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Velez v. Colvin

United States District Court, W.D. New York

March 2, 2017

MARIA C. VELEZ o/b/o S.V., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          For Plaintiff: Catherine M. Callery, Esq.

          For the Commissioner: Elizabeth Rothstein, Esq. Social Security Administration Office of General Counsel Kathryn L. Smith, A.U.S.A. United States Attorney's Office.


          CHARLES J. SIRAGUSA United States District Judge.


         Maria 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).

         A. Procedural History

         Plaintiff 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, 2012.

         On 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 action followed.


         A. Testimonial Evidence

         The 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.

         S.V. 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.

         Plaintiff further testified that S.V. gets between five and six panic attacks a day, that she has never gone to the bathroom by herself, [1] 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.

         Plaintiff 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.

         B. School Records

         S.V. 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.

R. 322.

         Attached 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.

         Dr. 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.

         In a 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 skills.

R. 338-39.

         In a 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, [2] 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.

         The CSE 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. R. 256.

         Teachers 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.

         S.V. 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 areas.

         C. Medical records

         A 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.


         A. Child ...

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