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holding that record was incomplete because the ALJ relied on outdated reports and on records documenting the child's development until the age of four but did not issue his opinion until the child was seven
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99 Civ. 3236 (VM) (JCF)
January 26, 2001
REPORT AND RECOMMENDATION
Tomasina McClain brings this action on behalf of her son, Jeffrey McClain, pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g). She seeks review of the determination by the Commissioner of the Social Security Administration (the "Commissioner") finding her son not disabled and denying his application for children's Supplemental Security Income ("SSI") benefits. Mrs. McClain argues that: (1) the Administrative Law Judge (the "ALJ") failed to properly develop the record; (2) the ALJ's determination that Jeffrey did not satisfy the "Two Marked Impairment" standard of the 1997 Regulations was not supported by substantial evidence; (3) the ALJ erred in failing to evaluate Jeffrey's disability over the entire four-year span that the application was pending before the Commissioner; and (4) the ALJ mistakenly failed to factor into his disability determination the effect of impairments that he found to be "less than marked." (Plaintiff's Memorandum of Law in Opposition to the Commissioner's Motion for Judgment on the Pleadings and in Support of Plaintiff's Motion for Judgment on the Pleadings and Interim Benefits ("Pl. Memo.")). Based on these contentions, the plaintiff maintains that the Commissioner's decision should be reversed and benefits be awarded immediately. In the alternative, she argues that interim benefits be awarded while the case is remanded for further administrative proceedings. For the reasons that follow, I recommend that the Commissioner's decision be vacated and the case remanded for further administrative proceedings consistent with this report. I also recommend that interim benefits be granted.
Procedural History
The plaintiff filed an application for SSI benefits on behalf of her son on May 19, 1994. (Tr. 13, 49-65, 58-61). This application was denied initially and on reconsideration. Mrs. McClain then requested a hearing, which was held on February 21, 1996, before ALJ Louis Zamora. (Tr. 26-36). On April 11, 1997, the ALJ wrote to Mrs. McClain asking if she would like to submit any additional information or request a supplemental hearing in light of the enactment of new legislation affecting childhood disability determinations. (Tr. 268). A second hearing was held on July 2, 1997, although Mrs. McClain never specifically requested the additional hearing. (Tr. 37-48, 270, 275). On April 22, 1998, the ALJ issued his decision finding Jeffrey not disabled. (Tr. 10-22). The decision of the ALJ became final when the Appeals Council denied the plaintiff's request for review on February 1, 1999. (Tr. 4-5). The plaintiff subsequently filed this action on February 25, 1999. Both the Commissioner and the plaintiff have moved for judgment on the pleadings.
"Tr." refers to the Administrative Record filed with the Commissioner's Answer.
Background
A. Family History
Jeffrey McClain was on born July 31, 1989. He currently lives with his mother, Tomasina McClain, a native of the Dominican Republic. (Tr. 90). While Mrs. McClain's primary language is Spanish, Jeffrey's is English, and both languages are spoken in the home. (Tr. 90, 162, 227). Jeffrey does not have any contact with his biological father, Ottis McClain, but refers to his uncle, Jerry McClain, who is also his stepfather, as "Daddy." (Tr. 90-91). Jeffrey has two siblings Jerry, Jr., who is three years older than Jeffrey, and Jennifer, who is one year younger. (Tr. 90). Both Jerry, Jr. and Jennifer have received special education services. (Tr. 91, 111). In addition, Jeffrey's father and brother have reportedly suffered from mental disorders. (Tr. 193, 91). Mrs. McClain attends college and is unemployed. (Tr. 88). The family's source of income is public assistance. (Tr. 29).
There is some discrepancy in the record as to who is Jeffrey's father. Mrs. McClain disclosed to the intake worker at the Bronx Lebanon Hospital's Grand Concourse Clinic that Jerry McClain was Jeffrey's father, but that he was not convinced of his paternity. (Tr. 218). This contrasts with what she reported to the staff at Highbridge Advisory Council Child Care Center. (Tr. 90-91).
Mrs. McClain and her husband, Jerry McClain, have a troubled relationship that includes a history of separations. (Tr. 88, 218, 219-23). In June 1995, Mrs. McClain asked her husband to leave the home after a fight, and he took Jerry, Jr. and Jennifer with him. (Tr. 216, 219). Mrs. McClain has not seen him or the two children since. (Tr. 296). This has caused great deal of stress and emotional turmoil for both Mrs. McClain and Jeffrey. (Tr. 233, 238, 255, 296).
B. Treatment and Educational Background
In April 1993, when Jeffrey was three years old, he was referred to the Highbridge Advisory Council Child Care Center ("Highbridge") because of negative behavior — including aggression, tantrums, and destruction of property — as well as suspected speech and language delays as reported by his mother. (Tr. 86, 111). At Highbridge, Jeffrey attended speech and language classes and received counseling until 1994, when he aged out of the program. (Tr. 128). It was also recommended that he receive occupational therapy, but it does not appear from the record that he did so while at Highbridge. (Tr. 128).
In the fall of 1994, Jeffrey was apparently evaluated by the Committee on Special Education and placed in a Modified Instruction Services IV ("MIS IV") class at P.S. 226, although the record does not contain any school records for the period after Jeffrey left Highbridge. (Tr. 254; Pl. Memo. at A-17). There he began occupational therapy and continued to receive speech and language therapy. (Tr. 254). He was taught by the same teacher, Ms. Hunter, throughout his three years at P.S. 226. (Pl. Memo. at A-2, A-19). After he became too old to attend the MIS IV program in 1997, Jeffrey was enrolled in the special education program at P.S. 306. (Tr. 305; Pl. Memo. at A-19). The record does not indicate what services he received there. Starting in August 1995, Jeffrey received weekly therapy at the Bronx Center for Community Services at the Grand Concourse Clinic of the Bronx Lebanon Hospital (the "clinic"), which is affiliated with the hospital's Psychiatric Department. (Tr. 197, 262, 265). There, he was diagnosed with Attention Deficit Hyperactivity Disorder, Conduct Disorder, and Primary Enuresis. (Tr. 196, 198, 200). From 1995 until at least July 1996, his primary therapist was Eileen McElroy. (Tr. 230, 264). There are no records from the clinic past July 1996 other than two questionnaires completed by David Glass, a certified social worker, dated April 1997 and July 1997, which indicate that Jeffrey continued to participate in therapy at the clinic but was meeting with Mr. Glass not Ms. McElroy. (Tr. 282-88, 292-97). Jeffrey also saw a psychiatrist at the clinic, Dr. Diana Fischer. (Tr. 204-05). From 1995 through at least 1997, Dr. Fischer prescribed Ritalin and Tenex to calm his behavior. (Tr. 195). The medication had varying effects, possibly caused by his failure to take the drugs regularly. (Tr. 285, 293). It appears from the record that Jeffrey's attendance at therapy was marred by frequent absences, which was in keeping with his mother's failure to medicate him consistently and appropriately. (Tr. 204-05, 230-31, 236-37, 242, 248-49, 251, 255-56, 285).
It does not appear that Jeffrey received any counseling from 1994, when he left Highbridge, until he was admitted into the program at the clinic.
C. Cognition and Communication
When Jeffrey was three years and eight months old (3.8 years) Dr. Rebecca Williams, Jeffrey's psychologist at Highbridge, gave him the Kaufman Assessment Battery for Children (K-ABC), a test designed to measure cognitive functioning. (Tr. 93-99). He was found to be average on the sequential processing scale, borderline on the simultaneous processing scale, low average on the mental processing composite (MPC), and low average in achievement. (Tr. 94). Overall, Jeffrey's intellectual functioning was in the low average range. (Tr. 86, 94). Dr. Williams' recommendations included placing Jeffrey in an early intervention program focusing on the development and improvement of his cognitive skills. (Tr. 98). Almost a year later she still found Jeffrey to have cognitive deficits requiring attention. (Tr. 118). Jeffrey's teacher at Highbridge, Luz Quinones, also noted that although he was able to understand what was said to him, he was unable to retain new information. (Tr. 99, 101). In summing up Jeffrey's performance over the 1993-1994 school year, Ms. Quinones again remarked that he had difficulty retaining new information. (Tr. 161).
This "measures the child's ability to solve problems by arranging stimuli into sequential or serial order." (Tr. 95).
This "measures the child's ability to solve problems by processing many stimuli at once rather than by stimulus-by-stimulus." (Tr. 95).
The MPC is equivalent to IQ level. Jeffrey received a MPC score of 85 +/- 8. (Tr. 94).
This assesses the child's "factual knowledge and skills usually acquired in a school setting or through alertness to the environment. (Tr. 95).
When Jeffrey was four and a half years old, an occupational therapist at Highbridge, Irma Pereira, evaluated his functioning. (Tr. 119-22). According to the Miller Assessment for Preschoolers which she administered, he had deficits in the foundation, complex task, and non-verbal indices. (Tr. 121). Ms. Pereira also reported that Jeffrey was deficient in sequencing and memory skills required for complex tasks. (Tr. 121).
When Jeffrey was admitted to the clinic at Bronx Lebanon Hospital when he was six years old, Dr. Diana Fischer, a psychiatrist, completed a mental assessment and found him to be of average intelligence. (Tr. 209). Nevertheless, over the course of Jeffrey's therapy with Ms. McElroy at the clinic, she documented several occasions when he did not understand what was being said to him and needed statements repeated. (Tr. 255, 258, 263).
In April 1997, when Jeffrey was 7.9 years old, his new therapist at the clinic, David Glass, reported that Jeffrey's cognitive skills were equivalent to that of a six-year-old; however, three months later, he found that Jeffrey's cognitive skills were age appropriate. (Tr. 286, 293).
With regard to Jeffrey's communication skills, in March 1993, Jean Jones, a speech pathologist at Highbridge, found severe receptive and moderate expressive language delays. (Tr. 114-15). She noted that Jeffrey's communication problems were "related to a significantly depressed vocabulary development, deficits in auditory processing and delays in the acquisition of age level concepts." (Tr. 114). He tested substantially below his age level in both receptive and expressive language. His phonological development, the ability to articulate, "appeared mildly below age level." (Tr. 113).
Jeffrey was 3.8 years old when he was evaluated. The results are as follows: the Receptive One-Word Picture Vocabulary Test ("ROWPVT"), 1.9-year-old level; the Expressive One-Word Picture Vocabulary Test ("EOWPVT"), 2.2-year-old level; the Pre-school Language Scale (PLS) Auditory Comprehension, 2.3-year-old level; and PLS Verbal Abilities, 2.10-year-old level. (Tr. 113).
Evaluating Jeffrey in the same month, Dr. Williams found his speech to be "clear with some immature articulation." (Tr. 94). She, too, noted Jeffrey's receptive delays: difficulty understanding test instructions and "frequently giving the same wrong response after learning the correct one." (Tr. 94).
Dr. Williams also assessed Jeffrey using the Vineland Adaptive Behavior Scales based on information provided by Mrs. McClain. Using this scale, Dr. Williams found his communication skills to be adequate. (Tr. 96). However, she also noted that Mrs. McClain's significant exaggeration of Jeffrey's communication skills resulted in inconsistent findings as compared to Jeffrey's performance on the other tests. (Tr. 96).
Ms. Jones evaluated Jeffrey again in January 1994. She found improvements of at least six months in all areas after therapy over the ten month period, but still reported him to be at a "severe level below age level expectancy." (Tr. 110). His phonological development still appeared mildly delayed, but "[c]ontinued refinement and/or mastery of speech sounds at age level expectancy [was] evidenced frequently and consistently, resulting in improved speech intelligibility." (Tr. 109).
Jeffrey was 4.4 years old when he was evaluated. He scored at the 2.9-year-old level on the ROWPVT, the 2.10-year-old level on the EOWPVT, the 2.9-year-old level on the PLS Auditory Comprehension scale, and the 3.4-year-old level on the PLS Verbal Communication scale. These results reflect improvements of one year, eight months, six months, and six months, respectively, over an eight-month period.
When Jeffrey was evaluated by Elizabeth Lobaina, a Bilingual Speech-Language Pathologist, in October 1994, she found his receptive communication to be "mildly" to "moderately depressed" and his expressive communication to be "moderately depressed." (Tr. 165). His speech was "clear and intelligible," but he had "severe delays" in vocabulary and the ability to name objects and label their functions. (Tr. 164-165). She concluded that he would benefit from continued speech and language therapy. (Tr. 165).
Specifically, Jeffrey, at 5.3 years old, scored at the 3.5-year-old level on the ROWPVT. (Tr. 163). Ms. Lobaina also assessed Jeffrey using the PLS, however, she did not label Jeffrey's skills with an exact age-equivalency. Instead, she stated that in the Auditory Section of the PLS, Jeffrey had "some difficulty" with the tasks in the 3.6 to 3.11-year-old level, and increasing difficulty in the other age groups, being only able to perform a "few items within the 4.6-4.11 year old level." (Tr. 163). In the Expressive Communication section of the PLS, Jeffrey had difficulty with the items in the 4.0 to 4.5-year-old level and the 4.6 to 4.11-year-old level and "was unable to perform items within the 5.0 to 5.11 year old level." (Tr. 164).
After 1994, all standardized tests measuring cognition and communication were apparently administered by the Committee of Special Education whose records were not obtained by the Commissioner, and, consequently, are not a part of the record in this case. (Tr. 294).
Nine months later, Dr. Fischer described both Jeffrey's language and speech skills as normal. (Tr. 208). However, Jeffrey was still receiving speech therapy in February 1996, according to Mrs. McClain's testimony at the administrative hearing. (Tr. 30).
In April 1997, when Jeffrey was seven years old, Mr. Glass, Jeffrey's social worker at the clinic, reported that Jeffrey's communication skills were at the five-year-old level. (Tr. 283, 286). Three months later, he described Jeffrey's communication skills as age appropriate. (Tr. 293, 297). He found Jeffrey's "speech rapid, thought logical and coherent, and perception clear." Also in July 1997, Dr. Sang Il Choi, Jeffrey's treating physician, concluded that Jeffrey's speaking and hearing mechanisms were not impaired. (Tr. 290-91).
1. Motor Development
When Jeffrey was 3.8 years old, Dr. Williams found that his motor skills, though lagging by five months, were nevertheless adequate. (Tr. 96). His gross motor skills (ability to run, jump, and climb) were better developed than his fine motor skills (for example, he was unable to reproduce any recognizable forms with a pencil). (Tr. 96).
One year later, Ms. Pereira performed a full occupational therapy evaluation. She found his gross motor skills to be "good," but reported deficits in his visual-motor/perceptual abilities. (Tr. 121). She also stated that he "lacks the ability to use precise coordinated movements," "often giv[ing] the appearance of being clumsy and awkward . . . [by] frequently falling or bumping into objects." (Tr. 121). She recommended occupational therapy twice a week for thirty minutes. (Tr. 122).
Jeffrey's 1994 Individualized Education Program (IEP) echoes Ms. Pereira's recommendation, stating that "this student . . . needs occupational therapy to address fine motor deficits." (Tr. 128). After Jeffrey enrolled in P.S. 226, he continued to receive occupational therapy. (Tr. 30, 254). Mrs. McClain also testified to Jeffrey's lack of coordination. (Tr. 34).
By 1997, both Dr. Choi and Mr. Glass reported that Jeffrey's motor skills bore no sign of impairment. (Tr. 285, 289-90, 293).
2. Social Development
In 1993, Ms. Quinones determined Jeffrey's behavior to be hyperactive, nervous, uncontrollable, impulsive, disruptive, and disorganized. (Tr. 100). Although she also found him cooperative and compliant and observed that other children liked him, she concluded that he had socialization delays that needed attention. (Tr. 103). The following year, Dr. Williams indicated that Jeffrey still needed to improve his social interactions with his peers due to his passivity and lack of self-confidence, but also stated that he did not exhibit any behavioral problems in the therapeutic setting and interacted amiably with his groupmates. (Tr. 117). This contrasts slightly with Ms. Quinones' May 1994 report which described Jeffrey as manifesting more aggressive behavior towards his classmates. She noted that Jeffrey got along well with peers but that he occasionally had difficulty sharing and would snatch things from other children or hit people who had something he wanted. (Tr. 160).
In June of 1994, Jeffrey's mother admitted that Jeffrey did not get along well with his siblings or other children and continued to act out. (Tr. 84-85). One year later, Jeffrey's mother reported that he was still hyperactive, did not sleep well due to anxiety, and broke things when he was sent to his room.
In July 1995, Dr. Fischer characterized Jeffrey's behavior and ability to relate as abnormal due to his hyperactivity and anxiety. (Tr. 208). Dr. Fischer described Jeffrey's judgment, insight, ability to plan, and tolerance for frustration as poor although within normal limits. (Tr. 208-09). He diagnosed Jeffrey as having Conduct Disorder (moderate), Primary Enuresis, as well as Attention Deficit and Hyperactivity Disorder (hyperactive-impulsive type). (Tr. 196-200).
Jeffrey's mother told Dr. Fischer sometime in 1995 that he had tried to hurt other children with a knife (Tr. 210), had a history of cruelty to animals, and had started a fire in a building. (Tr. 206-07). Jeffrey was prescribed Ritalin for his behavioral problems in October 1995. (Tr. 195). During the same month, Jeffrey's teacher at P.S. 226, where he had started just that fall, wrote three notes home to Mrs. McClain complaining of Jeffrey's inappropriate and violent behavior towards other children. (Tr. 174-75, 177). Jeffrey's prescription was later changed to Tenex because he was not responding to the Ritalin. (Tr. 205). Ms. Hunter again wrote home on two occasions in February 1996, stating that Jeffrey's behavior was "totally unacceptable." (Tr. 176, 178). During this same period, Jeffrey was not taking any medication. (Tr. 204).
Jeffrey's therapist at the clinic, Ms. McElroy, described his behavior throughout 1995-1996 as defiant, hyperactive, impatient, increasingly aggressive, childish, needy, and demanding (Tr. 236, 242, 243, 244, 246, 248, 252, 254), although he occasionaly showed signs of progress. (Tr. 233, 251). In her quarterly Treatment Plan Review prepared in March 1996, Ms. McElroy wrote that there was limited progress in Jeffrey's ability to control impulses, follow rules, and be less aggressive towards others. (Tr. 196). Several days later, in a report she submitted to Social Security Administration in connection with Jeffrey's disability claim, she stated that he was:
aggressive towards peers, teachers, and mother. He has difficulty sleeping and holding urine due to anxiety. He is hyperactive (unable to be still, pay attention, follow directions, etc.) and impulsive (talks/moves out of turn, etc.) He throws temper tantrums, has difficulty following directions. He has little respect for authority and is generally difficult to deal with. The child appears to be quite emotionally deprived and has difficulty developing positive attachments to others.
(Tr. 184). Ms. Hunter echoed these comments in the Connor's Rating Scale that she filled out for the clinic. Despite his academic gains in math and reading, she found Jeffrey to be a "[v]ery needy child whose emotional needs are not being met." She described him as being very distractible, restless, uncooperative, excitable, and impulsive. (Tr. 212-13). According to Ms. Hunter, Jeffrey also frequently disturbed other children, made excessive demands for the teacher's attention, lacked any sense of fair play, and failed to finish things he started. (Tr. 212-13).
Again, in January 1997, Jeffrey began to act out in school, resulting in his suspension for carrying a sharp-edged, plastic knife. (Tr. 271-73). A couple of months later Ms. Hunter sent another note home about Jeffrey's misbehavior. (Tr. 274).
In 1997, Mr. Glass, Jeffrey's therapist at the clinic, reported that Jeffrey had made "significant progress" in school but that he continued to have difficulty following instructions, disrupted the class, fought with peers, disobeyed his mother, ran away from home, and required tight limit-setting. (Tr. 282-83). He also found that Jeffrey's social and emotional skills were commensurate with those of a five-year-old when Jeffrey was 7.9 years old. (Tr. 286). In another report completed three months later, Mr. Glass reiterated that Jeffrey had made some "slight improvement in behavioral control and academic achievement." (Tr. 293). However, he also reported that Jeffrey continued to be hyperactive, prone to tantrums, disruptive at school and at home, disobedient, and physically aggressive when his mother tried to set limits. (Tr. 292). According to Mr. Glass, Jeffrey's emotional and social skills improved to the six-year-old level but continued to be delayed by almost two years. (Tr. 294). Mr. Glass also found that Jeffrey continued to "show poor impulse control, poor judgment, impaired frustration tolerance, inability to delay gratification, manipulative behavior." (Tr. 295). His attention and concentration skills were also poor due to hyperactivity and a short attention span. (Tr. 296).
Finally, Ms. Hunter wrote a note home in April 1998, stating that Jeffrey's behavior had gotten worse and that he had been fighting with other students all day. (Tr. 306). The following month, Jeffrey was suspended for physically aggressive behavior. (Tr. 305).
4. Concentration, Persistence, and Pace
In March 1993, when Jeffrey was three years old, Dr. Williams found that he "became restless and fidgety and, seemingly quite anxious" over the course of an evaluation. (Tr. 94). Ms. Jones, a speech pathologist at Highbridge, characterized his testing behavior as follows:
Attentive behaviors to the tasks presented appeared significantly influenced by a short attention span secondary to hyperactivity and distractibility.
Effort and persistence appeared extremely limited. Verbal prompts appeared somewhat effective in motivating him to perform.
(Tr. 112). In November 1993, Ms. Quinones remarked that Jeffrey needed "adult supervision in order to stay with [a] chosen activity;" he was "unable to retain new information and ha[d] difficulty remaining seated compared to other children." (Tr. 99, 102,). She reiterated these comments in May 1994, stating that he was "unable to remain seated for long period of time . . . always rushing, work is poor and messy." (Tr. 160-61). In October 1994, Ms. Lobaina found Jeffrey cooperative during the speech/language evaluation she administered, but noted that he "need[ed] ongoing assistance and reinforcement in order to insure his continued participation in all tasks." (Tr. 165).
In July 1995, Dr. Fischer described Jeffrey as very hyperactive and anxious, with a poor ability to plan and poor tolerance for frustration. (Tr. 208-09). She listed the following symptoms: poor concentration, poor temper control, inability to sit still, easily distracted, inability to sustain attention, tendency to shift from one activity to another, and difficulty playing quietly. (Tr. 207). Similarly, Ms. McElroy consistently found that Jeffrey cheated during their sessions when he became frustrated with games they were playing. (Tr. 230, 236, 240, 242, 249, 252). In December 1995, she designed long-term goals for Jeffrey that included controlling impulses, following rules, and remaining attentive in school. (Tr. 198). In March 1996, she reported that progress was limited and that Jeffrey had not improved with regard to remaining attentive in school. (Tr. 196). This is confirmed by Jeffrey's teacher, Ms. Hunter, who described him as distractible, inattentive, restless, excitable, impulsive, and easily frustrated in his efforts. (Tr. 211-12).
In reports dated April and July 1997, Mr. Glass concluded that Jeffrey "has difficulty following instructions in school, . . . is disruptive in class, and requires close supervision and tight limit-setting," and that his attention and concentration remained "poor" due to "hyperactivity [and a] short attention span." (Tr. 283, 296).
C. The ALJ's Determination
On April 22, 1998, the ALJ issued a decision denying Jeffrey's application for disability benefits. He found that Jeffrey had (1) less than marked limitations in cognitive functioning based on the reports from Mr. Glass and the questionnaire filled out by Ms. Hunter in 1996; (2) less than marked limitations in communicative functioning based on the reports from Ms. Lobaina, Dr. Choi, and Mr. Glass; (3) slight limitations in motor functioning based on Jeffrey's 1994 IEP and the reports from Dr. Choi and Mr. Glass; (4) less than marked limitations in social functioning based on the 1994 IEP, Ms. McElroy's records from her therapy sessions with Jeffrey and his mother, the questionnaire filled out by Ms. Hunter in 1996, and the reports from Mr. Glass; (5) no limitations in personal functioning based on the 1994 IEP; and (6) less than marked limitations in the area of concentration, persistence, and pace based on the reports from Mr. Glass.
Discussion
A. Standard of Review
The scope of review of an SSI disability determination involves two levels of inquiry. First, the court reviews the Commissioner's decision to determine whether the Commissioner applied the correct legal standard, and then the court must decide whether the ALJ's decision was supported by substantial evidence. See 42 U.S.C. § 405(g) (providing that "[t]he findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive"); Carballo ex rel. Cortes v. Apfel, 34 F. Supp.2d 208, 214 (S.D.N.Y. 1999); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (describing standard of review for adult disability benefits cases also governed by 42 U.S.C. § 405 (g)); Lugo v. Chater, 932 F. Supp. 497, 500 (S.D.N.Y. 1996) (same).
Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938)); see also Rosa, 168 F.3d at 77; Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). "[T]o determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence[.]" Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quotation and citation omitted).
B. Determining Childhood Disability
To qualify for childhood disability benefits, the child must "[have] 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). In order to determine whether a claimant is disabled, the ALJ follows a three-step process outlined in regulations promulgated under the Social Security Act. See 20 C.F.R. § 416.924 (2000). First, the ALJ determines if the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 416.924(b) (2000). If he is not, the ALJ must decide if the claimant has a severe impairment, which is more than a "slight abnormality or a combination of slight abnormalities" and must cause more than "minimal functional limitations." 20 C.F.R. § 416.924(c) (2000). If the claimant has a severe impairment, the ALJ must then determine whether it "meet[s], medically equal[s], or functionally equal[s] in severity" an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (the "Listing of Impairments" or "Listing"). 20 C.F.R. § 416.924(d) (2000).
Over a year after the plaintiff requested a hearing by an ALJ, but before the ALJ issued a decision, Congress enacted legislation tightening the standards for determining childhood disability. See H.R. Conf. Rep. No. 104-725, at 261 (1996), reprinted in 1996 U.S.C.C.A.N. 2649 ("[The new legislation] reforms the . . . [SSI] disability program to strengthen eligibility requirements and eliminat[es] incentives for coaching children to misbehave so they can qualify for benefits."). The Commissioner promulgated stricter, interim regulations, which became effective April 14, 1997, implementing the new legislation. Because this case was pending after the enactment of the legislation, the ALJ applied the new statutory and regulatory standards. See Pub.L. 104-193, § 211(d)(1)(A)(ii).
Subsequently, in response to public comments, the Commissioner replaced the interim regulations with final rules that became effective January 2, 2001. Supplemental Security Income; Determining Disability for a Child Under Age 18, 65 Fed. Reg. 54,746, 54,746 (Sept. 11, 2000) (codified at 20 C.F.R. pts. 404, 416). Despite the new regulations, the Commissioner "expect[s] that the court's review of the Commissioner's final decision would be made in accordance with the rules in effect at the time of the final decision." Id. at 54,751. Thus, the interim rules are applied in reviewing this case as they were in effect at the time of the Commissioner's final decision on February 1, 1999.
For an impairment to "meet" a listed impairment, the ALJ must find that the claimant not only is diagnosed with a listed impairment, but also manifests the symptoms detailed in the Listing for that impairment. 20 C.F.R. § 416.925(d) (2000); see also 20 C.F.R. § 416.924(d)(3) (2000). If the claimant does not present all of the symptoms or findings listed for an impairment or if the claimant's impairment is not described in the Listing of Impairments, the impairment may be found medically equivalent to a listed impairment if there are "other medical findings related to [the claimant's] impairment that are . . . of equal medical significance." 20 C.F.R. § 416.926(a)(1)(ii) (2000); see also 20 C.F.R. § 416.924(d)(3) (2000). Finally, if the impairment does not meet the requirements of or is not medically equal to a listed impairment, the child may be found disabled if his impairment is functionally equal to a listed impairment. 20 C.F.R. § 416.926a (2000). Functional equivalence may be established using one of four methods: limitation of specific functions; broad areas of development or functioning; episodic impairments; and limitations related to treatment or medication effects. Id.; see also 20 C.F.R. § 416.924(d)(3) (2000).
Under the first method, limitation of specific functions, the claimant is disabled if he demonstrates an "extreme limitation of one specific function, such as walking or talking." 20 C.F.R. § 416.926a(b)(1) (2000). The regulations define extreme limitation as "no meaningful functioning in a given area." 20 C.F.R. § 416.926a(c)(3)(ii)(C) (2000).
The second method, broad areas of development or functioning, requires a more expansive examination than the more specific inquiry described above. 20 C.F.R. § 416.926a(b)(2) (2000). Pursuant to this method, the claimant is evaluated in the areas of cognition and communication; motor skills; social progress; personal development; and concentration, persistence, and pace. 20 C.F.R. § 416.926a(c)(4) (2000). "If [the child] ha[s] marked limitations in two areas of development . . . or extreme limitation in one area, . . . [the child's] impairment is functionally equivalent in severity" to a listed impairment. 20 C.F.R. § 416.926a(c) (2000). The regulations define marked limitation as that which seriously interferes with the child's functioning, in other words "more than moderate and less than extreme." 20 C.F.R. § 416.926a(c)(3)(i) (2000) (internal quotation omitted).
The third method, episodic impairments, applies to children suffering from chronic impairments that are "characterized by frequent illnesses or attacks[.]" 20 C.F.R. § 416.926a(b)(3) (2000). The fourth and final method, involves limitations related to the effects of treatment and medication. 20 C.F.R. § 416.926a(b)(4) (2000).
C. Duty to Develop the Record
The plaintiff contends that the ALJ abdicated his duty to properly develop the administrative record by conducting two cursory hearings and failing to obtain more up-to-date school records. (Pl. Memo. at 22-23). It is well established that "`the ALJ, unlike a judge in a trial, must . . . affirmatively develop the record' in light of `the essentially non-adversarial nature of a benefits proceeding.'" Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Echevarria v. Secretary of Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982)); see also Shaw v. Chater, 221 F.3d 126 (2d Cir. 2000); Rivera v. Apfel, 99 F. Supp. 2 d 358 (S.D.N.Y. 2000). Moreover, "the ALJ is under a heightened duty to `scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts'" when the claimant is unrepresented by counsel at the administrative hearing, as was the case here. Carballo, 34 F. Supp.2d at 214 (emphasis added) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990); accord Echevarria, 685 F.2d at 755; Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980).
In this case, the ALJ did not adequately develop the record. The transcript of the testimony from the first hearing takes up all of seven pages. The ALJ posed to Mrs. McClain several vague questions about Jeffrey's status but never conducted a detailed inquiry that might have yielded useful, precise information about Jeffrey and his symptoms. The ALJ did not ask about any specific manifestations of Jeffrey's problems, such as his ability to maintain his concentration and complete activities like reading or playing — functions that should have been evaluated in making the disability determination for Jeffrey. Furthermore, a medical expert, who was provided by the government to help the ALJ make his decision, was present during the hearing but was never called upon by the ALJ to testify.
The second hearing, held on July 2, 1997, was equally perfunctory. Mrs. McClain and Jeffrey were both present as well as a Spanish translator, who was there presumably because of Mrs. McClain's difficulty in understanding the first proceeding. (Tr. 37). The ALJ never asked Jeffrey any questions and again only posed preliminary questions to Mrs. McClain who testified primarily about Jeffrey's general misbehavior, the names of his treating doctors and therapists, and the barest of facts concerning his medications. (Tr. 39-47). The transcript of this hearing is a mere nine pages. (Tr. 39-48). During the hearing, the ALJ stated that he would obtain Jeffrey's psychological records, and at the end he assured Mrs. McClain that she did not need to submit any further documentation. (Tr. 44, 47-48). Not only did the ALJ fail to obtain Jeffrey's more recent psychological records as he indicated he would, he never obtained any school records for the period after 1994. He received only Jeffrey's pre-school records from Highbridge for the 1993-1994 school year, even though Jeffrey enrolled in the special education program at P.S. 226 beginning in 1994. (Pl. Memo. at A-17, Tr. 254).
Prior to the second hearing, the ALJ had received Jeffrey's psychological records from the clinic for July 7, 1995-July 25, 1996, and a questionnaire completed by Mr. Glass dated April 1997. The ALJ later received another questionnaire from Mr. Glass dated July 1997.
In support of his position that the ALJ did obtain the necessary school records, the defendant cites to the documents from Highbridge, the speech evaluation performed on October 12, 1994, and a questionnaire sent by the clinic on March 23, 1996, to Jeffrey's special education teacher at P.S. 226. (Defendant's Memorandum of Law in Further Support of his Motion for Judgment on the Pleadings and in Response to Plaintiff's Cross-Motion for Judgment on the Pleadings ("Def. Further Memo.") at 3). The first two items clearly do not represent updated records, and the third document, which is a two-page questionnaire designed to elicit information about a child's classroom behavior, is certainly not an adequate substitute for school records covering three years. (Tr. 211-13). This is particularly the case with regard to special education records. Schools are required to prepare IEPs detailing the educational and developmental needs for every student placed in special education. 20 U.S.C. § 1414. At least once a year, each child's progress must be evaluated and the IEP revised to reflect those changes. 34 C.F.R. § 300.343.
Finally, in reaching his decision, the ALJ relied heavily on the records from Highbridge documenting Jeffrey's development up until the age of four, but did not issue his opinion until Jeffrey was almost eight years old, making the information from Highbridge of little relevance to his then current condition. (Tr. 18-20). In addition, the ALJ relies almost exclusively on the two questionnaires completed by Mr. Glass in support of his finding that Jeffrey's cognitive functioning was not markedly impaired, even though Mr. Glass indicated on the questionnaire that he did not have any information about Jeffrey's results on the standardized tests measuring such functioning because Jeffrey's school, not the clinic, administered those tests. (Tr. 294).
Notwithstanding the number of documents accumulated, the record is inadequate. The ALJ conducted perfunctory hearings, failed to obtain any school records after 1994 (which clearly existed), and relied on forms with scant information or on outdated educational reports. Thus, the ALJ did not fulfill his duty to develop the record.
D. Marked Limitations
The plaintiff claims that there is nevertheless substantial evidence in the record demonstrating that Jeffrey suffers from at least two marked impairments and therefore satisfies the functional equivalence standard based on a developmental analysis. As discussed previously, a child will be found disabled using this method if he has two marked limitations in the areas of cognition and communication, motor skills, social development, personal development, and concentration, persistence, and pace. 20 C.F.R. § 416.926a(c)(4) (2000). Specifically, the plaintiff argues that Jeffrey has marked impairments in the areas of concentration, persistence, and pace; social development; and communication, and and that the ALJ's finding to the contrary is not supported by substantial evidence.
1. Concentration, Persistence, and Pace
Concentration, persistence, and pace refer to the claimant's "ability or inability to attend to, and sustain concentration on, an activity or task, such as playing, reading, or practicing a sport, and the ability to perform the activity or complete the task at a reasonable pace." 20 C.F.R. § 416.926a(c)(4)(vi) (2000). The plaintiff contends that although Jeffrey has improved in this area, he remains markedly impaired. (Pl. Memo. at 24). While there is evidence in the record supporting the conclusion that Jeffrey's condition improved, the ALJ's finding is not supported by substantial evidence due to the ALJ's failure to account for the many reports of Jeffrey's continued inattention and hyperactivity.
Even though the ALJ is not required to reconcile all of the inconsistent evidence in the record, the failure to account for, or even acknowledge, relevant evidence is "plain error." Pagan ex rel. Pagan v. Chater, 923 F. Supp. 547, 556 (S.D.N.Y. 1996) (citing Smith v. Bowen, 687 F. Supp. 902, 904 (S.D.N.Y. 1988)); see generally Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984); Fiorello v. Heckler, 725 F.2d 174, 175-76 (2d Cir. 1983). The professionals who treated, evaluated, or taught Jeffrey consistently found him hyperactive, anxious, and unable to complete tasks without constant supervision and redirection. The ALJ, however, overlooked these findings and simply relied on a statement by Mr. Glass that Jeffrey had made significant progress in school and that Jeffrey was better able to focus. (Tr. 20).
Furthermore, Mr. Glass' statement alone does not mean that Jeffrey's performance in this area is less than marked; the fact that Jeffrey made significant progress has no relation to whether he has a marked limitation in this area unless it is tied to an objective description of his current status. Indeed, in the same report that the ALJ cites, Mr. Glass continued to describe Jeffrey's attention and concentration level as poor. (Tr. 296).
The ALJ also based his decision on his own conclusion that Jeffrey had enough concentration, persistence, and pace to stay in school despite his symptoms. (Tr. 20). Neither the medical reports, psychological reports, the relevant statute, or its accompanying regulations substantiate such an assertion. While the inability to attend school may be dispositive of a child's impairment in this area, mere attendance at school, even coupled wih progress, does not establish a child's capacity to "sustain concentration on an activity . . . such as playing, reading, or practicing a sport . . . at a reasonable pace." 20 C.F.R. § 416.926a(c)(4)(vi) (2000); see, e.g., Caraballo, 34 F. Supp.2d at 220-21.
Finally, the defendant argues that the updated school records, which are not a part of the administrative record, demonstrate that Jeffrey did not have a marked limitation in this area. This is a mischaracterization of the new records. The defendant cites to a report documenting the findings of J. Stutman, a school psychologist, made while observing Jeffrey's class on one occasion for a half-hour period, but passes over the sizeable evidence in the new records from Jeffrey's teacher and another psychologist that Jeffrey continued to have substantial difficulties concentrating. On February 14, 1997, Mr. Stutman saw Jeffrey participating in the lesson and found him on-task ninety percent of the time. (Def. Further Memo. at 7; Pl. Memo. at A-34). By contrast, Barbara Orsini, a psychologist affiliated with the Special Education Division of the Board of Education, reported in March 1997 that Jeffrey has "low frustration tolerance, difficulty postponing gratification, impulsive, poor controls; immature coping skills, cooperation variable — resents demands, . . . difficulty following directions when task not appealing . . . [he] can accept limit setting but needs frequent reminders." (Pl. Memo. at A-4). Dr. Orsini learned from Jeffrey's teacher, Ms. Hunter, that he "has difficulty staying still and focusing on tasks, he does not listen or follow directions, and he can be disruptive." (Pl. Memo. at A-19). The new evidence thus does not support the ALJ's finding; on the contrary, it indicates that Jeffrey may have continued to have a marked limitation in the area of concentration, persistence, and pace despite his progress in this area.
The defendant mistakenly cites to page A-4 of the plaintiff's brief instead of A-34.
2. Social Development
The ALJ's finding of a less than marked impairment flies in the face of significant evidence in the record, and he neither controverts nor addresses ample documentation of Jeffrey's ongoing behavioral problems. A marked impairment in the area of social development is characterized by the inability:
to form and maintain relationships with . . . [for example,] parents, siblings, neighborhood children, classmates, [and] teachers. . . . It involves [the lack of] cooperative behaviors, consideration for others, awareness of others' feelings, and social maturity appropriate to a child's age. [Inability] is also manifested in . . . inappropriate externalized actions (e.g., running away, physical aggression . . .), . . . inappropriate internalized actions (e.g., social isolation, avoidance of interpersonal activities, mutism) . . . [I]n play, school, and work situations[, inability to function socially] may involve . . . responding [in]appropriately to persons in authority (e.g. teachers, coaches, employers) or [un]cooperative behaviors involving other children.20 C.F.R. § 416.926a(c)(4)(iii) (2000). Other than inappropriate internalized actions, Jeffrey has repeatedly demonstrated all of the behavior listed above. Over the course of the four years this case was pending before the Commissioner, Jeffrey's symptoms may have changed slightly both in degree and quality, but this variability does not detract from the well-documented and substantial history of Jeffrey's stunted social development.
It is well established that "[a]n ALJ may not `selectively choose' evidence in record that supports his conclusions. Castillo v. Apfel, 98 Civ. 0792, 1999 WL 147748, at *8 (S.D.N.Y. March 18, 1999) (quoting Gecevic v. Secretary of Health and Human Services, 882 F. Supp. 278, 286 (E.D.N.Y. 1995); see also Fiorello, 725 F.2d at 176. Indeed, the ALJ must address all relevant evidence even if it does not support his conclusion. See Ferraris, 728 F.2d at 587; Fiorello, 725 F.2d at 176; Pagan, 923 F. Supp. at 556.
In this case, the ALJ overlooked the multiple reports of Jeffrey's physical aggression towards his peers and his continued delays in social and emotional growth, and instead selectively focused on statements in the record that supported his conclusion that Jeffrey's misbehavior stemmed from his relationship with his mother and was primarily directed towards her. (Tr. 19). Courts have repeatedly condemned this type of distortion of the record. See Pagan, 923 F. Supp. at 556; see also Ferraris, 728 F.2d at 587; Fiorello, 725 F.2d at 176.
The defendant's arguments in support of the ALJ's decision are equally unavailing. The Commissioner dismisses Jeffrey's behavioral problems because Dr. Williams and Ms. Quinones both found that he generally related well to his peers. (Defendant's Memorandum of Law in Support of His Motion for Judgment on the Pleadings ("Def. Memo.") at 21-22; Def. Further Memo. at 9-10; Tr. 117, 161). This summary overlooks Jeffrey's identified difficulty with social interactions which were marked on the one hand by passivity and a lack of self-confidence as reported by Dr. Williams, and on the other by aggressive behavior as reported by Ms. Quinones.
Dr. Williams' and Ms. Quinones' descriptions of Jeffrey cannot be reconciled with each other or with additional later reports concerning Jeffrey's behavior. In addition, Ms. Quinones report does not seem internally consistent. In 1993, Ms. Quinones described Jeffrey's behavior as uncontrollable, impulsive, and disruptive and yet she also described him as cooperative and compliant. (Tr. 100). Dr. Williams' report does not reflect the existence of negative behavior. (Tr. 117). Finally, later descriptions of Jeffrey are more in keeping with Ms. Quinones' findings of impulsivity and uncontrollability. The ALJ did not probe into any of these discrepancies.
Even if this evidence did not demonstrate a marked impairment in the area of social development, it does not apply to the almost four years after Jeffrey had aged-out of the Highbridge program and was receiving therapy from the clinic and going to school at P.S. 226. For this period, the defendant cites to reports by Ms. McElroy, who diagnosed Jeffrey as having a moderate conduct disorder. (Def. Memo. at 22; Def. Further Memo. at 10-11; Tr. 184). The defendant argues that by virtue of being "moderate," Jeffrey's conduct disorder must have not markedly impaired his social functioning. (Def. Memo. at 22; Def. Further Memo. at 11). However, as the plaintiff points out, the terminology used in psychiatric diagnoses does not directly correlate to levels of severity used with reference to the areas of functioning. (Plaintiff's Reply Memorandum of Law ("Pl. Reply Memo.") at 2-3; see SSR 98-1p, 1998 WL 147011 (S.S.A.), at *7). A moderate conduct disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV") is perfectly compatible with a "marked impairment" as defined by the Social Security Act's regulations. Compare 20 C.F.R. § 416.926a(c)(4)(iii) (2000), and 20 C.F.R. § 416.926a(c)(3) (2000), with American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 87 (Fourth Edition 1994). Therefore, one must look to examples of the child's behavior in the record supporting the diagnosis to determine whether he has a marked impairment. As described above, Jeffrey has exhibited behavioral patterns that clearly fall within the definition of a marked impairment.
Social Security Ruling 98-1p states in part, that:
Terms such as "poor," "severe," "mild," or "marked" may be used in the evidence to describe a child's functioning. These terms have different meaning to different people. Therefore, when such terms are not illustrated or explained by the evidence, it may be necessary to contact the source for an explanation of their meaning.
In the DSM-IV, there are only three degrees of severity of conduct disorders: severe, moderate, and mild. Manifestations of a moderate conduct disorder include "stealing without confronting a victim" and "vandalism," while a severe conduct disorder may be characterized by "forced sex, physical cruelty, use of a weapon, stealing while confronting a victim, breaking and entering." Id.
The defendant also points to the two reports by Mr. Glass. In the first, dated April 1997, Mr. Glass found Jeffrey's social functioning to be at the five-year-old level, while in the second, issued three months later, Mr. Glass determined that Jeffrey had improved to such a degree that he was then functioning at the six-year-old level. (Def. Further Memo. at 10). Even if Jeffrey did make such remarkable progress, he still would have been functioning almost two years behind his chronological age. The defendant minimizes this lag, but two years is a significant delay for a child less than a month shy of his eighth birthday.
Finally, the reports of severe misbehavior that were submitted to the Appeals Council, which the defendant does not address, also controvert the Commissioner's contention that Jeffrey's social functioning was on the mend. (Tr. 305-06).
For these reasons, the ALJ's decision that Jeffrey's social functioning was not markedly limited is not supported by substantial evidence.
3. Cognition and Communication
Although capable of low average intellectual functioning, Jeffrey has severe learning disabilities that have hampered both his cognitive and communicative development as defined in the regulations. The ALJ's finding to the contrary is not supported by substantial evidence and suffers from inadequate supporting documentation due to the failure to develop the record.
The regulations define cognition and communication as:
The ability or inability to learn, understand, and solve problems through intuition, perception, verbal and nonverbal reasoning, and the application of acquired knowledge; the ability to retain and recall information, images, events, and procedures during the process of thinking. The ability or inability to comprehend and produce language (e.g., vocabulary and grammar) in order to communicate (e.g., to respond, as in answering questions, following directions, acknowledging the comments of others; to request, as in demanding action, meeting needs, seeking information, requesting clarification, initiating interaction; to comment, as in sharing information, expressing feelings and ideas, providing explanations, describing events, maintaining interaction, using hearing that is adequate for conversation, and using speech (articulation, voice, and fluency) that is intelligible.20 C.F.R. § 416.926a(c)(4)(i) (2000). The record is replete with examples of Jeffrey's inability to perform many of the behaviors listed above, despite his progress in some areas. The most recent evaluation by a speech pathologist found Jeffrey to have "severe delays" in some areas of communication as well as "moderate" delays in others. (Tr. 165). His test scores from this evaluation administered in 1994 when he was 5.3 years old reflect these deficits: Jeffrey tested at the 3.5-year-old level for receptive language skills; his auditory comprehension skills were on the 3.6 to 3.11-year-old level; and his expressive language abilities were in the range of a 4.0 to 4.5-year-old. (Tr. 163-64).
With regard to Jeffrey's cognitive functioning, the ALJ points to a July 1997 report by Mr. Glass that states that Jeffrey's cognitive skills are age-appropriate, "an improvement over Mr. Glass' previous April 26, 1997 report indicating a slight one-year delay." (Tr. 18). A more reliable analysis would involve the comparison of test scores and their accompanying explanations. Unfortunately, more recent scores are unavailable. After 1994, all standardized tests measuring cognition were apparently administered by the Committee on Special Education, whose records were not obtained by the ALJ and, consequently, are not a part of the record in this case. (Tr. 294).
The ALJ also relied on a remark made by Jeffrey's teacher in 1996 that he was "progressing nicely" in mathematics and reading as further evidence of his lack of a marked impairment. (Tr. 18). First, this comment was taken out of context from a questionnaire soliciting information about Jeffrey's behavior in class, not his cognitive or language abilities. Furthermore, the statement that Jeffrey had progressed academically cannot by itself justify a finding of a less than marked impairment without an objective description of his status.
In support of his finding that Jeffrey had less than marked limitations in communicative functioning, the ALJ again relied on Mr. Glass' July 1997 report, which states that Jeffrey's communication skills were age-appropriate. With this report, the ALJ dismissed any delays that Jeffrey might have had prior to 1997 and fails to even mention any of Jeffrey's test scores from 1994. Indeed, the ALJ neglected to mention that in Mr. Glass' April 1997 report, he found Jeffrey's communication skills at the five-year-old level. Furthermore, Mr. Glass' training as a social worker does not qualify him to make evaluations properly reserved for a speech pathologist.
Finally, the ALJ relied on a report from Dr. Choi, Jeffrey's treating physician, who found that the physical functions of speaking and hearing were not impaired. (Tr. 18, 290). As the plaintiff correctly points out, this evidence is irrelevant because it refers to Jeffrey's physical hearing and speaking mechanisms, not his expressive and receptive language abilities. (Pl. Memo. at 26).
The defendant's arguments in support of the ALJ's decision are similarly defective. The Commissioner cites to Dr. Williams' report dated March 1993, that found Jeffrey's receptive and expressive language skills to be only five months delayed. (Def. Further Memo. at 12). As noted previously, these results were discredited by Dr. Williams herself.
The defendant also argues that by labeling Jeffrey's delays "mild" and "moderate," Ms. Lobaina, the speech pathologist who evaluated Jeffrey in October 1994, foreclosed any finding of a marked impairment. (Def. Memo. at 19-20; Def. Further Memo. at 12). As stated above, reports of "mild" or "moderate" delays must be further analyzed to determine how they relate to specific functional deficits. See SSR 98-1p, 1998 WL 147011 at *7 (S.S.A.).
In addition, the Commissioner argues that even if Jeffrey did have a marked impairment, it did not last the requisite twelve-month period. (Def. Memo. at 20; Def. Further Memo. at 12). The defendant points to a July 15, 1995, report by Dr. Fischer finding Jeffrey's speech and language skills within normal limits. Id. This evidence comes from a Mental Status/Assessment Form completed by Dr. Fischer when Jeffrey applied for therapy at the clinic. It is unclear what Dr. Fischer relied on in making her assessment, as there is no supporting documentation or explanation. Dr. Fischer's finding may constitute a "mere scintilla," but it certainly does not amount to substantial evidence.
Finally, the Commissioner argues that because the plaintiff did not have a marked cognitive impairment, he could not have a marked limitation in the area of cognition and communication. (Def. Further Memo. at 11). The plaintiff concedes that Jeffrey's intelligence is within normal limits but correctly points out that marked impairments in the area of cognition and communication may exist where a child is of normal intelligence but suffers from severe learning disabilities. See Winnik v. Chater, No. 95 Civ. 0695, 1998 WL 151041 at *3-5 (S.D.N.Y. April 1, 1998); Carballo, 34 F. Supp.2d at 218; see also Quinones ex rel. Quinones v. Chater, 117 F.3d 29, 31-32, 36 (2d Cir. 1997) (child of normal intelligence may have marked impairments in the area of concentration, persistence, and pace).
E. Remand and Interim Benefits
Based on the lack of substantial evidence supporting the ALJ's decision, the case should be remanded for further administrative proceedings. See Rivera, 99 F. Supp.2d at 368. The Commissioner should ensure that the ALJ obtains all relevant documentation, including all available special education records, and evaluate the claim over the four-year period in which it had been pending before the Commissioner.
It should be noted that on remand the case will be adjudicated pursuant to the final regulations, which became effective January 2, 2001. See Supplemental Security Income; Determining Disability for a Child Under Age 18, 65 Fed. Reg. 54,746, 54746 (Sept. 11, 2000) (codified at 20 C.F.R. pts. 404, 416) ("In those cases decided by a court after the effective date of the rules, where the court reverses the Commissioner's final decision and remands the case for further administrative proceedings, on remand, [the Commissioner] will apply the provision of [the] final rules to the entire period at issue in the claim.")
The Commissioner argues that the Court may not order him to consider new evidence proffered by the plaintiff without the plaintiff showing good cause for failure to present the evidence earlier and demonstrating the evidence's materiality. (Def. Further Memo. at 3-4). However, in cases where the ALJ has failed to develop the record, this argument is inapposite. Courts on many occasions have remanded cases for further collection of evidence where the ALJ failed to adequately develop the record without the plaintiff showing good cause or materiality. See, e.g., Rosa, 168 F.3d 72; Cruz, 912 F.2d 8; Echevarria, 685 F.2d 751; Rivera, 99 F. Supp.2d 358; Rudder v. Chater, 94 Civ. 8431, 1997 WL 297009 (S.D.N.Y. June 4, 1997).
Furthermore, interim benefits should be granted based on the inordinate delay in adjudicating Jeffrey's claim and the likelihood of success on remand. See Id. at 363, 367-68 (delay of over two years to produce administrative record with "glaring deficiencies"); Jefferson v. Bowen, No. 84 Civ. 5664, 1986 WL 14928, at *3 (S.D.N.Y. Dec. 22, 1986) (delays included production of unusable transcript after six-month delay, subsequent remand for de novo hearing, seven-month wait for decision after first remand, second remand by Appeals Council); Weiser v. Secretary of Health and Human Services, 645 F. Supp. 602, 604 (S.D.N.Y. 1986) (five-year delay including two hearings and two appeals); Cohen v. Heckler, 599 F. Supp. 837, 837 (S.D.N.Y. 1984) (Secretary received extensions totaling seven months in which to answer and then was unable to prepare hearing transcript because records were lost). But see Doughty v. Bowen, 839 F.2d 644, 647 (10th Cir. 1988) (district court does not have authority to award interim benefits to new applicants); Taylor v. Heckler, 769 F.2d 201, 202 (4th Cir. 1985) (same).
Conclusion
For the reasons set forth above, I recommend that the Commissioner's motion for judgment on the pleadings be denied and the plaintiff's motion be granted in part. Specifically, I recommend that the case be remanded for further proceedings and that the plaintiff's request for interim benefits be granted. On remand, the ALJ should take any additional relevant evidence and render a determination consistent with this Report. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Victor Marrero, Room 414, 40 Foley Square, New York, New York 10007 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.