Smith ex rel. "B.L.S." v. Berryhill, 16-CV-00203V(F)
| Decision Date | 18 April 2018 |
| Docket Number | 16-CV-00203V(F) |
| Parties | SANDRA LEE SMITH O/B/O, "B.L.S.", an infant Plaintiff, v. NANCY A. BERRYHILL, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Western District of New York |
REPORT and RECOMMENDATION
APPEARANCES:
LAW OFFICES OF KENNETH R. HILLER
TIMOTHY HILLER, of Counsel
Attorney for Plaintiff
Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY
ACTING UNITED STATES ATTORNEY
Attorney for Defendant
BENIL ABRAHAM
Assistant United States Attorney, of Counsel
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202, and
STEPHEN P. CONTE
Regional Counsel - Region II
United States Social Security Administration
Office of the General Counsel, of Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
This action was referred to the undersigned by Honorable Lawrence J. Vilardo on December 5, 2016. (Dkt. No. 14). The matter is presently before the court on Plaintiff's motion for judgment on the pleadings filed on November 28, 2016 (Dkt. No. 13), and Defendant's motion for judgment on the pleadings, filed on January 27, 2017. (Dkt. No. 15).
Plaintiff Sandra Lee Smith ("Plaintiff" or "Smith") on behalf of her minor daughter ("B.L.S."), seeks review of Defendant's decision dated September 19, 2014 (R. 14-26),2 wherein the Administrative Law Judge ("ALJ") determined that B.L.S. was not disabled under section 1614(a)(3)(c) of the Act.
Plaintiff filed an application for Supplemental Security Income Benefits ("SSI") under Title XVI of the Act on May 21, 2012 (R. 158), alleging that B.L.S. became disabled on September 1, 2010. (R. 158). In denying Plaintiff's application for disability benefits, Defendant determined that B.L.S. had the severe impairments of auditory processing disorder, receptive/expressive language delay, autistic disorder, anxiety disorder and obesity. (R. 20). Defendant further determined that B.L.S.'s impairments did not meet or medically equal a listed impairment or combination of impairments within the Act's definition of impairment (R. 20), and found B.L.S. not disabled, asdefined in the Act, at any time from the alleged onset date of September 1, 2010 (R. 26), through the date of the Administrative Law Judge's decision on July 9, 2014. Id.
On August 8, 2012, Plaintiff filed an application for supplemental insurance benefits under Title XVI of the Act. (R.158). Plaintiff's application alleging disability based on borderline intellectual functioning was initially denied by Defendant on November 26, 2012 (R. 57 ), and, pursuant to Plaintiff's request filed on December 31, 2012 (R. 120), a hearing was held before ALJ Donald T. McDougall, Jr. ("Judge McDougall" or "the ALJ") in Buffalo, New York on April 25, 2014. (R. 40-89). B.L.S.'s legal guardian mother, represented by Kelly Laga, Esq. ("Laga"), appeared and testified at the hearing. Id. The ALJ's decision denying the claim was rendered on July 9, 2014. (R. 11-23). On September 2, 2014, Plaintiff requested review of the hearing decision by the Appeals Council. (R. 12). The ALJ's decision became Defendant's final decision when the Appeals Council denied Plaintiff's request for review on January 14, 2016. (R. 1-4). This action followed on March 8, 2016, with Plaintiff alleging that the ALJ erred by failing to find B.L.S. disabled. (Doc. No. 1).
On November 28, 2016, Plaintiff filed a motion for judgment on the pleadings ("Plaintiff's motion"), accompanied by a supporting memorandum of law (Doc. No. 13) ("Plaintiff's Memorandum"). On January 27, 2017, Defendant filed a motion for judgment on the pleadings ("Defendant's motion"), accompanied by a memorandum of law (Doc. No. 15) ("Defendant's Memorandum"). Oral argument was deemed unnecessary.
Based on the following, for the reasons stated in this Report and Recommendation Plaintiff's motion should be GRANTED, and Defendant's motion for judgment on the pleadings should be DENIED.
B.L.S. was born on October 10, 1998 (R. 158), and was 14 years old on May 21, 2012, the date that her disability application was filed, and is therefore considered a school-aged child for disability review purposes. 20 C.F.R. § 416.926a(g)(2)(iv)(v).
Relative to the period of disability review in this case, on July 30, 2012, Gregory Fabiano, Ph.D., ("Doctor Fabiano"), completed a consultative psychiatric evaluation of B.L.S. and reported that B.L.S. exhibited impaired attention and concentration and recent and remote memory skills, with below average intellectual functioning. (R. 316). Dr. Fabiano diagnosed B.L.S. with Axis I4 attention deficit hyperactivity disorder, primarily inattentive type, anxiety disorder not otherwise specified ("NOS"), oppositional defiant disorder and Axis III asthma. (R. 317).
On August 20, 2012, B.L.S. was admitted to Erie County Medical Center ("E.C.M.C."), and reported intrusive thoughts of harming herself. (R. 42). B.L.S. was evaluated with no evidence of depression, mania or psychosis and diagnosed with anxiety and a learning disorder. (R. 425).
On September 11, 2012, Averill M. Paes ("Paes"), an audiologist with Buffalo Hearing and Speech Center ("BHSC"), in Buffalo, New York, evaluated B.L.S. with asevere auditory processing disorder in the areas of decoding (ability to quickly and accurately digest speech), and tolerance-fading memory (understanding speech in noise and short-term memory). (R. 323).
On September 26, 2012, Nancy Mariani ("Mariani"), an educational specialist with the Buffalo Public Schools, evaluated B.L.S. with academic skills within the low to average range in broad reading, brief reading, math calculation skills, broad written language and brief writing. (R. 346).
On September 27, 2012, Kathryn Hussey ("Hussey"), a licensed clinical social worker with the Buffalo Public Schools completed a psychological evaluation of B.L.S., and upon administering the Weschler Intelligence Scale for Children-Fourth Edition ("WISC-IV") test5 to B.L.S. noted that B.L.S.'s full-scale I.Q. measured 81, a ranking in the tenth percentile nationally of children the same age as B.L.S., that B.L.S.'s verbal comprehension ranked in the fifth percentile nationally, perceptual reasoning6 ranked in the twenty-fifth percentile nationally, processing speed7 ranked in the thirteenth percentile nationally, and that B.L.S.'s working memory8 ranked in the thirty-fourth percentile nationally. (R. 349-50).
On October 5, 2012, Diane B. Loonan ("Loonan"), a speech pathologist with the Buffalo Public Schools, administered a Clinical Evaluation of Language Fundamentals -Fourth Edition ("CELF-4") test9 to B.L.S. where B.L.S. was evaluated with a score of 66 for repetitive language, 65 for expressive language, 64 for core language 58 for language content and 66 for language memory, placing B.L.S. in the first percentile nationally for each test component. (R. 352).
On November 8, 2012, Danielle Dodman ("Dodman"), a speech pathologist with BHSC administered a CELF-4 test on B.L.S. and evaluated B.L.S. with a receptive language score of 64, a score that ranked in the first percentile nationally, and an expressive language score of 59, that ranked B.L.S. in the .3rd percent nationally. (R. 329-30). Dodman opined that B.L.S.'s comprehension of spoken language was severely delayed in the areas of auditory processing, following directions, reading comprehension and understanding age-appropriate concepts, and that B.L.S.'s production of spoken language was severely delayed in recalling spoke language, sentence formulation and using age-appropriate language concepts. (R. 331). Dodman opined B.L.S.'s prognosis was good to achieving improved expressive language with skilled intervention. Id.
On November 15, 2012, J. Meyer, M.D. ("Dr. Meyer"), a pediatrician, completed a childhood disability evaluation form on B.L.S. and evaluated B.L.S. with a marked limitation to acquiring and using information, a less than marked limitation to attending to and completing tasks, interacting and relating to others and caring for herself and no limitation to B.L.S.'s ability to move about and manipulate objects and health and physical well-being. (R. 335-59).
Ob January 10, 2013, Renee Baskin Ph.D., ("Dr. Baskin"), completed a consultative psychological evaluation of B.L.S., and administered the Vineland II ("Vineland-II") test where B.L.S. measured a standard score of 61 on communication, 63 for daily living skills, 58 for socialization, and a 60 for maladaptive behavior. (R. 439-40). B.L.S.'s Gilliam Autism10 rating score was 132, which revealed that B.L.S. probability of autism was very likely. (R. 440). Dr. Baskin noted that B.L.S.'s behavioral and emotional problems of adaptive functioning had a negative impact on B.L.S.'s ability to function successfully in social and academic settings. (R. 441).
On February 11, 2013, B.L.S. sought treatment for Women's and Children's Hospital of Buffalo for anxiety. Upon examination, David Lawrence, M.D. ("Dr. Lawrence"), diagnosed B.L.S. with anxiety and referred B.L.S. to her primary physician for follow-up. (R. 459).
1. Disability Determination Under the Social Security Act
An individual under the age of 18 is disabled and eligible for benefits when he or she has a medically determinable physical or mental impairment that results in marked and severe functional limitations, which can be expected to result in death or which has lasted or is expected to last for a period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(C)(i). A three-step review process is used to evaluate whether a child meets the statutory definition of disability. 20 C.F.R. § 416.924, Myers ex rel. C.N. v. Astrue, 993 F. Supp.2d 156, 160 (W.D.N.Y. 2012). Similar to the disability requirementsfor adults, a child is entitled to disability insurance benefits in instances where the child has not engaged in substantial gainful activity, provides substantial evidence to establish an impairment that is severe, i.e., causes more than a...
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