Opinion
00 Civ. 8315 (AGS) (JCF)
December 26, 2001
REPORT AND RECOMMENDATION
TO THE HONORABLE ALLEN G. SCHWARTZ, U.S.D.J.:
The plaintiff, William Rivera, brings this action pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3) to challenge a final determination of the Commissioner of the Social Security Administration (the "Commissioner") denying his application for Supplemental Security Income ("SSI") benefits. The defendant has submitted a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend that the defendant's motion be denied and the case be remanded solely for a calculation of benefits.
Background
At the time of his hearing before an Administrative Law Judge ("ALJ") on May 17, 1999, William Rivera was thirty-one years old. (Tr. 24, 33). He was born in Puerto Rico, where he completed eighth grade. Mr. Rivera had been living in New York for the past six years with his parents and nephew. (Tr. 33, 37). He speaks English and Spanish. Although an interpreter was present at the hearing, Mr. Rivera chose not to use her. (Tr. 26).
"Tr." refers to the Administrative Record filed by the Commissioner.
When asked by the ALJ about his work history, Mr. Rivera testified that although he had looked for a job for the past ten years, he was unable to find work. (Tr. 33). At the time of the hearing, the plaintiff had a maintenance job with the Housing Authority, a position he had been assigned as a condition of his receiving welfare benefits. He worked two, seven and one-half hour days every two weeks. (Tr. 31-32). The plaintiff testified that in 1998, he had worked as a wall cleaner, a job also secured for him in connection with the welfare program. (Tr. 32). Mr. Rivera further testified that he worked briefly as a full-time security guard in Puerto Rico in 1993. (Tr. 42).
In 1995, Mr. Rivera donated one of his kidneys to his sister. (Tr. 35-36, 149). As a result of the "pain from the kidney," Mr. Rivera testified that he felt "tired." (Tr. 39). Also due to the loss of the kidney, the plaintiff stated that he can only lift 80 pounds. (Tr. 34, 36).
Mr. Rivera's arm was in a cast at the hearing. He explained that he had broken his finger and thumb playing basketball, but was scheduled to have the cast removed the following week. (Tr. 34, 38).
Raymond Cestar, a vocational expert, testified at the hearing. (Tr. 40). He stated that, according to the Dictionary of Occupational Titles, published by the Department of Labor, a job as a wall cleaner requires a medium level of exertion and Mr. Rivera's past job as a security guard requires a light level of exertion. He stated that maintenance tasks vary between being classified as heavy work and medium work. (Tr. 41-42). Mr. Cestar further opined that an individual who was limited to performing jobs that involved only simple tasks and did not require a great deal of concentration could still do the tasks required of a security guard or a cleaning job. (Tr. 43-44).
The record also contains a number of medical documents. A psychiatric evaluation was administered to the plaintiff at the Bronx Mental Health Clinic of the Puerto Rican Family Institute on March 11, 1998. (Tr. 105-09). The examiner found Mr. Rivera casually dressed, well groomed, and cooperative. He appeared oriented to person, place, and time. (Tr. 106). His attention was adequate. His affect and mood were neutral. His thought process and content revealed no pathological preoccupation. Mr. Rivera denied hallucinations. (Tr. 107). The examiner diagnosed "adjustment disorder [with] anxious mood" and "borderline intellectual functioning." (Tr. 108). The examiner recommended psychological testing, but noted that the prognosis was good. (Tr. 109).
On March 13, 1998, the plaintiff was examined by Dr. Ingrid Nelson also of the Puerto Rican Family Institute. She reported that Mr. Rivera had no acute or chronic health problems and was not taking any medication. Her physical examination of the plaintiff revealed all normal findings. (Tr. 111-12).
The plaintiff was later evaluated by Dr. Donna LoBiondo, a certified psychologist, on October 15, 1998. (Tr. 113-16). Dr. LoBiondo determined that Mr. Rivera suffered from a learning disability. Specifically she diagnosed the plaintiff with a reading disorder and a phonological impairment. Under "Diagnostic Impressions" and "Diagnosis" she also wrote, "Rule out borderline intellectual functioning" and "R/O mild mental retardation." (Tr. 114, 116).
The doctor observed that the plaintiff's motor movements were normal. His speech was "staccato but relevant and goal-directed." His expressive language, grammar and vocabulary were "low normal." (Tr. 115). The doctor further reported that Mr. Rivera's thought process was without irrelevancies and logical. She also found that there was no evidence of "gross psychopathology, obsessions, compulsions or preoccupations." (Tr. 113).
The results of an intelligence test she conducted revealed that the plaintiff was in the "mildly mentally deficient range." The test yielded an I.Q. score of 64. Dr. LoBiondo cautioned that the test, while presumptively valid, was incomplete because only a non-verbal measure was used. (Tr. 113-14). She noted that the plaintiff's "English fluency was not sufficient for testing in English . . . [but that] [c]laimant understood simple English instructions to the TONI 3." (Tr. 113). She also reported that his "[s]ingle word reading in English" tested at the third grade level. (Tr. 113). Additionally, the test revealed that the plaintiff's ability to self-monitor and self-correct were fair and that his attention, concentration, persistence, and pace were not impaired. (Tr. 113).
Dr. LoBiondo administered the Test of Nonverbal Intelligence — 3 ("TONI-3"). This is a language-free measure of intelligence, aptitude, abstract reasoning, and problem solving. See The Psychological Assessment Resources, Inc., at http://www.parinc.com/product.cfm?ProductID=71 (last visited Dec. 20, 2001).
She estimated that Mr. Rivera's intellectual level was in the borderline range. He was able to state the date, the president, and the governor correctly, but thought the capital of New York was the United States, did not know how many ounces are in a pound and stated that three times four equaled seven. (Tr. 115). He was able to track five digits forward but only three backwards and could recall five out of nine numbers from his social security number. (Tr. 115).
Dr. LoBiondo rated Mr. Rivera's prognosis as fair. She noted that he had "a limited ability to understand, carry out and remember instructions and a limited ability to respond appropriately to supervision, co-workers and work pressures in a work setting." (Tr. 116). She also stated that he might benefit from vocational rehabilitation and appeared intellectually capable of performing low level work related activities. (Tr. 114, 116).
On December 14, 1998, Dr. Peter Kudler, a state agency consultative physician, filled out a psychiatric review form based on evidence in the file. (Tr. 123-31). He recorded that the plaintiff's low I.Q. score evidenced a significantly subaverage general intellectual functioning. (Tr. 127). The doctor also noted that Mr. Rivera was slightly restricted in conducting activities of daily living, moderately restricted in maintaining social functioning, and often experienced deficiencies of concentration. (Tr. 130).
Also based on a review of the file, Dr. Kudler assessed the mental functional capacity of the plaintiff. (Tr. 119-22). He found that the plaintiff would be able to do "simple, repetitive tasks in a sustained fashion in a low stress setting." (Tr. 121). Another state agency consultative physician, Dr. C. Khalil, agreed with both the psychiatric review and the functional capacity assessment completed by Dr. Kudler. (Tr. 121, 123).
The file contains another evaluation conducted by an unidentified state agency physician. (Tr. 117). This evaluation diagnosed Mr. Rivera with "mild mental retardation." It found Mr. Rivera oriented to person, place, and time and his speech "goal directed." The report also stated that there were no signs of obsessions, compulsions, or preoccupations. (Tr. 117). Personal and social adaption was adequate, and Mr. Rivera was found capable of handling his own money. The report concluded that the plaintiff was able to do "low stress-simple tasks." (Tr. 117).
On March 23, 1999, Dr. Nelson completed another medical report evaluating the plaintiff. (Tr. 135-40). Dr. Nelson, plaintiff's treating physician since January 1997, diagnosed Mr. Rivera with a single kidney and mild hypertension. (Tr. 135). She described the patient as a "well-appearing man" and stated that his echo-cardiogram, blood work, and urinalysis were normal. The doctor stated that the patient's medical condition did not cause him pain or require him to lie down during the day. (Tr. 136). She recorded that his treatment consisted of weight loss counseling and a low salt diet. The only medication prescribed was Motrin and no side effects of this medication were reported. (Tr. 137).
Dr. Nelson also noted that Mr. Rivera could sit, stand, and walk continuously for eight hours in a normal eight-hour work day. According to the doctor, Mr. Rivera could also lift and carry up to fifty pounds continuously, as well as bend, squat, crawl, climb, and reach continuously. (Tr. 138). Dr. Nelson further stated that the plaintiff could use both hands for repetitive handling, fingering, and pushing and pulling of arm controls as well as use both feet for continuous pushing and pulling of leg controls. (Tr. 139). The doctor also noted no restrictions involving unprotected heights, being around moving machinery, exposure to changes in temperature and humidity, driving a motor vehicle, or exposure to dusts, fumes, or gases. (Tr. 139-40).
On March 30, 1999, Dr. Gerardo Tapia, a psychiatrist at the Puerto Rican Family Institute, completed a medical report on the plaintiff. (Tr. 141-46). Dr. Tapia began treating Mr. Rivera on February 24, 1999. (Tr. 141). He diagnosed the plaintiff with major depression, but noted that he did not expect it to last twelve months. (Tr. 141). He reported that the patient's signs included a flat affect, poor impulse control, fair memory, and poor insight and judgment. He also stated that the plaintiff was easily distracted and showed signs of decreased concentration and attention. (Tr. 142). The doctor prescribed Prozac in February 1999 and noted that Mr. Rivera needed to lie down during the day due to the effects of the medication. (Tr. 142-43, 148). At the hearing, the plaintiff testified that the Prozac "makes [him] feel better." (Tr. 38). Dr. Tapia also noted that the patient could travel to work by bus. (Tr. 146).
Procedural History
Mr. Rivera filed an application for SSI benefits on September 3, 1998, alleging disability since January 1, 1998, due primarily to "mental retardation." (Tr. 73, 76). His application was denied initially on January 12, 1999, and again upon reconsideration. (Tr. 48, 54). Mr. Rivera then requested a hearing before an ALJ. The hearing, at which the plaintiff represented himself, was held on May 17, 1999. (Tr. 24). On May 20, 1999, the ALJ issued a decision holding that Mr. Rivera was not disabled. (Tr. 7, 18). Mr. Rivera filed a request for review of the ALJ's decision on May 27, 1999. (Tr. 6a). The Commissioner's decision became final on August 5, 2000, when the Appeals Council declined to review the ALJ's determination. (Tr. 4).
The plaintiff filed the instant complaint on August 25, 2000.
Mr. Rivera's initial application alleged a disability beginning on January 1, 1998. However, the instant complaint alleges a disability beginning on February 3, 1999. (Plaintiff's Complaint, ¶¶ 4, 5). Since it is unclear from the record what new disability he is referencing, if any, this review will focus on his initial request for benefits.
Discussion
A. Analytical FrameworkThe 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. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Lugo v. Chater, 932 F. Supp. 497, 500 (S.D.N.Y. 1996). Second, the court must decide whether the ALJ's decision was supported by substantial evidence. See Rosa, 168 F.3d at 77; Lugo, 932 F. Supp. at 500; see also 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"). 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)); accord Rosa, 168 F.3d at 77. "[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, 174 F.3d at 62 (quotation and citation omitted).
A claimant seeking disability benefits under the Social Security Act is considered disabled if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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)(A). In order to determine whether a claimant is disabled, the ALJ follows a five-step process outlined in regulations promulgated under the Social Security Act. See 20 C.F.R. § 416.920; see also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (describing five-step process in parallel statutory provision for disability benefits). First, the ALJ determines if the claimant is currently engaged in substantial gainful activity. See 20 C.F.R. § 416.920(b). If he is not, the ALJ must decide if the claimant has a severe impairment, one that "significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c). If the claimant's impairment is severe and is either listed in 20 C.F.R. Part 404, Subpt. P, App. 1 ("Appendix 1"), or is equivalent to a listed impairment, the claimant must automatically be found disabled without considering vocational factors such as age, education, and work experience. See 20 C.F.R. § 416.920(d). If the claimant's impairment is severe but is not listed or equal to a listed impairment, a finding of not disabled is directed if his residual functional capacity permits him to do the work he did in the past. See 20 C.F.R. § 416.920(e). If the claimant is unable to perform his past work, the ALJ must decide if there is other available work that the claimant is able to perform based on his residual functional capacity, age, education, and past work. See 20 C.F.R. § 416.920(f)(1). The claimant bears the burden of proof with respect to the first four steps in the analysis. If the claimant demonstrates an inability to perform past work, the burden shifts to the Commissioner to show that there exists other work that the claimant can perform. See Rosa, 168 F.3d at 77; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
B. The ALJ's Decision
Applying the five-step framework in this case, the ALJ determined that Mr. Rivera had not been gainfully employed since the filing date of the application. (Tr. 12, 18). He next concluded that Mr. Rivera had severe impairments that limited his ability to perform basic work-related activities. (Tr. 13). The ALJ did not, however, find that Mr. Rivera impairments were listed or equal to an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1. (Tr. 13-14, 18). He found that the claimant had the ability to sit, stand, and walk for a total of up to eight hours a day and could lift objects weighing up to fifty pounds. He also found that Mr. Rivera was limited to performing "simple work tasks," ones that did not require more than "two step operations." (Tr. 18). The ALJ then determined that Mr. Rivera had the ability to perform his past relevant work as a cleaning person and as a security guard and therefore was not disabled under the Social Security Act. (Tr. 17-18).
1. Determination of Severe Impairments
In the second step of his analysis, the ALJ determined that Mr. Rivera suffered from three impairments that qualified as "severe" under the Social Security Act, namely major depression, a missing kidney, and a reading disorder. (Tr. 18). In making his decision, the ALJ credited the claimant's testimony that after he donated his kidney he became less able to perform physical activity. (Tr. 12). The ALJ next considered the psychiatric evaluation conducted at the Bronx Mental Health Clinic on March 11, 1998 and concluded that "no particular limitations were noted." (Tr. 13). He also reviewed Dr. LoBiondo's evaluations of Mr. Rivera. He noted that Mr. Rivera was cooperative and pleasant and showed no sign of gross psychopathology. He further cited the doctor's findings that Mr. Rivera had a limited ability to carry out and remember instructions and to respond appropriately to supervision and was only able to read English at a third grade level. (Tr. 13). The ALJ noted that the doctor diagnosed Mr. Rivera with a "reading disorder, phonological disorder, r/o mild mental retardation." (Tr. 13). And finally, he cited to Dr. Tapia's diagnosis that the claimant suffered from major depression. (Tr. 13).
In concluding that Mr. Rivera suffered from the three impairments listed above, the ALJ failed to discuss mental retardation, the very disability that Mr. Rivera alleged in his application. In fact, the ALJ omitted from this analysis substantial evidence found in the record that supports Mr. Rivera's contention that he suffers from mental retardation. For example, the ALJ failed to acknowledge the findings of Drs. Kudler and Khalil who both concluded that Mr. Rivera's low I.Q. score indicated a significantly subaverage general intellectual functioning. (Tr. 127). Similarly, the ALJ omitted any mention of a third agency physician who diagnosed Mr. Rivera with "mild mental retardation." (Tr. 117).
The ALJ does acknowledge these three state agency medical reports in his analysis of the next step but notes that their finding of "mild mental retardation" deserves less weight because they did not personally examine Mr. Rivera. (Tr. 14).
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).
In addition, it is well established that "[a]n ALJ may not `selectively choose' evidence in the 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 id.; Pagan, 923 F. Supp. at 556.
Here, although the ALJ referred to the psychiatric evaluation conducted on March 11, 1998 in determining Mr. Rivera's impairments, he ignored important findings when he concluded that "no particular limitations were noted." (Tr. 13). In fact, the examiner diagnosed Mr. Rivera with "adjustment disorder [with] anxious mood" and "borderline intellectual functioning." (Tr. 108).
Similarly, the ALJ's review of Dr. LoBiondo's findings was incomplete. Although he cited her conclusion that the plaintiff faced limitations in the work setting due to a learning disability, he failed to acknowledge other critical findings. The most important omission was the low I.Q. score Mr. Rivera received on the intelligence test conducted by Dr. LoBiondo. Mr. Rivera's quotient score was 64, well within the mentally deficient range. (Tr. 113). See Holmes v. Heckler, 594 F. Supp. 536, 538 (D.Me. 1984) (plaintiff's mental retardation deserved to be considered where I.Q. was 64). In this case, the results of the test were particularly important since Dr. LoBiondo was the only doctor who performed an intelligence test on Mr. Rivera. See 20 C.F.R. Part 404, Subpt. P, App. 1, 12.00(D)(6)(b)("standardized intelligence test results are essential to the adjudication of all cases of mental retardation" except where the "condition precludes formal standardized testing"); see also Holmes, 594 F. Supp. at 538 (regulations require that plaintiff's I.Q. be used as primary determinant in assessing impairment).
Dr. LoBiondo did caution that although the I.Q. test was valid, it was incomplete because only a non-verbal measure was used. (Tr. 113). However, Social Security regulations validate the use of non-verbal tests in some cases. "Generally, it is preferable to use IQ measures that are wide in scope and include items that test both verbal and performance abilities. However, in special circumstances, such as the assessment of individuals . . . whose culture and background are not principally English-speaking, measures such as the Test of Nonverbal Intelligence, Third Edition (TONI-3) . . . may be used." 20 C.F.R Part 404, Subpt. P, App. 1, 12.00(D)(6)(d). In this case, the use of the TONI-3 was arguably appropriate since Mr. Rivera's background was principally Spanish-speaking and the doctor found his English-speaking and writing ability to be limited. (Tr. 113). There is no way of knowing, however, whether the ALJ considered any of this because he never discussed Mr. Rivera's I.Q. score in his decision.
Dr. LoBiondo concluded her report by stating that the claimant had a functional intellectual level in the mildly mentally deficient range. Under the diagnostic section, she wrote, "R/O mild mental retardation." While these statements taken together are arguably open to some interpretation, their ambiguity does not give the ALJ authority to ignore them.
Here, the ALJ erred by discussing only selected segments of Dr. LoBiondo's findings and failing to acknowledge other doctor's findings of mild mental retardation and borderline intellectual functioning. For these reasons, I find that there is not substantial evidence to support the ALJ's determination that mental retardation is not a severe impairment.
2. Listed Impairment Determination
In step three of his analysis, the ALJ determined that Mr. Rivera's condition failed to meet the requirements of any impairment listed in Appendix 1. (Tr. 18). He then proceeded to analyze Mr. Rivera's residual functional capacity as required by the Social Security regulations after a finding that the condition is severe but does not meet a listed impairment. 20 C.F.R. § 416.920(e)-(f). Although in step two the ALJ failed to identify mental retardation as a severe impairment, he nonetheless included it in his analysis under step three. Based on Mr. Rivera's complaints, the ALJ applied Sections 12.04 (affective disorders) and 12.05 (mental retardation) of the impairments listed in Appendix 1. (Tr. 15).
Section 12.05 defines mental retardation as "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period." 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.05. A claimant will be found to have the required level of severity for this disorder if one of the following four requirements is met:
A. Mental incapacity evidenced by dependence upon others for personal needs . . . and inability to follow directions . . .; OR
B. A valid verbal, performance, or full scale IQ of 59 or less; OR
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function; OR
D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
Id.
In his decision, the ALJ simply stated that Mr. Rivera failed to meet any impairment in the listing, but he did not indicate why Mr. Rivera did not automatically qualify for SSI under Section 12.05(C). This section has two requirements: (1) that the claimant have an I.Q. score between 60 and 70; and (2) that the claimant have another impairment which imposes a significant work-related limitation. Here, the plaintiff's quotient I.Q. score of 64 meets the first prong. The ALJ gave no reason for which he might discredit the results of the TONI-3 administered by Dr. LoBiondo. In fact, he failed to even mention the score. In addition, the I.Q. score was not contested by anyone who examined the claimant or his record. In fact, Drs. Kudler and Khalil both referenced the plaintiff's low I.Q. score as evidence of his significantly subaverage general intellectual functioning. (Tr. 127).
The latter part of the test for mental retardation under Section 12.05(C) is "a physical or other mental impairment imposing an additional and significant work-related limitation of function." 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.05(C). The Circuits that have addressed this provision are divided as to its precise meaning. Compare Sird v. Chater, 105 F.3d 401, 403 (8th Cir. 1997) (second prong requires additional impairment that is "more than slight or minimal" but less than severe); Edwards ex rel. Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985) (same), with Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997) (second prong requires additional impairment which satisfies severity test of step two of Commissioner's five-step process). Although the Second Circuit has yet to address this issue, at least one district court has held that the correct standard is the severity test. See Baneky v. Apfel, 997 F. Supp. 543, 546 (S.D.N.Y. 1998).
Under either test, Mr. Rivera satisfies the second prong of Section 12.05(C). The ALJ found that the combination of Mr. Rivera's impairments, consisting of a single kidney, major depression, and a reading disorder, qualify as "severe" within the meaning of the Social Security Act. (Tr. 18). Thus, the ALJ's findings satisfy the additional limitation requirement of Section 12.05(C). Because the ALJ did not explain why Mr. Rivera's I.Q. score, coupled with his other severe impairments, did not satisfy Section 12.05(C), the ALJ failed to provide a rational basis for the denial of benefits.
C. Disposition
There remains the question of whether the Court should direct that the case be remanded for further development of the evidentiary record or for calculation of benefits. The Social Security Act empowers the federal courts "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." 42 U.S.C. § 405(g). "Where there are gaps in the administrative record or the ALJ has applied an improper legal standard, [courts] have, on numerous occasions, remanded to the [Commissioner] for further development of the evidence." Rosa, 168 F.3d at 82-83 (quotations and citations omitted). "In other situations, where [the] [c]ourt has had no apparent basis to conclude that a more complete record might support the Commissioner's decision, [courts] have opted simply to remand for a calculation of benefits." Id. (citing Balsamo, 142 F.3d. at 82). Finally, a district court may itself determine disability instead of remanding if "application of the correct legal standard could lead to only one conclusion." Schaal v. Apfel, 134 F.3d at 504 (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d. Cir. 1987)).
In this case, there is no need to develop the record further. Such a remedy would only delay the payment of benefits to which the claimant is entitled. See Rivera v. Sullivan, 923 F.2d 964, 970 (2d Cir. 1991); Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 644 (2d Cir. 1983). As discussed above, the ALJ committed error by ignoring Mr. Rivera's low I.Q. score and by failing to consider whether Mr. Rivera's impairments met the requirements of "mental retardation" listed in Appendix 1, § 12.05. There is substantial evidence in the record to support a finding that Mr. Rivera meets the two requirements of Section 12.05(C) and is therefore disabled under the Act. Further development of the record is unwarranted because a correct application of the relevant statutes and regulations would have led only to this conclusion. See Badgley v. Secretary of Health and Human Services, No. 82-CV-794, 1983 WL 123142, at *3 (N.D.N.Y. Oct. 28, 1983).
Conclusion
For the reasons set forth above, I recommend that the defendant's motion for judgment on the pleadings be denied and the case be remanded exclusively for a calculation of benefits. 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 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 Allen G. Schwartz, Room 1350, 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.