U.S. District Court, Northern District of N.Y. Case Summaries:

Daily Record (Rochester, NY), Aug 25, 2008

U.S. District Court, Northern District of N.Y. Civil Rights

Handicapped Child

E.H. v. Board of Education of Shenendehowa Central School District

05-CV-972

Judge Sharpe

Background: Plaintiffs EH and KH commenced these consolidated actions pursuant to the Individuals with Disabilities Education Act, the ADA, and [section]504 of the Rehabilitation Act of 1973 claiming that defendants failed to provide their son CH with an appropriate public education and discriminated against him based on his disability. Among other charges, they allege that the school district refused to provide summer services due to a staff shortage, which the district denies. In April 2001, when the child was five, he was diagnosed with Pervasive Developmental Disorder which is on the autistic spectrum. The plaintiffs move for summary judgment on the IDEA claim, and the defendants move for summary judgment on all claims.

Ruling: The defendants' motion is granted. Plaintiffs' challenges related to the 2001-02 and 2002-03 school years are barred because an administrative due process hearing was not timely requested. Triable issues have not been raised on the plaintiffs' other claims.

Mark B. Martin for the plaintiff and Eileen M. Haynes for the defendant

Social Security

DiVetro v. Commissioner of Social Security

05-CV-830

Judge Sharpe

Background: Plaintiff Rosemarie DiVetro, who suffers from various diagnosed mental and physical conditions including bilateral knee, neck and back pain, as well as depression, has commenced this proceeding seeking judicial review of the Commissioner's denial of her applications for disability insurance benefits and supplemental security income payments under the Social Security Act. The magistrate's recommendation found that the ALJ's residual function capacity determination, which served as the lynchpin for the finding of no disability, is not supported by substantial evidence.

Ruling: The court accepts the magistrate's recommendation and the plaintiff's motion is granted. The case is remanded for further proceedings. The magistrate found that the ALJ had failed to specify how his findings were made in light of the fact that literally no medical expert found that the plaintiff was able to sit for a full eight hours in a given workday.

Christopher Cadin, of Legal Services of Central New York, for the plaintiff and Kimberly L. Schiro, of the Social S