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Boza-Rodriguez v. Commissioner of Social Security

United States District Court, D. New Jersey

November 30, 2018

JENNIFER BOZA-RODRIGUEZ, o/b/o H.T.B., minor child, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ALAN H. POLONSKY, ESQ. POLONSKY AND POLONSKY ATTORNEY FOR PLAINTIFF

          NAOMI B. MENDELSOHN, SPECIAL ASSISTANT U.S. ATTORNEY ATTORNEY FOR DEFENDANT

          OPINION

          HONORABLE JEROME B. SIMANDLE JUDGE

         I. INTRODUCTION

         This matter comes before the Court pursuant to 42 U.S.C § 405(g) for review of the final decision of the Commissioner of the Social Security Administration (hereinafter “the Commissioner”) denying the application of H.T.B., a minor child, (hereinafter “Claimant”)[1] for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. Claimant, who suffers from autism spectrum disorder, attention deficit disorder, and asthma, [2] was denied benefits for the period of disability from February 1, 2011, the alleged onset date of disability, to August 18, 2016, the date on which Administrative Law Judge Michael S. Hertzig (hereinafter “the ALJ”) issued a written decision.

         In the pending appeal, Plaintiff contends that the ALJ's decision must be reversed and remanded because his finding that Claimant's impairments were not of a level of severity that met or were functionally equivalent to the level of severity of the Listings of Impairments was not supported by substantial evidence. For the reasons stated below, the Court will affirm the ALJ's decision denying Claimant's application for Supplemental Security Income.

         II. BACKGROUND

         A. Procedural History

         On July 30, 2013, an application for Supplemental Security Income was filed on behalf of Claimant alleging that he was disabled as of February 1, 2011. (R. 199-204.) Claimant's application was denied by the Commissioner on December 3, 2013. (R. 95-105.) His claim was again denied upon reconsideration on May 2, 2014. (R. 106-17.) A hearing was held before ALJ Michael S. Hertzig on July 21, 2016. (R. 48-70.) The ALJ issued an opinion on August 18, 2016, denying Plaintiff benefits. (R. 16-39.) On November 28, 2017, the Appeals Counsel denied Plaintiff's request for review. (R. 1-6.) This appeal timely follows.

         B. Personal, Medical, and Educational History

         Claimant was 5 years old on the alleged disability onset date. (R. 22.) He was 10 years old at the time of his hearing before the ALJ and had just completed fifth grade. (R. 22, 54.) He can speak both English and Spanish and can write in English. (R. 53-54.)

         From June 28, 2012 through October 31, 2014, Claimant was periodically treated at the “CASTLE” therapy program for oppositional defiant disorder, attention deficit hyperactivity disorder, and possible autism spectrum disorder. (R. 365-368, 396-734.)

         On August 30, 2013, Claimant was examined by Dr. Avi E. Domnitz Gebet, D.O. (R. 362-64, 758-62.) Dr. Gebet noted that at that time Claimant was being treated for attention deficit hyperactivity disorder and oppositional defiant disorder. (Id.) In Dr. Gebet's opinion, however, the appropriate diagnosis was more likely autism spectrum disorder. (Id.) Dr. Gebet reviewed Claimant's scores on the “WISC-IV” assessment;[3] Dr. Gebet noted that Claimant's lower scores in the verbal abilities section (as compared with the high scores for perceptional reasoning, working memory, and processing speed) may be attributable to Claimant's “bilingual status” rather than to his intellectual capabilities. (R. 761.) Dr. Gebet also recommended that Claimant should no longer receive Focalin, a medication which makes him “very tired.” (Id.)

         On January 8 and 9, 2014, Claimant underwent an evaluation by Camden City Public Schools in order to determine his eligibility for an Individualized Education Program (hereinafter “IEP”), and the resulting report was completed on January 30, 2014. (R. 243-68.) The IEP evaluation included the administration of cognitive assessments from the “Wechsler Intelligence Scales for Children - Fourth Edition (WISC-IV)” and educational assessments from the “Kaufman Test of Educational Achievement, Comprehensive Form, Second Edition.” (R. 248-51.) In this battery of tests, in January 2013, Claimant's scores were again quite variable. For example, his performance was “average” for his grade level in perceptional reasoning, working memory, spelling, and math concepts and applications (id. at 249-50), while it was “below average” in math composite and math computation, and “extremely low” in verbal comprehension and processing speed. (Id.) His performance was at the “upper extreme” in letter word recognition, on the other hand. (Id. at 249) (emphasis added). His “full scale IQ” was computed as 71, deemed “borderline, ” but with strong reservations. (Id.) The examiner outlined concerns that Claimant was not motivated to perform up to his ability on these diagnostic tests, avoiding the tasks by complaining of feeling sick, rushing, or claiming he does not know to most questions, refusing to read the comprehension tasks. (Id.) The evaluator thus concluded that “the results of this evaluation do not appear to reflect [Claimant's] actual achievement.” (Id.) As a result of the IEP report and a conference between Claimant, Claimant's mother, and various teachers and other school district staff members, it was determined that Claimant was eligible for placement in a special education program. (R. 243-68.)[4]

         On May 6, 2015, Claimant was examined by nurse practitioner Nora J. Vizzachero, APN. (R. 385-88, 751-53.) Nurse Vizzachero noted that Claimant had autism, though she assessed that Claimant was “making progress in school and at home.” (R. 387.) Nurse Vizzachero further noted that Claimant was no longer taking medication for his conditions, and that there had been an “apparent exacerbation of behavior problems.” (R. 752.)

         C. State Agency Consultants

         On October 29, 2013, Dr. David Bogacki, Ph.D., a State agency consultative psychologist, reviewed Claimant's medical records, met with Claimant, and assessed Claimant's condition. (R. 346-47.) Dr. Bogacki noted that Claimant

was neatly dressed and groomed. His sensorium was clear. He was oriented to time, place, and person after about 7 minutes of not giving [Dr. Bogacki] any response. [Claimant's] affect and mood were within normal limits. His speech was logical, coherent, and goal-directed. No. psychotic symptoms were noted. [Claimant's] symptoms include fidgeting in his seat. He was oppositional. He has a history of defiance toward authority, and aggressive behavior toward other ...

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