United States District Court, S.D. New York
B. Insler, Esq.
Allison Rovner, Esq. Amanda F. Parsels, Esq. Assistant U.S.
REPORT AND RECOMMENDATION
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE
HONORABLE VERNON S. BRODERICK, U.S.D.J.
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.
Rapaport was born on September 22, 1986. (R. at
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.
Medical, Educational, and Employment-Related
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).
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.
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).
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).
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
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).
Dr. David Koplon, Ph.D.
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).
Dr. Henry Judka, Psy.D.
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
Sidney Paul, L.C.S.W.
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).
Dr. G. Kleinerman
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).