Opinion
05 Civ. 7855 (SAS).
August 3, 2006
James M. Baker, Esq. CENTER FOR DISABILITY ADVOCACY RIGHTS, INC. New York, Counsel for Plaintiff.
Susan D. Baird ASSISTANT UNITED STATES ATTORNEY New York, Counsel for Defendant.
OPINION AND ORDER
I. INTRODUCTION
April Allen ("plaintiff" or "Allen") brings this action on behalf of her minor child Aliyah Allen ("Aliyah") pursuant to 42 U.S.C. § 405(g). Plaintiff seeks judicial review of a final decision by the Commissioner of the Social Security Administration (the "Commissioner") denying her daughter's claim for supplemental security income ("SSI") benefits based on disability under Title XVI of the Social Security Act (the "Act"). Plaintiff seeks judgment on the pleadings reversing the Commissioner's decision and remanding Aliyah's claim solely for the calculation of benefits. In the alternative, plaintiff asks that Aliyah's claim be remanded for further administrative proceedings. The Commissioner opposes plaintiff's motion and cross-moves for judgment on the pleadings affirming her decision. For the reasons set forth below, plaintiff's motion is denied and the decision of the Commissioner is affirmed.
See 42 U.S.C. §§ 1381-85;
II. BACKGROUND
A. Procedural Background
Allen filed an application for SSI benefits for Aliyah on December 3, 1998, when Aliyah was two years old. Allen claimed that Aliyah had been disabled since birth because of asthma and a speech disorder. The Social Security Administration ("SSA") denied her application on April 5, 1999, and after reconsideration, again on May 26, 1999. Allen then requested review of the denial by an administrative law judge ("ALJ"). ALJ Kenneth Levin held a hearing on July 21, 2000, in which Allen appeared without counsel. The ALJ heard testimony from Allen, Allen's sister, Aliyah herself, and Dr. Matilda Brust, a non-examining medical adviser. In addition, the ALJ also received into evidence various written records compiled by SSA. The hearing was continued on September 18, 2000, in order to discuss the submission of additional special education records, and to hear additional testimony from Dr. Brust. The ALJ denied Aliyah's claim on September 22, 2000, concluding that while Aliyah's asthma and her speech and language disorder were severe impairments, she "did not satisfy the requirements of any listed impairment," and suffered a "marked limitation" in only one area of functioning. He came to this conclusion "primarily [on] the basis of Dr. Brust's . . . testimony that Aliyah's communication deficits affected only a single area of functioning." Additionally, he found that Aliyah had a moderate, but not marked, limitation in the domain of attending and completing tasks and a mild limitation in the domain of interacting and relating with others. Plaintiff requested Appeals Council review of the ALJ's decision, and on January 7, 2002, the Appeals Council issued a ruling refusing plaintiff's request.
See Tr. at 59. "Tr." refers to pages of the administrative record filed as part of the Commissioner's answer pursuant to 42 U.S.C. § 405(g).
See id. at 72.
See id. at 36.
See id. at 37.
See id. at 48.
See id. at 254-56.
See id. at 256-70.
See id. at 36-229.
See id. at 21-35.
Id. at 19.
Pl. Mem. at 8 (citing Tr. at 18-20).
See Tr. at 291. The ALJ also found that Aliyah had a mild limitation in the domain of health and well-being, due to her history of asthma, no limitation in the domain of moving about and manipulating objects, and no limitation in the domain of caring for oneself. See id. These findings are not at issue in the instant case.
See id. at 5.
On March 12, 2002, Allen, with the assistance of counsel, filed an action in this court seeking review of the ALJ's findings. Allen moved for judgment on the pleadings, and the Commissioner agreed to set aside ALJ Levin's decision and remand the case for a new hearing and decision. A remand hearing took place before ALJ Levin on December 10, 2004, at which time the ALJ received into evidence further records from the Board of Education and heard testimony from plaintiff, Aliyah, and Dr. Brust.
See Pl. Mem. at 8.
See Tr. at 335.
See id. at 300-34.
The ALJ issued his second decision denying benefits on January 25, 2005, and again found that Aliyah had a severe impairment, but that her condition did not meet or medically equal any listing. Plaintiff again requested review by the Appeals Council, and on July 16, 2005, the Council again refused her request. Plaintiff then filed the instant suit.
See id. at 283-93.
See id. at 272-73.
B. Factual Background
Aliyah and her twin sister were born roughly three months premature on July 28, 1996. At birth, Aliyah weighed 2 pounds, 7.5 ounces. During her first twenty months of life, she was frequently taken to the emergency room for treatment of asthma. By her second year, her language development was evaluated as being delayed roughly six months, as a result of which speech-language therapy was recommended. TheraCare Medical and Educational Services ("TheraCare") began to monitor Aliyah in mid-1998. When Aliyah was two and a half years old, she was evaluated by Rachel Sommers, a speech language pathologist with TheraCare, who concluded that Aliyah had "mild to moderately delayed receptive and expressive language skills," and that these "mild to moderate communication delays placed her at risk for being unable to function adequately in a regular pre-academic program." Frances F. Harris, a school psychologist, examined Aliyah on May 5, 1999, and concluded that according to the second edition of the Bayley Scales of Infant Development test, Aliyah's developmental age was 25 months, as compared to her chronological age of 33 months, and corrected age of 30 months. TheraCare conducted a six-month review of Aliyah on May 10, 1999, which showed that she had made "steady progress," but "continued to have significant developmental delays."
See id. at 59.
See id. at 125.
See id. at 136.
See id. at 198.
Id. at 150.
See id. at 361-63.
Id. at 212.
On August 9, 2000, when Aliyah was four years old, she was evaluated by Alison Cruz-Mitchell, a TheraCare speech and language therapist. Aliyah was in a day care program at the time, but had not had speech-language therapy for a year. Cruz-Mitchell found that Aliyah's "auditory comprehension had an 18-month delay," her "expressive communication reportedly showed a 12-month delay," and her "verbal expression of language reportedly showed a two-year delay." However, she could "recognize the names of her immediate family members, could play with dolls and food, and was generally well-behaved." After this evaluation, Aliyah was given an Individualized Education Program ("IEP") which classified her as a pre-school student with a disability, and assigned her a special education teacher and a speech-language therapist. Six months later, another TheraCare assessment determined that Aliyah was "polite, and . . . initiated conversations with her peers and with adults," but "functioned significantly below her age level in receptive and expressive language skills and in articulation," had "comprehension difficulty with reasoning and processing of information," and poor speech intelligibility.
See id. at 373-75.
See id. at 258-59.
Id. at 373.
Id.
See id. at 343.
Id. at 393.
On March 10, 2001, Patricia O'Neal, a school psychologist, performed an IQ test on Aliyah which showed "a verbal score of 93, a performance score of 105, and a full scale IQ score of 98, which was in the average range of functioning." Overall, Ms. O'Neal "concluded that [Aliyah's] overall cognitive functioning was in the average range, as were [her] verbal and nonverbal reasoning skills."
Id. at 388-91.
Id. at 391.
Aliyah was assessed by two other professionals on March 10, 2001, and again by a third professional on March 11, 2001. The first March 10th analysis, conducted by Barbara Advocate, an educational evaluator, concluded that Aliyah "continued to exhibit delays in receptive and expressive vocabulary," "had difficulty with articulation," but "in written language areas . . . had made good progress." The second March 10th analysis, conducted by Marlene S. Darbouze, concluded that Aliyah "had difficulty sitting still . . . [but] was able to listen and follow instructions most of the time [and] . . . had a few friends and related well to them." Additionally, Ms. Darbouze reported that Aliyah's mother had stated that Aliyah "had made great improvements in all areas, but was still delayed in communication skills." In contrast, the March 11th analysis, which was conducted by Adrienne Horton for TheraCare, noted that Aliyah "was functioning significantly below her chronological age in cognitive and speech skills," needed "verbal prompts and cues to help her complete tasks," had "difficulty with retention of information," and "was easily distracted." No reports were submitted concerning her development over the next three years.
See id. at 386, 392, 394.
Id. at 395.
Id. at 387.
Id. at 386.
Id. at 392.
In May of 2004, when Aliyah was seven years, nine months old, Camille Carvalho, a school psychologist, conducted a New York City Department of Education triennial evaluation of Aliyah. Carvalho noted that Aliyah's "school performance was somewhat delayed," but that "Ms. Radin, [Aliyah's] teacher, reported that [Aliyah] made slow but consistent academic gains over the course of the year" and was in "good health with no restrictions on her physical activities." Additionally, during a one-on-one psycho-educational assessment with Carvalho, Aliyah was friendly and compliant, not restless or distracted. However, although Aliyah "carefully attended" to directions, she "sometimes failed to understand what was expected of her until she was given the opportunity to practice." Aliyah's IQ and language skills were not re-tested during this evaluation.
See id. at 407.
Id. at 409.
See id. at 412.
Id.
See id. at 407-12.
Another report was submitted in May of 2004, when Vladimir Kundel, a speech improvement teacher, examined Aliyah's progress. He reported that Aliyah was "restless sometimes, but mostly able to focus on a task for an extended period of time;" could "recognize and identify various objects from different categories;" "exhibited some sound distortion in her running speech, but . . . her speech was readily intelligible;" and although she was still having "difficulty sequencing events and paraphrasing information," she was "learning to categorize objects by their physical characteristics."
See id. at 413.
Id.
Finally, the last report on the record is from Aliyah's teacher, and was written in November of 2004. In the report, Aliyah's teacher describes her as functioning "below grade level." He also wrote that Aliyah "was making her best effort but had difficulty grasping the skills she was expected to learn in the third grade," that she "had a hard time concentrating and was very low in acquiring reading and math standards," but that her "behavior was . . . very good."
See id. at 416.
Id.
Id. at 417.
At the final hearing before the ALJ in December of 2004, Dr. Brust testified that Aliyah no longer had severe asthma, and stated that considering her corrected age, her initial developmental delays were not as serious as they first appeared to be. Dr. Brust told the ALJ that, in her opinion, Aliyah had a marked limitation in the domain of acquiring and using information, a mild limitation in attending and completing tasks, a mild limitation in the domain of interacting and relating with others, and a mild limitation in health and physical well-being. The ALJ also questioned Aliyah herself at the hearing, during which time she exhibited "continuing comprehension problems."
See id. at 321-22.
See id. at 325-26.
Pl. Mem. at 16. The transcript of the hearing shows that some of the answers Aliyah gave to questions asked by the ALJ did not make sense. When asked what she went shopping for when she shopped with her mother, Aliyah replied, "Sometimes my mother brought me chicken. I already ordered chicken. Nobody eat it." Tr. at 320.
III. LEGAL STANDARD
A. Substantial Evidence
The Commissioner's final decision in a disability benefits case must be affirmed if the "decision was `supported by substantial evidence.'" Courts have interpreted "substantial evidence" to consist of "`more than a mere scintilla'" and "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence" — it is sufficient if the Commissioner's resolution of such factual issues is supported by substantial evidence. "To determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." However, if substantial evidence exists to support the Commissioner's decision, the decision must be affirmed, "even if there is also substantial evidence for the plaintiff's position." "`Reversal and entry of judgment for the claimant is appropriate only when the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose.'"
Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)).
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Accord Halloran, 362 F.3d at 31; Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). Accord Veino, 312 F.3d at 586 ("Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner.").
Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999).
Morillo v. Apfel, 150 F. Supp. 2d 540, 545 (S.D.N.Y. 2001). Accord Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984) ("An administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite position.").
Pimentel v. Barnhart, No. 04 Civ. 3769, 2006 WL 2013015, at *8 (S.D.N.Y. July 19, 2006) (quoting Cruz ex rel. Vega v. Barnhart, No. 04 Civ. 9794, 2005 WL 2010152, at *8 (S.D.N.Y. Aug. 23, 2005), modified on other grounds on reconsideration, 2006 WL 547681 (S.D.N.Y. Mar. 7, 2006)).
B. Requirements for Eligibility
For a child to qualify for SSI benefits, the child must be disabled within the meaning of the Act. A child less than eighteen years of age is disabled under the Act if the child has "a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." Determining whether a child is disabled involves a three-part analysis. First, the ALJ considers whether the child is engaged in "substantial gainful activity." If so, the child will not be awarded SSI benefits. Second, the ALJ considers whether the child has "an impairment or combination of impairments that is severe." "A severe impairment is an impairment that is more than a slight abnormality." Third, if child's impairment is severe, the ALJ considers whether the impairment "meets, medically equals, or functionally equals the listings."
Id.
Id.
Leach ex rel. Murray v. Barnhart, No. 02 Civ. 3561, 2004 WL 99935, at *5 (S.D.N.Y. Jan. 22, 2004) (citing 20 C.F.R. §§ 416.924-25).
With regard to functional equivalence, the third step of the analysis, the Commissioner assesses the "limitations in functioning" caused by the child's impairment. If those limitations are the same as the functional limitations caused by a listed impairment, the Commissioner will find that the child's impairment is functionally equivalent to a listed impairment, and the child will be found eligible for SSI benefits.
Id.
An impairment will be found functionally equivalent to a listed impairment if it results in marked limitations in two of six domains of functioning or an extreme limitation in one domain. The six domains of functioning for minors are: "(I) [a]cquiring and using information; (ii) [a]ttending and completing tasks; (iii) [i]nteracting and relating with others; (iv) [m]oving about and manipulating objects; (v) [c]aring for yourself, and (vi) [h]ealth and physical well-being." A marked impairment is one that "interferes seriously with [a child's] ability to independently initiate, sustain, or complete activities." This "more than moderate but less than extreme" limitation may "limit only one activity," as long as the degree of limitation is such that it seriously interferes with the ability to function within that activity.
20 C.F.R. §§ 416.926a(b)(1)(i-vi).
Id.
C. Requirements for the ALJ's Determination
In determining whether a claimant is disabled, the ALJ considers relevant evidence in the record, including but not limited to "[w]hat activities [the claimaint is] able to perform . . . [w]hat activities [the claimaint is] not able to perform . . . [and] [w]hich of [the claimaint's] activities are limited or restricted compared to other children [of the claimant's] age who do not have impairments." "Because benefit proceedings are non-adversarial in nature, the ALJ must affirmatively develop the record." To do so, the ALJ must try "to fill any clear gaps in the administrative record." If the available "clinical records are inadequate, the ALJ has a duty to seek additional information."
20 C.F.R. §§ 416.926a(b)(2)(i-iii).
Leach, 2004 WL 99935, at *7.
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
Id.
IV. DISCUSSION
A. The Parties' Contentions
Plaintiff claims that the ALJ's decision should be reversed and remanded solely for the calculation of benefits on two grounds: first, that the ALJ's findings that Aliyah's limitations were less than marked in the domains of attending and completing tasks and interacting and relating with others were not supported by substantial evidence, and second, that the ALJ violated the Commissioner's regulations and Second Circuit law by "failing to explain his rejection of plaintiff's claim that Aliyah was markedly limited" in those two domains.
See Pl. Mem. at 1-2.
The Commissioner, in turn, claims that the ALJ's findings that Aliyah's limitations were less than marked in those two domains were supported by substantial evidence, and that the ALJ fully explained his reasoning underlying those findings.
See Def. Mem. at 1.
B. The Commissioner's Decision to Deny Benefits Is Supported by Substantial Evidence
1. Aliyah's Limitation in the Domain of Attending and Completing Tasks Is Not Marked
In the domain of attending and completing tasks, the ALJ considers "how well [a child is] able to focus and maintain [her] attention, and how well [she] begin[s], carr[ies] through, and finish[es] [her] activities, including the pace at which [she] perform[s] activities and the ease with which [she] change[s] them." With regard to children between the ages of six and twelve, factors to be considered include the ability to
focus . . . attention in a variety of situations in order to follow directions, remember and organize . . . school materials, and complete classroom and homework assignments. [Children] should be able to concentrate on details and not make careless mistakes in [their] work (beyond what would be expected in other children [their] age who do not have impairments). [They] should be able to change [their] activities or routines without distracting [themselves] or others, and stay on task and in place when appropriate. [They] should be able to sustain [their] attention well enough to participate in group sports, read by [themselves], and complete family chores.
In order to qualify as marked, Aliyah's limitation would have to "interfere seriously with [her] ability to independently initiate, sustain, or complete activities." Plaintiff tacitly acknowledges that Aliyah's attention problems focus themselves almost solely in academic areas, but contends that her problems within that area are severe and marked, and that the ALJ's conclusion otherwise is not supported by the evidence.
20 C.F.R. § 416.926a(e)(2)(i) (emphasis added).
Plaintiff makes no claims, either in her moving memorandum or in her reply memorandum, that Aliyah's ability to function in non-academic scenarios within the domain of attending and completing tasks is markedly limited; the sole focus is on her academic limitations within this domain.
Petitioner is wrong. Under these regulations, there was substantial evidence supporting the ALJ's decision that Aliyah's limitation was moderate rather than marked. Although several of Aliyah's examiners described her as "overactive" and "easily distracted," they also remarked that despite this, she was able to "listen and follow instructions most of the time" and "could be refocused to the task at hand with limit setting." In fact, one of the more recent examinations concluded that she "carefully attended to directions" and that "there was no presence of distractability [sic] or restlessness," and the most recent evaluation concluded that Aliyah "was restless sometimes, but was mostly able to focus on a task for an extended period of time." The record supports the conclusion that Aliyah was making progress in her ability to be attentive. The ALJ's decision that her limitation was moderate rather than marked is thus supported by substantial evidence.
Tr. at 390.
Id. at 392.
Id. at 387.
Id. at 389.
Id. at 412.
Id. at 416.
Moreover, the Social Security regulations, while clearly using school and academic functioning as an important point of reference, are not "all about academics," as claimed by plaintiff. The guideline age group into which Aliyah now falls is labeled "school-age" not because academics are the "core" component of the domain, as plaintiff claims, but rather because the beginning of school eligibility is a natural dividing line when charting the development of children. If the domain were solely concerned with academic functioning for six- to twelve-year-olds, there would be little reason to make mention of "chang[ing] activities or routines" or "sustain[ing] . . . attention well enough to . . . complete family chores." School is thus mentioned frequently in the regulations not because it is the sole focus of the domain for children ages six to twelve, but rather because school is the one common link among all children of that age, and an apt instrument with which to measure standard performance and abilities.
Pl. Mem. at 22.
Pl. Mem. at 22.
Finally, plaintiff misconstrues the ALJ's reasoning with respect to his decision that Aliyah's limitations were less than marked in the domain of attending and completing tasks. Plaintiff argues that because the ALJ adopted the medical advisor's reasoning that Aliyah's limitation could not be marked because she did not display marked attention deficits outside of learning situations," he did not take into account the rule that a child may have a marked limitation in a domain without being limited in every one of its components. However, as the Commissioner points out, this is not what the ALJ decided. In his decision, the ALJ stated that he was
Reply Mem. at 9. See McClain v. Barnhart, 299 F. Supp. 2d 309, 315 (S.D.N.Y. 2004) ("For a child to have a marked or extreme limitation in a particular domain, not all activities or functions encompassed by the domain need be impaired.").
willing to raise the level of Aliyah's dysfunction [in the domain of attending and completing tasks] to `moderate' rather than mild. Although her ability to attend and focus is limited only in the academic context ( and even there, only some of the time), that is an important area in the life of a child. However, she can and does attend normally in other contexts — notably when she is doing something she either comprehends or enjoys.
Tr. at 291.
The language in the parentheses makes the ALJ's reasoning clear: the ALJ decided that Aliyah's limitation in the domain of attending and completing tasks was less than marked not simply because it only affected a single area of her life, but also because within that area, it did not markedly limit her functioning, but rather moderately limited it. This finding, as stated earlier, is supported by substantial evidence.
2. Aliyah's Limitation in the Domain of Interacting and Relating with Others Is Not Marked
The Social Security regulations state that with regard to the domain of interacting and relating with others, "[i]nteracting means initiating and responding to exchanges with other people, for practical or social purposes," and "[r]elating to other people means forming intimate relationships with family members and with friends who are [the child's] age, and sustaining them over time." For children between six and twelve, the regulations state that they
20 C.F.R. §§ 416.926a(i)(1)(i-ii).
should be able to develop more lasting friendships with children who are [their] age. [They] should begin to understand how to work in groups to create projects and solve problems. [They] should have an increasing ability to understand another's point of view and to tolerate differences. [They] should be well able to talk to people of all ages, to share ideas, tell stories, and to speak in a manner that both familiar and unfamiliar listeners readily understand.
The regulations also give the following as examples of limitations in this domain (none of which is labeled as either `marked' or `extreme'):
(iii) You avoid or withdraw from people you know, or you are overly anxious or fearful of meeting new people or trying new experiences.
(iv) You have difficulty playing games or sports with rules.
(v) You have difficulty communicating with others; e.g., in using verbal and nonverbal skills to express yourself, carrying on a conversation, or in asking others for assistance.
20 C.F.R. §§ 416.926a(i)(3)(iii-v).
Plaintiff claims that because communication is a significant element in both the domains of acquiring and using information and interacting and relating with others, and because the ALJ found that Aliyah had a marked limitation in the domain of acquiring and using information, there is "no reason to believe" that Aliyah's limitation in the domain of interacting and relating with others is not marked as well. Plaintiff asserts that Aliyah's "pleasant disposition should not prevent" her limitation in interacting and relating with others from being declared marked — rather, plaintiff claims that "the fact that particular activities or functions within a domain are intact is no basis for finding a less than marked limitation," and thus that while Aliyah's communication abilities are the sole area within the domain affected by her impairment, this is nonetheless enough to cause her limitation to be marked despite having "other positive social attributes." While plaintiff is correct in stating that a marked effect on one activity or function within a domain is enough to find a marked limitation within the domain, that principle does not apply here because substantial evidence supports the ALJ's finding that none of Aliyah's activities or functions within the domain of interacting and relating with others were markedly impaired.
Pl. Mem. at 19.
Id.
Reply Mem. at 6.
Plaintiff argues that Aliyah's "severe speech and language disorders" caused Aliyah to have a marked limitation in the domain of interacting and relating with others. Plaintiff supports this position with a passage from the "Childhood Q A Compendium" (the "Compendium"), a memorandum issued by the Commissioner on May 14, 2001, which was to be "used by all SSA and State staff involved in adjudicating or reviewing . . . childhood disability cases." The Compendium states that "a marked or extreme limitation in speech under the tables in SSR [Social Security Ruling] 98-1p" leads to a marked or extreme limitation in the domain of interacting and relating with others "even if all other aspects of that domain are less than marked." It also states that "if [a] child cannot use speech appropriately to interact with others, the nature and amount of information he or she can share with them will be significantly limited, thus affecting the quality (breadth and depth) of interactions and relationships."
Pl. Mem. at 17-18.
5/10/01 Childhood Disability Q A Compendium ("Compendium"), Ex. A to 5/1/06 Affirmation of James. A. Baker, counsel for plaintiff ("Baker Aff."), at 1.
Id. at 39.
Id. at 40.
The Commissioner examined SSR 98-1p (which was issued in 1998 to address a class of children who demonstrated a combination of cognitive deficits and speech impairments), and concluded that Aliyah's speech limitation did not meet its requirements. Plaintiff, in turn, replied that "this [was] more or less true, but completely beside the point," and interpreted the Ruling more broadly, such that "a child with a marked inability to communicate will normally be found to have a marked limitation in the domain of interacting and relating with others," regardless of whether the inability is caused by a "language disorder, rather than a speech disorder."
SSR 98-1p, 1998 WL 147011, at *10 (Mar. 30, 1998).
See Def. Mem. at 29-31.
Reply Mem. at 7 (emphasis in original).
Plaintiff cites several cases for the dual propositions that a "severe language deficit `surely constitutes' a marked limitation in interacting and relating," and that "significant language delays cause marked limitations in both domains [of acquiring and using information and interacting and relating with others]." However, the cited cases do not stand for those unequivocal propositions, and the propositions that they do set out are inapplicable to Aliyah. For example, in Adams ex rel. Williams v. Barnhart, the case cited by plaintiff for the proposition that a severe language deficit "surely constitutes" a marked limitation in interacting and relating with others, the court made a highly case-specific finding that "the overwhelming evidence of [plaintiff's] inability to interact and react with others, coupled with her already marked limitation in the area of acquiring and using information, compel[led] [the court] to find that [plaintiff] exhibit[ed] a marked limitation" in the domain of interacting and relating with others.
Pl. Mem. at 19 (quoting Adams ex rel. Williams v. Barnhart, No. 01 Civ. 10030, 2003 WL 102824, at *13 (S.D.N.Y. Jan. 10, 2003)).
Id.
Adams, 2003 WL 102824, at *13 (emphasis added).
In Robbins v. Barnhart (cited by plaintiff for the proposition that "significant language delays cause marked limitations in both domains"), the court's finding again was case-specific, holding that "a finding of a marked limitation in one domain does not automatically warrant a finding of a marked limitation in the other, [but that] here, the evidence supports a finding that claimant has . . . marked limitations in both domains." But in contrast, in Aliyah's case, the evidence supports the opposite proposition — that her limitation is present, but less than marked.
No. 04 Civ. 2568, 2006 U.S. Dist. LEXIS 2781, at *23 (E.D.N.Y. Jan. 25, 2006) (emphasis added).
Although I agree that the Commissioner focused too narrowly on the speech aspect of Aliyah's limitation, plaintiff still cannot overcome the substantial evidence supporting the ALJ's finding that Aliyah's communication deficit within this domain caused a less than marked limitation. The Compendium itself states that "language and speech impairments" are not "assign[ed] to specific domains, but as with all other domains," the child's "communication activities [are considered] in whatever domain(s) is involved in those activities." As an example, the Compendium states that "when using language to learn and think, the child is acquiring and using information; when using language to play with friends, the child is interacting and relating with others." The Commissioner notes that the Compendium advises that
[c]hildren must develop the ability to communicate clearly and grammatically . . . [b]ut, when interacting with others, they must also learn to appropriately use the language they have developed. Language use, or pragmatics, is the component of language competence that is social in nature and assumes interaction with others.
Compendium at 35.
Id. (emphasis added).
Id. at 38.
The Commissioner points out that evaluating this type of language use takes into account "not the severity of the . . . impairment," but rather "the functional ramifications of that impairment." Here, substantial evidence exists to support the ALJ's decision that the functional ramifications of Aliyah's language deficits create a less than marked impairment in the domain of interacting and relating with others. Certainly, evidence demonstrates that Aliyah is a pleasant child, but more importantly, no overwhelming evidence of Aliyah's inability to interact and react with others is found in the record. To the contrary, Aliyah is described throughout the record as being friendly and compliant; she is described as having "good interpersonal skills with her peers and authority figures" and displaying "age appropriate" behavior. In one of the most recent evaluations of Aliyah, Carvalho noted that she "played well with her sister and was respectful of adults," and "display[ed] initiative around the house without being asked." She was described, both by herself and others, as having friends and playing well with other children. Considering the Compendium's explicit distinction between using language for "learning and thinking" and using it for "playing with friends," functional limitations within this domain would be specifically exhibited by a lack of friends, an inability to play well with others, or a lack of initiative or interpersonal skills. There is no evidence in the record that Aliyah suffers from any of these. Thus, the ALJ's conclusion that Aliyah was not markedly functionally limited within the domain of interacting and relating with others is supported by substantial evidence.
Def. Mem. at 28-29.
See Tr. at 412-13.
Id. at 376.
Id. at 408.
See id. at 191, 319, 413.
C. The ALJ Adequately Explained His Decision
Plaintiff's last argument is that because the ALJ did not adequately explain the reasoning behind his decision to deny benefits to Aliyah, the decision must be vacated. Plaintiff bases her argument on the ALJ's failure to cite or apply the regulation that states that a child may have a marked limitation in a domain without being markedly limited in every component of a domain. Plaintiff states that because this regulation has "obvious application to both contested domains in this case," the ALJ should have applied it, and his failure to do so renders "judicial review impossible."
See Pl. Mem. at 23-24. See also Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) ("[T]he crucial factors in any determination [by an ALJ] must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.").
See 20 C.F.R. § 416.926a(e)(2)(i) ("[A child's] day-to-day functioning may be seriously limited when [her] impairment(s) limits only one activity or when the interactive and cumulative effects of [her] impairment(s) limit several activities.") (emphasis added); 20 C.F.R. § 416.926a(e)(3)(i) ("[A child's] day-to-day functioning may be very seriously limited when [her] impairment(s) limits only one activity or when the interactive and cumulative effects of [her] impairment(s) limit several activities.") (emphasis added).
Pl. Mem. at 23.
Id. at 24.
The record does not support plaintiff's assertion. While it is true that the ALJ did not mention the regulation in question, the substance of his decision shows that there was no need for him to do so. In his decision, the ALJ found that Aliyah had a marked limitation in the domain of acquiring and using information, but only a moderate limitation in the domain of attending and completing tasks, and a mild limitation in the domain of interacting and relating with others. Plaintiff does not challenge the ALJ's finding that Aliyah's limitation in acquiring and using information was marked, and does not question whether this decision was adequately explained. Because the ALJ found Aliyah's limitations with respect to the components within the other two domains to be either moderate or mild, there was no need for him to invoke the regulation at issue. The ALJ would only have been required to do so had he found a marked limitation based on substantial evidence that was confined to a single component within one of the domains.
See Tr. at 291.
Furthermore, the ALJ provided "sufficient specificity" with regard to his findings of moderate and mild limitations. Regarding the domain of attending and completing tasks, he states that "[a]lthough [Aliyah's] ability to attend and focus is limited only in the academic context (and even there, only some of the time), that is an important area in the life of a child. However, she can and does attend and focus normally in other contexts." This quite clearly explains his rationale for finding a moderate, rather than a marked, limitation. Regarding the domain of interacting and relating with others, he states that "[w]hile [Aliyah] may not be as outgoing as her sister, she does have friends, and does engage in social pursuits appropriate for her age . . . [and] related very well to [the ALJ] at the hearing." Again, this justification is sufficient. The ALJ cited specific reasons for his decision, and those reasons correctly focus on the abilities with which the domain is concerned — the ability to interact and relate socially — and not on Aliyah's disposition, as plaintiff claims. There is no lack of specificity here that would make judicial review difficult or impossible.
Ferraris, 728 F.2d at 587.
Tr. at 291.
Id.
V. CONCLUSION
For the foregoing reasons, plaintiff's motion is denied, and defendant's cross-motion is granted. The decision of the ALJ denying Aliyah SSI benefits is hereby affirmed. The Clerk of the Court is directed to close these motions (documents 8 and 12 on the docket) and this case.
SO ORDERED.