United States District Court, D. Connecticut
RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER AND ON THE DEFENDANT'S
MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE
M. Spector, United States Magistrate Judge
action, filed under § 205(g) of the Social Security Act,
42 U.S.C. § 405(g), seeks review of a final decision by
the Commissioner of Social Security [“SSA”]
denying the plaintiff Child's Insurance Benefits under
the earnings record of his father.
December 19, 2013, the plaintiff filed an application for
Child's Insurance Benefits, alleging disability due to
attention deficit hyperactivity disorder
[“ADHD”], anxiety, mood disorder, and pervasive
developmental disorder [“PDD”], beginning January
1, 2004, when the plaintiff was fourteen years
(Certified Transcript of Administrative Proceedings, dated
September 28, 2018 [“Tr.”] 139, 203-04). His
application was denied initially and upon reconsideration,
and the plaintiff requested a hearing before an
Administrative Law Judge [“ALJ”]. (Tr. 170-88,
190-91, 193-95). On November 16, 2017, a hearing was held
before ALJ Eskunder Boyd at which the plaintiff, a vocational
expert, the plaintiff's father, and Dr. Jeffrey Koffler
testified. (Tr. 71-123; see Tr. 33-36, 39-44, 46-51,
64-65). On November 28, 2017, the ALJ issued an unfavorable
decision denying the plaintiff's claim for benefits (Tr.
13-27), and on January 5, 2018, the plaintiff filed a request
for review of the hearing decision. (Tr. 200). On June 29,
2018, the Appeals Council denied the request, thereby
rendering the ALJ's decision the final decision of the
Commissioner. (Tr. 1-3).
August 13, 2018, the plaintiff filed his complaint in this
pending action (Doc. No. 1). The next day, the parties
consented to the jurisdiction of a United States Magistrate
Judge, and the case was transferred accordingly. (Doc. No.
10). On October 15, 2018, defendant filed an answer with a
copy of the Certified Administrative Record, dated September
28, 2018. (Tr. 12; see also Tr. 14). On December 17,
2018, the plaintiff filed his Motion to Reverse the Decision
of the Commissioner (Doc. No. 16), with a Statement of
Material Facts (Doc. No. 16-2) and a brief in support (Doc.
No. 16-3 [“Pl.'s Mem.”]). On January 16,
2019, the defendant filed her Motion to Affirm (Doc. No. 17),
with a Statement of Material Facts (Doc. No. 17-1), and a
brief in support (Doc. No. 17-2 [“Def.'s
reasons stated below, the plaintiff's Motion to Reverse
the Decision of the Commissioner (Doc. No. 16) is
granted such that this case is remanded for further
proceedings consistent with this Ruling, and the
defendant's Motion to Affirm (Doc. No. 17) is
time of the hearing, the plaintiff was twenty-seven years
old. The plaintiff, his father, Lester Freundlich [“Mr.
Freundlich”], his treating psychiatrist, Dr. Jeffrey
Koffler, and a vocational expert testified.
plaintiff testified that he was able to dress, bathe and
groom himself, he could perform household chores “[a]t
a basic level[, ]” and, recently, he volunteered as an
usher at a film festival in New York. (Tr. 106). When asked
about his son's alleged disabilities, Mr. Freundlich
testified that his son was dependent on him, that he
financially supported his son, and that he tried to wake his
son before leaving the house in the morning, but often his
son did not get out of bed. (Tr. 85). According to Mr.
Freundlich, the plaintiff could perform household chores, but
“the typical response is that he doesn't do
it.” (Tr. 79). Mr. Freundlich, who is a “widower
twice over” (Tr. 78), testified that his son thought
“differently” and had “difficulty with
interpersonal relations, taking instructions, [and] doing . .
. tasks of daily living[.]” (Tr. 79). The plaintiff did
not have what his father would call “a real
friend”; he misreads people. (Tr. 85-86). He had placed
the plaintiff in “programs where they tried to learn to
get along with other kids[, ]” but the programs did not
help. (Tr. 85-86). Additionally, Mr. Freundlich explained
that it was “more likely than not” that the
plaintiff would not do something after being told to do so.
to Mr. Freundlich, when in high school, the plaintiff had a
“fairly detailed IEP, ” but the school
“ignored it[, ]” and he graduated high school
even though he “did not deserve to pass” the
English class that he needed to graduate. (Tr. 81). Mr.
Freundlich explained that the school-recommended psychiatrist
opined that the plaintiff was “not qualified to
graduate” yet went to college “[a]s a result of
a settlement.” (Tr. 82-83). The plaintiff attended
Mitchell College, which “specializes in providing
education to college students with mental disabilities[,
]” and then attended Curry College, which is made up of
a similar population of students. (Tr. 93). The plaintiff
transferred to and graduated from the University of
Connecticut [“UConn”] at Storrs with a degree in
political science. (Tr. 93, 105).
plaintiff has traveled in Greece, China and Israel. (Tr. 87,
113). Mr. Freundlich testified that his son traveled
“primarily alone, with some limited support” when
in Greece and China, and, during his trip to Greece, he had
“[l]ots of problems” with his roommates. (Tr.
87). The plaintiff testified that he found the experiences in
Greece and China “very stressful” (Tr. 113),
and that he did not have good relationships with his
roommates in college at UConn and Curry. (Tr. 88).
asked if his son could perform the work of a janitor, Mr.
Freundlich testified that his “mind would wander[,
]” and he would fail to complete the set tasks. (Tr.
90). According to the plaintiff, he had a “hard time
working in a normal group setting, ” and a “very
hard time waking up on a regular time throughout the
week.” (Tr. 107). He did not have a lot of friends, and
had trouble concentrating. (Tr. 109-10). At the time of the
hearing, the plaintiff was working part-time performing data
entry work. (Tr. 106). The plaintiff testified that he could
not perform work “when [he] feel[s] drained during the
day . . . or when feeling drained for whatever reason, either
mentally or physically drained.” (Tr. 114).
Additionally, the plaintiff testified that he “might
forget certain things, ” since when he performed the
part-time data entry job, he had reminders and had someone to
“make sure that things [were] being . . . done the way
that . . . they want[ed] it to be done.” (Tr. 115). As
the plaintiff described it, his data entry job was
“very accommodating[, ]” allowing him to take off
or take breaks whenever he wanted. (Tr. 116).
Freundlich described his son as depressed and testified that
his son has had suicidal thoughts. (Tr. 91). According to Mr.
Freundlich, his son has become
“uncontrollable[.]” (Tr. 91).
Jeffrey Koffler, the plaintiff's psychiatrist and
psychotherapist, testified that the plaintiff has “an
autism spectrum disorder, a depressive disorder, an anxiety
disorder, and . . . some ADHD[.]” (Tr. 97-98). Dr.
Koffler explained that the plaintiff is “so talkative
and so disfluent in his talking” and he “tends to
go on and on[.]” (Tr. 98). According to Dr. Koffler,
the plaintiff does not have an intellectual deficit or
respond to internal stimuli, but he has “specialized
interests” like “becoming a connoisseur of
Japanese horror movies and of anime things in general[,
]” he will “sometimes . . . over
generalize” and has “trouble staying on
task.” (Tr. 100-01). Dr. Koffler testified that the
plaintiff is “distracted by his own interests”
and has reported that he felt his roommate in Greece could
have killed him, and that if he was interviewed on a radio
broadcast, people who listened might come after him. (Tr.
102-03). Dr. Koffler testified that there has not been an
opportunity for the plaintiff to show that he could
“run his own life fully[, ]” but he opined that
it would “[t]ake a long time to work up towards
that.” (Tr. 104).
vocational expert then testified that a claimant who had no
exertional limitations, could perform simple and detailed,
although not complex tasks, could sustain concentration, pace
and persistence for three-to-four-hour segments, and could
have occasional interaction with coworkers and the public,
could perform the work of a cleaner, a vehicle cleaner, or a
store laborer. (Tr. 118-19). Similarly, the vocational expert
testified that a claimant could perform those jobs even if
the claimant was limited to work with little to no changes in
duties or routines, no work requiring independent judgment,
and no responsibility for the safety of others. (Tr. 119-20).
If such a person could not sustain concentration, pace and
persistence for two-hour segments, or would be off task at
least fifteen percent of the workday, the vocational expert
opined that the foregoing work could not be performed. (Tr.
120). Additionally, if a person was absent three to four days
a month, “an employer would not tolerate that at
all.” (Tr. 120-21).
RECORDS PRE-DATING THE ALLEGED ONSET DATE OF
first medical document of record is a letter from Dr. Murray
Engel to Dr. Judith Nemec, dated July 7, 1997, in which Dr.
Engel noted that the plaintiff had “anxiety” and
“attentional problems.” (Tr. 556-57). From May
25, 1999 to July 15, 1999, the plaintiff was treated
in-patient and out-patient at the Four Winds Hospital for a
history of “aggressive [and] impulsive behavior.”
(Tr. 498-550). At that time, he was described as a
“9½ year old boy with long standing history of
explosive disorder and mood swings [with] one prior impatient
hospitalization[.]” (Tr. 505). The diagnoses were mood
disorder, intermittent explosive disorder, and ADHD, combined
type. (Tr. 508). He was discharged from the in-patient
program on June 18, 1999 with prescriptions for Depakote,
Zyprexa, Cylert, and Lithium (Tr. 516), and then, due to
concerns for his safety, the plaintiff was re-admitted to the
in-patient program on July 1, 1999 and discharged on July 15,
1999, with diagnoses of bipolar disorder, not otherwise
specified and psychotic disorder, not otherwise specified.
(Tr. 523). He was discharged with prescriptions for Lithium
Carbonate, Thorazine, and Depakote. (Tr. 528).
his discharge from Four Winds, the plaintiff began treatment
at KidsPeace National Center for Kids in Crisis on July 17,
1999. (Tr. 492-94). Dr. Chala Sargent Pratt completed a
psychiatric evaluation in which he found the plaintiff
“awkward[, ]” his mood was “good[, ]”
his thought process was “clear[, ]” and his
insight and judgment were “nil.” (Tr. 493). Dr.
Pratt concluded that it was a “medical necessity that
this child receive[ ] residential treatment to address the .
. . documented pathology.” (Tr. 494).
months later, school social worker Karen Holzman completed a
Social Work Assessment for Stamford Public Schools in which
she noted the plaintiff's problems in the “areas of
organizational skills and peer relations[, ]” and that
he was “so pre-occupied with his internal thoughts that
he [was] oblivious of his immediate interpersonal
environment.” (Tr. 704-706).
plaintiff underwent a psychiatric evaluation with Dr. Sanders
Stein on January 21, 2000 (Tr. 476-78), which included
“a synopsis of Marc's psychiatric history up until
now” because Dr. Stein had been treating the
plaintiff since August 1997. (Tr. 476). As of early 2000, the
plaintiff's mental status was “clear, ” and
there was no evidence of thought disorder, but his diagnoses
remained bipolar disorder, not otherwise specified, with a
past history of Tourette's syndrome, ADHD,
obsessive-compulsive disorder, and PDD, and he continued to
take Carbatroil, Lithium, and Thorazine. (Tr. 478).
February 16, 2000, Dr. Engel reviewed results of EEG and MRI
testing and concluded that “[c]linically[, ] it [was]
not clear that [the plaintiff] had clear seizures.”
(Tr. 554). A repeat EEG on June 5, 2000 was interpreted as an
“abnormal EEG because of the right centrotemporal sharp
and slow wave complexes.” (Tr. 555).
February 29, 2000 to June 7, 2000, the plaintiff was treated
at the Mid-Fairfield Guidance Center, Inc., Prospects
Extended Day Treatment & Partial Hospitalization Program
for “very poor social skills[, ]” “impaired
school functioning[, ]” oppositional behaviors, history
of manic and out of control behavior, and “unresolved
grief pertaining to [the] death of [his] mother.” (Tr.
request of his school social worker, the plaintiff was
evaluated by Elizabeth Helmig, Psy.D. in early 2000 (Tr.
597-600), at which time the plaintiff was taking Tegretol,
Lithium, Thorazine, and Carbotrol. (Tr. 598). Dr. Helmig
noted that the plaintiff was, at that time, “a ten-year
old boy with very high intelligence. However, his functioning
[was] severely limited by his social skills deficits, his
rigid and obsessive thinking style, his distractibility and
hypomania.” (Tr. 599). Dr. Helmig diagnosed the
plaintiff with PDD, ADHD, and bipolar I disorder, and
recommended continued treatment and medication management.
2000, at the end of the plaintiff's fifth grade year, his
school social worker detailed the treatment interventions for
both the plaintiff and his family (Tr. 702), which appear to
have resulted in some improvement, and she made
recommendations for the 2000-01 academic year. (Tr.
plaintiff saw Dr. Jon Durica of Stamford Pediatric Associates
for an annual health check on April 23, 2003, at which time
the plaintiff was “doing well in school[, ]” and
continued to take Lithium and Carbatrol for bipolar disorder,
ADHD, and PDD. (Tr. 688-89).
2003, when the plaintiff was an eighth grader, Kelly E.
Sullivan performed an Occupational Therapy Observation of the
plaintiff at the Turn of River Middle School. (Tr. 364-69,
558-60). Sullivan noted that the plaintiff's anxiety was
a “concern[, ]” he could “rarely complete
assignments independently[, ] and [he] require[d] much
assistance to remain on task and complete assignments
correctly.” (Tr. 559). The plaintiff's
“objective testing” in a language and speech
assessment was “within the average range.” (Tr.
352-53). The Neuropsychological Report completed in June 2003
identified slow processing speed and a nonverbal learning
disability. (Tr. 354-63).
RECORDS WITHIN THE PERIOD OF ALLEGED DISABILITY
plaintiff was seen by Dr. Durica on April 23, 2004 for his
annual physical. (Tr. 694-95). At that time, the plaintiff
was a ninth grader at the Academy for Information Technology
and Engineering, described as “a C student” who
was doing well at home. (Tr. 694-95). Dr. Durica noted
diagnoses of bipolar disorder, ADHD and PDD, as well as
“some motivation issues in school[.] [N]o friends[.]
[S]eems [i]solated[.] [S]trongly rec[ommend]
counseling[.]” (Tr. 695).
Zelevansky, Ph.D. treated the plaintiff in counseling
sessions from June 25, 2004 to August 30, 2004 for
“suspected bipolar disorder and oppositional behavior
disorder.” (Tr. 462) “The patient was completely
refractory to participation in treatment and despite a
variety of attempts to reduce his resistance, his refusal to
participate was adamant and so treatment was
terminated.” (Tr. 462).
Lambros Geotes of Stamford Pediatrics performed an annual
physical for the plaintiff on May 4, 2006, at which time the
plaintiff was in eleventh grade, taking Lithium Carbonate.
(Tr. 639-41). Additionally, in May 2006, the plaintiff
underwent a neuropsychological evaluation for Stamford Public
Schools at the request of the plaintiff's father. (Tr.
339-47, 465-73). The plaintiff went through a battery of
tests and a clinical interview before Maria J. Harris, the
school neuropsychologist, concluded that the plaintiff
continued to “show significant processing speed and
concentration difficulties[, ]” and recommended
“extended time and quiet setting for standardized
testing and critical course testing and projects.” (Tr.
psychologist Linda Wieland administered intelligence testing
and evaluated the plaintiff in December 2006. (Tr. 329-35).
Ms. Wieland noted that the plaintiff demonstrated an
excellent attitude toward testing and displayed good
attention and concentration throughout the session. (Tr.
329). She further noted that the plaintiff's cognitive
abilities ranged from low average to superior, and that
perceptual organization and processing speed issues were the
plaintiff's biggest weaknesses. (Tr. 329). She concluded
that the plaintiff struggled with significant processing
issues and that his learning profile was “reflective of
a student with learning disabilities.” (Tr. 330). She
recommended that the plaintiff should advocate for support
services for organization and writing assignments as he
transitioned to college. (Tr. 330). Ms. Wieland also noted,
after observing the plaintiff, that his “social
communication, social responsiveness, creativity, and range
of behaviors are not consistent with a classification of
Autism.” (Tr. 334-35).
request of the Bureau of Rehabilitation Services
[“BRS”], Dr. Leon Tec completed an assessment of
the plaintiff on January 11, 2007. (Tr. 474-75). Dr. Tec
noted the plaintiff's difficulty in focusing and that he
is “easily distracted, not disciplined, [and] needs
prodding from his father.” (Tr. 474). Dr. Tec
recommended “continued psychotherapy [and]
medication[.]” (Tr. 474). Dr. Tec described the
plaintiff's communication skills as “not always
clear”; he noted that, for “self-direction,
” the plaintiff “needs supervision”; and,
he stated ...