-below New York State standards in both mathematics and English language arts during first grade testing. (Tr. 375-77). His school records contain a letter from a nurse practitioner at Strong Pediatric Practice informing the school principal that J.V. had been diagnosed with ADHD and requesting that J.V. undergo a full psychological evaluation due to his below grade-level school performance. (Tr. 404). J.V. was referred to the Committee on Special Education ("CSE") for evaluation. (Tr. 399). J.V. underwent several evaluations, some of which are summarized herein. (Tr. 366).

Additionally, the school's educational staff provided input based upon their classroom observations of J.V. (Tr. 406-08). During an observation of classroom behavior, J.V. did not appear to understand the activity and did not raise his hand for assistance. (Tr. 406). Even after receiving assistance, J.V. needed additional, individualized cues and behavior management to remain on task. ( Id. ).

J.V.'s teacher indicated that J.V. was placed near the board and the teacher, and required repeated directions, feedback, physical prompts, cues and redirection throughout the school day. (Tr. 407). The teacher noted that J.V. completed his homework only some of the time and displayed poor motivation. ( Id. ). J.V.'s teacher opined that he had difficulty paying attention and needed simple, one-step directions to learn. (Tr. 408). According to J.V.'s teacher, J.V. worked best in a small group with constant support and few distractions. ( Id. ).

A psychosocial assessment conducted by Pamela Hall ("Hall"), LMSW, indicated that J.V. lives with his mother and younger brother, that his stepfather is incarcerated and that many of his relatives live in the Rochester area. (Tr. 409-13). According to the report, both Spanish, his mother's dominant language, and English, were spoken in J.V.'s household. ( Id. ). According to the report, J.V. was diagnosed with ADHD when he was five years old and takes medication for it. ( Id. ). During the assessment, Vazquez indicated that J.V. had struggled at school for the previous three years and that he did not understand his school assignments. ( Id. ). Hall did not recommend counseling for J.V., but referred Vazquez to Project Cope. ( Id. ).

A speech and language assessment was conducted by speech and language pathologist Diane Bredes-Nies ("Bredes-Nies"). (Tr. 401-03, 05). Assessment notes indicate that J.V. was referred for evaluation because he had demonstrated "severe off task behaviors" in kindergarten and because he was being considered for retention. ( Id. ). According to the notes, he lacked many skills that should have developed in kindergarten and demonstrated difficulty retaining information and adjusting to the structure and routines of the school day. ( Id. ). J.V. had been diagnosed with ADHD and treated with medication, which, according to his teacher, resulted in significant improvement in his attention skills. ( Id. ). J.V.'s teacher had instituted an additional behavior plan, which was effective. ( Id. ).

Although J.V. failed an auditory examination in his left ear, his hearing was ultimately assessed to be within normal limits. ( Id. ). Bredes-Nies opined that J.V.'s speech was intelligible to the familiar and unfamiliar listener with or without known content. ( Id. ). Similarly, his voice and fluency were assessed to be within normal limits. ( Id. ). With respect to J.V.'s language development, Bredes-Nies assessed him to be within the average range of performance for relational vocabulary, oral vocabulary and grammatical understanding, in the mild delay deviation range of performance for picture vocabulary, grammatical completion and phonemic analysis, in the moderate deviation range for sentence imitation and in the severe deviation range for word discrimination. ( Id. ).

Assessment notes indicate that J.V. is a multi-modal learner who performs better when permitted to move around within a designated area. ( Id. ). J.V. demonstrated some weakness in short-term memory skills and difficulty distinguishing between words that are similar. ( Id. ). Bredes-Nies did not recommend services for J.V. ( Id. ).

The school evaluation concluded that J.V. demonstrated mild delays in overall language, borderline verbal skills, average spatial skills, and below level academic skills, falling in the pre-kindergarten to kindergarten level. (Tr. 399). The evaluation noted that J.V.'s frequent school absences could affect his school performance. ( Id. ). The CSE team recommended that J.V. be classified as Other Health Impaired ("OHI") or Learning Disabled ("LD") and recommended house pickup and an integrated special classroom. ( Id. ).

2. Second Grade (2006-2007)

On April 30, 2007, J.V.'s IEP was reviewed to assess his educational needs for the 2007-2008 academic school year. (Tr. 367-73). According to the IEP, J.V. was classified as OHI and required house pickup due to his poor safety judgment in unstructured settings. ( Id. ). The IEP further noted that J.V. demonstrated a significant delay in attention skills, which adversely affected his performance. ( Id. ). The IEP suggested that J.V. learned best when instruction was given in a multisensory manner and when J.V. worked in small groups with one-on-one instruction. ( Id. ). J.V. demonstrated an ability to implement very basic reading strategies and with support could break down a story into a beginning, middle and end. ( Id. ). J.V. demonstrated strength in math. ( Id. ). According to the IEP, J.V. required re-teaching of new material due to his difficulties recalling and applying new information. ( Id. ).

The CSE recommended that J.V. continue to be classified as OHI, advance to the third grade and receive education in a 15:1 integrated special class with modifications and testing accommodations. ( Id. ). Specifically, J.V. was to be monitored to ensure that he understood instructions and concepts, re-taught information, provided tasks broken into smaller segments and provided with the use of graphic organizers. ( Id. ). Testing accommodations included extended time, simplified, verbal directions and additional examples in directions, administration of tests in a location with minimal distractions. ( Id. ). The CSE also recommended that transportation services continue to be provided to J.V. ( Id. ).

3. Fourth Grade (2008-2009)

School records indicate that Hall conducted a psychosocial assessment of J.V. on October 7, 2008. (Tr. 581-84). Hall's assessment indicates that J.V. continued to live with his mother and younger brother and that he had extended family living in the Rochester area. ( Id. ). The assessment notes indicate that J.V. was attending weekly therapy sessions at Crestwood Children's Center ("Crestwood"). ( Id. ). Vazquez reported that J.V. continued to struggle academically and expressed concern that J.V. had difficulty with reading comprehension. ( Id. ).

On October 28, 2008, J.V.'s IEP was reevaluated.[3] (Tr. 574-80). The IEP indicated that J.V.'s reading level was far below grade level, which affected all areas of his instruction. ( Id. ). J.V. struggled with written expression, although he demonstrated strength in math. ( Id. ). J.V. demonstrated an ability to understand social studies and science content when presented orally. ( Id. ). According to the IEP, J.V. continued to struggle with focusing during academic periods, but was easily redirected and responded to simple cues. ( Id. ). The CSE determined that J.V. should continue to receive education in a 15:1 integrated special classroom setting, with the same modifications and testing accommodations. ( Id. ). Additionally, it was determined that J.V. should continue to be provided house pickup transportation. ( Id. ).

On April 14, 2009, J.V.'s IEP was reviewed to assess his educational needs for the 2009-2010 academic school year. (Tr. 565-73). The IEP noted that J.V.'s reading level continued to be well below grade level and that he continued to struggle with written expression. ( Id. ). J.V. continued to demonstrate strength in math and an ability to comprehend social studies and science material when presented orally. ( Id. ). According to the IEP, J.V. used his "Fusion" to help write simple sentences. ( Id. ). The IEP noted that J.V. had inconsistent peer relationships due to his sporadic behavior changes, problems with peer distractions and difficulty redirecting to task. ( Id. ). J.V. had difficulty working in a variety of groups. ( Id. ). Although J.V. was a "good worker, " he demonstrated an awareness of his limitations that sometimes led to withdrawal and embarrassment. ( Id. ).

The CSE recommended that J.V. continue to be classified as OHI, advance to the fifth grade and receive education in a 15:1 integrated special class with modifications. ( Id. ). Specifically, J.V. was to be provided preferential seating, redirection, and the use of a graphic organizer. ( Id. ). Additionally, J.V. was to be provided a portable electronic note-taker, with text to speech, word prediction, and flash card reading capabilities, access to a desktop computer and printer to download written work, and books on tape with listening device access to digital text. ( Id. ). The CSE also recommended that J.V. continue to receive the same testing accommodations, along with the use of a word processor with text to speech capability. ( Id. ). Additionally, J.V. was recommended for continued house pickup transportation. ( Id. ).

4. Fifth Grade (2009-2010)

On March 24, 2010, J.V.'s IEP was reviewed to assess his educational needs for the 2010-2011 academic school year. (Tr. 298-304). J.V.'s IEP noted that he had participated in a Corrective Reading Program during the fifth grade. ( Id. ). According to the IEP, although J.V. had progressed, he was currently reading at an end-of-first-grade reading level. ( Id. ). J.V. continued to demonstrate strength in math and knew most of his multiplication tables, but he needed word problems read to him. ( Id. ). J.V. demonstrated good writing ideas and preferred to write without the assistance of a portable note-taker. ( Id. ). The IEP noted that J.V. was well-organized and neat about his work and that he was a gifted artist and participated in chorus. ( Id. ). According to the IEP, J.V. was well-liked by his peers, was developing more appropriate relationships with adults and authority-figures, and had demonstrated improved behavior and attitude. ( Id. ). According to the IEP, J.V. continued to require refocusing and redirection to task and needed modification of his assignments to avoid frustration. ( Id. ).

The CSE recommended that J.V. continue to be classified as OHI, advance to the sixth grade and receive education in a 15:1 integrated special class with modifications. ( Id. ). J.V. was to be provided preferential seating, refocusing and redirection, the use of a graphic organizer, content and material read aloud, and a copy of class notes. ( Id. ). Additionally, J.V. was to be provided books on tape with listening device access to digital text. ( Id. ). With respect to testing accommodations, J.V. was to be provided extended time and additional examples in directions, and tests and directions were to be read aloud and administered in a small group setting in a location with minimal distractions. ( Id. ).

5. Sixth Grade (2010-2011)

On March 7, 2011, J.V.'s IEP was reviewed to assess his needs for the next academic school year. (Tr. 346-53). J.V.'s IEP noted that he continued to struggle with reading, although he had demonstrated some progress due to his participation in the Corrective Reading Program. ( Id. ). J.V. was reading at a Developmental Reading Assessment ("DRA") level of 28 and had begun the school year at a reading level of 18.[4] ( Id. ). J.V. continued to demonstrate strength in math, but continued to need word problems read to him. ( Id. ). J.V. was developing confidence as a writer and was "very accomplished artistically." ( Id. ). Again, the IEP noted that J.V. was well-liked by his peers, was developing more appropriate relationships with adults and authority-figures, and had demonstrated improved behavior and attitude. ( Id. ). According to the IEP, J.V. continued to require refocusing and redirection to task and needed modification of his assignments to avoid frustration. ( Id. ).

The CSE recommended that J.V. continue to be classified as OHI, advance to the seventh grade and receive integrated co-teaching services with modifications and testing accommodations. ( Id. ). Specifically, J.V. was to be provided preferential seating, refocusing and redirections and the use of a graphic organizer, and a copy of class notes. ( Id. ). With respect to testing accommodations, J.V. was to be provided extended time, additional examples in directions, simplified directions and repeated directions, and tests and directions were to be read aloud, and testing administered in a small group setting in a location with minimal distractions. ( Id. ). Additionally, it was determined that J.V. should continue to be provided house pickup transportation. ( Id. ).

6. Teacher Questionnaires

On November 10, 2010, J.V.'s sixth grade special education teacher, Sally Riley ("Riley), completed a teacher questionnaire, reporting that she had known J.V. for one and one-half years. (Tr. 338-45). Riley indicated that J.V. was reading at a 1.5 grade level, that his math skills were at a 2.5 grade level and that his writing skills were at a 2.0 grade level. ( Id. ). According to Riley, J.V. did not suffer from an unusual degree of absenteeism. ( Id. ). In the domain of Acquiring and Using Information, Riley found that J.V. had very serious problems comprehending oral instructions, understanding school content and vocabulary, reading and comprehending written material, providing organized oral explanations and adequate descriptions, expressing ideas in written form, learning new information, recalling and applying previously learned material and applying problem-solving skills in class discussions. ( Id. ). In addition, Riley found that J.V. had serious problems comprehending and doing math problems and understanding and participating in class discussions. ( Id. ). Riley noted that J.V. always required individual support to comprehend a new concept or to start a task. ( Id. ).

In the domain of Attending and Completing Tasks, Riley indicated that J.V. had very serious problems focusing long enough to finish an assigned activity or task, refocusing to task when necessary, carrying out multi-step instructions, and changing from one activity to another without being disruptive. ( Id. ). In addition, Riley assessed that J.V. had serious problems paying attention when spoken to directly, carrying out single-step instructions, waiting to take turns, completing assignments and completing work accurately without careless mistakes. ( Id. ). Further, Riley indicated that J.V. suffered from obvious problems sustaining attention during activities, working without distracting himself or others, and working at a reasonable pace and finishing on time. ( Id. ). Finally, Riley noted that J.V. had a slight problem organizing his own things or school materials. ( Id. ).

In the domain of Interacting and Relating with Others, Riley indicated that J.V. had serious problems following rules, respecting adults in authority, relating experiences and telling stories, using language appropriate to the situation, introducing and maintaining relevant and appropriate topics of conversation, taking turns in conversation, interpreting facial expression, body language, hints and sarcasm, and using adequate vocabulary and grammar to express ideas in general every-day conversation. ( Id. ). According to Riley, J.V. also demonstrated obvious problems playing cooperatively with other children, seeking attention appropriately, expressing anger appropriately and asking permission appropriately. ( Id. ). Riley opined that J.V. did not have any problems making and keeping friends. ( Id. ). According to Riley, she had to implement a behavior plan, revoke privileges and use time-outs to manage J.V.'s behavior and noted that he required a great deal of one-on-one assistance. ( Id. ). Riley indicated that J.V. experienced problems when in an unstructured environment. ( Id. ). Riley indicated that she could understand his speech one-half to two-thirds of the time. ( Id. ).

Riley assessed that J.V. did not demonstrate any problems in the domain of Moving About and Manipulating Objects. ( Id. ). In the domain of Caring for Himself, Riley questioned whether he demonstrated a very serious problem cooperating or being responsible for taking his medication. ( Id. ). Riley further indicated that he demonstrated serious problems being patient when necessary, responding appropriately to changes in his own mood, and using appropriate coping skills to meet daily demands of the school environment. ( Id. ). Additionally, Riley indicated that J.V. had an obvious problem handling frustration appropriately and a slight problem identifying and appropriately asserting emotional needs. ( Id. ). According to Riley, J.V. did not have any problems taking care of his personal hygiene, caring for his physical needs, using good judgment regarding personal safety and dangerous circumstances, or ...


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