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Rapaport v. Commissioner of Social Security

United States District Court, S.D. New York

April 5, 2017

AARON RAPAPORT, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Lewis B. Insler, Esq.

          Allison Rovner, Esq. Amanda F. Parsels, Esq. Assistant U.S. Attorneys

          REPORT AND RECOMMENDATION

          JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE VERNON S. BRODERICK, U.S.D.J.

         The plaintiff, Aaron Rapaport, brings this action under section 1631(c)(3) of the Social Security Act (the "Act"), 42 U.S.C. § 1383(c)(3), seeking review of a determination of the Commissioner of Social Security (the "Commissioner") denying his application for Supplemental Security Income ("SSI") . The parties have submitted cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend that the Commissioner's motion be granted and the plaintiff's motion be denied.

         Background

         A. Personal History

         Mr. Rapaport was born on September 22, 1986. (R. at 62).[1] He graduated from high school in 2004, completed college, and later received a master's degree in library science in 2011. (R. at 477). In 2011, he engaged in a short-term program to train as a reference librarian, which required him to stand, sit, kneel, crouch and reach at various times during the day. (R. at 162). From 2012 until 2013, he was employed part-time as a library assistant in New City, assisting in library selections and book data management. (R. at 121, 160). His job responsibilities as a library assistant required him to sit throughout the day and lift less than 10 pounds. (R. at 160-61). His job duties as a library trainee required him to stand, sit, kneel, crouch, and reach at various times during the day. (R. at 162). Mr. Rapaport left employment at the library in approximately 2013 and has not been employed since.

         B. Medical, Educational, and Employment-Related Evaluations

         1. Early Evaluations

         Mr. Rapaport's claim to disability relates to developmental and psychiatric issues. He was born at 32 weeks gestation, at which time there was “no evidence of intracerebral bleeding” but there was the possibility of a maternal viral infection. (R. at 289). Mr. Rapaport received CT scans in 1986, shortly after he was born, and in 1989. (R. at 292, 290). Although his family noted no physical problems (R. at 289), Dr. Michael Harned and Dr. Irvin Kricheff diagnosed Mr. Rapaport with severe hydrocephalus in 1991. (R. at 302).

         In a letter that same year, Dr. Isabelle Rapin observed that Mr. Rapaport presented “semantic-language syndrome” and “mild motor clumsiness.” (R. at 332). She stated that he appeared to suffer from Asperger's syndrome and noted that he was working with a psychologist. (R. at 332). Dr. Rapin added that Mr. Rapaport was “doing well and should continue to do well.” (R. at 332).

         In 1992, Dr. Diana Kurtzberg noted that Mr. Rapaport exhibited a mild hearing impairment. (R. at 312). He received speech therapy three times a week at school as well as occupational therapy and speech therapy at home. (R. at 303). At about the same time, Dr. Rapin noted that Mr. Rapaport had adequate reading comprehension and “spoke very clearly in long sentences.” (R. at 333). She also noted that he did not display any “abnormal posture or movement, ” but did talk to himself at times. (R. at 333).

         In 1993, Mr. Rapaport was initially classified as a student in need of special education services and received the classification of “emotional disability.” (R. at 351-52). An Individualized Education Plan (“IEP”) from 2000 noted that his school district in New City recommended the following educational services: services in English, math, and social studies for one period each, five days a week; counseling once a week for one period; speech and language services two days a week for 30 minutes; and occupational therapy once a week for 30 minutes. (R. at 350). The IEP recommended that Mr. Rapaport participate in “regular class” for blocks/electives and foreign language class five days a week for one period; in physical education three days a week for one period; and in science five days a week for one period. (R. at 350). The IEP also noted that the school district recommended Mr. Rapaport receive modifications in testing procedures and be placed in a self-contained program with a pupil/staff ratio of 15 to 1. (R. at 350). The IEP also stated that Mr. Rapaport had “handwriting difficulties” yielding a “significant detrimental effect on his ability to convey meaning in the written form.” (R. at 350). It stated that his family requested that he receive access to a laptop computer to assist him. (R. at 350). The IEP also noted the presence of a stutter. (R. at 351).

         In terms of academic performance, in 1999, Mr. Rapaport scored in the 36th percentile in reading, in the 19th percentile in spelling, and in the 20th percentile in math. (R. at 351). In a 1999 IQ test, using the WISC-III testing instrument, Mr. Rapaport received a verbal IQ of 107, a performance IQ of 77, and a full scale IQ of 91. (R. at 351). The IEP noted that Mr. Rapaport needed “to continue to develop his ability to express himself” and also needed to improve in “math calculation and reasoning.” (R. at 351). It further stated that he did not present behavioral problems and that, after receiving encouragement, he “generally works quickly, quietly, and independently.” (R. at 351).

         Mr. Rapaport began attending the Birchwood School, a special education center, in second grade. (R. at 367). He continued at the Birchwood School until fifth grade. (R. at 367). He began attending a general education school in sixth grade and continued in that setting until 12th grade. (R. at 367).

         2. Dr. David Koplon, Ph.D.

         Dr. David Koplon, a clinical psychologist, examined Mr. Rapaport in September 2008. (R. at 367). The plaintiff reported a “long history of anxiety and depression, ” for which he had taken the medications BuSpar and Luvox. (R. at 370). Dr. Koplon stated that Mr. Rapaport felt these medications were effective. (R. at 370). Although the plaintiff held a valid driver's license, he felt his anxiety prevented him from driving a car. (R. at 367). In a WAIS-III IQ examination Dr. Koplon administered, Mr. Rapaport received a verbal IQ score of 112, a performance IQ score of 81, and a full scale IQ score of 98. (R. at 368). On Woodcock-Johnson III Tests of Achievement, the plaintiff scored within the “average” range of achievement. (R. at 369).

         3. Dr. Henry Judka, Psy.D.

         In January 2013, Dr. Henry Judka, a treating psychologist, stated that Mr. Rapaport displayed Asperger's syndrome and adjustment disorder-acute anxiety disorder with elements of panic behaviors. (R. at 399). He noted that the plaintiff had been classified as “handicapped” in a school setting and had been placed in “special classes” and a “special school.” (R. at 399). Dr. Judka noted that Mr. Rapaport received social skills training, counseling, and psychopharmacological interventions. (R. at 399). He stated that in his opinion, Mr. Rapaport could not sustain himself through work due to these conditions. (R. at 399).

         4. Sidney Paul, L.C.S.W.

         Sidney Paul, a social worker, stated in March 2013 that Mr. Rapaport suffered from Asperger's syndrome. (R. at 426). Mr. Paul noted that Mr. Rapaport “is very limited socially and in his ability to communicate.” (R. at 426). He stated that the plaintiff participated in two group therapy sessions and multiple psychotherapy sessions. (R. at 426). Mr. Rapaport began in August 2012; as of January 2013, he had attended 18 therapy sessions and one intake session. (R. at 426). Mr. Rapaport reported that the global economic downturn caused his “difficulty finding a job as a librarian.” (R. at 426). Mr. Paul described Mr. Rapaport's insight as “poor.” (R. at 426).

         5. Dr. G. Kleinerman

         Dr. G. Kleinerman completed a psychiatric review technique form in May 2013. (R. at 73). He found no limitations in understanding and memory. (R. at 69). Dr. Kleinerman did find, however, that Mr. Rapaport had limitations in concentration and persistence. (R. at 69). Among other things, Dr. Kleinerman stated that Mr. Rapaport could carry out very short and simple instructions. (R. at 69). He found that the plaintiff was “not significantly limited” in the following categories: the ability to carry out detailed instructions; the ability to maintain attention and concentration for extended periods; the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; the ability to sustain an ordinary routine without special supervision; and the ability to work in coordination with or in proximity to others without being distracted by them. (R. at 69-70). Dr. Kleinerman found that Mr. Rapaport had limitations in social interaction and adaptation. (R. at 69-70). He further found the plaintiff to be moderately limited in his ability to respond appropriately to changes in the work setting. (R. at 71).

         6. Sylvia ...


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