United States District Court, W.D. New York
MARIA C. VELEZ o/b/o S.V., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
Plaintiff: Catherine M. Callery, Esq.
the Commissioner: Elizabeth Rothstein, Esq. Social Security
Administration Office of General Counsel Kathryn L. Smith,
A.U.S.A. United States Attorney's Office.
DECISION AND ORDER
CHARLES J. SIRAGUSA United States District Judge.
C. Velez (“Plaintiff”) brings this action on
behalf of her minor child (“S.V.”) 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 her
application for Supplemental Security Income
(“SSI”). The Court has jurisdiction over this
matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
Both the Commissioner and Plaintiff have filed motions for
judgment on the pleadings. Pl.'s Mot., Mar. 20 2015,
ECF No. 9; Comm'r's Mot., May 19, 2015,
ECF No. 10. For the reasons stated below,
Plaintiff's mo-tion for judgment on the pleadings,
ECF No. 9, is granted in part, and the
Commissioner's cross-motion for judgment on the
pleadings, ECF No. 10, is denied. The case is
remanded to the Commissioner pursuant to the fourth sentence
of 42 U.S.C. § 405(g).
filed an application for SSI on behalf of S.V., a child under
the age of 18, on February 9, 2011, with a protective filing
date of December 15, 2010. In her complaint, she alleged that
S.V. suffers from a disability that began on November 6,
2007. R. 39. The initial application was denied on April 28,
2011, and Plaintiff subsequently requested a hearing before
an Administrative Law Judge (“ALJ”). Plaintiff
and S.V. appeared with a paralegal from the Empire Justice
Center at a hearing before ALJ Stanley K. Chin on October 16,
October 26, 2012, the ALJ issued a written decision finding
S.V. not disabled and therefore not eligible for SSI. R.
33-57. The ALJ's determination became the final decision
of the Commissioner on June 23, 2014, when the Appeals
Council denied Plaintiff's request for review. This
hearing took place in Rochester, New York. Plaintiff
testified through an interpreter about S.V.'s anxiety.
She stated that when her daughter was born, doctors used
forceps and as a result she has an indentation in the back of
her head. At the time of the hearing, S.V. was six years old
and in second grade. When the family was living in Puerto
Rico, they had to take S.V. out of school because of her
anxiety, vomiting, and asthma. In Puerto Rico, Plaintiff
could not obtain services needed by her daughter, so she came
to the continental United States.
was placed in the first grade here, and Plaintiff was able to
obtain services for her anxiety and vomiting, but unable to
advance her to the second grade. Plaintiff decided it would
be better to keep her in first grade. Plaintiff further
testified that her daughter does not handle change well.
“Her nerves act up. She gets a panic attack. I've
also noticed that her asthma attacks are also in connection
with the changes; with her nervousness, she'll get an
asthma attack.” R. 19. Plaintiff described S.V.'s
panic attacks as follows: “When she gets a panic
attack, she starts to scream. Her heart starts to pound
really fast.” R. 20.
further testified that S.V. gets between five and six panic
attacks a day, that she has never gone to the bathroom by
herself,  that she does not sleep by herself in her
room, and that Plaintiff often has to wait until another
person is available to supervise S.V. so that Plaintiff can
proceed to do whatever she needs to do.
testified that her daughter is on medications and, as a
result, has had some improvement; however, the medications
make her drowsy. She testified that at school S.V. was
receiving one day of speech therapy, and now receives two
days, and that S.V. sees the psychologist one day per week.
S.V.'s teacher reported that S.V. does not do well in
large groups and is not socializing. S.V.'s mother
further testified that S.V. did not say her first words until
she was three years old, and even when she was five,
S.V.'s grandmother would have to ask Plaintiff to
translate S.V.'s speech for her. Presently, much of her
language can be understood by others, except for more
difficult or lengthier words. Plaintiff testified that S.V.
also sees Michelle Sweatman, a psychologist, outside of
school twice a week. She further testified that S.V. takes a
small bus to school, but must sit at the window or she will
have a panic attack. R. 25. At the conclusion of
Plaintiff's testimony, the ALJ indicated he did not have
any questions for her.
attends school in the City School District of Rochester. In
November of 2010, the school had a psychosocial assessment
made of S.V. R. 321. The assessment, completed by Clara
Peechatt, Certified Social Worker, notes that S.V. was born
in Ohio, came to Rochester in August of 2010, that her
predominate language is Spanish, and that she lives with her
parents and a sister. At the time of the assessment, she was
in kindergarten. The assessment also notes that S.V. suffered
fetal distress during labor, dropping her heartbeat
significantly. In Puerto Rico, she attended a Head Start
program, but only for six months “because of her
behaviors relating to intense anxiety.” R. 322. Ms.
Peechatt noted as well that:
According to her mother, on November 1, 2010, [S.V.] was
diagnosed with anxiety and depression; she is currently
taking Citalopram 1½ ml. There is reported history of
depression, anxiety, and panic attacks on both family sides
of [S.V.'s] parents. [S.V.'s] father suffers from
depression, anxiety, and high blood pressure. Her mother
suffers from anxiety. They are receiving family therapy at
Rochester General with Ms. Michelle Swanger.
to the psychosocial assessment is a psychological evaluation
of S.V. dated December 11, 2010. R. 326. The evaluation was
completed by Ana Olivares, a Certified School Psychologist,
who wrote about S.V.'s inability to use the bathroom
alone, self-induced vomiting in the morning, and avoidance of
gym by saying she has to go use the bathroom. In addition,
she noted that S.V.'s teacher reported S.V. knows only
three letters, could not write her name, and could not
identify numerals. R. 326. She also noted that S.V. has
difficulty holding a pencil, indicating that her fine motor
skills may be delayed. Dr. Olivares saw S.V. over two
sessions and made several observations:
During the first session she was somewhat withdrawn, but
cooperative. Her speech required careful listening. At times
the examiner asked her to repeat what she had said which she
did without hesitation. She only communicated in Spanish.
During this first session she rolled her eyes up until only
the whites showed. She did this twice. It was similar to
petit mal seizure, but there is no history of this in
background information. She quickly adjusted her eyes [and]
was able to make eye contact with the examiner for the
remaining of the session and the second session as well.
During the second session she was more focused and animated.
She asked several times when it would be time to go home.
When interviewed she said that she rather be at home than in
school. She also said that she likes school. When asked about
friendships, she said she had one female friend and that all
the boys were her friends adding that the girls did not want
to be her friend. She spoke at length about her parents
stating that her father was going to marry her mother and
herself as well.
R. 327. Dr. Olivares concluded from the test results that
S.V.'s intellectual ability fell within the low average
range with a standard score of 81. Her verbal intellectual
ability, reflecting vocabulary and accumulated verbal
knowledge, was within the low average range with a standard
score of 85. Her thinking ability fell within the average
range, scoring 97, however, her cognitive efficiency,
“which reflects automatic cognitive processing such as
visual scanning and short-term memory for numerical
sequences, fell within the low or borderline range with a
standard score of 75.” R. 327. Dr. Olivares observed
that her low average range scores in verbal comprehension,
sound blending, visual matching, retrieval fluency, and
auditory working memory, along with her low or borderline
ability to mentally manipulate and recall short numerical
sequences, or to encode information with visual and auditory
input were deficits that “can have a negative impact on
her ability to learn.” R. 327.
Olivares also made comments on S.V.'s achievement,
perceptual, social and emotional functioning. R. 328. Her
summary and diagnostic impressions indicated to Dr. Olivares
that S.V. was “in fact experiencing a difficult
transition into the school setting.” R. 329.
report entitled Speech-Language Assessment, dated December
10, 2010, R. 333, a speech-language pathologist, Ellen L.
Schulman, concluded the following:
[S.V.], age 5-0, exhibits normal hearing, voice and fluency
skills. Her articulation skills are developmentally delayed.
She exhibits a s/ch substitution and is sometimes difficult
to understand out of context. [S.V.'s] receptive language
and auditory processing skills are moderately to severely
delayed, while her expressive language skills are moderately
delayed. [S.V.] exhibits mild delays in her pragmatic, social
language skills, as she has difficulty initiating
conversations and maintaining a topic during discourse. Other
areas in need of improvement include vocabulary, following
directions, syntax & morphology, auditory memory and
comprehension and phonological awareness skills. [S.V.]
exhibits inconsistent abilities in her knowledge of basic
concepts. She understands most concepts of quantity and
quality (adjectives), however, she exhibits weakness in her
knowledge of colors, space (prepositions) and time.
[S.V.'s] delays are affecting her academic performance in
the classroom. She needs to receive speech-language services
in order to improve overall communication and pre-academic
report dated March 1, 2011, by the Committee on Special
Education of the Rochester City School District
(“CSE” or “the committee”), R. 315,
it was noted that S.V. had a 504 plan,  and that
“[t]he CSE considered speech/language services as a
speech impaired student. This option was rejected because as
[S.V.'s] anxiety has decreased she has begun to make
academic gains. [S.V.] will be considered a nondisabled [sic]
at this time.” R. 315. The report concludes that S.V.
“needs new information repeated and simplified”
as her only requirement. R. 317.
sent a letter to Plaintiff dated May 5, 2011. R. 248. In that
correspondence, the committee attached an individualized
education plan (“IEP”) which concluded that S.V.
had a speech or language impairment and classified her as
disabled. R. 249. The IEP recommended special transportation,
psychological counseling, and speech and language therapy. A
similar IEP was put in place for S.V. on September 2, 2011.
Ana I. Vega-Clark and Lourdes Gonzalez, who had been
S.V.'s classroom teachers for 63 days, noted in a School
Performance Questionnaire completed on December 7, 2011, R.
406-10, that S.V.'s impairments were
“extreme” in the following areas: (a) learning
new material; (b) reading and/or comprehending written
material; (c) comprehension and/or following directions; and
(d) receptive language skills. The teachers noted that S.V.
processed information very slowly making it hard for them to
know exactly what she wanted. R. 407. They also observed that
although she did not receive any occupational therapy
services, S.V. “has trouble walking and using the
stairs.” R. 408.
continued to be classified as a student with a disability and
continued to receive special education services for the
2011-12 school year. R. 273. At the Special Education Meeting
of April 2, 2012, the committee noted in its report that S.V.
was making satisfactory progress toward her IEP goals in the
fall, but showed difficulty with learning and retaining the
vocabulary skills presented since January 2012. R. 279. She
was able to write her first and last names, but needed a
great deal of teacher support to complete any other writing
activity. The report states that S.V. “received therapy
in Spanish this year, which is also the primary language of
instruction in her classroom.” R. 279. In ad- dition,
it does note that her gross and fine motor skills seemed
appropriate “for her level.” R. 280. Finally, the
report noted S.V.'s need for improvement in all academic
Children's SSI Functional Assessment Form dated April 30,
2012, was prepared by Michelle Swanger, Licensed
Psychologist. R. 422-26. In the form, Dr. Swanger noted that
S.V. had a marked impairment in intellectual skills; an
extreme impairment in communications; a marked impairment in
social behavior; and a marked impairment in her ability to
complete tasks in a timely manner. R. 424-26. Dr. Swanger
also listed details about how the impairments negatively
affected S.V. Id.