Opinion
21 Civ. 2030 (KMK) (AEK)
08-18-2022
SANDRA JIMENEZ, on behalf of D.S.J., a minor, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
THE HONORABLE KENNETH M. KARAS, U.S.D.J.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
Plaintiff Sandra Jimenez, on behalf of her minor son D.S.J., brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Kilolo Kijakazi, the Acting Commissioner of Social Security (the “Commissioner”), which denied her son's application for child Supplemental Security Income (“SSI”). ECF No. 1. The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, ECF Nos. 21-22, and Plaintiff has cross-moved for judgment on the pleadings, ECF Nos. 33-35. For the reasons that follow, I respectfully recommend that Plaintiff's motion (ECF Nos. 33-35) be GRANTED IN PART AND DENIED IN PART, the Commissioner's motion (ECF Nos. 21-22) be DENIED, that the case be remanded for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g), and that judgment be entered in favor of Plaintiff.
BACKGROUND
A. Procedural Background
On February 14, 2019, Ms. Jimenez filed a claim for SSI on behalf of her minor child, D.S.J., alleging a disability onset date of July 10, 2017. Administrative Record (“AR”) 11.The Social Security Administration (the “SSA”) denied the claim on May 6, 2019, and the claim was again denied after reconsideration on September 23, 2019. AR 73-76. Plaintiff requested a hearing before an administrative law judge (“ALJ”), AR 82-85, and on May 27, 2020, ALJ Mark Solomon held a hearing that was conducted telephonically “due to the extraordinary circumstance presented” by the COVID-19 pandemic, AR 11. Plaintiff did not have legal representation at the time of the hearing. AR 32-34. Ms. Jimenez appeared and testified on behalf of D.S.J.; she was the only witness to testify during the hearing. AR 30-42. On June 19, 2020, ALJ Solomon issued a decision finding that D.S.J. was not disabled within the meaning of the Social Security Act (the “Act”). AR 11-21. Plaintiff subsequently filed a request for review of that decision with the SSA's Appeals Council, which was denied on December 11, 2020. AR 1-5. That made the ALJ's June 19, 2020 decision the final decision of the Commissioner. The instant lawsuit, seeking judicial review of the ALJ's decision, was filed on February 9, 2021. ECF No. 1.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF No. 15.
B. Testimonial, Medical, and Non-Medical Evidence
Both parties have provided summaries of the testimonial, medical, and non-medical evidence contained in the administrative record. See ECF No. 22 (“Def.'s Mem.”) at 2-13; ECF No. 35 (“Pl.'s Mem.”) at 8-18. Based on an independent and thorough examination of the record, the Court finds that these summaries of the evidence are largely comprehensive and accurate. Accordingly, the Court adopts these summaries and discusses the evidence in the record in more detail to the extent necessary to a determination of the issues raised in this case. See, e.g., Banks v. Comm'r of Soc. Sec., No. 19-cv-929 (AJN) (SDA), 2020 WL 2768800, at *2 (S.D.N.Y. Jan. 16, 2020), adopted by 2020 WL 2765686 (S.D.N.Y. May 27, 2020).
APPLICABLE LEGAL PRINCIPLES
A. Standard of Review
The scope of review in an appeal from a Social Security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to assess whether the Commissioner applied the correct legal standards when determining that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). “‘Failure to apply the correct legal standards is grounds for reversal.'” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Second, the court must evaluate whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 106 (quotation marks omitted). When determining whether substantial evidence supports the Commissioner's decision, it is important that the court “carefully consider[] the whole record, examining evidence from both sides.” Tejada, 167 F.3d at 774. “It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). If the “decision rests on adequate findings supported by evidence having rational probative force, [the court] will not substitute [its own] judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
B. Determining Disability for Benefits for Children
The SSI program provides benefits to “needy aged, blind, or disabled individuals” who meet certain statutory income and resource limitations. Ruff ex rel. LMF v. Colvin, No. 14-cv-2433 (RWS), 2015 WL 694918, at *8 (S.D.N.Y. Feb. 18, 2015) (citing 42 U.S.C. § 1381 et seq.). Under the Act, a child under the age of 18 is considered “disabled” for purposes of SSI eligibility if he or she “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 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i).
i. Three-Step Inquiry
Pursuant to SSA regulations, the Commissioner applies a three-step analysis to determine whether a particular child claimant is disabled. 20 C.F.R. § 416.924; see Pollard, 377 F.3d at 189. First, the Commissioner considers whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). If the claimant is engaged in substantial gainful activity, then the Commissioner will find that the child is not disabled; if the child is not engaged in substantial gainful activity, the Commissioner proceeds to the second step, at which the Commissioner considers whether the child has “an impairment or combination of impairments that is severe.” 20 C.F.R. § 416.924(a). If the child does not have a severe impairment, he or she is not considered to be disabled. 20 C.F.R. §§ 416.924(a), (c).
If the child has a severe impairment, the Commissioner proceeds to the third step, which requires a determination of whether the child's impairment or combination of impairments meets, medically equals, or functionally equals the criteria of an impairment found in the regulatory “Listing of Impairments” at 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). 20 C.F.R. § 416.924(d). To “functionally equal” a Listing, the child's impairment must result in “marked” limitations in two of six “broad areas of functioning” called “domains,” or an “extreme” limitation in one domain. 20 C.F.R. §§ 416.926a(a), (b)(1). The six domains of functioning are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for yourself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). A limitation is considered “marked” if it “interferes seriously with [the child's] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i). A marked limitation “is the equivalent of the functioning [the Commissioner] would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.” Id. A limitation is considered “extreme” if it “interferes very seriously with [the child's] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(i). An extreme limitation “is the equivalent of the functioning [the Commissioner] would expect to find on standardized testing with scores that are at least three standard deviations below the mean.” Id.
ii. Additional Regulatory and Administrative Standards
In claims involving childhood disability, the SSA provides additional regulatory and administrative standards for determining whether a child has a “marked” or “extreme” limitation. To have a marked or extreme limitation in a particular domain, it is not necessary that all activities or functions within the domain be restricted. Rather, a marked or extreme limitation may be present “when [a child's] impairment(s) limits only one activity [within the domain] or when the interactive and cumulative effects of [his or her] impairment(s) limit several activities.” 20 C.F.R. §§ 416.926a(e)(2)(i), (e)(3)(i); see also McClain v. Barnhart, 299 F.Supp.2d 309, 315 (S.D.N.Y. 2004) (citing Quinones v. Chater, 117 F.3d 29, 31-32, 36 (2d Cir. 1997)). Additionally, the Commissioner must consider the “interactive and cumulative effects” of a child's impairment(s), as the combined results of multiple less-than-marked impairments may be marked or extreme. 20 C.F.R. § 416.926a(c); see also McClain, 299 F.Supp.2d at 315 (citing Encarnacion v. Barnhart, 191 F.Supp.2d 463, 474 (S.D.N.Y. 2002)). Finally, the Commissioner must assess whether any particular limitation may have effects in more than one domain. Because “any given impairment may have effects in more than one domain,” it is necessary to “evaluate the limitations from [a child's] impairment(s) in any affected domain(s).” 20 C.F.R. § 416.926a(c); see also Goins o/b/o J.D.G. v. Berryhill, No. 16-cv-06398-MAT, 2017 WL 5019273, at *3 (W.D.N.Y. Nov. 3, 2017) (citing Encarnacion ex rel. George v. Astrue, 568 F.3d 72, 73-74 (2d Cir. 2009)).
The SSA also provides specific direction for weighing standardized test scores. The Commissioner must consider the results from certain “comprehensive standardized test[s] designed to measure ability or functioning in that domain,” and whether the child's “day-to-day functioning in domain-related activities is consistent with that score.” 20 C.F.R. §§ 416.926a(e)(2)(iii), (e)(3)(iii). The regulations also require that if the Commissioner does not rely on test scores, the reasons for doing so must be explained in the case record or any administrative decision. 20 C.F.R. § 416.926a(e)(4)(iii)(B).
ALJs must also follow Social Security Rulings (“SSRs”), which “are binding on all components of the [SSA],” and “represent precedent final opinions and orders and statements of policy and interpretations” adopted by the SSA. 20 C.F.R. § 402.35. Among the relevant SSRs cited and discussed below are: SSR 09-1p, Title XVI: Determining Childhood Disability Under the Functional Equivalence Rule - The “Whole Child” Approach, 74 Fed.Reg. 7527 (S.S.A. Mar. 19, 2009), and SSR 09-2p, Title XVI: Determining Childhood Disability - Documenting a Child's Impairment-Related Limited Limitations, 74 Fed.Reg. 7525 (S.S.A. Mar. 20, 2009).
iii. Duty to Develop the Record
“Disability-benefits proceedings are non-adversarial in nature, and therefore, the ALJ has an affirmative obligation to develop a complete administrative record, even when the claimant is represented by counsel.” Wood o/b/o M.A.C. v. Comm'r of Soc. Sec., No. 19-cv-1086 (GBD) (SLC), 2020 WL 1442474, at *8 (S.D.N.Y. Jan. 31, 2020), adopted by 2020 WL 1436985 (S.D.N.Y. Mar. 24, 2020). “A remand by the court for further proceedings is appropriate when the Commissioner has failed to provide a full and fair hearing, to make explicit findings, failed to appropriately develop the record, or to have correctly applied the regulations.” Hairston v. Comm'r of Soc. Sec., No. 20-cv-5600 (KHP), 2022 WL 704011, at *6 (S.D.N.Y. Mar. 9, 2022). Where, as here, a claimant proceeded pro se at the administrative hearing, the ALJ bears a “‘heightened duty to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'” Id. (quoting Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980)).
DISCUSSION
Plaintiff seeks to reverse the Commissioner's decision and have this matter remanded to the SSA on an expedited basis for further administrative proceedings. Pl.'s Mem. at 1. She contests the ALJ's decision on two overarching grounds, asserting that: (1) the ALJ misapplied SSA regulations in finding that D.S.J. had less than marked limitations in all six domains; and (2) the ALJ failed to adequately develop the record. See id. at 1-2. The Commissioner maintains that the ALJ properly applied the correct legal standards, the ALJ's decision is supported by substantial evidence, and there were no gaps in the record that would require the ALJ to obtain additional records or testimony. See ECF No. 38 (“Def.'s Reply Mem.”) at 1-8.
As discussed below, the Court finds that the ALJ did not apply the correct legal standards, and additionally that the ALJ's decision was based on an incomplete record. The Court does not find, however, that the imposition of time limits on the further administrative proceedings is warranted. Therefore, the Court respectfully recommends that Plaintiff's motion be granted in part and denied in part, that the Commissioner's motion be denied, that this matter be remanded for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g), and that judgment be entered in favor of Plaintiff.
A. The ALJ's Decision
In an 11-page opinion, ALJ Solomon applied the three-step sequential analysis described above and issued a decision finding that D.S.J. was not disabled between February 14, 2019, the date of D.S.J.'s application for benefits, and the date of the decision. ALJ Solomon observed that under the relevant regulations, D.S.J. was an “older infant/toddler” on the date his application was filed, and was a “preschooler” at the time the decision was issued. AR 12 (citing 20 C.F.R. § 416.926a(g)(2)). At the first step of the sequential analysis, the ALJ found that D.S.J. had not engaged in substantial gainful activity since the application date. Second, the ALJ determined that D.S.J. had the severe impairments of autism and asthma. Third, the ALJ concluded that D.S.J. did not have any impairment or combination of impairments that meet, medically equal, or functionally equal the severity of a Listing. AR 12-21. In reaching his conclusion as to functional equivalence, the ALJ found that D.S.J. did not have marked limitations in two domains of functioning or extreme limitations in one domain of functioning. Rather, the ALJ determined that D.S.J. had less than marked limitations in all six domains of functioning. AR 14. Consequently, the ALJ determined that D.S.J. was not disabled. AR 21.
“For SSI applications, the relevant period is between the date of the application and the date of the ALJ's decision.” Sharlene A. o/b/o D.A.C. v. Comm'r of Soc. Sec., No. 20-cv-00268 (JJM), 2021 WL 4437175, at *5 (W.D.N.Y. Sept. 28, 2021).
Plaintiff's motion papers do not discuss D.S.J.'s asthma and allergies “because [P]laintiff does not believe that those conditions contribute to [D.S.J.'s] disability.” Pl.'s Mem. at n.4. Because the ALJ's findings with respect to D.S.J.'s asthma are not contested, they are not discussed in this Report and Recommendation.
In analyzing the functional equivalence of D.S.J.'s impairments, the ALJ considered Ms. Jimenez's hearing testimony. The ALJ summarized that Ms. Jimenez testified about her son's deficits in fine motor skills (for which he received occupational therapy) and language delays (for which he received speech therapy). AR 15. The ALJ also cited Ms. Jimenez's testimony that D.S.J.'s “speech was able to be understood some of the time by people who know him and by people who do not know him”; that D.S.J. “sometimes was able to play with peers at school but was sometimes shy and at times, had difficulty sharing”; and that D.S.J. “had difficulty holding a fork and was not toilet trained.” AR 15.
As to the six domains, the ALJ found that D.S.J. had a less than marked limitation in the domain of acquiring and using information because of his average IQ scores and improvements in various areas including vocabulary and communication skills. AR 15-16. The ALJ determined that D.S.J had a less than marked limitation in the domain of attending and completing tasks because of his ability to attend educational evaluations and classroom activities, “albeit with some episodes of distraction.” AR 16. For the domain of interacting and relating with others, the ALJ determined that D.S.J. had a less than marked limitation based on certain progress reports that the ALJ characterized as showing improvements in “language, communications, and relating to familiar peers and adults.” AR 17. According to the ALJ, D.S.J. had a less than marked limitation in the domain of moving about and manipulating objects based on D.S.J.'s “gross motor limitations, but also his somewhat more significant fine motor limitations.” AR 18. With respect to the domain of caring for oneself, the ALJ determined D.S.J. had a less than marked limitation because of his average score in self-help skills in a January 2019 evaluation, and his occupational therapist's observation in one report that he had a good frustration tolerance when challenged. AR 19. Finally, the ALJ concluded that D.S.J. had a less than marked limitation in the domain of health and physical well-being because while D.S.J. had been diagnosed with asthma with recurring upper respiratory infections, there was no evidence of significant exacerbations necessitating hospitalization. Id.
The ALJ also considered medical evidence and weighed various opinions in the record. Specifically, the ALJ considered the medical opinion evidence of Drs. Sinha, Ng, and Shukla. Dr. Sinha reviewed D.S.J.'s file on May 6, 2019 in connection with D.S.J.'s initial application for benefits, while Drs. Ng and Shukla both reviewed D.S.J.'s file on September 11, 2019 after D.S.J. sought reconsideration of the SSA's original denial of benefits. AR 19; see AR 62 (assessment notes “medical signatures” of both Dr. Shukla and Dr. Ng). All three doctors opined that D.S.J. had a marked limitation in the domain of interacting and relating with others; these conclusions were based on D.S.J.'s language delays, limitations in maintaining eye contact, limitations in engaging with his peers, and the results of the portion of the Developmental Assessment of Young Children (“DAYC-2”) test administered in January 2019 that was designed to evaluate social/emotional skills, and in which D.S.J. tested as performing at least two standard deviations below the mean. AR 19-20, 48, 61, 139. Each of the three reviewing physicians also opined that D.S.J. had no limitation in the domain of caring for oneself because D.S.J. scored in the average range in the portion of the January 2019 DAYC-2 which assessed self-help skills. AR 20, 49, 62, 139. For the remaining four domains, the three doctors opined that D.S.J. had less than marked limitations. AR 19-20, 48-49, 61-62.
ALJ Solomon found the three opinions to be “substantially persuasive.” AR 20. But at the same time, the ALJ disagreed with the doctors' conclusions regarding D.S.J.'s limitations in the domains of caring for oneself and interacting and relating with others, assessing instead a somewhat greater limitation in one domain and a lesser limitation in the other. Id. The ALJ noted that while D.S.J. “scored in the average range in self-help skills in a January 2019 developmental assessment,” considering the testimony of Ms. Jimenez concerning “reports of the claimant's residual delays in self-care and caring for his belongings, the overall record is more consistent with a less than marked limitation in caring for oneself.” Id. As for the domain of interacting and relating with others, ALJ Solomon found the medical opinions “not persuasive” because “the evidentiary record reflects that the claimant made progress in both communication and interaction with peers and adults after several months of receiving special education services and therapies.” AR 21. Accordingly, the ALJ concluded “the overall evidence of record better supports a less than marked limitation in this domain,” as opposed to the marked limitation assessed by all three reviewing physicians. Id.
In sum, the ALJ concluded that D.S.J. had less than marked limitations in all six domains of functioning, and therefore determined that D.S.J. was not disabled under the Act. AR 21.
B. The ALJ Failed to Properly Consider and Weigh Relevant Evidence
Plaintiff maintains that ALJ Solomon did not give appropriate consideration to D.S.J.'s standardized testing results, and did not provide appropriate explanation for his decision to disregard these important elements of the record. Pl.'s Mem. at 22-25. In addition, Plaintiff contends that the ALJ improperly relied on limited purported evidence of improvement in D.S.J.'s conditions, placed undue weight on certain records that should not have received such consideration, and erroneously determined D.S.J.'s functioning by “averaging” his abilities in distinct areas. Id. As described further below, the Court finds that the ALJ did commit these legal errors, and remand is warranted based on the ALJ's failure to apply the correct legal standards.
1. Acquiring and Using Information and Interacting and Relating with Others
In the domain of acquiring and using information, SSA regulations require an assessment of whether a child is “able to use language to think about the world and to understand others and express [him]self; e.g., to follow directions, ask for information, or explain something.” 20 C.F.R. § 416.926a(g)(1)(ii). With respect to the domain of interacting and relating with others, SSA regulations require an assessment of a child's ability to “initiate and sustain emotional connections with others, develop and use the language of [his] community, cooperate with others, comply with rules, respond to criticism, and respect and take care of the possessions of others.” 20 C.F.R. § 416.926a(i). Both domains require, in part, an assessment of a child's language abilities, and where language issues are present, courts often analyze these two domains together. See, e.g., Juarez o/b/o R.R.O. v. Berryhill, No. 18-cv-189 (LMS), 2019 WL 2162120, at *3-5 (S.D.N.Y. May 16, 2019); Johnson ex rel. A.J. v. Astrue, No. 11-cv-5247 (JMF), 2013 WL 1187436, at *13 (S.D.N.Y. Mar. 22, 2013) (“a child's problems with speech and language need to be assessed in both the acquiring and using information domain and the interacting and relating with others domain” (quotation marks omitted)).
In this domain, a child may have a marked or extreme limitation if he “talk[s] only in short, simple sentences and ha[s] difficulty explaining what [he] mean[s].” 20 C.F.R. § 416.926a(g)(3)(v). An older infant or toddler is expected to engage in “pretend play activities” and “should begin to respond to increasingly complex instructions and questions, and to produce an increasing number of words and grammatically correct simple sentences and questions.” 20 C.F.R. § 416.926a(g)(2)(ii). A preschooler should “begin to learn and use the skills that will help [him] to read and write and do arithmetic when [he] [is] older,” such as “counting,” “painting, coloring, copying shapes, and using scissors,” and “[u]sing words to ask questions, give answers, follow directions, describe things, explain what [he] mean[s], and tell stories.” 20 C.F.R. § 416.926a(g)(2)(iii).
In this domain, a child may have a marked or extreme limitation if he “ha[s] difficulty speaking intelligibly or with adequate fluency.” 20 C.F.R. § 416.926a(i)(3)(vi). An older infant or toddler is expected to “spontaneously communicate [ ] wishes and needs” and “begin initiating and maintaining interactions with adults, but also show interest in, then play alongside, and eventually interact with other children [his] age.” 20 C.F.R. § 416.926a(i)(2)(ii). A preschooler should “start to develop friendships with children [his] own age” and “to initiate and participate in conversations, using increasingly complex vocabulary and grammar, and speaking clearly enough that both familiar and unfamiliar listeners can understand what [he] say[s] most of the time.” 20 C.F.R. § 416.926a(i)(2)(iii).
On April 27, 2019, the Preschool Language Scale-5 (“PLS-5”) assessment was administered to D.S.J., and showed that D.S.J. exhibited 33 percent delays in expressive language, receptive language, and total language. AR 182-85. This result potentially represents an outcome that would have required a finding of a “marked” limitation. Under SSA regulations, “a valid test score that is two standard deviations or more below the mean, but less than three standard deviations” requires a finding of a “marked” limitation. 20 C.F.R. § 416.926a(e)(2)(iii). ALJs are required to “consider [a child's] test scores together with the other information” in the record. 20 C.F.R. § 416.926a(e)(4)(ii). And for a child under the age of three-like D.S.J. was at the time of the PLS-5 test-where there are no standard scores from standardized tests in the record, the regulations generally require a finding of a “marked” limitation if the child is “functioning at a level that is more than one-half but not more than two-thirds of [his or her] chronological age.” 20 C.F.R. § 416.926a(e)(2)(ii). Here, while the PLS-5 results are not presented in the form of “standard deviations from the mean,” D.S.J.'s results are characterized as falling “in the severe range.” AR 185. Further, the assessment of a 33 percent delay indicates that D.S.J. was functioning at 67 percent-or approximately two-thirds-of his chronological age. Under SSA regulations, such a finding is significant. See 20 C.F.R. § 416.926a(e)(2)(ii).
The PLS-5 has been recognized as a valid indicator of a child's ability to function in the domains of acquiring and using information and interacting and relating with others. See, e.g., Afriyie o/b/o D.K.B. v. Saul, No. 19-cv-4635 (JLC), 2020 WL 5416570, at *11 (S.D.N.Y. Sept. 10, 2020) (“relevant standardized testing scores, like those produced by the Preschool Language Scale, hold significant weight under the regulations such that courts in this Circuit have not hesitated to remand where an ALJ has failed to properly consider them”); Vega Olmeda v. Comm'r of Soc. Sec., No. 18-cv-1177 (LJV), 2020 WL 1677379, at *6-7 (W.D.N.Y. Apr. 6, 2020) (remand warranted where PLS-5 score “could result in a finding of at least marked limitations” in domains of acquiring and using information and interacting and relating with others and ALJ erred in developing record with respect to this analysis); Johnson, 2013 WL 1187436, at *13.
Yet here, ALJ Solomon's decision contains only one oblique reference to D.S.J.'s PLS-5 test score and no discussion of the test's significance. See AR 17. “It is well-settled in this Circuit that ‘an ALJ's failure to acknowledge relevant evidence or to explain its implicit rejection is plain error.'” Afriyie, 2020 WL 5416570, at *11 (quoting Roman v. Berryhill, No. 17-cv-2084 (VSB) (DCF), 2018 WL 7291422, at *7 (S.D.N.Y. May 9, 2018), adopted by 2019 WL 588464 (S.D.N.Y. Feb. 13, 2019)). Moreover, SSA regulations require that when an ALJ does not rely on test scores, he or she must “explain [the] reasons for doing so in [claimant's] case record or in [the ALJ's] decision.” 20 C.F.R. § 416.926a(e)(4)(iii)(B). Therefore, it was legal error for the ALJ to disregard the significance of the PLS-5 assessment without providing any explanation or any adequate reason for doing so.
The Commissioner maintains that the evidence in the record overall does not show that D.S.J.'s limitations in acquiring and using information, and interacting and relating with others, amount to a marked limitation in either of these two domains. Def.'s Mem. at 19, 22. According to the Commissioner, the PLS-5 results are not dispositive and are not consistent with “other evaluations” that “showed only a 25% delay, which is less than two standard deviations below the mean.” Def.'s Reply Mem. at 3. Further, the Commissioner asserts that the ALJ's finding regarding D.S.J.'s day-to-day language functionality is supported by evidence in the record showing that D.S.J.'s language and play skills increased once he began receiving special education services and therapies. Id.
These arguments are unavailing. Contrary to the Commissioner's assertion, this is not necessarily a case where there are “conflicting test results.” See Def.'s Reply Mem. at 2, 3. The 25 percent delay figure is derived from the results of the Rossetti Infant-Toddler Language Scale (“Rossetti”), which was administered on January 4, 2019. Following that examination, D.S.J. was found to be delayed in both language expression and language comprehension by “at least 25%.” AR 144-45 (emphasis added). In a Summary of Multidisciplinary Evaluation form completed for the NYC Early Intervention Program by a licensed social worker, the results of the January 2019 Rossetti assessment were summarized as “a language score of 25% delay.” AR 376. Rather than cite the original results of the Rossetti assessment, the ALJ cited to this summary in his decision. See AR 17 (citing Exhibit 12F at 3)). By relying on the summary of the results rather than the results themselves, the ALJ incorrectly stated that “the speech/language pathologist assessed the claimant with only a 25 percent delay,” id. (emphasis added), and therefore may have inappropriately disregarded the PLS-5 results based on this supposed discrepancy.
Plaintiff plausibly theorizes that this shorthand was used because the record at ¶ 376 is a form that was used to screen D.S.J. for eligibility for early intervention services, and “[o]ne of the criteria to qualify for such services is a delay in an area of development, such as communication, of 25% or more.” Pl.'s Reply Mem. at 6 n.5 (citing 10 N.Y.C.R.R. § 69-4.23(a)).
If there were substantial evidence in the record that D.S.J.'s day-to-day functioning was not consistent with his score on the PLS-5, then his test result would not be as indicative of whether he had marked limitations in the domains of acquiring and using information and interacting and relating with others, see 20 C.F.R. § 416.926a(e)(4)(ii); Afriyie, 2020 WL 5416570, at *18, and the failure to address this test result could be considered harmless. Here, however, the only evidence discussed by the ALJ as potentially being inconsistent with the PLS-5 results is evidence of purported improvements in D.S.J.'s condition in late 2019.
But the ALJ's reliance on scattered progress reports indicating D.S.J.'s purported improvements, see AR 15-17, 474, 554-55, 558, without evidence or analysis of how such improvements mitigated D.S.J.'s limitations, is an insufficient basis to disregard a relevant test score, see, e.g., Garcia v. Colvin, No. 12-cv-5886 (KBF), 2015 WL 7758533, at *9-10 (S.D.N.Y. Dec. 1, 2015) (“evidence of improvement alone, without an assessment of how any such improvement reduced the claimant's functional limitations such that they are no longer, or never were, marked limitations, is insufficient”). In December 2019, D.S.J. was receiving speech therapy two times per week individually. AR 558. In a December 2019 progress report, D.S.J.'s therapist reported that D.S.J. continued to communicate “using two- to four- word utterances.” Id. It was also noted that D.S.J. “speaks with atypical prosody that lacks proper intonation as well as an emotional fingerprint.” Id. While it was observed that D.S.J. made improvements in certain areas, the ALJ failed to explain how the cited progress reports, now reporting on a three-year-old “preschooler” rather than a two-year-old “older infant/toddler,” “translated to a less than marked limitation level,” or the extent to which the progress reports were “supported by other evidence in the record.” See Garcia, 2015 WL 7758533, at *10. In sum, it was an error to cite these alleged “improvements” as the principal support for the ALJ's determination that D.S.J. suffered from less than marked limitations in both domains.
These errors are particularly notable in this case since the ALJ cited these improvements to support his rejection of the opinions of both Drs. Shukla and Ng that D.S.J. had a marked limitation in the domain of interacting and relating with others. AR 20-21. This is discussed in greater detail in Section C.2 below.
The Commissioner attempts to minimize the importance of language to the overall assessment, asserting that even if D.S.J.'s limitations in language were severe, the ALJ was free to find D.S.J. had less than marked limitations in the broader domains. Def.'s Reply Mem. at 34. The Court is skeptical of the Commissioner's argument, as courts in this Circuit have repeatedly found that a marked limitation in language functioning is sufficient to establish a marked limitation in both broader domains. See, e.g., Afriyie, 2020 WL 5416570, at *13; F.M. v. Astrue, No. 08-cv-4430 (CPS), 2009 WL 2242134, at *7-8 (E.D.N.Y. July 27, 2009). In any event, despite the Commissioner's argument that the ALJ was free to look beyond D.S.J.'s language deficiencies to determine functioning in the broader domains, the fact remains that the ALJ's analyses of these domains did not adequately account for the PLS-5. See Afriyie, 2020 WL 5416570, at *12. Accordingly, because the ALJ failed to reconcile the score with his conclusions regarding acquiring and using information, and interacting and relating with others, the Court cannot conclude that he relied on substantial evidence in his analyses of the domains. See Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999).
In sum, the ALJ misapplied relevant SSA regulations in determining that D.S.J. had a less than marked limitation in both acquiring and using information and interacting and relating with others during the relevant period. These errors are not harmless, and require remand.
2. Attending and Completing Tasks
With respect to the domain of attending and completing tasks, SSA regulations require an assessment of “how well you are able to focus and maintain your attention, and how well you begin, carry through, and finish your activities, including the pace at which you perform activities and the ease with which you change them.” 20 C.F.R. § 416.926a(h).
In this domain, older infants and toddlers should “demonstrate sustained attention, such as when looking at picture books, listening to stories, or building blocks, and when helping to put on [their] clothes.” 20 C.F.R. § 416.926a(h)(2)(ii). Preschool children should “be able to pay attention when [they] are spoken to directly, sustain attention to [their] play and learning activities, and concentrate on activities like putting puzzles together or completing art projects.” 20 C.F.R. § 416.926a(h)(2)(iii).
Plaintiff contends that there is evidence in the record that D.S.J. exhibited behaviors that SSA regulations list as potentially resulting in marked or extreme limitations in this area. Pl.'s Mem. at 21 (citing 20 C.F.R. § 416.926a(h)(3)). Plaintiff cites to evidence in the record showing D.S.J.'s hyperactivity, difficulty with directions, inability to handle changes in routine, poor attention span, easy distractibility, need for repeated prompting to remain on task, and poor frustration tolerance. Id.; AR 138-39, 150, 159-60, 183, 266, 473-74, 500, 554-59. According to Plaintiff, the ALJ failed to follow the SSA's proscription against “draw[ing] inferences about [a child's] functioning in other situations based only on how [a child] function[s] in a one-to-one, new, or unusual situation.” Pl.'s Mem. at 24 (citing 20 C.F.R. § 416.924a(b)(6)).
The Court agrees-the ALJ failed to correctly apply SSA regulations by appearing to rely too heavily on the results of D.S.J.'s behavior during one assessment by a consultative psychologist that may have taken place in an “unusual setting.” In his decision, the ALJ cited an April 15, 2019 psychological evaluation with Dr. Heli Apelbaum in concluding that D.S.J. had a less than marked limitation in this domain, and referenced this April 2019 evaluation again in connection with this domain when discussing the medical opinion of Dr. Ng. AR 16, 20, 186-99. The April 2019 consultative examination was the only appointment that D.S.J. had with Dr. Apelbaum. Based on that single evaluation, Dr. Apelbaum, a Board Certified Behavior Analyst, observed that D.S.J. followed instructions well, was able to transition easily from one activity to another, solve all tasks to the best of his ability, and remain seated throughout the session. AR 198. Yet despite the multiple references to this evaluation, ALJ Solomon did not address whether this “one-time examination” by a doctor who had no prior relationship with D.S.J. “may have been conducted in [an] ‘unusual setting,' which may have affected the inferences he was permitted to draw about [D.S.J.'s] functioning in other situations.” See Ramirez v. Astrue, No. 08-cv-7609 (SAS), 2009 WL 2356259, at *7-8 (S.D.N.Y. July 29, 2009). Indeed, the SSA has stated that a consultative examination is one such “unusual setting” that ALJs are cautioned against extrapolating from. In one Social Security Ruling, the SSA observed “it is a well-known clinical phenomenon that children with some impairments . . . may be calmer, less inattentive, or less out-of-control in a novel or one-to-one setting, such as a [consultative examination].” SSR 09-2p, Title XVI: Determining Childhood Disability - Documenting a Child's Impairment-Related Limited Limitations, 74 Fed.Reg. 7525 (S.S.A. Mar. 20, 2009); see also Morris o/b/o V.V. v. Comm'r of Soc. Sec., No. 20-cv-7017 (SLC), 2022 WL 298673, at *17 (S.D.N.Y. Feb. 1, 2022) (remand required where ALJ “relied heavily” on observations made of child during consultative examination in violation of SSR 09-2p). In the same ruling, the SSA notes “[a]ccepting the observation of the child's behavior or performance in an unusual setting, like a [consultative examination], without considering the rest of the evidence could lead to an erroneous conclusion about the child's overall functioning.” SSR 09-2p at n.24.
The ALJ's error was not harmless. Setting aside observations that the consultative psychologist made of D.S.J. during this single evaluation, the evidence of D.S.J.'s ability to attend to and complete tasks is scarce. ALJ Solomon cites Ms. Jimenez's statements to Dr. Apelbaum that D.S.J. knew how to take off his socks and shoes and sometimes helped her with simple household chores, and a December 2019 progress report in which D.S.J.'s teacher notes that he easily transitioned between activities and enjoyed participating in a wide variety activities. AR 16, 196-97, 554. But to the contrary, the ALJ recites numerous other pieces of evidence of D.S.J.'s dysfunctionality in this domain-e.g., D.S.J. could not undress himself, did not engage others at play, was “highly distracted by auditory and visual stimuli,” and “his ability to focus depended on his level of interest and motivation.” AR 16.
For all of these reasons, the Court finds that the ALJ misapplied SSA regulations in analyzing D.S.J.'s functionality in the domain of attending and completing tasks. Remand to the agency is appropriate as it is difficult for the Court to “fathom the ALJ's rationale in relation to evidence in the record.” Ramirez, 2009 WL 2356259, at *8 n.138 (quoting Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982)).
3. Moving About and Manipulating Objects
Plaintiff maintains the ALJ erred in his analysis of the domain of moving about and manipulating objects because the ALJ, in effect, “averaged” D.S.J.'s fine and gross motor deficits to find a less than marked limitation in the domain as a whole. Pl.'s Mem. at 24; Pl.'s Reply Mem. at 7. In this domain, SSA regulations require an assessment of “how you move your body from one place to another and how you move and manipulate things.” 20 C.F.R. § 416.926a(j). One example of limited functioning in this domain is “difficulty with fine motor movement (e.g., gripping or grasping objects).” 20 C.F.R. § 416.926a(j)(3)(v).
In this domain, an older infant or toddler should “frequently try to manipulate small objects and to use [his] hands to do or get something that [he] want[s] or need[s].” 20 C.F.R. § 416.926a(j)(2)(ii). A preschooler is expected to be developing fine motor skills and “be showing increasing control of crayons, markers, and small pieces in board games, and should be able to cut with scissors independently and manipulate buttons and other fasteners.” 20 C.F.R. § 416.926a(j)(2)(iii).
On two separate occasions, D.S.J. tested as severely delayed in his fine motor skills using the Peabody Developmental Motor Scales-2 (“PDMS-2”): on February 4, 2019, he received a score of two standard deviations below the mean, AR 161-62, and on April 29, 2019, he received a score of 1.8 standard deviations below the mean, AR 266. These findings were supported by Ms. Jimenez, who testified that D.S.J. “has trouble holding the fork and spoon” and that he generally has trouble feeding himself other than “stuff that you could grab in your hand.” AR 39-40. The test scores are also consistent with a February 2019 occupational therapy evaluation, during which it was observed that D.S.J. had trouble making strokes while coloring, instead making dots, AR 161, and a November 2019 progress report in which D.S.J.'s occupational therapist noted that he still needed to improve his grasp for fine motor activities, AR 556. D.S.J. also tested as having some delay in his gross motor skills, testing at one standard deviation below the mean. AR 138.
Nevertheless, the ALJ found a less than marked limitation due to D.S.J.'s less limited gross motor skills, while simultaneously noting that D.S.J. was severely limited in his fine motor function. AR 18. In so finding, the ALJ did not specifically discuss why he disregarded the PDMS-2 test results that put D.S.J. at two standard deviations below the mean for fine motor skills, which is indicative of a marked limitation in the domain of moving about and manipulating objects. 20 C.F.R. §§ 416.926a(e)(2), (e)(4)(iii)(B); Afriyie, 2020 WL 5416570, at *14 (ALJ's failure to consider PDMS-2 score of 2.2 standard deviations below the mean “constitutes legal error”); see also Allen v. Colvin, No. 16-CV-194, 2016 WL 7102723 at *5 (E.D. Mo. Dec. 6, 2016) (case remanded where “ALJ's decision [did] not address some objective medical evidence that arguably proves [the claimant] was more than two standard deviations below the mean for fine motor skills, which is the definition of marked limitations in the domain of moving about and manipulating objects”). The PDMS-2 has been recognized by courts in this Circuit as a valid indicator of a child's ability to function in the domain of moving about and manipulating objects. See, e.g., Afriyie, 2020 WL 5416570, at *14. Once again, it was legal error for ALJ Solomon to disregard these tests results without explaining his reason for doing so. Garcia, 2015 WL 7758533, at *9 (“The SSA regulations require that when the ALJ chooses not to rely on test scores at or below two standard deviations of the mean, he must “explain [the] reasons for doing so.” (citing 20 C.F.R. § 416.926a(e)(4)(iii)(B))).
The ALJ stated that he found a less than marked limitation in this domain in “consideration of the claimant's gross motor limitations, but also his somewhat more significant fine motor limitations.” AR 18; see also AR 20 (discussing the medical opinion evidence, where Drs. Singh, Shukla, and Ng assessed a less than marked limitation based upon January 2019 assessments where D.S.J. scored one deviation below the mean for gross motor skills and two deviations below the mean for fine motor skills). In light of the severity of D.S.J.'s fine motor skills limitations, it is impossible to discern the reasoning behind the ALJ's overall assessment in this domain, except to conclude that he considered the average of the gross and fine motor skills evaluations, rather than considering both functionalities separately. The SSA has made clear that it is an error to “average” a child's abilities in determining functionality in any domain. SSR 091p, Title XVI: Determining Childhood Disability Under the Functional Equivalence Rule - The “Whole Child” Approach, 74 Fed.Reg. 7527 (S.S.A. Mar. 19, 2009) (“We do not ‘average' all of the findings in the evidence about a child's activities to come up with a rating for the domain as a whole. The fact that a child can do a particular activity or set of activities relatively well does not negate the difficulties the child has in doing other activities.”); see also Robinson o/b/o A.A.M. v. Comm'r of Soc. Sec., No. 19-cv-06172 (JJM), 2020 WL 4333339, at *5 (W.D.N.Y. July 28, 2020) (citing SSR 09-1p); Hicks o/b/o A.D.H. v. Comm'r of Soc. Sec., No. 18-cv-00467, 2020 WL 1061488, at *6 (W.D.N.Y. Mar. 5, 2020) (“The SSR is clear that there is a ‘whole child' approach for determining functional equivalency and that the rating of limitation of a domain is not an ‘average' of what activities the child can and cannot do.” (citing SSR 09-1p)). The lack of explanation for the apparent disregard of the fine motor skills testing results, or the discounting of those results based on averaging D.S.J.'s more severe impairment within this domain with his less severe impairment within this domain, is another legal error that warrants remand. See Garcia, 2015 WL 7758533, at *9 (remand required where ALJ failed to adequately address test results); Cynthia N. o/b/o Z.N.S. v. Saul, No. 18-cv-00038, 2019 WL 4658391, at *4 (W.D. Va. Aug. 29, 2019) (remand required where ALJ “averaged” child's strengths and weaknesses), adopted by 2019 WL 4644550 (W.D. Va. Sept. 24, 2019).
4. Caring for Yourself
To assess a claimant's functionality with respect to the domain of caring for yourself, SSA regulations require consideration of “how well you maintain a healthy emotional and physical state, including how well you get your physical and emotional wants and needs met in appropriate ways; how you cope with stress and changes in your environment; and whether you take care of your own health, possessions, and living area.” 20 C.F.R. § 416.926a(k).
An older infant or toddler in this domain is expected to begin “trying to do more things for [himself] that increase [his] sense of independence and competence in [his] environment.” 20 C.F.R. § 416.926a(k)(2)(ii). Children at this age should “want to show what [they] can do; e.g., pointing to the bathroom, pulling off [their] coat.” Id. A preschooler is expected to “want to take care of many of [his] physical needs by [himself]” and to “understand how to control behaviors that are not good for [him] (e.g., crossing the street without an adult).” 20 C.F.R. § 416.926a(k)(2)(iii).
The Vineland Adaptive Behavior Scales survey was administered twice during the relevant period-once in April 2019 and again in September 2019. AR 193-98, 497-501. D.S.J. was assessed in April 2019 using the Vineland Adaptive Behavior Scales, Second Edition (Spanish) (“Vineland-II”), AR 193, and in September 2019 with the Vineland Adaptive Behavior Scales, Third Edition (Comprehensive Interview Form) (“Vineland-III”), AR 498-99. Both assessments measure the subject's “typical level of everyday functioning in significant areas of development.” AR 196; see 499-500. These areas are communication, daily living skills, socialization, and motor skills. AR 196, 499. On both occasions, the tests were administered through interviews of Ms. Jimenez. AR 196, 499. Following the April 2019 administration of the Vineland-II, D.S.J.'s daily living skills were assessed to be in the “moderately low” range, 1.33 standard deviations below the mean. AR 196-98. Following the September administration of the Vineland-III, D.S.J. scored in the first percentile daily living skills, within the “low” range. AR 499. A score in the first percentile is more than two standard deviations below the mean. McClain, 299 F.Supp.2d at 325 (“A score at or below the first percentile satisfies the SSA's regulatory definition of a marked limitation, since the bottom 2.3 percent of any population is more than two [standard deviations] below the mean.”).
In his decision, the ALJ references the September 2019 assessment only to say that D.S.J. “scored in the low range in daily living skills, again based on Ms. Jimenez's descriptions of his behavior.” AR 19. The ALJ says nothing further about the results, and does not list the Vineland results among the evidence he considered in determining D.S.J. has a less than marked limitation in this domain. See id.
As discussed above with respect to the results of the PLS-5 and PDMS-2, SSA regulations expressly require that where ALJs do not rely on certain relevant test scores, they must “explain [their] reasons for doing so in [the] case record or in [their] decision.” 20 C.F.R. § 416.926a(e)(4)(iii)(B); see also Dimitriakios v. Saul, No. 17-cv-00009 (KAM), 2019 WL 4602536, at *9-10 (E.D.N.Y. Sept. 23, 2019) (“The fact that [the claimant's] test scores were shown to be two standard deviations below mean is an issue which should have been addressed by the ALJ.”). ALJ Solomon failed to do so here. Moreover, Ms. Jimenez reported to evaluators that in April 2019, D.S.J. was unable to put on or take off clothing without assistance, and was not yet using a cup for drinking. AR 266. Records from evaluations that took place in April 2019 and August 2019 reflect that D.S.J. exhibited behavioral issues such as hitting, isolating himself, banging his head, and throwing himself to the floor. AR 265, 505. Further, Ms. Jimenez testified that she was approved for services through the New York State Office for People with Developmental Disabilities (“OPWDD”) to assist her with caring for D.S.J. AR 41, 607. Ms. Jimenez testified that OPWDD provided a home attendant who assisted her with tasks like bathing D.S.J. AR 41. In sum, the evidence in the record is consistent with D.S.J.'s low test scores and accordingly, the ALJ was not free to disregard the test results. See 20 C.F.R. § 416.926a(e)(4)(ii)(A).
Notably, in rendering their opinions, the consultative examiners did not consider the August 2019 evaluations or Ms. Jimenez's testimony regarding OPWDD. See AR 55-60, 77.
The ALJ should have explained why he did not consider the Vineland test scores showing D.S.J. had extremely low daily living skills-more than two standard deviations below the mean-in determining that D.S.J. had a less than marked limitation in caring for himself, especially given that these test results were generally consistent with the record as a whole regarding D.S.J.'s diminished level of functioning in this domain. This omission also constitutes legal error.
The ALJ's failure to apply the correct legal standards affects the analysis of D.S.J.'s impairments in five of the six domains of functioning. Accordingly, remand is warranted to allow the Commissioner to properly consider and weigh the evidence and explain the significance of that evidence to the assessment of D.S.J.'s impairments.
C. The ALJ Did Not Fully Develop the Record
Plaintiff maintains that the ALJ failed to develop the record in this case by not eliciting sufficient testimony at the hearing regarding D.S.J.'s impairments and by not seeking out further medical evidence regarding D.S.J.'s conditions. Pl.'s Mem. at 25-29. The Court agrees with both contentions, and respectfully recommends that the ALJ be directed to develop the record more fully on remand.
1. Insufficient Hearing Testimony
The entire hearing transcript for this matter is just 13 pages long, only seven pages of which consist of substantive testimony from Ms. Jimenez, the lone witness at the proceeding. This was simply not sufficient given the facts and circumstances of this matter. At a minimum, the ALJ should have asked more probing questions of Ms. Jimenez regarding D.S.J.'s language abilities and the progression of D.S.J.'s autism symptoms. During the hearing, ALJ Solomon asked Ms. Jimenez, “can you understand what he says most of the time?” and “[i]f people don't know him and start speaking to him and listening to him, do they have trouble understanding him?” AR 37-38. In response to both questions, Ms. Jimenez testified that D.S.J. can be understood “80% of the time.” Id. But both of these questions relate to the clarity of D.S.J.'s speech; the ALJ did not ask any follow up questions about the related but separate issue of D.S.J.'s language delays. Indeed, the SSA views “speech” and “language” as two distinct functions. See SSR 09-5p, Title XVI Determining Childhood Disability-the Functional Equivalence Domain of “Interacting & Relating with Others,” 74 Fed.Reg. 7515 (Feb. 17, 2009) (“[s]peech is the production of sounds for the purpose of oral communication” while “[l]anguage provides the message of communication” and involves “understanding what is heard and read” as well as “expressing what one wants to say to others”). Ms. Jimenez also volunteered that she had tried to find help for D.S.J. “so that he could get better or at least improve” his functionality in light of his autism, but she further testified that “nothing as much has improving.” AR 41. The ALJ asked no follow-up questions about which symptoms exactly Ms. Jimenez observed had not improved. Instead, he told Ms. Jimenez he would “review what [he] ha[d]” and would “send [her] [his] decision in the mail.” AR 42. Notably, Ms. Jimenez was not a reluctant witness-on two separate occasions during her brief testimony, she expressed a willingness to answer further questions if the ALJ wanted or needed more information. See AR 41 (“And that's all I could say for now. If you have any questions you could ask ....”); AR 42 (“if you have any other questions just let me know and I will try to answer as much as I can”).
“The duty to develop the record goes beyond getting medical records, it also includes the duty to question the claimant adequately about any subjective complaints and the impact of the claimant's impairments on the claimant's functional capacity.” Hairston, 2022 WL 704011, at *9 (quotation marks omitted). Here, the ALJ failed to obtain testimony about D.S.J.'s functional capacity and any changes to that functional capacity since 2019. This error is especially problematic since the ALJ based significant parts of his decision on D.S.J.'s purported “improvements” with treatment, whereas Ms. Jimenez testified that “nothing as much has improving.” AR 41; see, e.g., AR 16 (citing “improvements in vocabulary, communications skills, pretend play skills, cognition, and knowledge”), AR 17 (citing “improvement in language, communications, and relating to familiar peers and adults”). The ALJ committed legal error by failing to adequately question Ms. Jimenez during the hearing, and this error requires remand. See, e.g., Hairston, 2022 WL 704011, at *10 (because “the ALJ failed to sufficiently probe during the hearing,” there was an inadequate record precluding both the ALJ and reviewing court from “competently determin[ing] the child's functional limitations and their severity”); Smith v. Berryhill, No. 16-cv-6502 (KAM), 2019 WL 3936736, at *11 (E.D.N.Y. Aug. 20, 2019) (“Given the failure to sufficiently question plaintiff about her subjective complaints, remand is appropriate.”).
2. Insufficient Medical Evidence
The record in this case does not contain any medical opinion from a physician who treated D.S.J. for autism or any related impairments. The only medical opinions cited in the ALJ decision here are those Drs. Sinha, Shukla, and Ng, three state agency consulting doctors who reviewed various medical records but never examined D.S.J.
The Second Circuit has long made clear that “the written reports of medical advisors who have not personally examined the claimant deserve little weight in the overall evaluation of disability.” Vargas v. Sullivan, 898 F.2d 293, 295 (2d Cir. 1990) (quotation marks omitted); Rodriguez v. Apfel, No. 97-cv-9030 (MGC), 1999 WL 511867, at *5 (S.D.N.Y. July 19, 1999) (considering the opinions of two agency nonexamining doctors and holding “[w]hile such opinion evidence is entitled to some weight . . . the Second Circuit's case law supports the conclusion that it alone does not constitute the substantial evidence necessary to uphold a denial of benefits”).
Generally, where courts rely on the opinion of a nonexamining physician, they do so only when there is sufficient record evidence from sources that actually examined or treated the claimant. Indeed, the cases cited by the Commissioner to argue against the need for further medical evidence here actually support the proposition that in the absence of a treating physician's opinion, an ALJ must be presented with either the opinion of someone who examined the claimant, or thorough records of treating physicians, or both. See, e.g., Monroe v. Comm'r of Soc. Sec., 676 Fed.Appx. 5, 9 (2d Cir. 2017) (ALJ did not give controlling weight to the opinion of a treating physician but instead relied on “years' worth of treatment notes” in the record to make a determination of residual functional capacity); Swianktek v. Comm'r of Soc. Sec., 588 Fed.Appx. 82, 84 (2d Cir. 2015) (it was unnecessary for the ALJ to procure the opinion of a claimant's treating physician in a case where the alleged disability stemmed from the plaintiff's bipolar disorder and attention deficit disorder and where a consulting psychologist personally examined the claimant); Prince v. Colvin, No. 13-cv-7666 (TPG), 2015 WL 1408411, at *9 (S.D.N.Y. Mar. 27, 2015) (adopting magistrate judge's report and recommendation finding the ALJ did not err in failing to acquire a medical source statement from a treating psychiatrist where the record contained sufficient evidence in the form of, inter alia, the opinion of an examining consultative psychologist on whose opinion the ALJ relied).
In this case, the record is decidedly lacking. The only medical opinions in the record come from three agency evaluators, none of whom actually met with or examined D.S.J. In the absence of an examining physician's opinion, the Court would expect to see robust treatment notes sufficient to substantiate the ALJ's denial of benefits, see Monroe, 676 Fed.Appx. at 9-but that is not the case here. Instead, the record contains results of multidisciplinary evaluations that D.S.J. underwent in January-February 2019, April 2019, and September 2019, and just four progress reports, all of which were completed between June and December 2019.Significantly, there are no medical opinions in the record for the period between September 2019-when Drs. Ng and Shukla reviewed the available records-and the May 27, 2020 hearing before ALJ Solomon. This record contains the sort of “scattered treatment records and educational assessments” that courts in this District have found amount to an incomplete record. See, e.g., Afriyie, 2020 WL 5416570, at *15-17.
These records are: (i) a June 24, 2019 progress note from D.S.J.'s speech-language and occupational therapy provider, AR 473-74; (ii) a December 2019 progress report from the same source, AR 558-59; (iii) a December 2019 preschool quarterly progress report completed by D.S.J.'s special education teacher, AR 554-55; and (iv) a November 2019 preschool quarterly progress report completed by D.S.J.'s occupational therapist, AR 556-57.
Indeed, it is unclear what records, if any, the ALJ consulted in determining that the opinions of Drs. Sinha, Ng, and Shukla were “substantially persuasive.” In his analysis, ALJ Solomon did not cite any medical records that were consistent with the doctors' opinions. Instead, the ALJ seemed to simply restate the opinions themselves. For example, the ALJ stated that the doctors' “assessment of a less than marked limitation in attending and completing tasks is persuasive given the claimant's limitations in engaging others at play, but also his ability to complete evaluation tasks to the best of his ability.” AR 20. This matches the language of Dr. Ng's opinion almost exactly. See AR 61 (“during evaluation, he does not engage others at play” and “clmt was able to stay seated and attend to tasks to the best of his ability during his Psych Eval dated 04/15/2019”).
Further, the opinions of Drs. Shukla and Ng are limited by the fact that they reviewed a very small set of records that did not include D.S.J.'s evaluations that were generated between August and September 2019, or any of his school progress reports after June 2019. See AR 5560, 77. This is particularly problematic in this case, where the ALJ emphasized numerous times throughout his decision that he determined D.S.J. was not disabled in part because of purported “improvements.” AR 16, 17.
The Court also would expect that the ALJ would have gathered additional treatment records based on the information learned during the hearing. See, e.g., Rosa v. Comm'r of Soc. Sec., No. 17-cv-3344 (NSR) (JCM), 2018 WL 5621778, at *11-12 (S.D.N.Y. Aug. 13, 2018) (finding ALJ had duty to request treatment records from treating sources that pro se plaintiff testified about during hearing). Here, Ms. Jimenez testified that Plaintiff was approved for services by OPWDD, through which a home attendant was provided. See AR 41; see also AR 607 (letter stating that D.S.J. was “provisionally” approved for services through OPWDD on December 31, 2019). Ms. Jimenez testified the home attendant assisted her with tasks such as bathing D.S.J. and supervising him while he played outside. AR 41. Yet there is no indication that the ALJ sought any records from OPWDD, even though such records may have been probative of D.S.J.'s functional capacity. See, e.g., Santiago o/b/o Orlando R. v. Kijakazi, No. 20-cv-1419 (VLB), 2022 WL 732278, at *7-8 (D. Conn. Mar. 11, 2022) (holding it was reversible error, in case where child claimant suffered from autism, for the ALJ to fail to request medical records from healthcare providers who treated the claimant in his home).
For all of the reasons, remand for further development of the record is warranted. See, e.g., Afriyie, 2020 WL 5416570, at *15-18.
D. Time Limitations on Remand Are Not Warranted
Finally, Plaintiff requests that the Commissioner be “ordered to proceed on an expedited basis” upon remand to the SSA. Pl.'s Mem. at 30. Plaintiff cites Butts v. Barnhart, 388 F.3d 377 (2d Cir. 2004) in support of the argument that time limits should be imposed in this case.
In Butts, the Second Circuit affirmed the district court's holding that in adjudicating an adult's claim for benefits, the ALJ erred at step five of the sequential analysis in failing to obtain testimony from a vocational expert. Id. at 387. The Butts panel directed the district court to impose a 60-day time limit to complete further proceedings before an ALJ on remand because “the past delay [was] of such magnitude-years-that a time limit [was] imperative”; in addition, the district court was instructed to require that if the deadlines were not observed, a calculation of benefits owed to the claim must be made immediately. Id. But in a subsequent decision issued after rehearing, the Butts panel explained that the decision to require time limits, and to impose the sanction that the claimant is to be awarded benefits if those time limits are not met, was “limited to cases where the claimant is entitled to benefits absent the Commissioner's providing expert vocational testimony about the availability of appropriate jobs.” Butts v. Barnhart, 416 F.3d 101, 104 (2d Cir. 2005); see Kitt v. Saul, No. 19-cv-6632 (LJL) (DCF), 2021 WL 223387, at *10 (S.D.N.Y. Jan. 22, 2021). “In other words, Butts applies only when the burden has shifted at step five of the evaluation process and the claimant is deemed presumptively disabled.” Martin v. Berryhill, No. 17-cv-08640 (VSB) (SN), 2019 WL 1756434, at *7 (S.D.N.Y. Feb. 20, 2019), adopted by 2019 WL 1755425 (S.D.N.Y. Apr. 19, 2019).
Notably, none of the cases cited by Plaintiff in support of the argument that time limits should be imposed were decided after the July 2005 decision following rehearing in Butts. See Pl.'s Mem. at 30.
The record here does not establish that D.S.J. is “presumptively disabled,” and for the reasons set forth above, it will be necessary to further develop the record so that a proper determination can be made as to D.S.J.'s eligibility for benefits. While the Court is sympathetic to the difficulties associated with the time it has taken to address D.S.J's claim, which was filed more than 31/2 years ago, and aware that “delay is harmful for any litigant, but particularly in connection with benefits for children, which are not to replace lost income, but to enable low-income families to afford special education, medical treatment, physical rehabilitation, early intervention services, and personal needs assistance for the child,” Afriyie, 2020 WL 5416570, at *17 (cleaned up), it would be inappropriate to impose specific time limits upon remand in this case. Nevertheless, the Court expects proceedings on remand to be conducted and resolve as expeditiously as possible. See Uffre v. Astrue, No. 06-cv-7755 (GWG), 2008 WL 1792436, at *8 (S.D.N.Y. Apr. 18, 2008).
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings (ECF No. 35) be GRANTED IN PART AND DENIED IN PART, the Commissioner's motion for judgment on the pleadings (ECF No. 22) be DENIED, that the case be remanded to the agency for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g), and that judgment be entered in favor of Plaintiff. I further respectfully recommend, however, that Plaintiff's request that time limits be imposed on the SSA upon remand be denied.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kenneth M. Karas, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Karas, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).