Opinion
04 Civ. 3769 (HBP).
July 17, 2006
MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiff, Sylvia Pimentel, on behalf of her minor granddaughter and ward, Yomarlyn Rosario, brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying Rosario's application for Supplemental Security Income ("SSI"). The parties consented to my exercising plenary jurisdiction over this matter pursuant to 28 U.S.C. § 636(c).
Both plaintiff and defendant have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). In the alternative plaintiff also seeks a remand to the Social Security Administration ("SSA") for further proceedings. For the reasons set forth below, plaintiff's motion for judgment on the pleadings is granted and this matter is remanded solely for the calculation of benefits. Defendant's motion for judgment on the pleadings is denied.
II. Facts
A. Procedural Background
Plaintiff filed an application for SSI benefits on behalf of Rosario on February 28, 2001 (Tr. 12, 28-30). The application asserted that Rosario had developmental delays and learning disabilities and also received mental health counseling and therapy (Tr. 58-59). It further noted that Rosario was enrolled in special education classes and speech therapy (Tr. 64). The application was denied on July 31, 2001 (Tr. 32), and plaintiff requested a hearing before an administrative law judge ("ALJ") (Tr. 36). Following a hearing, the ALJ, Robin J. Artz, found that Rosario was not disabled in a decision dated December 19, 2003 (Tr. 12-27). Plaintiff's request for review of the ALJ's decision was denied on March 13, 2004, making the ALJ's decision the final decision of the Commissioner (Tr. 4). Plaintiff then commenced this action on behalf of Rosario on May 18, 2004.
"Tr." refers to the administrative transcript and record filed by the Commissioner as part of her answer, pursuant to 42 U.S.C. § 405(g).
B. Rosario's Social Background
Rosario was born on December 16, 1992 (Tr. 28, 270). Her mother died of AIDS in March of 2000, and her father has had an inconsistent presence in her life (Tr. 102, 173, 217, 265, 391, 427). Rosario is cared for by her maternal grandmother, Pimentel, who began caring for Rosario in December of 2000 and is now her legal guardian (Tr. 156, 416, 427). Pimentel speaks Spanish but cannot speak English, and Rosario, though familiar with both languages, is dominant in English (Tr. 102, 231, 401, 415). Rosario lives with her grandmother and younger sister (Tr. 102, 217). Rosario also has another sister who lives with her father (Tr. 102).
Rosario has suffered from lead poisoning since she was two years old (Tr. 101, 288, 308, 401). She also has borderline to low-average intelligence, a history of speech delay, has not progressed in school and has difficulty concentrating (Tr. 137-38, 140, 148). She exhibits mood swings, throws tantrums and has been depressed since her mother's death (Tr. 137-38, 290). She also gets into fights with classmates and her younger sister (Tr. 337, 340, 343). Rosario is physically healthy (Tr. 391).
C. Rosario's School Evaluations
Rosario is enrolled in the New York City public school system. Several records from Rosario's school and the New York City Board of Education Committee for Special Education are included in the transcript.
On June 7, 2000 Rosario was evaluated by a school psychologist, Dr. Maria S. Polanco (Tr. 227-31). Dr. Polanco administered several tests, including the Wechsler Intelligence Scale for Children, Third Edition ("WISC-III") test in which Rosario received a verbal scale IQ score of 87, a performance scale IQ score of 73 and a full scale IQ score of 78; these scores were in the low-average and borderline ranges (Tr. 227-30). Based on the results of the tests and an interview with Rosario, Dr. Polanco found that Rosario's "cognitive skills were found to be in the [b]orderline range," her "strengths were observed in verbal areas and visual discrimination skills" and "weaknesses were observed in sequencing, perceptual areas, mathematical skills and auditory short term memory" (Tr. 227, 229).
On June 16, 2001, Lori Caflun, a guidance counselor, issued a progress report on Rosario, then age eight, noting that Rosario's
communication problems are very severe. She has a very hard time understanding simple directions and communicating in the group. From what I think,
[Rosario] is not on a basic kindergarten academic level. She cannot identify letters or numbers. She cannot keep up with any of the work that the students are required to do. She often does not participate in group counseling discussions because it is hard for her to dialog [sic] with the other students.
(Tr. 225).
A January 26, 2001 "Educational Evaluation" noted that Rosario was then in a Modified Instructional Services III ("MIS III") Inclusion Program, i. e., a special education class, but was not progressing. The evaluator, Lidia Filiciano, recommended placing Rosario in a more restrictive setting. Filiciano noted that Rosario was quiet and did not initiate conversation during the evaluation. She answered questions but conversed only in phrases and short sentences. For example, she stated that she would like to be a teacher in the future and when asked "what do teachers do?," she answered "math; science; tests" (Tr. 219). The only personal information Rosario knew about herself was her age (Tr. 219). Feliciano further found that Rosario's vocabulary was delayed; her reading skills were functioning in the pre-primary level; she was unable to read simple words such as "to," "in" and "dog" (Tr. 220-21); she had difficulty matching phrases such as "red table," "little dog," "one book" and "tree and chair" with pictures of the items (Tr. 221); she could only write out the alphabet from letters "A" through "G"; she misspelled her last name by leaving off a letter (Tr. 221); she had trouble identifying numerals and completing simple written addition and subtraction calculations; upon being read mathematical problems, she had difficulty understanding the phrase "and one more" (Tr. 223); she identified a penny and a quarter but could not name their respective monetary values, and she wrote only numerals one through eighteen in correct sequence (Tr. 223).
On February 13, 2001, the New York City Board of Education Committee for Special Education held a conference to reevaluate Rosario's educational placement (Tr. 81-87, 89-90, 92-96). The Committee noted that Rosario was being reevaluated because of her lack of progress, that her academic performance and learning characteristics evidenced delays in expressive and receptive language domains and the academic areas of reading and mathematics and that Rosario was experiencing difficulties with vocabulary, passage comprehension, calculations and verbal problems (Tr. 83). Rosario's social and emotional performance evaluation noted that her behavior was "age appropriate," that she had low self-esteem and that she was mourning the recent loss of her mother but adapting to the changes in her family (Tr. 84).
The committee concluded that Rosario "has severe academic delays and significant language defects" and recommended that Rosario attend a more restrictive MIS III class with a 12:1:1 staffing ratio and that she receive monolingual services with English as a second language (Tr. 81, 94).
D. Rosario's Medical Background
1. Fordham-Tremont Records
While in school on February 1, 2001, Rosario, then age eight, expressed suicidal ideation to a teacher after the teacher confronted her for stealing another student's cookie (Tr. 267). Rosario's school referred her to the Bronx Lebanon Hospital Crisis Team and, subsequently, Rosario was sent to Fordham-Tremont Community Mental Health Center ("Fordham-Tremont") for a psychological evaluation (Tr. 267).
On March 5, 2001, Rosario was evaluated at Fordham-Tremont by Maria Vasquez, a certified social worker (Tr. 137-45). Rosario was emotional and depressed and had mood swings, poor academic performance and difficulty concentrating (Tr. 137-38). Rosario also stated that at times she had auditory and visual hallucinations. Rosario's speech was clear and her ability to name objects, comprehend and respond were within normal limits (Tr. 145). Vasquez opined that Rosario had a low-average intelligence and fair impulse control and social judgment. She diagnosed a depressive disorder and ruled out a psychotic disorder (Tr. 144).
On March 12, 2001, a Fordham-Tremont psychologist, Dr. Daniel Sanchez, examined Rosario (Tr. 146-48). Dr. Sanchez found Rosario to be fairly attentive and estimated she had a low-average to average intelligence. He further noted that Rosario's speech was fairly clear and her ability to name objects, comprehend and respond were fair. Rosario denied homicidal, violent or suicidal ideation. Dr. Sanchez diagnosed depressive disorder by history and ruled out psychotic disorder and adjustment disorder (Tr. 146-48).
Rosario continued to receive regular psychological treatment at Fordham-Tremont through June of 2003 (Tr. 135-63, 257-384). At a March 16, 2001 session with Vasquez, Pimentel reported that Rosario was very difficult, emotional and had mood swings and that she had trouble sleeping because of nightmares. On March 30, 2001, Pimentel reported to Vasquez that Rosario was having mood swings and acting disrespectful to authority figures (Tr. 160). On April 9, 2001, Pimentel reported little improvement in Rosario's behavior at school and continued instability and mood swings at home (Tr. 160-61).
On May 7, 2001, Vasquez had a therapy session with Rosario. Pimentel stated that there was some improvement in Rosario's behavior at school, but that Rosario was unstable at times and broke things. Vasquez played a game with Rosario and reported that she was happy, well-behaved and followed directions (Tr. 158). Vasquez saw Rosario again on May 27, 2001 and noted Rosario was feeling happier and less angry; Pimentel stated that Rosario's behavior was improving and she was more stable, but also that she threw tantrums (Tr. 159).
Rosario saw Dr. Sanchez on September 21, 2001. At that time Pimentel stated that she wanted Dr. Sanchez to evaluate Rosario again because Rosario continued to have nightmares, feel depressed, was irritable and daydreamed. Dr. Sanchez noted that Rosario was cooperative and fairly attentive, her intelligence appeared to be average and she had fair impulse control and social judgment. Dr. Sanchez once again diagnosed a depressive disorder and also prescribed low doses of an anti-depressant, Zoloft (Tr. 290-91). Rosario was thereafter prescribed Zoloft through June of 2003 (Tr. 261).
From the end of 2001 through 2002, records from Fordham-Tremont reported that, in general, Rosario was benefitting from the medication, and was feeling better, more stable and less aggressive (Tr. 348-49, 354-56, 358, 360, 364, 366, 368-72).
Rosario appeared to have regressed in January 2003 when she reported that she had a fight with a kindergarten student at school. Pimentel stated that Rosario was unstable and, at times, disrespectful (Tr. 343).
On February 21, 2003, Rosario expressed that she was feeling less sad and depressed, and Pimentel reported Rosario's behavior at home was improving (Tr. 341). On March 5, 2003, Rosario told Vasquez that the medication made her feel better (Tr. 342). On March 19, 2003, Rosario reported she was doing well in school and was happy and excited; Pimentel reported that Rosario was difficult and talked back (Tr. 339). On April 2, 2003, Rosario reported having some difficulty at school and on the school bus; Pimentel also reported that Rosario was having difficulties at school and, again, stated that she was sometimes difficult, disrespectful and talked back (Tr. 340).
An April 16, 2003 note by Dr. Sanchez reported that Rosario was responding well to the medication. On April 24, 2003, Vasquez reported that Rosario was having trouble getting along with her sister and scared her sister with a knife (Tr. 337). Reports from May 2003 were mixed, one showing behavioral problems at home and the others improving behavior (Tr. 381-82). A late June 2003 report by Vasquez noted that Rosario was stable on the medication and doing well at school (Tr. 383).
Dr. Sanchez completed a form for Rosario's SSI disability application on July 25, 2003 and wrote that she was cooperative, spoke clearly and coherently and had no formal thought disorder (Tr. 385). He noted that there was no evidence of limitations in her "cognitive development/function," "communicative development/function" or "motor development function," less than moderate limitations in her "social development/function" and "personal behavioral development/function" and moderate limitation in her "concentration, persistence and pace" (Tr. 389). Dr. Sanchez concluded that Rosario had difficulty concentrating and had poor academic performance, that she was easily irritated and distracted, was at times depressed and that she expressed no suicidal or homicidal ideation (Tr. 390).
2. Other Medical Records
Rosario was evaluated by several educational and health professionals on June 13, 2001. First, Rosario was referred to Susan B. Katz, a bilingual speech-language pathologist, for an evaluation (Tr. 164-69). Katz administered several tests, including the Clinical Evaluation of Language Fundamentals ("CELF-3") test, and Rosario scored in the very low range of functioning in receptive and expressive language (Tr. 164-66). Katz found that Rosario "evidenced below age appropriate skills in her syntax and morphology and her ability to recall and retain information of auditory stimuli and processing language" which affected her ability to attend school (Tr. 169).
Second, Dr. Robert Cicarell, a psychiatrist, diagnosed Rosario at Axis I with oppositional defiant disorder and at Axis II with mental retardation and wrote that Rosario "shows from a psychiatric perspective a limited ability to understand, carry out and remember instructions and a limited ability to respond to appropriate supervision, peers and mild academic pressures in a school setting" (Tr. 174). He further concluded that the allegations in Rosario's SSI benefits application were consistent with his findings (Tr. 174).
Last, Dr. Rochelle Sherman administered a Wechsler-Revised test on which Rosario scored a full scale IQ of 71, a verbal scale IQ of 70 and a performance scale IQ of 77 (Tr. 177). Dr. Sherman noted that Rosario's individual subtest scores ranged from the very deficient to the average range and that these "results appear to be a valid representation of [her] present level of intellectual functioning" (Tr. 177). Rosario's reading skills were below average and Dr. Sherman noted that Rosario's "[o]verall level of intellectual functioning was in the borderline range" (Tr. 177). Dr. Sherman also noted that the allegations of learning problems in Rosario's SSI disability application were consistent with Rosario's history and presentation and she diagnosed at Axis I a history of learning problems and a mixed learning disorder and at Axis II borderline intelligence (Tr. 178).
On June 27, 2003, Rosario underwent a cognitive evaluation by a psychologist, Dr. Edward Hoffman (Tr. 391-93). Dr. Hoffman administered the "TONI-III" test to Rosario and she obtained a quotient of 67. Dr. Hoffman noted that although this score suggested mentally deficient functioning, he did not find the test to be an accurate indicator in view of her clinical behavior, conversational ability and level of adaptive functioning. He also believed that Rosario resisted taking the test and was not motivated that day (Tr. 392). Summarizing his findings, Dr. Hoffman recommended that Rosario continue to receive intensive special education and clinical services and that her cognitive skills should be re-evaluated when she shows greater cooperation and motivation (Tr. 393).
Rosario was examined by a speech-language pathologist, Barbara DeCicco, on September 12, 16 and 23 of 2003, who found that Rosario presented with "a marked receptive and expressive language impairment judged to be adversely influencing academic performance" (Tr. 412). On or about October 16, 2003, another speech-language pathologist, Cristina M. Laureano, examined Rosario and observed she exhibited "severely depressed ability to comprehend materials in her age level and below" and "limited solving problem skills as well as limited reasoning skills" (Tr. 395). Laureano additionally found that Rosario's overall language skills appeared to be approximately more than five years below her expected receptive and expressive language skills (Tr. 396).
Though the report itself is undated, it is attached to a fax cover sheet from Laureano's office dated October 16, 2003 (Tr. 394).
Psychologist Natalie Hochstein evaluated Rosario and administered several tests on October 30, November 6 and November 14 of 2003 (Tr. 401-08). On the Wechsler Intelligence Scale for Children, 4th Edition ("WISC-IV"), Rosario scored a full scale IQ of 73, a verbal comprehension index of 73, a perception reasoning index of 84, a working memory index of 71 and a processing speed index of 88 (Tr. 402). Hochstein found that Rosario was severely dyslexic, could not read and had borderline to low-average intelligence (Tr. 405).
E. Consulting Physicians
Rosario's application for SSI benefits and medical records were also evaluated by two consulting physicians on behalf of the SSA. On May 22, 2001, Dr. R. Baum, opined that Rosario's combination of impairments — namely her learning and behavioral problems — were severe but did not meet, medically equal or functionally equal a listing in the SSA's Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 128-33). Dr. Baum further found that Rosario had a "marked" limitation in the domain of "acquiring and using information," "less than marked" limitations in the domains of "attending and completing tasks," "interacting and relating to others" and "caring for yourself" and no limitations in the domains of "moving about and manipulating objects" and "health and well-being" (Tr. 130-31).
Dr. Baum's full first name is illegible.
Dr. G. Kleinerman also reviewed the record and evaluated Rosario's alleged disability (Tr. 179-84). Dr. Kleinerman found that Rosario had a speech and language impairment, a borderline IQ, oppositional defiant disorder and suffered from depression (Tr. 179). However, Dr. Kleinerman also found that while Rosario's impairments were severe, they did not meet, medically equal or functionally equal any of the listings (Tr. 179). Dr. Kleinerman noted that Rosario had a "marked" limitation in acquiring and using information, "less than marked" limitations in attending and completing tasks and interacting and relating with others and no limitations in moving about and manipulating objects, caring for yourself or health and physical well-being (Tr. 181-83).
Dr. Kleinerman's full first name is illegible.
F. Proceedings Before the ALJ
The ALJ held a hearing in this matter on June 10, 2003. Rosario, then age ten, appeared pro se with her grandmother, Pimentel.
Pimentel testified at the hearing with the aid of a Spanish language interpreter (Tr. 12, 415-16). She stated that Rosario is physically healthy but that she has mental conditions that have resulted in her attending special education classes for a speech impairment. Although at the time of the hearing Rosario was in the fifth grade, she had the intelligence of a kindergartner. She could not read and had trouble pronouncing words, often saying some words backwards (Tr. 418, 422). Pimentel testified that Rosario was also receiving mental health counseling and treatment at Fordham-Tremont Mental Health Center "to calm her down so she can sleep" and because she "has changes of character" and "gets too excited" (Tr. 419-20). She had been prescribed Xanax, an anti-anxiety medication, to help her sleep (Tr. 419). Pimentel reported that Rosario expressed suicidal ideation in 2001 after her teacher confronted her for taking another girl's cookie (Tr. 426-27).
As noted above, the medical records indicate that Rosario was prescribed Zoloft. There are no medical records in the transcript that she was also prescribed Xanax.
Pimentel also testified that Rosario has behavioral problems, often acting aggressively. Pimentel stated that Rosario "gets angry at everything" and "breaks everything" (Tr. 427). Pimentel noted that at one point, Rosario "grabbed her little sister and held her with knives" (Tr. 427).
Upon examination by the ALJ, Rosario displayed poor math skills — she was able to perform simple addition but not subtraction or multiplication. Rosario testified that she often has to ask her teacher to explain things to her more than once and that even then she has trouble understanding her teacher's instructions. She testified that she can print, but cannot write in cursive script (Tr. 423-24).
Rosario stated that she has friends close to her age at school and around the neighborhood (Tr. 425-26). She also stated that she misses her late mother and sometimes had trouble sleeping because of nightmares about her mother (Tr. 424-25, 427).
G. The ALJ's Decision
In her December 19, 2003 decision denying Rosario benefits, the ALJ determined that Rosario was not engaged in any substantial gainful activity during the relevant times and that Rosario's "borderline intellectual functioning/learning disorders (auditory short term memory and perceptual impairments), receptive and expressive language delays, and a depressive disorder" were "severe" within the meaning of the Social Security Act and Regulations "because they impose[d] more than a slight limitation on [Rosario's] functioning" (Tr. 15).
The ALJ also discussed whether Rosario had any limitation in "acquiring and using information" by considering "learning, thinking, communication, and sensory perception . . . in addition to how well [Rosario] acquires or learns information, and how well [Rosario] uses the information [she] has learned" (Tr. 21). The ALJ found that Rosario had "marked limitations" in this area, relying on the facts that (1) Rosario's WISC-III results showed that her cognitive functioning demonstrated a borderline intellectual functioning, her verbal IQ was low average, her performance and full scale scores were borderline and the 14 point difference between the verbal and performance scales suggested visual or perceptual difficulties (Tr. 21-22); (2) Rosario scored a verbal IQ of 70, performance IQ of 77 and a full scale IQ of 71 on the Wechsler-Revised test; (3) on the CELF-3 test Rosario exhibited receptive and expressive language delays that were more than three standard deviations below the mean; (4) a 2003 evaluation stated that Rosario was a "non-reader" who was functioning in all areas at the kindergarten level and showed little academic improvement since 2001 (Tr. 22); (5) Rosario was in a special education class and received speech therapy and counseling, and (6) a report showed that Rosario exhibited receptive and expressive language delays of five years (Tr. 22).
However, the ALJ concluded that the "objective medical evidence supports the conclusion that [Rosario's] medically determinable impairments, singly or in combination, do not meet or medically or functionally equal any impairment in [ 20 C.F.R. Part 404, Subpart P, Appendix 1]" (Tr. 25). Therefore, the ALJ found that Rosario was not eligible for SSI benefits (Tr. 25).
III. Analysis
A. Standard of Review
1. Applicable Legal Principles
The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or is based upon an erroneous legal standard. 42 U.S.C. § 405(g); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998); Osorio v. Barnhart, 04 Civ. 7515 (DLC), 2006 WL 1464193 at *5 (S.D.N.Y. May 30, 2006); Selmo v. Barnhart, 01 Civ. 7374 (SHS), 2002 WL 31445020 at *6 (S.D.N.Y. Oct. 31, 2002). The term "substantial evidence" has been defined as "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971); accord Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004); Veino v. Barnhart, supra, 312 F.3d at 586; Tejada v. Apfel, supra, 167 F.3d at 773-74; Quinones ex rel. Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997); Osorio v. Barnhart, supra, 2006 WL 1464193 at *5.
The reviewing court does not conduct a de novo review as to whether the claimant is disabled, Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980), nor may it substitute its own judgment for that of the Commissioner. Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Valente v. Secretary of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984). When the Commissioner's decision is not supported by substantial evidence, a reviewing court must reverse the administrative decision because "the entire thrust of judicial review under the disability benefits law is to insure a just and rational result between the government and a claimant. . . ." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).Lee v. Apfel, CV 99-2930 (LDW), 2000 WL 356411 at *2 (E.D.N.Y. Apr. 3, 2000); see Veino v. Barnhart, supra, 312 F.3d at 586 ("Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner."); Plante v. Apfel, 98 Civ. 5658 (WHP), 2000 WL 23167 at *4 (S.D.N.Y. Jan. 12, 2000). Moreover, the Commissioner's decision must be affirmed if it is supported by substantial evidence, even if there is substantial evidence supporting plaintiff's position. See Morillo v. Apfel, 150 F. Supp.2d 540, 545 (S.D.N.Y. 2001).
"`Reversal and entry of judgment for the claimant is appropriate only `when the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose.'" Cruz ex rel. Vega v. Barnhart, 04 Civ. 9794 (DLC), 2005 WL 2010152 at *8 (S.D.N.Y. Aug. 23, 2005), modified on other grounds on reconsideration, 2006 WL 547681 (S.D.N.Y. Mar. 7, 2006), quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); accord Rivera v. Sullivan, 923 F.2d 964, 970 (2d Cir. 1991); Babcock v. Barnhart, 412 F. Supp.2d 274, 284 (W.D.N.Y. 2006); Buonviaggio v. Barnhart, 04 Civ. 357 (JG), 2005 WL 3388606 at *5 (E.D.N.Y. Dec. 2, 2005); Rivera v. Barnhart, 379 F. Supp.2d 599, 604 (S.D.N.Y. 2005); see 42 U.S.C. § 405(g) ("The [district] court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.").
In addition, "when a claimant appears pro se . . . and is unable to speak English well, as in this case, [the court has] a duty to make a searching investigation of the record to make certain that the claimant's rights have been adequately protected." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990),quoting Gold v. Sec'y of Health, Educ. Welfare, 463 F.2d 38, 43 (2d Cir. 1972) (internal quotations omitted); accord Serrano v. Barnhart, 02 Civ. 6372 (LAP), 2005 WL 3018256 at *2 (S.D.N.Y. Nov. 10, 2005); Morgan v. Barnhart, 04 Civ. 6024 (LTS) (AJP), 2005 WL 2978976 at *1 (S.D.N.Y. Nov. 7, 2005) (Report and Recommendation); Acosta v. Barnhart, 99 Civ. 1355 (LAP) (AJP), 2003 WL 1877228 at *10 (S.D.N.Y. Apr. 10, 2003) (Report and Recommendation).
2. Determination of Disability
Under the Social Security Act, a claimant under the age of 18 is disabled if she can establish 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).
The regulations promulgated by the Commissioner set forth a three-step test to implement the foregoing definition. 20 C.F.R. § 416.924(a); see Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004); White ex rel. Johnson v. Barnhart, 409 F. Supp.2d 205, 207 (W.D.N.Y. 2006); Vazquez ex rel. Jorge v. Barnhart, 04 Civ. 7409 (GEL), 2005 WL 2429488 at *4 (S.D.N.Y. Sept. 30, 2005). The first inquiry is whether the child claimant is engaged in "substantial gainful activity." 20 C.F.R. § 416.924(b). If the child claimant is engaged in such activity, she is not disabled. If the child claimant is not so engaged, the inquiry proceeds to the question of whether the child claimant has a "medically determinable impairment that is severe." 20 C.F.R. § 416.924(c). An impairment is "severe" if it is more than a "slight abnormality" or "a combination of slight abnormalities that causes . . . more than minimal functional limitations." 20 C.F.R. § 416.924(c). If the child claimant's impairment is not severe, she is not disabled. If the child claimant has a severe impairment, the third inquiry is whether the impairment meets, medically equals or functionally equals an impairment listed in the SSA's Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"). 20 C.F.R. § 416.924(d).
An impairment is "medically equivalent" to a listed impairment "if the medical findings are at least equal in severity and duration to the listed findings." 20 C.F.R. § 416.926(a). An impairment is "functionally equivalent" to a listed impairment if it results in "`marked' limitations" in two of six domains of functioning or an "`extreme' limitation" in one domain. 20 C.F.R. § 416.926a(a). There are six domains of functioning for minors: (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)(i)-(vi).
After reviewing both the medical evidence and testimony from Pimentel and Rosario, the ALJ here applied the three-step analysis outlined above and determined that: (1) Rosario was not engaged in substantial gainful activity during the relevant time periods (Tr. 15); (2) Rosario's "borderline intellectual functioning/learning disorders (auditory short term memory and perceptual impairments), receptive and expressive language delays, and a depressive disorder" were "severe" impairments (Tr. 15), and (3) Rosario's impairments do not meet and are not medically or functionally equal any impairment in the Listings (Tr. 25). Therefore, the ALJ found that Rosario was not disabled or eligible for SSI benefits (Tr. 25).
B. Contentions of the Parties
Plaintiff claims that the ALJ's decision should be reversed and remanded solely for the calculation of benefits because the ALJ failed to consider the mental retardation listing, specifically Listings section 112.05D and 112.05F, and the evidence conclusively establishes that Rosario's impairments met the requirements of those listings (Plaintiff's Memorandum of Law in Support of Motion for Judgment on the Pleadings ("Pl. Memo.") at 8-25 (Docket Item 9)).
In the alternative, plaintiff claims this matter should be remanded because: (1) the ALJ failed to consider the mental retardation listing, Listings section 112.05D and 112.05F, and the mood disorder listing, Listings section 112.04 (Pl. Memo. at 25-26); (2) the ALJ failed to consider whether Rosario's receptive and expressive language deficits compelled a finding that she had marked or extreme limitations in the domains of acquiring and using information and interacting and relating with others (Pl. Memo. at 27-30); (3) the ALJ failed to consider whether Rosario's diagnosed learning disability met or was functionally equivalent to the Listings (Pl. Memo. at 30-33); (4) the ALJ failed to take into account the interactive and cumulative effects of Rosario's three impairments, namely low cognitive functioning, receptive and expressive language delays and diagnosed depression (Pl. Memo. at 33-35), and (5) the ALJ violated Rosario's right to be represented by counsel at the hearing (Pl. Memo. at 35-41).
Contrary to plaintiff's contention, the ALJ found that Rosario exhibited marked limitations in acquiring and using information (Tr. 21).
The Commissioner argues that the ALJ's decision is supported by substantial evidence (Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Support of the Commissioner's Cross-Motion for Judgment on the Pleadings ("Def. Memo.") (Docket Item 14)).
I conclude that there is persuasive evidence that Rosario's impairments met Listings section 112.05F, and, accordingly, that judgment should be entered in plaintiff's favor and this matter should be remanded solely for the calculation of benefits. Because I find that Rosario has met section 112.05F, it is unnecessary to consider her other arguments.
C. Listings Section 112.05F
The requirements of the mental retardation listing, section 112.05, are met when a claimant's mental impairment is "[c]haraterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning," and when the severity of the impairment meets the requirements of one of six categories labeled A through F. Listings § 112.05; see Vazquez ex rel. Jorge v. Barnhart, supra, 2005 WL 2429488 at *5; Cruz ex rel. Vega v. Barnhart, supra, 2005 WL 2010152 at *10;Campos ex rel. Cruz v. Barnhart, 01 Civ. 10005 (SAS), 2003 WL 21243036 at *7 (S.D.N.Y. May 28, 2003).
To meet the requirements of section 112.05F, a child who is Rosario's age must (1) satisfy Listings section 112.02B(2) (a) and (2) have a "physical or other mental impairment imposing an additional and significant limitation of function." Satisfying section 112.02B(2) (a) requires a
[m]arked impairment in age-appropriate cognitive/communicative function, documented by medical findings (including consideration of historical and other information from parents or other individuals who have known the child, when such information is needed and available) and including, if necessary, the results of appropriate standardized psychological tests, or for children under age 6, by appropriate tests of language and communication[.]
Plaintiff correctly argues that the ALJ failed to consider the mental retardation listing, including Listings section 112.05F (Pl. Memo. at 8-9). The only portion of the ALJ's decision that considers whether Rosario met the requirements of any of the Listings is the ALJ's conclusory finding that "the objective medical evidence concerning the claimant's impairments lacks clinical or laboratory findings which meet the clinical criteria of any impairments" in the Listings (Tr. 21). Thus, I turn to plaintiff's claim that there is persuasive proof that her impairments met section 112.05F.
In fairness to the ALJ, it is worth noting that plaintiff, who was proceeding pro se, did not expressly claim that Rosario is mentally retarded. Nevertheless, given the evidence before her, including evidence of lead poisoning in Rosario's early years and numerous developmental delays, the potential applicability of the mental retardation Listings was apparent. Moreover, given the non-adversarial nature of the proceeding, the ALJ was obligated to consider all impairments for which evidence was submitted. 20 C.F.R. § 416.924(a).
Although there is a potential issue concerning whether the existence of IQ test scores for Rosario renders Listings section 112.05F inapplicable, see Listings section 112.00D(11), defendant does not raise this issue. If defendant had asserted this argument, I would have rejected it. Listings section 112.00D(11) states that section 112.05F "may be the [basis] for adjudicating cases where the results of standardized intelligence tests are unavailable, e.g., where the child's young age or condition precludes formal standardized testing"; it does not, by its terms, preclude the use of section 112.05F simply because standardized intelligence test scores are available.
Plaintiff first argues that the ALJ's finding that Rosario had marked limitations in the domain of acquiring and using information compels a finding that Rosario had marked impairments in age-appropriate cognitive and communicative function, thus satisfying section 112.02B(2) (a), because (1) the SSA describes the categories "acquiring and using information" and "cognitive/communicative function" in fundamentally the same terms, (2) the evidence used to show marked limitations in both areas is indistinguishable and (3) SSA regulations provide that the term "marked" has identical meaning in assessing the severity of limitations in both categories (Pl. Memo. at 12-13). The Commissioner argues that because the two categories are not identical, the ALJ's finding of marked limitations in acquiring and using information does not compel a finding of marked limitations in age-appropriate cognitive and communicative function (Reply Memorandum in Support of the Commissioner's Cross-Motion for Judgment on the Pleadings ("Def. Reply") at 5-6 (Docket Item 17)).
In a recent decision arising out of very similar facts, the Honorable Denise L. Cote, United States District Judge, addressed whether a claimant's impairments had met Listings section 112.05F. Cruz ex rel. Vega v. Barnhart, supra, 2005 WL 2010152. Addressing the same argument plaintiff raises here, Judge Cote concluded that, under the particular facts of the case, the ALJ's finding of marked impairments in acquiring and using information was equivalent to a finding of marked impairments in age-appropriate cognitive and communicative function:
In finding that Vega had marked limitations in acquiring and using information, the ALJ explained that this domain encompasses "learning, thinking, communication, and sensory perception," as well as "how well the child acquires or learns information, and how well the child uses the information the child has learned." See 20 C.F.R. § 416.926a(g). Among other findings, the ALJ then noted that Vega had been adjudged by the CPSE to have a 10-month delay in cognition, that the June 2001 administration of the PLS-3 revealed that Vega had a "thirty-three percent delay in expressive language and a twenty-five percent delay in receptive language," and that the June 2001 administration of Raven's Progressive Matrices Test demonstrated that Vega "functioned within the borderline range of intelligence."
Even if, as the Government contends, the domain of acquiring and using information is neither identical to nor as expansive as the category of "age-appropriate cognitive and communicative function, "id. at § 112.02B(2) (a), a claimant need only show an impairment in one activity or function to establish that he has a "marked" impairment. All that matters is that the claimant's "degree of limitation" is significant enough to "interfere[s] seriously with the ability to function (based on age-appropriate expectations) independently, appropriately, effectively, and on a sustained basis." Id. at § 112.00C. In resolving that Vega had marked limitations in acquiring and using information, the ALJ clearly determined that Vega exhibited cognitive limitations of this nature. That not all findings of a marked limitation in acquiring and using information will necessarily equal a showing of a marked limitation in "age-appropriate cognitive and communicative function" is beside the point.Cruz ex rel. Vega v. Barnhart, supra, 2005 WL 2010152 at *11 (footnote omitted).
In finding that Rosario had marked limitations in the domain of acquiring and using information, the ALJ here relied on records similar to those on which the ALJ in Cruz ex rel. Vega relied, including (1) the results of a June 2000 WISC-III exam showing that Rosario's cognitive functioning demonstrated a borderline intellectual functioning, her "verbal IQ was low average, performance scale was borderline and full scale was borderline," and the fourteen point differential between her verbal and performance scales suggested visual or perceptual difficulties (Tr. 22); (2) Wechsler-Revised results from June 2001 showing she had a verbal IQ of 70, performance IQ of 77 and a full scale IQ of 71; (3) the results from a June 2001 CELF-3 test showing Rosario exhibited receptive and expressive language delays that were more than three standard deviations below the mean; (4) a February 2003 IEP school evaluation that states Rosario, then at age eleven, was a "non-reader" who was functioning in all areas at the kindergarten level and showed little academic progress since 2001; (5) the facts that Rosario was in a MIS-III special education class and was receiving speech therapy and counseling, and (6) an October 2003 report showing that Rosario exhibited a receptive language delay of over five years and an expressive language delay of five years (Tr. 22).
In light of the similarity of the facts in this case to those in Cruz ex rel. Vega, I find that the ALJ's finding of marked limitations in acquiring and using information is persuasive proof that Rosario also had a marked limitation in age-appropriate cognitive and communicative functioning.
Turning to the second requirement of Listings section 112.05F, which requires showing a "physical or other mental impairment imposing an additional and significant limitation of function," plaintiff argues that she meets this aspect of the listing because the ALJ found that Rosario had "severe" impairments (Pl. Memo. at 17-19). Defendant does not address this aspect of plaintiff's argument.
Addressing this aspect of section 112.05F in Cruz ex rel. Vega, Judge Cote stated:
Pursuant to the listings, a physical or mental impairment imposes an "additional and significant limitation of function" where it is a "severe" impairment. Id. at § 112.00A (quoting 20 C.F.R. § 416.924(c)); see also Castillo ex rel. Sosa v. Barnhart, No. 00 Civ. 4343 (MBM), 2002 WL 31255158, at *9 (S.D.N.Y. Oct. 8, 2002) ("severe" impairment under § 416.924(c) is "indisputably link[ed]" and equivalent to an impairment imposing an "additional and significant limitation of function"). Therefore, the ALJ's determination that Vega has four severe impairments, a determination supported by the available evidence, is tantamount to a finding that each of these impairments satisfies the second prong of Listing 112.05F. See Campos, 2003 WL 21243036, at *8 (ALJ's findings of severe impairments "automatically qualify" as "significant limitation of function" under 112.05F).Cruz ex rel. Vega v. Barnhart, supra, 2005 WL 2010152 at *12;see Vazquez ex rel. Jorge v. Barnhart, supra, 2005 WL 2429488 at *7; Campos ex rel. Cruz v. Barnhart, supra, 2003 WL 21243036 at *7-*8; accord Castillo ex rel. Sosa v. Barnhart, 00 Civ. 4343 (MBM), 2002 WL 31255158 at *9 (S.D.N.Y. Oct. 8, 2002) (finding, under Listings section 112.05D, which uses, in relevant part, identical language as section 112.05F, that a finding of a "`severe' impairment under section 416.924(c) means that the impairment satisfies the 112.05D requirement of an impairment imposing an `additional and significant limitation of function.'").
The ALJ found that Rosario had three "severe" impairments, namely (1) "borderline intellectual functioning/learning disorders (auditory short term memory and perceptual impairments)," (2) receptive and expressive language delays, and (3) "a depressive disorder" (Tr. 26). These findings, which are supported by the record, are persuasive proof that Rosario meets the second aspect of section 112.05F.
Lastly, Rosario must meet the requirements of section 112.05 by showing "significantly subaverage general intellectual functioning with deficits in adaptive functioning." In addition to evidence of an IQ score of 70 or below, persuasive proof of a "marked" limitation in the area of cognition and communication can also satisfy the requirement:
Although it may be possible to show that Rosario has a significantly subaverage general intellectual functioning with deficits in adaptive functioning because she had a verbal scale IQ score of 70 on the Wechsler-Revised, I do not rely on IQ test scores to make this determination since Rosario also scored higher than 70 on some of her IQ tests and the ALJ never resolved whether the one score of 70 was representative of Rosario's abilities or was an anomaly. See generally Vazquez ex rel. Jorge v. Barnhart, supra, 2005 WL 2429488 at *8 (stating that it is for the ALJ to reconcile differing IQ test scores).
"Standardized intelligence test results are essential to the adjudication of all cases of mental retardation that are not covered under the provisions of listings 112.05A, 112.05B, and 112.05F." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § [112.00D (11)]. But those three listings "may be the bases for adjudicating cases where the results of standardized intelligence tests are unavailable, e.g., where the child's young age or condition precludes formal standardized testing." Id. . . .
In order to maintain subparagraph F as a viable means of establishing mental retardation, a claimant must be permitted to satisfy the diagnostic description in connection with a claim under subparagraph F without reference to an IQ score. In a "Policy Interpretation Ruling," the SSA explained how a claimant with mild mental retardation could prove the required level of intellectual functioning.
[T]he significantly subaverage general intellectual functioning needed to establish that component of the diagnosis of mild mental retardation is shown by a valid verbal, performance, or full scale IQ of 60 through 70 (under Listing 112.05D) or "marked" limitation in the area of cognition/communication (under Listing 112.05F, by reference to Listing 112.02B1b or 112.02B2a).
Social Security Ruling, SSR98-1p; Title XVI: Determining Medical Equivalence in Childhood Disability Claims When a Child Has Marked Limitations in Cognition and Speech, 63 Fed.Reg. 15248, 15250 (Mar. 30, 1998). Thus, the SSA itself publicly advised that proof of a marked cognitive limitation would satisfy both subparagraph F and the intellectual functioning prong of the diagnostic description. The Listing's explanation of severity confirms that "tests of language development or bizarre speech patterns" may substitute for standardized tests of intelligence in some circumstances. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.05C (2) (b); see also Disability Insurance, 55 Fed.Reg. at 51225 (noting that "deficits in adaptive behavior [would be used] as an alternative to IQ scores" for claimants under subparagraph F).Cruz ex rel. Vega v. Barnhart, 04 Civ. 9794 (DLC), 2006 WL 547681 at *3-*4 (S.D.N.Y. Mar. 7, 2006) (footnotes omitted). But see Vazquez ex rel. Jorge v. Barnhart, supra, 2005 WL 2429488 at *7-*8 (relying on Cruz ex rel. Vega before it was modified on reconsideration to find that a claimant must evidence a score of 70 or below on an IQ test in order to show a significantly subaverage general intellectual functioning with deficits in adaptive functioning).
Because, as stated above at page 30, I found that Rosario had a marked limitation in age-appropriate cognitive and communicative function, I also find that Rosario has shown by persuasive proof that she has a significantly subaverage general intellectual functioning with deficits in adaptive functioning.
Based on the foregoing reasons, I find that plaintiff has established by persuasive evidence that Rosario has met Listings section 112.05F and is entitled to judgment on the pleadings. Accordingly, the final decision of the Commissioner is reversed and this matter is remanded solely for the calculation of benefits. See Castillo ex rel. Sosa v. Barnhart, supra, 2002 WL 31255158 at *14 ("[W]here `the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose,' the proper remedy is remand solely for the calculation of benefits."), quoting Parker v. Harris, supra, 626 F.2d at 235; see also Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999) ("[W]here this Court has had no apparent basis to conclude that a more complete record might support the Commissioner's decision, we have opted simply to remand for a calculation of benefits."); Cruz ex rel. Vega v. Barnhart, supra, 2006 WL 547681 at *4; Rivera v. Barnhart, supra, 379 F. Supp.2d at 604. I note that "[t]he remedy of remand solely for the calculation of benefits is specially warranted where, as here, a claimant has already waited a substantial amount of time since first applying for benefits."Castillo ex rel. Sosa v. Barnhart, supra, 2002 WL 31255158 at *15 (citations omitted); see Carroll v. Sec'y of Health Human Servs., 705 F.2d 638, 644 (2d Cir. 1983); Morales ex rel. Morales v. Barnhart, 218 F. Supp.2d 450, 463 (S.D.N.Y. 2002). It has been nearly five-and-a-half years since Pimentel first filed an application for SSI benefits on behalf of Rosario and the matter should be delayed no further.
IV. Conclusion
For the reasons stated above, plaintiff's motion for judgment on the pleadings is granted and this matter is remanded solely for the calculation of benefits. Defendant's motion for judgment on the pleadings is denied.
SO ORDERED.