Opinion
99 Civ. 12037 (AJP)
July 31, 2001
OPINION AND ORDER
Plaintiff Inola Tucker ("Tucker") brings this action on behalf of her minor child, Canola Samuels ("Samuels"), pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny Samuels disability benefits. Both parties have cross-moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) (Dkt. Nos. 6-7, 9-12), and have consented to a decision on the motions by a Magistrate Judge pursuant to 28 U.S.C. § 636(c) (Dkt. No. 15). For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is granted and plaintiff's motion is denied.
PROCEDURAL BACKGROUND
On February 28, 1997, Tucker, on behalf of her then five year old daughter Samuels, filed an application for Social Security Supplemental Security Income ("SSI") disability benefits based upon a claim of speech problems. (See Administrative Record filed by the Commissioner ["R."] 18.) The application was denied on July 2, 1997. (R. 41-44.) Tucker requested reconsideration of the denial of benefits based upon Samuels' language, speech and emotional problems. (R. 45.) The application was denied upon reconsideration on September 2, 1997. (R. 47-50.) At Tucker's. request (see R. 51), a hearing was held before an administrative law judge ("ALJ") on August 7, 1998. (R. 24-38.) Although notified of their right to representation (see, e.g., R. 23A-23B, 26, 48, 53-54, 56), Tucker/Samuels decided to proceed without counsel at the ALJ hearing (R. 26). On August 9, 1998, the ALJ issued his decision finding that Samuels was not disabled. (R. 14-23.) Tucker/Samuels sought Appeals Council review. (R. 12.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied the request for review on October 12, 1999. (R. 7-8.) This action, in which Tucker/Samuels is represented by counsel, followed.
The issue before the Court is whether the Commissioner's decision that Samuels was not disabled is supported by substantial evidence.
FACTS
A. The Hearing Before the ALJ
On August 7, 1998, the ALJ held a hearing on Tucker/Samuels' SSI application. (R. 24-38.) Present at the hearing were Tucker, Samuels and pediatrician Dr. Sree Devi T.N. Chandrasekhar, who testified as a medical expert for the Commissioner. (R. 24-61.) At the time of the hearing, Samuels was six years old and about to begin first grade. (R. 28, 29.)
1. Tucker's Testimony
Tucker testified that Samuels had language and speech problems "ever since she was born" (R. 31), and that Samuels received speech therapy but that it did not improve her ability to communicate (R. 30). The ALJ asked Tucker if Samuels knew how to read, but Tucker did not know the answer. (R. 30.) Tucker agreed that Samuels knows her ABC's and can sing and recite them. (R. 30.) According to Tucker, Samuels is not taking any medication and does not have any medical conditions, other than a rash which clears up with ointment.(R. 31-32.)
Tucker testified that Samuels began seeing a psychiatrist for her language problems on July 7, 1998, a month before the hearing. (R. 31-32, 34.) The ALJ asked whether Tucker believed that Samuels had psychiatric problems and Tucker responded "loneliness." (R. 32.) Although Tucker testified that Samuels plays with friends and that she also plays with her three brothers, Tucker said that Samuels is "different and she knows it. So she keeps away." (R. 32-33.)
2. Samuels' Testimony
Samuels asked, during the beginning of the ALJ's questioning of Tucker, if she could talk too, and the ALJ agreed to talk to her first. (R. 28.) Samuels said she was six years old and confirmed that she was going into the first grade. (R. 29.) Samuels testified that she enjoyed going to school and her favorite part of school was "learning." (R. 29.) She likes to read, and she was able to recite her ABC's through the letter V without assistance. (R. 29-30.)
At home, Samuels plays with her brothers. (R. 33.)
3. Dr. Chandrasekhar's Testimony
Dr. Chandrasekhar, the Commission-appointed medical expert, testified based upon her review of Samuels' medical records and Tucker's and Samuels' testimony at the hearing. (R. 34.) Dr. Chandrasekhar found that Samuels "has a really serious speech language delay and a problem with stuttering [for which] she has been undergoing therapy . . . [and the therapists] are very much encouraged by the improvement [Samuels] has shown." (R. 35.) Dr. Chandrasekhar also noted that a psychiatrist diagnosed "some anxiety and worry" but determined that this was not a "medically determinable severe impairment." (R. 35.)
According to Dr. Chandrasekhar, Samuels does not have any limitations of motor development or personal development functions, and has "less than marked" limitations of the cognitive communicative development and social development functions "because of speech problems and the connective anxiety. and worry." (R. 36-37.) Dr. Chandrasekhar found that Samuels also has a "less than marked" limitation on the ability to sustain concentration, persistence or pace. (R. 36.) Dr. Chandrasekhar determined that Samuels did not meet any of the Social Security disability categories or possess impairments that are the same as any of the listed impairments. (R. 35-37.)
B. The Educational Evidence
In 1996, Samuels' day care providers noted that Samuels "follows directions and works well. She could do better, but at times she will not speak because she stutters."(R. 218.) Samuels' preschool reported in 1996 that her "overall adaptive skills fell within the adequate range" but that she stutters when nervous. (R. 214-17.) It found that Samuels' "current level of cognitive development . . . falls within the low average range," her social and emotional development falls within "the adequate range" and she "exhibits moderate delays in the production [and] comprehension of language." (R. 214.) The school recommended speech therapy for Samuels' language problem. (R. 215.)
Also in 1996, Samuels' individualized education program teacher, speech-pathologist Sharon Williams, found that Samuels "demonstrated difficulty comprehending commands that incorporated negatives, passive voice and spatial and temporal concepts" and "demonstrated dysfluencies throughout the evaluation characterized by initial sound prolongations and concomitant behaviors." (R. 129, 160-61.) According to Williams, Samuels' "readiness skills appeared at age level. [Samuels] knew basic colors and shapes, could draw a circle, but had difficulty with a square. . . . She knew directional positional concepts, and attended well in these areas. She can name and identify most body parts expected at her age level." (R. 128.) Williams' "evaluation indicated that most skills were at the age appropriate level, with scattering in the communication area" and Samuels' "gross . . . [and] fine motor skills appeared at age level." (R. 128.) Williams determined that Samuels exhibits "moderate delays in the production and comprehension of language" (R. 129, 159-61), and recommended speech therapy (R. 132-33, 161).
In May 1997, a New York City Public School individualized education program evaluation found that Samuels needs "speech and language and counseling or related services to help her with her speech/language and emotional needs." (R. 135.) Another evaluation by speech language pathologist Adele Stern in June 1997 (R. 166-68) provided that Samuels was "an engaging, well related, 5.5 year old . . . who did not initiate but perpetuated conversation with the examiner using complete sentences, and was cooperative throughout the session . . . she was accompanied by her mother, Inola Tucker, who exhibited poor judgment and recall. Reliability of [mother's] information is questionable. As language testing progressed, Ms. Tucker expressed her amazement at what her daughter could do." (R. 166.) Stern found that Samuels had "mild auditory comprehension difficulties . . . [and] moderate dysfluencies . . . characterized by prolongations of the initial sound, hesitations. . . . Articulation is standard. Intelligibility in spite of the dysfluencies, is good." (R. 168.) Samuels was rated "average" in the "expressive" category. (R. 167.) Stern found that Samuels possessed "standard articulation at word level. The `sounds in sentences task' revealed not only standard articulation, but complete and complex sentences such as `He can't find it because the soap is outside on the floor.' Intelligibility is good." (R. 167.) Stern recommended "speech language therapy" and "family counseling regarding the listener's reaction and impact on the dysfluent speaker." (R. 168.) Stern added her impression that "[i]ntervention at this time should result in a good prognosis." (R. 168.)
In April 1998, Samuels' guidance counselor, Ms. S. Levitus, reported that in the six months she knew her, Samuels "seems to have more self-confidence and believes she is teased less for her speech difficulties." (R. 176.) Levitus found that Samuels "is always cooperative and respectful." (R. 176.)
Also in April 1998, Samuels' classroom teacher, Ms. Ellis-Smith, noted in her evaluation of Samuels that "as a result of the individualized attention [Samuels] receives from speech [therapy] and counseling, she displays a risen level of self-esteem." (R. 178.) According to the checklist Ellis-Smith filled out, Samuels has "just a little" difficulty learning. (R. 178.)
Also in April 1998, Samuels' speech teacher, S. Zukarsky, found that Samuels "exhibits a moderate receptive and expressive language delay" and "demonstrates dysfluencies" but that she is "outgoing and expressive about her personal needs and wants."(R. 174.) Samuels "has been doing well in class," even though she "has missed a considerable amount of speech sessions." (R. 174.) Zukarsky reported that "when [Samuels] is in school, she comes to speech with enthusiasm and interest" and "responds to all questions asked of her [in class]. [Samuels] participates and always does her work. She usually achieves the criteria set for her in the area of language." (R. 174.) Zukarsky recommended individual therapy, because it was difficult to assess Samuels' fluency in light of the fact that her speech therapy was conducted with two other students. (R. 174.)
Samuels remained in general education classes (see, e.g., R. 184, 194), and received speech therapy and counseling (see, e.g., R. 30, 184).
C. Medical and Professional Evaluations
In July 1996 Samuels was referred by her pediatrician to Barbara DeCicco, a speech-language pathologist at Mount Sinai Medical Center for her stuttering. (R. 156.)
DeCicco found that Samuels' articulation was "commensurate with age level expectations," but that "significant dysfluencies [were] evident" in Samuels' speech. (R. 157.) Samuels reported to DeCicco, "`I can't talk properly and I can't talk that much.'" (R. 157.) DeCicco "was unable to elicit a 30 or 60 second monologue so a frequency count was not completed" but found that Samuels had dysfluencies "characterized by syllable repetitions; silent prolongations and audible prolongations. . . . ranging from fleeting to 2 seconds in duration."(R. 157.) Other than Samuels' stuttering, DeCicco found that Samuels' "[a]rticulation skills are adequate." (R. 158.) DeCicco concluded that Samuels "presents with a moderate-severe stuttering disorder characterized by syllable repetitions." (R. 158.) DeCicco recommended "[s]peech therapy twice weekly to facilitate fluency,"both"[d]irect therapy with [Samuels]" and "[i]ndirect therapy (parental counseling of ways to create a fluency enhancing environment)." (R. 158.)
In July 1998, Samuels was diagnosed with general anxiety disorder by Dr. Gharani, a psychiatrist to whom she had been referred by her school. (R. 169-73, 219, 222, 223, 227.) By checking off symptoms on a checklist, Dr. Gharani indicated that Samuels had "[p]ersistent unrealistic or excessive anxiety and worry . . . [and] persistent irrational fear" and a "marked impairment in age-appropriate social functioning, documented by history and medical findings." (R. 169-70, 172.) Dr. Gharani found that Samuels was not disabled because she did not possess a combination of anxiety disorders with the severity that would satisfy the requirements provided for by the criteria (R. 169, 172), although he indicated in other reports that Samuels' stuttering was "severe" (R. 223) and "anxiety related" (R. 219-20,227). In a section of his report entitled "Treatment and Response," Dr. Gharani wrote:
The checklist provided two sections with different criteria: the "A" criteria (which diagnose the impairment) and the "B" criteria (which assess the severity of the child's loss of function resulting from the impairment diagnosed in "A").
"Individual therapy. Some improvement in stuttering. Pt [i.e., patient] continues to stutter when anxious." (R. 222; see also R. 227-28.)
There is no evidence in the record that any professional found medication to be warranted for Samuels' speech or anxiety problems.
D. The ALJ's Decision
On August 9, 1998, the ALJ issued his written opinion. (R. 14-23.) He first reviewed the applicable legal standard pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (R. 17), and the education evaluations, medical reports and other evidence in the record including Dr. Chandrasekhar' s testimony (R. 18-22). The ALJ found that Samuels was never engaged in "substantial gainful activity" during any part of the period under adjudication. (R. 23.) The ALJ also found that "although the record establishes that [Samuels] has a speech/language delay which has improved and that she is seeing a psychiatrist, the record and the hearing testimony establish that these impairments do not result in marked and severe restrictions of either [Samuels]'s specific or broad areas of functioning." (R. 22.)
In addition, the ALJ determined that Samuels "has no limitation in her motor development and personal function and less than marked limitation in her cognitive/communicative and social functions and in her ability to sustain concentration, persistence or pace." (R. 22.)
The ALJ concluded: "After careful consideration of the entire record and the testimony at the hearing, the undersigned finds that the claimant's impairments do not impose marked and severe functional restrictions. Further, the claimant's impairments do not meet, medically equal, or functionally equal the requisite criteria of Part A or Part B of the Listing of Impairments, Appendix 1, Subpart P, Regulations No. 4. Therefore, the claimant is not disabled within the meaning of the Social Security Act and Regulations and she is ineligible for supplemental security income under Title XVI of the Act." (R. 18.)
ANALYSIS
I. STANDARD OF REVIEW
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Roy v. Apfel, No. 99-6153, 201 F.3d 432 (table), 1999 WL 1295361 at * 1 (2d Cir. Dec. 22, 1999); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983); Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983). "Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision." Burris v. Chater, 1996 WL 148345 at *3.
See also, e.g., Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *5 (S.D.N.Y. July 11, 2001) (Peck, M.J.); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at * 6 (S.D.N Y Dec. 21, 2000) (Peck, M.J.); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at * 7 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at * 5 (S.D.N.Y. Dec. 9, 1999) ("The Commissioner's decision is to be afforded considerable deference; the reviewing court should not substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.") (internal quotations alterations omitted); Jones v. Apfel, 66 F. Supp.2d 518, 536 (S.D.N Y Sept. 20, 1999) (Pauley, D.J. Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 181 (S.D.N.Y. July 12, 1999) (Preska, D.J. Peck, M.J.); Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at * 7 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.); Vega v. Commissioner, 97 Civ. 6438, 1998 WL 255411 at * 6 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 423 (S.D.N.Y. Nov. 13, 1996) (Batts, D.J. Peck, M.J.); Burris v. Chater, 94 Civ. 8049, 1996 WL 148345 at * 2 (S.D.N.Y. Aug. 2, 1996); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at * 6 (S.D.N.Y. Sept. 26, 1995); Francese v. Shalala, 897 F. Supp. 766, 770 (S.D.N.Y. 1995); Coleman v. Shalala, 895 F. Supp. 50, 54 (S.D.N.Y. 1995); 42 U.S.C. § 405(g).
See also, e.g., Morel v. Massanari, 2001 WL 776950 at * 5; Duvergel v. Apfel, 2000 WL 328593 a * 7; Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 1998 WL 603151 at * 7; Vega v. Commissioner, 1998 WL 255411 at * 6; Francese v. Shalala, 897 F. Supp. at 770.
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971).
Accord, e.g., Shaw v. Chater, 221 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Roy v. Apfel, 1999 WL 1295361 at *1; Col eman v. Apfel, No. 99-6107, 199 F.3d 1321 (table), 1999 WL 1024705 at * 1 (2d Cir. Nov. 8, 1999); Brown v. Apfel, 174 F.3d at 61; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Callahan, 167 F.3d at 773-74; Perez v. Chater, 77 F.3d at 46; Morel v. Massanari, 2001 WL 776950 at *5; DeLeon v. Apfel, 2000 WL 1873851 at *6; Duvergel v. Apfel, 2000 WL 328593 at * 7; Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 1998 WL 603151 at * 8; Vega v. Commissioner, 1998 WL 255411 at * 6; Pickering v. Chater, 951 F. Supp. at 423; Walzer v. Chater, 1995 WL 791963 at *6.
"[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207(1983). The Court must be careful not to "`substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).
Accord, e.g., DeLeon v. Apfel, 2000 WL 1873851 at * 6; Fernandez v. Apfel, 1998 WL 603151 at * 8; Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at * 4 (S.D.N.Y. Jan. 13, 1998).
See also, e.g., Toles v. Chater, No. 99-6065, 104 F.3d 351 (table), 1996 WL 545591 at * 1 (2d Cir. Sept. 26, 1996); Morel v. Massanari, 2001 WL 776950 at *5 n. 11; DeLeon v. Apfel, 2000 WL 1873851 at *6; Duvergel v. Apfel, 2000 WL 328593 at *7; Jones v. Apfel, 66 F. Supp.2d at 536; Fernandez v. Apfel, 1998 WL 603151 at *8; Fuller v. Apfel, 1998 WL 9402 at *4.
The Court will not defer to the Commissioner's determination if it is "`the product of legal error.'" E.g., DeLeon v. Apfel, 2000 WL 1873851 at * 6; Duvergel v. Apfel, 2000 WL 328593 at * 7; see, e.g., Tejada v. Apfel, 167 F.3d at 773 (citing cases).
See also, e.g., Morel v. Massanari, 2001 WL 776950 at * 5; Duvergel v. Apfel, 2000 WL 328593 at * 7; Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 1998 WL 603151 at * 8; Vega v. Commissioner, 1998 WL 255411 at * 6; Burris v. Chater, 1996 WL 148345 at * 3; Francese v. Shalala, 897 F. Supp. at 770.
II. THE APPLICABLE LEGAL STANDARD FOR DETERMINING DISABILITY OF A CHILD
Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the "PRWORA"), Pub.L. No. 104-193, 1996 U.S. Code Cong. Admin. News (110 Stat.) 2105, a disability exists for purposes of SSI benefits if a child under the age of eighteen:
[1] has a medically determinable physical or mental impairment, [2] which results in marked and severe functional limitations, and [3] 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 . . . [however,] no individual under the age of 18 who engages in substantial gainful activity . . . may be considered to be disabled.42 U.S.C. § 1382c(a)(3)(C)(i)-(ii); see, e.g., Quinones v. Chater, 117 F.3d 29, 33 n. 1 (2d Cir. 1997); Cotis v. Massanari, 00 Civ. 4693, 2001 WL 527471 at * 3 (S.D.N.Y. May 17, 2001); Straw v. Apfel, 98 Civ. 5089, 2001 WL 406184 at * 4 (S.D.N.Y. Apr. 20, 2001); Colon v. Apfel, 133 F. Supp.2d 330, 338 (S.D.N.Y. 2001); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at * 6-7 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.).
See also, e.g., Carballo v. Apfel, 34 F. Supp.2d 208, 216 (S.D.N.Y. 1999); Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at * 9 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.); Almonte v. Apfel, 96 Civ. 1119, 1998 WL 150996 at *1 n. 2 (S.D.N.Y. March 31, 1998); Evans v. Apfel, 96 Civ. 7741, 1998 WL 91127 at *4 (S.D.N.Y. Mar. 2, 1998); Diaz v. Apfel, 994 F. Supp. 541, 545-46 (S.D.N.Y. 1998); Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at * 6 (S.D.N.Y. Jan. 13, 1998).
The implementing regulations provide a three-step process for determining eligibility. 20 C.F.R. § 416.924(a). In the first step, the ALJ must determine whether the child is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). If so, there can be no finding of disability. 20 C.F.R. § 416.924(a)-(b). If not, the analysis proceeds to step two, which requires the ALJ to determine whether the child has a severe impairment or combination of impairments. 20 C.F.R. § 416.924(c). If the impairment(s) constitutes a "slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations," the child will not be found to have a severe impairment. 20 C.F.R. § 416.924(c). If there is a finding of severe impairment, however, the analysis proceeds to step three, which requires the ALJ to determine whether the impairment(s)
See, e.g., Cotis v. Massanari, 2001 WL 527471 at * 3; Straw v. Apfel, 2001 WL 406184 at * 4-5; Colon v. Apfel, 133 F. Supp.2d at 337-40; DeLeon v. Apfel, 2000 WL 1873851 at * 7; De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at * 4 (S.D.N.Y. July 12, 2000); Salomon v. Apfel, 99 Civ. 4250, 2000 WL 776924 at * 3 (S.D.N.Y. June 15, 2000); Duvergel v. Apfel, 97 Civ. 7131, 1999 WL 178780 at * 5 (S.D.N.Y. Mar. 31, 1999)(Peck, M.J.); Carballo v. Apfel, 34 F. Supp.2d 208, 216 (S.D.N.Y. 1999); Fernandez v. Apfel, 1998 WL 603151 at * 9; Scullark v. Apfel, 97 Civ. 7138, 1998 WL 472059 at * 6 (S.D.N.Y. Aug. 6, 1998); Diaz v. Apfel, 994 F. Supp. at 545.
See also, e.g., Cotis v. Massanari, 2001 WL 527471 at * 3; Straw v. Apfel, 2001 WL 406184 at * 4; DeLeon v. Apfel, 2000 WL 1873851 at * 7; Fernandez v. Apfel, 1998 WL 603151 at * 9.
See, e.g., Cotis v. Massanari, 2001 WL 527471 at * 3; Straw v. Apfel, 2001 WL 406184 at * 4-5; Colon v. Apfel, 133 F. Supp.2d at 341-42; DeLeon v. Apfel, 2000 WL 1873851 at * 7; Fernandez v. Apfel, 1998 WL 603151 at *9.
See also, e.g., Cotis v. Massanari, 2001 WL 527471 at * 3; Straw v. Apfel, 2001 WL 406184 at * 5; Colon v. Apfel, 133 F. Supp.2d at 341-42; DeLeon v. Apfel, 2000 WL 1873851 at * 7; Fernandez v. Apfel, 1998 WL 603151 at * 9.
meet, medically equal, or functionally equal in severity a listed impairment in appendix 1. An impairment(s) causes marked and severe functional limitations if it meets or medically equals in severity the set of criteria for an impairment listed in the Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter, or if it is functionally equal in severity to a listed impairment.20 C.F.R. § 416.924(d). If this equivalency test is satisfied, and the statute's durational requirement is satisfied as well, then the child will be found to be disabled. 20 C.F.R. § 416.924(d)(1). Otherwise, he will not. 20 C.F.R. § 416.924(d)(2).
See also, e.g., Cotis v. Massanari, 2001 WL 527471 at * 3; Straw v. Apfel, 2001 WL 406184 at * 4; Colon v. Apfel, 133 F. Supp.2d at 340-41 n. 9; DeLeon v. Apfel, 2000 WL 1873851 at * 7; Fernandez v. Apfel, 1998 WL 603151 at * 9-10.
See also, e.g., Cotis v. Massanari, 2001 WL 527471 at * 3; Straw v. Apfel, 2001 WL 406184 at * 4; Colon v. Apfel, 133 F. Supp.2d at 340-41 n. 9; DeLeon v. Apfel, 2000 WL 1873851 at * 7; Fernandez v. Apfel, 1998 WL 603151 at *9-10; Diaz v. Apfel, 1998 WL 78247 at *4.
III. APPLICATION OF THE LEGAL STANDARD TO SAMUELS' CLAIM
Because the ALJ found that Samuels never engaged in a substantial gainful activity, Samuels satisfied the first requirement of the three-part test. The Court therefore must determine whether substantial evidence supports the ALJ's conclusions that Samuels' impairments are neither severe nor functionally equivalent to an impairment listed at 20 C.F.R. part 404, subpart P, appendix 1. Speech impairments are dealt with in Sections 2.00 B.3 and 2.09 of the listings of impairments.To support a finding of functional equivalence, Samuels' impairments must either: (1) result in "extreme limitation of one specific function;" (2) produce "extreme limitations in one area of functioning or marked limitation in two" or more "broad areas of development or functioning; "(3) exhibit" episodic criteria," such as "frequent illnesses or attacks;" or (4) require medical treatment over a long time period that itself "causes marked and severe functional limitations." 20 C.F.R. § 416.926a(b)(1)-(4).
See, e.g., Cotis v. Massanari, 00 Civ. 4693, 2001 WL 527471 at * 3-4 (S.D.N.Y. May 17, 2001); Straw v. Apfel, 98 Civ. 5089, 2001 WL 406184 at *4 (S.D.N.Y. Apr. 20, 2001); Colon v. Apfel, 133 F. Supp.2d 330, 339-40 (S.D.N.Y. 2001); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at * 7 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.); De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at * 4 (S.D.N.Y. July 12, 2000).
An extreme impairment exists if there is "no meaningful functioning in a given area," 20 C.F.R. § 416.926a(c)(3)(ii)(C), while a marked limitation is one that is "more than moderate" and "less than extreme" and "interfere[s] seriously with the child's functioning." 20 C.F.R. § 416.926a(c)(3)(i)(C).
See also, e.g., Cotis v. Massanari, 2001 WL 527471 at * 4; Straw v. Apfel, 2001 WL 406184 at *4-6; Colon v. Apfel, 133 F. Supp.2d at 340; DeLeon v. Apfel, 2000 WL 1873851 at *8; De Medina v. Apfel, 2000 WL 964937 at *5; Salomon v. Apfel, 99 Civ. 4250, 2000 WL 776924 at * 3 (S.D.N.Y. June 15, 2000).
The record indicates that Samuels does not suffer from any extreme limitations of function, because Samuels is capable of functioning, at some level, in all areas. In addition, she is not prone to frequent illness and does not receive medical treatment which results in severe functional limitations. Thus, as Tucker/Samuels' counsel acknowledges, the inquiry focuses on whether Samuels suffers from functional limitations resulting from conditions which are "marked" in at least two broad areas of functioning. (See Tucker/Samuel s Br. at 7.) Under this requirement, five broad areas of functioning must be assessed: (1) cognitive and communicative development; (2) motor function; (3) social development; (4) personal development; and (5) concentration, persistence and pace. 20 C.F.R. § 416.926a (c)(4).
See also, e.g., Cotis v. Massanari, 2001 WL 527471 at * 4; Straw v. Apfel, 2001 WL 406184 at * 6; Colon v. Apfel, 133 F. Supp.2d at 341; DeLeon v. Apfel, 2000 WL 1873851 at * 8; De Medina v. Apfel, 2000 WL 964937 at * 5; Salomon v. Apfel, 2000 WL 776924 at *3.
The ALJ reviewed the evidence as to all five broad areas and found that Samuels "has no limitation in her motor development and personal function and less than marked limitation in her cognitive/communicative and social functions and in her ability to sustain concentration, persistence or pace." (R. 22.) In making this determination, the ALJ was required to consider "all of the relevant evidence in the record, including: (1) the objective medical facts; (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant's symptoms submitted by the claimant, [her] family, and others; and (4) the claimant's educational background, age, and . . . experience." DeLeon v. Apfel, 2000 WL 1873851 at * 8 (internal quotations omitted); see also, e.g., Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at * 5 (S.D.N.Y. July 11, 2001) (Peck, M.J.) ( cases cited therein); De Medina v. Apfel, 2000 WL 964937 at * 4 (quoting Marrero v. Apfel, 87 F. Supp.2d 340, 346 (S.D.N.Y. 2000), aff'd mem., No. 00-6117, ___ F.3d ___ (table), 2001 WL 138340 (2d Cir. Feb. 15, 2001)).
Furthermore, because Tucker/Samuels appeared pro se before the ALJ, the ALJ was under a heightened duty "'to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" DeLeon v. Apfel, 2000 WL 1873851 at *8 n. 6; Carballo v. Apfel, 34 F. Supp.2d 208, 214 (S.D.N.Y. Feb. 5, 1999) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)); see also, e.g., Cotis v. Massanari, 2001 WL 527471 at * 4; Salomon v. Apfel, 2000 WL 776924 at *5. Tucker/Samuels argues that plaintiff "was deprived of a meaningful opportunity to obtain expert assistance in aid of a fair and complete development and evaluation of all of the relevant evidence." (Dkt. No. 7: Tucker/Samuels Br. at 5-7.) The record indicates otherwise. Tucker/Samuels received notices informing her of her right to retain counsel for the hearing or find free legal representation (E.g., R. 23A, 42) and the ALJ asked at the hearing whether Tucker understood this right, to which she responded, "Yes" (R. 26). See, e.g., Infante v. Apfel, 97 Civ. 7689, 2001 WL 536930 at *9-10 (S.D.N.Y. May 21, 2001) ("[T]he record demonstrates that Plaintiff was notified . . . of her right to be represented by a lawyer, or any other person, and to contact her Social Security Office for assistance. Plaintiff was also sent a letter in English and Spanish explaining her right to representation as well as a list of possible legal representatives. The notice of hearing identified the functions that a representative could perform at the hearing. . . . [Therefore,] [t]he Court rejects Plaintiff's arguments that the notification of her right to counsel, and her waiver of that right were invalid.") (record citations omitted); Rivera v. Apfel, 98 Civ. 3393, 2000 WL 1201545 at * 2-3 (S.D.N.Y. Aug. 22, 2000) (The ALJ "satisfied his burden of making [plaintiff] aware of her right to representation" where plaintiff "received several documents explaining how to obtain free legal services, such as the initial notice of denial of SSI benefits, the denial of her request for a reconsideration, and the notice from the ALJ regarding a hearing date," the ALJ "clearly made [plaintiff] aware of this right . . . [and] [t]he hearing transcript reveals that [the ALJ] asked [plaintiff] if she wanted to proceed without representation."); Salomon v. Apfel, 99 Civ. 4250, 2000 WL 776924 at * 6 (S.D.N.Y. June 15, 2000) ('[P]laintiff was not deprived of hr right to counsel . . . [where] the Social Security Administration sent plaintiff a Notice prior to the hearing explaining her rights . . . [and] [a]t the hearing, the ALJ made clear that plaintiff's mother had a right to an attorney.").
The ALJ met these standards in evaluating Samuels' claim. The Court turns to the three relevant areas of functioning:
As to motor function and personal function, the ALJ found:
The record establishes that the claimant has no limitation in her motor development. Notes from he Individualized Education Program show that the claimant's fine and gross motor skills were age appropriate (exhibit 12F). [R. 185-93.]
A. Cognitive and Communicative Development
The regulations define cognitive function as a child's "ability or inability to learn, understand, and solve problems . . .; the ability to retain and recall information . . . [;] [and] [t]he ability or inability to comprehend and produce language . . . in order to communicate." 20 C.F.R. § 416.926a(c)(4)(i); see also, e.g., 20 C.F.R. § 416.926a(c)(5) (i v)(A); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at * 9 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.); De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at * 6 (S.D.N.Y. July 12, 2000).
The ALJ found that Samuels has less than marked limitation with regard to her cognitive and communicative function, based upon the medical and school records. (R. 18-22.) Substantial evidence supports the ALJ's determination.
Samuels' standardized testing scores fall within the low average intelligence range and she experienced "moderate delays in the production and comprehension of language." (R. 125, 129, 141.) She was found by speech pathologist Williams to be "average" in quantitative reasoning indicating "strength" in nonverbal reasoning. (R. 130, 139.) Samuels has "weaknesses . . . in labeling common picture vocabulary items . . . visual memory and short-term auditory memory." (R. 139.) Williams also noted that Samuels "can name and identify most body parts expected of her age level," "knew directional and positional concepts," and "appeared to understand more language than she expressed." (R. 140.) Samuels was "spontaneously verbal and can label, comment, request and protest." (R. 141.) She clearly had a stutter. (See pages 4-5 above.) Dr. Chandrasekhar concluded that Samuels' speech and language limitation was "less than marked." (R. 36.)
The evidence was sufficient to support the ALJ's conclusion that Samuels does not suffer from a "marked limitation" in her cognitive development, because her impairments do not "interfere seriously with [her] functioning." 20 C.F.R. § 416.926a(c)(3)(i)(C). Accordingly, the Court will not disturb the ALJ's finding that Samuels is not markedly impaired in her cognitive domain. See, e.g., DeLeon v. Apfel, 2000 WL 1873851 at * 9; Fernandez v. Apfel, 97 Civ. 6939, 1998 WL 603151 at *12 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.) (affirming ALJ's finding of less than marked impairment in communicative domain despite two reports stating that plaintiff exhibits moderate limitation in this area); Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at *10-11 (S.D.N.Y. Jan. 13, 1998) (affirming ALJ's finding of less than moderate impairment in communicative domain based on the sum total of the evidence even though reports described plaintiff as exhibiting a "moderate" impairment in articulation and exhibiting other speech and language difficulties).
B. Social Development
The regulations define the area of social development as a child's "ability or inability to form and maintain relationships with other individuals and with groups." 20 C.F.R. § 416.926a(c)(4)(iii); see also, e.g., 20 C.F.R. § 416.926a(c)(5)(iv)(C); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at * 10 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.); De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at * 6 (S.D.N.Y. July 12, 2000); Salomon v. Apfel, 99 Civ. 4250, 2000 WL 776924 at * 4 (S.D.N.Y. June 15, 2000).
Samuels' educational evaluators and teachers described her as cooperative, if a bit shy (R. 130, 139), and "withdrawn, but she will join the group with some help." (R. 210.) Samuels testified that she plays with her brothers and Tucker testified that Samuels plays well with friends. (R. 33-34.) Her "overall social skills fell within the adequate range." (R. 125; see also R. 214.) In addition, Samuels' classroom teacher noted that "as a result of the individualized attention [Samuels] receives from speech counseling, she displays a risen level of self-esteem." (R. 178.)
In sum, although Samuels mother testified that Samuels is not capable of appropriate social interaction, there is substantial evidence to support the ALJ's finding that Samuels' "less than marked" social impairments (R. 20) do not "interfere seriously with [her] functioning." 20 C.F.R. § 416.926a(c)(3)(i)(C). Moreover, Samuels' educational evaluators had found that Tucker "exhibited poor judgment and recall" about Samuels' activities, and they found the "reliability of [Tucker's] information is questionable." (R. 166.) Indeed, the evaluator recommended "family counseling regarding the listener's [i.e., Tucker's] reaction and impact on the dysfluent speaker [i.e., Samuels]." (R. 168.) Accordingly, the Court will not disturb the ALJ's finding that Samuels suffers a slight impairment in this area. See, e.g., DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at * 10; Salomon v. Apfel, 2000 WL 776924 at *4 (affirming ALJ's finding of less than marked impairment in the area of social development as collective evidence provides "'more than a mere scintilla [of evidence]'" to support the ALJ's decision); Duverge v. Apfel, 97 Civ. 7131, 1999 WL 178780 at * 6-8 (S.D.N.Y. Mar. 31, 1999) (ALJ's finding that child was not disabled was supported by substantial evidence based on "the record as a whole" even though plaintiff was diagnosed with conditions resulting in "severe impairments.").
C. Concentration, Persistence and Pace
The regulations define the area of concentration, persistence and pace as the child'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); see also 20 C.F.R. § 416.926a(c)(5)(iv)(E); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at * 11 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.).
The ALJ found that Samuels was slightly impaired in this area based upon the report that Samuels sometimes is "restless, distractible and inattentive." (R. 20.) However, the ALJ also noted that Ms. DeCicco and Ms. Williams found that Samuels "attended to all the tasks that were presented" and that Samuels was found to be "cooperative." (R. 20.) The record contains substantial evidence to support the ALJ's determination. (R. 130, 139, 157.)
There is substantial evidence in the record to support the ALJ's conclusion that Samuels had only a slight impairment in the area of concentration, persistence and pace. See, e.g., Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *13 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.) (affirming ALJ's finding that plaintiff was less than moderately impaired in the area of concentration, persistence and pace where ALJ's decision based on "substantial evidence" despite two teachers reports stating that plaintiff was markedly impaired in this domain); Counterman v. Chater, 923 F. Supp. 408, 413-14 (W.D.N.Y. 1996) (affirming ALJ's finding that plaintiff was less than moderately impaired in the area of concentration, persistence and pace, because "while there was some evidence that [plaintiff] has a short attention span, becomes easily distracted, and needs additional time to complete certain tests, other evidence suggests that her attention and concentration are normal . . . and that [plaintiff] has no trouble being by herself and doing things requiring attention and concentration"); Baker v. Secretary, Dep't of Health Human Servs., 874 F. Supp. 41, 47 (N.D.N.Y. 1995) (affirming ALJ's finding that plaintiff was less than moderately impaired in the area of concentration, persistence and pace where plaintiff engaged in recreational activities and was able to focus on tasks in the classroom and complete some classroom tasks on his own, despite other evidence of concentration weaknesses and need for individuali zed monitoring in the classroom). Accordingly, the Court will not disturb the ALJ's finding that Samuels was slightly impaired in this area.
* * * * *
In short, there is no doubt that Samuels stuttered. Even if one were to conclude, as does plaintiff's counsel (but not the ALJ), that Samuels thus had a marked limitation in communicative development, that would not be sufficient for her to receive benefits, as it is clear that she does not suffer from marked limitations in two of the five broad areas of functioning. The Commissioner's decision is upheld. See, e.g., Robles v. Commissioner, 99 Civ. 4248, 2001 WL 194888 at *3 (S.D.N.Y. Feb. 27, 2001) (no disability where child's substantial "delay in language development was the only `severe' impairment under 20 C.F.R. § 416.924(c)"); Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at * 5, 11-12 (S.D.N.Y. Jan. 13, 1998) (severe impairments based on attention deficit disorder, speech and language difficulties and impaired motor skills not sufficient to establish disability under the Act).
CONCLUSION
For the reasons set forth above, because there is substantial evidence to support the ALJ's finding that Samuels is not disabled, despite the stutter, the Commissioner's motion for judgment on the pleadings is granted and plaintiffs' cross-motion is denied.
SO ORDERED.
. . . .
The claimant has no limitation in her personal function. Records from the Individualized Education Program show that the claimant's self help skills (dressing, washing, etc.) were age appropriate (exhibit 12F). [R. 185-93.]
(R. 20.) The ALJ's findings in these areas are not contested by Tucker/Samuels, and are supported by substantial evidence. (See al so R. 125, 128, 130, 131, 139, 146, 147, 175-78.)