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Perdomo v. Commissioner of Social Security

November 3, 2010


The opinion of the court was delivered by: William J. Martini Judge



Dear Counsel:

Plaintiff Sandra Perdomo ("Perdomo") brings this action on behalf of her minor son V.M.S. ("VMS") pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking review of a final determination by the Commissioner of Social Security ("Commissioner") that VMS is not disabled and denying her application for Supplemental Security Income ("SSI"). There was no oral argument. Fed. R. Civ. P. 78. For the following reasons, the Commissioner's decision is AFFIRMED.


VMS is a nine year old boy of Hispanic descent who has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and related learning and speech disabilities. (Administrative Transcript, hereinafter "Tr.," 328). VMS was born on October 31, 2000; he was four years old when his claim was initially filed. (Id.). He lives with his mother and four siblings in Clifton, New Jersey. (Id.). VMS's aunt, Mary Depina ("Depina"), is not a member of the household but frequently assists Plaintiff and his siblings with homework. (Id.). The language spoken at home is Spanish although VMS is also exposed to English. (Id. at 165, 191). VMS attends a school for children with learning and behavioral problems. (Id. at 328). He spends two hours per day, five days a week in special education, and he currently takes Concerta, a medication to reduce his hyperactivity. (Id. at 195, 210, 328).

Perdomo filed the application for SSI on behalf of VMS on October 28, 2004, alleging disability due to ADHD and related learning and behavioral problems. (Id. at 17). The claim was initially denied on September 13, 2005 due to a lack of evidence compounded by Perdomo's failure to take VMS in for a scheduled consultative exam. (Id. at 34). On October 14, 2005 Perdomo filed a request for reconsideration and on April 25, 2006 the appeal was denied. (Id. at 37, 40). Perdomo subsequently filed a request for a hearing before an administrative law judge ("ALJ"), which was held on March 25, 2008. (Id. at 44). At the hearing, Perdomo and Depina testified as to VMS's condition. (Id. at 96).

ALJ Richard L. DeSteno ("DeSteno") issued an unfavorable opinion denying Perdomo's claim. (Id. at 11). In formulating his opinion, DeSteno reviewed VMS's medical records. In March 2004, prior to filing the claim, VMS was diagnosed by Dr. Malini Bhatia ("Dr. Bhatia") with disruptive behavior which ruled out ADHD. (Id. at 250). Dr. Bhatia recommended medication. (Id.). During the initial evaluation by Dr. Bhatia, VMS appeared to be shy at times and very aggressive at other times. (Id.). VMS was also easily distracted. (Id.). However, when VMS played by himself, he was able to focus fairly well. VMS appeared to be demanding but had little verbal exchange with his peers. (Id.). Additionally, he had difficulty controlling his impulsive behavior at times and waiting his turn. (Id.). At other times he refused to participate, sat, and did nothing. (Id.).

In June 2004 Dr. Bhatia observed VMS again. During observation, VMS had some difficulty with impulse control and was very fidgety. (Id. at 136). His attention span continued to be somewhat short. (Id.) His speech appeared to be somewhat lagging, although he was speaking a few more words at each time. (Id.). He continued to be somewhat disruptive and had difficulty following direction and needed to be redirected numerous times. (Id.). Dr. Bhatia recommended a trial of stimulant medication. (Id.).

During his analysis, the ALJ also reviewed VMS's medical records and behavioral reports from after the filing of the claim. A neurology note in November 2004 revealed that claimant was referred for evaluation of ADHD and behavioral problems. (Id. at 137, 328). VMS was also started on Ritalin by a psychiatrist. (Id. at 370).

A speech and language evaluation in January 2005 presented VMS as a "quiet, shy little boy with an extremely soft voice." (Id. at 165). When asked to repeat his responses, he had the tendency to put his head down and would not respond. (Id.). He did not display any behavioral issues but had difficulty following directions. (Id.). VMS's articulation could not be evaluated due to lack of verbal responses. (Id.). In terms of receptive language, he demonstrated weak vocabulary skills, did not respond on command, had difficulty following simple directions and had difficulty pointing to appropriate pictures. (Id.). Expressively, he displayed a limited vocabulary, had difficulty combining words to form short phrases, did not use his name and had difficulty answering simple questions. (Id.).

A neurology note in June 2005 showed VMS switched from Ritalin to Concerta. (Tr. 370-373). After switching medicines, significant improvements were noticed at home and in school. (Id.).

The consultative psychiatric evaluation performed by Dr. Kim Arrington in January 2006 revealed claimant was cooperative and his manner of relating, social skills and overall presentation were age appropriate. (Id. at 210-13). He appeared his stated age and was dressed appropriately. His scholastic performace was noted as "good" and his gait, posture and motor behavior were all normal. (Id.). His speech was marked by minimal verbalizations. (Id.). His thought processes were coherent and goal directed with no evidence of hallucinations, delusions or paranoia in the evaluation setting. VMS's attention and concentration were impaired due to some inner distractibility. He was unable to do counting. (Id.). His recent and remote memory skills were intact. He was able to recall three objects immediately and after five minutes. (Id.). He was able to repeat back five digits forward and three digits backwards. (Id.). Cognitive functioning was estimated to be in the below average range. His insight and judgment were fair to poor. The intelligence evaluations revealed that VMS obtained a verbal IQ of seventy-four, a performance IQ of eighty- eight and a full scale IQ of seventy-nine on WPPSI-III. (Id. at 212). It was noted some scores may have been impacted by fluctuation in VMS's attention span. (Id.).

On a January 2006 teacher questionnaire, VMS's teacher, Carolyn Schwartz ("Schwartz"), reported VMS was in a preschool disabled class for two hours per day, five days a week. (Id. at 214). Schwartz also reported that VMS had problems functioning in two domains: "acquiring and using information" and "attending and completing tasks." (Id. at 215-16). With regard to acquiring and using information, VMS had a serious problem comprehending oral instructions, understanding school and content vocabulary, and providing organized oral explanations and adequate descriptions. (Id. at 215). He also had an obvious problem comprehending and doing math problems and applying problem-solving skills in class discussions. He had trouble comprehending instruction and needed verbal cues to follow two-step direction. (Id.). With respect to attending and completing tasks, VMS had ...

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