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Pollard v. Berryhill

United States District Court, E.D. New York

November 7, 2017

NATHANIEL D. POLLARD, on behalf of N.M.P. Plaintiff,
v.
NANCY A. BERRYHILL, [1] ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          For Plaintiff: Nassau/Suffolk Law Services Committee, Inc., Rezwanul Islam, Esq., James M. Denson, Esq.

          For Defendant: Bridget M. Rohde Acting United States Attorney, Eastern District of New York, Jason P. Peck, Special Assistant AUSA

          MEMORANDUM & ORDER

          Denis R. Hurley United States District Judge

         Plaintiff Nathaniel D. Pollard commenced this action on behalf of N.M.P. a minor (“NMP”), seeking judicial review of the determination of the Commissioner of Social Security, following a hearing before an Administrative Law Judge (“ALJ”), that NMP was not under a disability as defined in the Social Security Act and therefore is not entitled to disability benefits. Presently before the Court is plaintiff's motion and defendant's cross-motion for judgment on the pleadings. For the reasons set forth below, plaintiff's motion is denied and defendant's motion is granted.

         BACKGROUND[2]

         I. Summary of Testimonial Evidence

         NMP lives with her father, brother, and paternal grandmother. At the time of the hearing she was 12 years old and in seventh grade, attending multiple classes with multiple teachers. Her best friend is her cousin Kyra; she likes Social Studies and finds Math and English hard. According to her father, NMP is disabled because of incidents that began in the third grade which required her to receive counseling and psychiatric help because she could not keep up and was depressed. NMP began weekly mental-health counseling and monthly psychiatric treatment at Catholic Charities. She takes Risperdal daily which has helped her “a great deal” and results in her “rarely shut[ting] down” or having tantrums. She does not fight with her father since she began taking Risperdal. She continues to have memory problems and requires extra help in school. NMP does not have many friends and stays close to home. She does chores such as making her bed, washing dishes, taking out the garbage and can dress herself (but needs help tying her shoes), use a cell phone and computer, and bathe herself (but needs help setting the water temperature). She wants to try out to play lacrosse and basketball at school. When she was in sixth grade she got detention a lot and had many problems at school, including not wanting to do school work and having problems with other kids and her brother but since taking medication these problems have dissipated.

         II. Summary of Medical and Psychological Evidence

         Dr. Vikhta Gurevich, a psychiatrist at Catholic Charities Rockaway Mental Health Center began treating NMP in July 2012 for “symptoms of impulsivity, inattentiveness, aggressive behaviors and low tolerance for frustration.” He diagnosed Oppositional Defiant Disorder and prescribed Risperdal, which is typically used to treat schizophrenia and bi-polar disorder. Dr. Gurevich noted that NMP “appears to struggle at times in regards to conflict resolution and will often have outbursts or become aggressive when frustrated” and often experienced “interpersonal conflict with others and appears to have poor conflict resolution skills.” She “was irritable and verbally aggressive at times during psychiatric assessment” and her “judgment is poor at times and client can be extremely impulsive.” Her speech was clear, coherent, and spontaneous and her thought process was goal-directed and logical. Her mood was “mostly euthymic” (a normal non-depressed, reasonably positive mood), and was “irritable at times.” Her “affect was full and congruent with mood and thought process.” NMP was alert, had fair concentration, was oriented times three (person, place, and time), and had unimpaired memory with fair information. Her ability to perform calculations, serial sevens, etc., was “fair for stated age.” Regarding her learning ability, on July 16, 2012, Dr. Gurevich stated: “Client has been evaluated for speech issues, learning disabilities, etc. [She] has never been held back, but has struggled academically and attends summer school almost every year. [She] appears to become very frustrated and will cry, get upset, or shut down, when she does not understand the school material. [She] passed the 4th grade and will be starting at Lawrence Middle School in 5th grade next year. [She] does well in math, but struggles with reading comprehension.” He further stated that since beginning Risperdal (with no reported side effects), NMP “appears less impulsive and better able to tolerate frustration since beginning Risperdal. She does however continue to exhibit some impulsivity, aggression and oppositional/defiant behaviors.”

         On July 9, 2012, a psychological assessment was completed by a licensed social worker of Rockaway Mental Health Center at which time NMP was between fourth and fifth grade. NMP was bullied at school and she threatened to kill a boy in her class when he was bothering her, but said she only made the threat because she was angry: she had also stated that she wanted to kill herself and cut her wrists, but denied actually wanting to carry those acts out. NMP had been aggressive towards her peers at school and at home. She had “seemingly fair AOL skills, ” “was appropriately dressed in a sundress at time of intake and appeared well groomed, ” and “was engageable and extremely talkative throughout assessment, speaking spontaneously about school and home;” her “affect appeared congruent with mood and thought process.” She appeared “to relate fairly well to others” and “displayed good insight for her age, appearing able to articulate her feelings well to worker.” Her judgment appeared fair and she appeared motivated to begin treatment. An August 12, 2013 psychological assessment noted a normal evaluation except impaired impulse control and NMP's “behavior is better while on medications.”

          On September 11, 2013, Dr. Khanam, NMP's pediatrician, completed an assessment form at the request of the agency. Dr. Khanam noted NMP was a well-child with behavioral problems, for which she had been prescribed Risperdal. Tr. 350-51. Dr. Khanam stated that NMP had not displayed any behavior indicating a psychiatric disorder and referred the agency to her treating psychiatrist for details of her psychiatric treatment.

         On August 2, 2014, Daryl P. DiDio, Ph.D., diplomat, clinical psychology, completed a “Medical Interrogatory - Child” form, in his role as a medical expert, at the request of the ALJ. Dr. DiDio noted that the materials presented to him provided “sufficient objective medical and other evidence to allow [him] to form opinions about the nature and severity of the child's impairment(s) during the relevant time period” (since the May 5, 2012 alleged onset date). He stated “the clinical record suggests the presence of a learning disability associated with some behavioral disturbances and oppositional/aggressive behavior. [Exhibits] 1F, 4F, 5F.” He also noted that “client has exhibited some learning and social difficulties for which she has been placed in an inclusion class at school (low level intervention), and is being treated by a psychiatrist for a diagnosis of oppositional defiant disorder” and that these “limitations/difficulties are mild and with proper parental intervention and support will not pose any serious limitations on client's functioning.” Dr. DiDio opined that NMP's impairments did not meet or medically equal the requirements of any of the listings as described in the Listing of Impairments and assessed her ability to function was less than marked in the domains of acquiring and using information, attending and completing tasks, and interacting and relating with others; he assessed no limitations in the domains of moving about and manipulating objects, caring for self, and health and physical well-being.

         On August 13, 2014, Allan M. Rothenberg, M.D., a non-examining state agency doctor, reviewed the available medical and other evidence (which he called sufficient) and answered interrogatories, in which he included a diagnosis of Oppositional Defiant Disorder. Although Dr. Rothenberg opined that NMP's “impairments, either individually or in combination, [did not] meet or medically equal the requirements of any of the listings as described in the Listing of Impairments, ” he concluded that she functionally equals a listing. Dr. Rothenberg stated that NMP's “impairments are speech and language delays, attentional delays, Oppositional defiant disorder, and depression.” He assessed that NMP had a less than marked limitation in the domain of acquiring and using information, a marked limitation in the domains of attending and completing tasks, interacting and relating with others, and caring for herself and no limitation in the domains of moving about and manipulating as well as health and physical well-being.

         III. Summary of School Evidence

         A. Plaintiff's Individual Education Plans (IEP's)

         NMP was referred to her school district's Committee on Special Education near the end of the 2011-12 school year at her father's request. The following tests were administered to her: Weschler-Intelligence Scale for Children Test (“WISC-IV), the Behavior Assessment System for Children - Second Edition, Teacher Report Scale (BASC-2, TRSC), the Behavior Assessment System for Children - Second Edition, Self Report Scale (BASC-2, SRSC) and clinical interview. The Confidential Psychological Evaluation prepared as a result to these tests indicated that she is currently functioning in the average range of intellectual ability, her then present emotional adjustment ranged from good to fair with many of her difficulties appearing related to a somewhat passive interpersonal style. She was in the at-risk range for aggression, depression, adaptability, functional communication, learning problems and leadership but average in study and social skills. NMP's rating for hyperactivity, conduct problems, anxiety, attention problems atypicality and withdrawal were all within normal limits.

         Plaintiff first had an IEP for the 2012-13 school year at which time she was in fifth grade. The IEP referenced education reports, the WISC-IV, the Clinical Evaluation of Language Fundamentals 4th Edition (“CELF-4 test”) and the Woodcock-Johnson III Achievement test (cited as Woodloch-Johnson-III ACH Tests). It indicated that NMP's social/emotional levels and abilities are within age appropriate expectations, that she gets along with her peers and that she needs to seek out appropriate people to ask for help when under stress and she also needs to utilize effective coping strategies when faced with conflict situations. The IEP recommended the following Special Education Programs and Services: integrated co-teaching services in English, math, science and social studies once a week, speech/language therapy in a small group twice a week, and counseling once a week. Additionally, directions would have to be repeated and the teacher would have to check for understanding daily. NMP's end of year progress report for her 2012-13 IEP goals states that she did not achieve any of her study skill goals, but achieved all of her speech and social/emotional/behavioral goals; she met 1 of 2 writing goals but not her math goal.

         NMP's IEP continued into the next school year (2013-14) at which time she was in sixth grade. The IEP referenced new education reports but the results of the Wechsler Intelligence Scale for Children, CELF-4, and Woodcock-Johnson-III Ach Test were reused. The IEP indicated that NMP does not demonstrate age appropriate study skills and therefore suffers academically. She does not follow oral directions well and that those directions are often rephrased or repeated for her. She is better working in small groups than large groups but in both her frustration may set in and she "shuts down, " can be sensitive to criticism from adults and lacks confidence academically. The IEP indicated that she needs to demonstrate grade appropriate study skills, hand in completed assignments consistently on time, improve her ability to analyze the things she reads, improve her spelling, “communicate frustration with academic tasks in an appropriate manner, [and] be more accepting of criticism." Also she must improve her attendance, attention to task, and her frustration tolerance, and seek help appropriately when needed. Additionally, it stated that NMP has significant delays in reading comprehension, language and written expression, and attentional skills which inhibit participation in age appropriate educational activities. The IEP continued the recommendations made in her first IEP in regards to special education programs and services, but added that she would need to have directions repeated, be checked for understanding daily, and receive positive reinforcement from teachers. The mid-year progress report on NMP's IEP goals stated that she demonstrated improvement in the areas of math, reading, listening skills, written and oral expression, social/emotional, and organization/study skills but still needed remediation in the areas of reading comprehension, math, written organization, and study skills. Among the teacher's comments was a note that NMP is “cooperative when things are going well for her. She has difficulty excepting [sic] constructive criticism. When she starts the period without her homework she tend to shut down and become withdrawn. She needs to be brought to tasks when she becomes distracted.” The record does not contain NMP's 2013-14 year end IEP progress report.

         An IEP for NMP was prepared for seventh grade, the 2014-15 school year. New teacher reports were relied upon but test result were reused. The IEP indicates that NMP comes to class on time but does not always have her homework and other supplies with her and does not demonstrate grade appropriate organizational and study skills. Further, her classroom behavior moderately interferes with instruction, she has difficulty accepting criticism from adults, she has good relationships with most of her peers, and needs to use positive strategies to deal with social conflict. The IEP stated that she needs to improve attention to task, preparedness to learn, and frustration tolerance, and to decrease distractability in class lessons. The IEP continued the previous year 's IEP in regards to special education programs and services.

         B. Teacher Reports

         NMP's fourth grade teacher completed a teacher report. The teacher stated that NMP functioned below grade level in academic areas. She gets along with other, although there are times she has words with other students and she needs adults to help mediate situations between her and other students. NMP also often needed help completing tasks and relied on that; she had some friends.

         In September 2013, NMP's fifth grade teacher completed a teacher questionnaire that presented questions in terms of the domains used by the Social Security Administration. In considering NMP's ability to ability to acquire and use information, the teacher found that she had either an obvious or serious problem in all areas of the subdomains. With respect to attending and completing tasks, the teacher opined that (1) NMP has an obvious problem focusing long enough to finish an assigned activity or task on a weekly basis and in carrying out multi-step instructions on a daily basis; (2) a serious problem paying attention when spoken to directly on a weekly basis, refocusing to task when necessary on a weekly basis, completing class/homework assignments on a weekly basis, completing work accurately without careless mistakes on a daily basis, working without distracting self or others on a daily basis, and working at reasonable pace/finishing on time on a daily basis; and (3) a slight problem carrying out single step instructions on a daily basis, waiting to take turns on a daily basis, and changing from one activity to another without being disruptive on a weekly basis. In interacting and relating with others, the teacher evaluated NMP as having a very serious problem expressing anger appropriately on a daily basis; a serious problem in the areas of keeping friends on a monthly basis, seeking attention appropriately, asking permission appropriately on a daily basis, introducing and maintaining relevant and appropriate topics of conversation on a weekly basis, and interpreting the meaning of facial expressions, body language, hints, and sarcasm on a daily basis. In the area of caring for self, the teacher opined that NMP has a very serious problem handling frustration appropriately on a daily basis; a serious problem being patient when necessary on a daily basis, identifying and appropriately asserting emotional needs on a daily basis, responding appropriately to changes in own mood on a daily basis, responding appropriately to changes in own mood on a daily basis, and using appropriate coping skills to meet daily demands of school environment on a daily basis; an obvious problem knowing when to ask for help on a daily basis; and a slight problem using good judgment regarding personal safety and dangerous circumstances on a weekly basis.

         In January 2014 (approximately mid-way through the school year), NMP's sixth grade math and science teacher completed a teacher reports, stating NMP was functioning below grade level. With respect to her social/emotional functioning level the teacher wrote that she can be kind and respectful to teachers and peers but if she is upset about something she shuts down and will not participate and that she is functioning as an average 6th grader socially and emotionally.

         C. Report Cards

         On NMP's fifth-grade report card her teachers reported that she was a pleasure to have in class; however, in math, science, and social studies, more effort was needed. Also she was missing homework and class work, and she was unprepared in science class.

         NMP's sixth-grade report cards show NMP mostly was a pleasure to have in class and had enthusiastic participation, but her English, science, math and social studies teacher(s) reported that she needed to show more effort. Her science teacher reported she exhibited disruptive behavior, and had issues completing homework. NMP's final grades ...


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