Opinion
1:19-CV-01563 EAW
2021-01-26
CARISMA A., O/B/O T.A., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Jeanne Elizabeth Murray, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff. Nicol Fitzhugh, Office of the General Counsel Social Security Administration, Kansas City, MO, for Defendant.
Jeanne Elizabeth Murray, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff.
Nicol Fitzhugh, Office of the General Counsel Social Security Administration, Kansas City, MO, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, Plaintiff Carisma A. ("Plaintiff") brings this action on behalf of T.A., a minor child, pursuant to Title XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying her application for children's supplemental security income ("SSI"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 8; Dkt. 9), and Plaintiff's reply (Dkt. 10). For the reasons discussed below, Plaintiff's motion (Dkt. 8) is granted, the Commissioner's motion (Dkt. 9) is denied, and the matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order.
BACKGROUND
On January 31, 2017, Plaintiff protectively filed an application for SSI on behalf of T.A., a child under the age of 18. (Dkt. 6 at 23, 83). Plaintiff alleged T.A.’s disability began on August 26, 2008, due to several impairments, including: developmental delays; learning disability; delayed speech; possible hearing loss in left ear; anxiety/depression; crying outbursts, outbursts of rage, and mood swings; short attention span; hyper behavior; and lead poisoning. (Id. at 23, 73-74). Plaintiff's application was initially denied on April 21, 2017. (Id. at 86-97). On October 12, 2018, a video hearing was held before administrative law judge ("ALJ") Brian LeCours. (Id. at 23, 42-72). T.A. and Plaintiff appeared in Buffalo, New York, and the ALJ presided over the hearing from Albany, New York. (Id. ). On November 27, 2018, the ALJ issued an unfavorable decision. (Id. at 20-37). Plaintiff requested Appeals Council review; her request was denied on September 20, 2019, making the ALJ's determination the Commissioner's final decision. (Id. at 4-6). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).
II. Disability Determination
To qualify as disabled under the Act, a child under the age of eighteen must have "a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i). An ALJ follows a three-step sequential evaluation to determine whether a child is entitled to SSI benefits. Encarnacion ex rel. George v. Astrue , 568 F.3d 72, 75 (2d Cir. 2009). "First, the child must not be engaged in ‘substantial gainful activity.’ Second, the child ‘must have a medically determinable impairment(s)’ that is ‘severe’ in that it causes ‘more than minimal functional limitations.’ Third, the child's impairment or combination of impairments must medically or functionally equal an impairment listed in an appendix to the regulations." Id. (quoting 20 C.F.R. § 416.924 ).
The limitations caused by a child's severe impairment are evaluated pursuant to six domains of functioning: (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. See 20 C.F.R. § 416.926a(b)(1). "For a child's impairment to functionally equal a listed impairment, the impairment must ‘result in "marked" limitations in two domains of functioning or an "extreme" limitation in one domain.’ " Encarnacion , 568 F.3d at 75 (quoting 20 C.F.R. § 416.926a(a) ). "A marked limitation is more than moderate but less than extreme and interferes seriously with a child's ability to independently initiate, sustain, or complete activities. An extreme limitation is more than marked and interferes very seriously with a child's ability to independently initiate, sustain, or complete activities." Id. (internal quotations and citations omitted).
DISCUSSION
I. The ALJ's Decision
In determining whether T.A. was disabled, the ALJ applied the three-step sequential evaluation set forth in 20 C.F.R. § 416.924. Initially, the ALJ determined that T.A. was born on August 26, 2009, and therefore was a school-age child on January 31, 2017, the date the application was filed, and on the date of the written determination. (Dkt. 6 at 26). At step one, the ALJ determined that T.A. had not engaged in substantial gainful activity since January 31, 2017, the application date. (Id. ).
At step two, the ALJ found that T.A. suffered from the following severe impairments: attention-deficit/hyperactivity disorder; oppositional defiant disorder ; and language delays. (Id. ). The ALJ further found that T.A.’s elevated blood lead levels and hearing problems were non-severe impairments. (Id. at 26-27)
At step three, the ALJ found that T.A. did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 27). Similarly, the ALJ found that T.A. did not have an impairment or combination of impairments that functionally equaled the severity of the Listings. (Id. ). In making this determination, the ALJ considered T.A.’s functioning in each of the above-mentioned six domains and concluded that T.A. had no limitation in moving about and manipulating objects and health and physical well-being, and less than a marked limitation in acquiring and using information, attending and completing tasks, interacting and relating with others, and caring for himself. (Id. at 32-37). Accordingly, the ALJ found that T.A. was not disabled as defined in the Act. (Id. at 37).
II. Remand of this Matter for Further Proceedings is Necessary
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that the ALJ did not properly evaluate T.A.’s functioning within the functional domains of acquiring and using information, attending and completing tasks, interacting and relating with others, and caring for himself. (Dkt. 8-1 at 9). Plaintiff points specifically to the ALJ's assessment of the April 2016 psychological evaluation by school psychologist Maria Meranto, arguing that the ALJ mischaracterized and failed to address important findings in Ms. Meranto's evaluation. (Id. at 12-14). Rather, the ALJ relied more heavily on the unsigned and undated teacher questionnaire from T.A.’s third-grade teacher. (Id. at 14). For the reasons set forth below, the Court finds that the ALJ failed to adequately consider Ms. Meranto's psychological evaluation, and this error necessitates remand for further administrative proceedings.
Ms. Meranto completed a psychological evaluation of T.A. on April 6, 2016, when he was in second grade. (Dkt. 6 at 263). Her evaluation was for the purpose determining whether T.A. was eligible for special education services. (Id. ). Ms. Meranto conducted an in-person evaluation, and observed that T.A. was "upset" and "pouting, not cooperating with his teacher, and had tears in his eyes" when she went to his classroom to bring him down for testing, but was smiling and talkative by the time they arrived at the testing room. (Id. ). T.A. was cooperative, put forth good effort, was attentive throughout the evaluation, and persevered when challenged. (Id. ). Ms. Meranto evaluated T.A. pursuant to the Wechsler Intelligence Scale for Children – Fifth Edition (WISC-V), which assesses the intelligence of children. (Id. ). T.A.’s WISC-V Composite Score Summary reflected that he scored "low average" in verbal comprehension, "high average" in visual spatial, and "average" in fluid reasoning, working memory, and processing speed. (Id. at 264). His "full scale" score was "average." (Id. ). Ms. Meranto explained that T.A.’s full scale score "surpasse[d] the scores of 37 percent of the normative population." (Id. at 265).
As part of the evaluation, T.A.’s teacher, Ms. Forcucci, completed the "Behavior Evaluation Scale-3" (BASC-3), which Ms. Meranto explained was to "provide information on [T.A.]’s social/emotional functioning and behavior in the classroom." (Id. at 266). Ms. Forcucci's scores for T.A. produced a "consistency index score" which fell withing the "caution" range, indicating that "caution is warranted when interpreting the BASC-3 scale scores." (Id. ). T.A. was rated in the "clinically significant" range (suggesting a "high-level of maladjustment") on the externalizing scale, which is comprised of the hyperactivity, aggression, and conduct disorders scales. (Id. ). Ms. Meranto explained that "[t]his suggests that [T.A.] may be more restless/overactive and have more difficulty controlling his impulses than is typical of children his age. He may also be more argumentative, defiant, and threatening to others than is typical. He engages in frequent rule-breaking behaviors." (Id. ).
T.A. scored in the "at-risk" range (suggesting "a significant problem that may not be severe enough to require formal treatment or may identify the potential of developing a problem that needs careful monitoring") on the internalizing scale, and his score on the depression scale was in the clinically significant range, "suggesting he appears withdrawn, pessimistic, or sad." (Id. ). His scores on the anxiety and somatization scales were within normal limits. (Id. ).
T.A. was rated in the at-risk range on the school problems scale and attention problems scale. (Id. ). On the school problems scale, T.A. was rated within normal limits on the learning problems subscale, suggesting that he did not struggle to understand or complete schoolwork, but he was rated at-risk on the inattention scale, suggesting that he may have difficulty maintaining adequate focus throughout the day. (Id. ).
T.A. scored in the at-risk range on the behavior symptoms subtest, atypicality scale, and for his withdrawal score, suggesting that he may have difficulty making friends and joining groups. (Id. ). He was in the at-risk range for adaptive skills, revealing that he may have difficulty adjusting to change, recovering from difficult situations, making decisions, and getting others to work together. (Id. at 267).
Finally, T.A. underwent the Kaufman Tests of Education Achievement-3 (KTEA-3), which assesses academic skills in reading, writing, and math. (Id. ). T.A. demonstrated average reading, writing, and math skills. (Id. ). Ms. Meranto noted that T.A.’s response to intervention was "inconsistent." (Id. at 268). She summarized her evaluation as follows:
Current testing suggests [T.A.] demonstrates average cognitive abilities. He obtained average scores on the Fluid Reasoning, Visual Spatial, Working
Memory, and Processive Speed skills. His Verbal Comprehension score falls within the low average range. Academic testing suggests average reading, writing and math skills, with a relative weakness noted in the application of mathematical concepts, scoring within the below average range in this area, while all other academic skills were average. A behavior rating scale completed by [T.A.]’s teacher needs to be interpreted cautiously due to some inconsistency in the teacher's responses. However, the responses indicate significant externalizing behaviors and depressive symptoms. He seems to display significant hyperactivity and was in the At-Risk range for inattention. [T.A.] was rated in the At-Risk range for adaptability and functional communications as well.
(Id. at 268 (emphasis added)). Ms. Meranto also made several recommendations, most of which were directed to addressing T.A.’s behavioral issues, including seating T.A. near role model students in the classroom, using a behavior modification plan to encourage desirable behaviors, providing praise and positive reinforcement for desired behaviors, using a behavior report card, participating in school and agency counseling to address T.A.’s behaviors, and giving "movement breaks" during the day. (Id. at 268-69).
The ALJ discussed Ms. Meranto's evaluation of T.A. in the written determination:
During a psychological evaluation, Ms. Meranto indicated that the claimant was very cooperative and put forth good effort (See Exhibit 4F at 2). Ms. Meranto reported that the claimant was attentive throughout the evaluation and persevered even when challenged (See Exhibit 4F at 2). Ms. Meranto also reported that the claimant was able to correct himself when he made mistakes and took his time to evaluate his answer choices. The claimant also understood and remembered standardized direction (See Exhibit 4F at 2).
(Id. at 30; see also id. at 33). The ALJ also noted Ms. Meranto's opinion that that T.A. did not have difficulties understanding or completing schoolwork (id. ), had average WISC-V scores (id. at 30-31), and responded well to praise and enjoyed adult attention (id. at 34). The ALJ further noted that while T.A. was rated in the clinically significant range on the externalization scale, a recent Individualized Education Program (IEP) in 2018 indicated that T.A.’s behavior "was not significant enough to warrant and individualized behavior plan or self-contained class." (Id. at 29). However, the ALJ did not explain why he found the recent IEP to be more persuasive than the evaluation conducted by Ms. Meranto.
In assessing a disability claim, an ALJ is tasked with weighing all the evidence, including medical opinion evidence, in the record. Genier v. Astrue , 606 F.3d 46, 50 (2d Cir. 2010) (ALJ has obligation to consider "all of the relevant medical and other evidence." (citation omitted)). Similarly, the ALJ may not "cherry pick" evidence. Lee G. v. Comm'r of Soc. Sec. , No. 5:19-CV-1558(DJS), 2021 WL 22612, at *5 (N.D.N.Y. Jan. 4, 2021) ("Cherry picking ‘refers to improperly crediting evidence that supports findings while ignoring conflicting evidence from the same source." (citation omitted)). " ‘Cherry picking’ can indicate a serious misreading of evidence, failure to comply with the requirement that all evidence be taken into account, or both." Younes v. Colvin , No. 1:14-CV-170(DNH/ESH), 2015 WL 1524417, at *8 (N.D.N.Y. Apr. 2, 2015).
Here, it is not clear to the Court whether the ALJ considered the aspects of Ms. Meranto's psychological evaluation relating to T.A.’s behavioral issues. As explained above, as part of Ms. Meranto's psychological evaluation, T.A.’s behavior was assessed pursuant to the BASC-3, which provides information on social/emotional functioning and behavior in the classroom. Plaintiff scored in either the "clinically significant" or "high-risk" levels for most of the categories evaluated. (See, e.g. , Dkt. 6 at 266-67). Ms. Meranto found T.A.’s scores to be significant, noting that the test results indicated significant externalizing behaviors, depressive symptoms, hyperactivity, and inattention, for which she suggested several recommendations for intervention. (Id. at 268-69). The ALJ did not adequately address these portions of Ms. Meranto's evaluation; rather, the ALJ's discussion of Ms. Meranto's evaluation focused only on those portions of the evaluation which reflected positively on T.A.’s functioning. Although Ms. Meranto is not an "acceptable medical source" and her opinion is not entitled to controlling weight, the ALJ may not mischaracterize her evaluation of T.A.’s functioning. See Beckers v. Colvin , 38 F. Supp. 3d 362, 371 (W.D.N.Y. 2014) (explaining that an ALJ should explain the weight given to opinions from other sources, or otherwise ensure that the discussion of the evidence allows the claimant or subsequent reviewer to follow the ALJ's reasoning, particularly when such opinions may have an effect on the outcome of the case).
T.A.’s behavioral difficulties, including significant externalizing behaviors, depressive symptoms, hyperactivity, inattention, and decreased adaptability and functional communication, are relevant to at least the functional domains of attending and completing tasks and interacting with others. "Attending and completing tasks" considers "how well a child is able to focus and maintain attention, and how well he is able to begin, carry through, and finish activities, including the mental pace at which he performs activities and the ease of changing activities," and a child's ability "to avoid impulsive thinking and his ability to prioritize completing tasks and manage his time." (Dkt. 6 at 33). The domain of "interacting and relating with others" considers "how well a child is able to initiate and sustain emotional connections with others, develop and use the language of the community, cooperate with others, comply with rules, respond to criticism, and respect and take care of the possessions of others." (Id. at 34). The ALJ found that Plaintiff had less than a marked ability in these domains but, as explained above, he did not acknowledge or consider the behavioral issues identified by Ms. Meranto—which suggest that T.A. would be severely limited in those domains—when making those findings. Although an ALJ is not required to discuss every piece of medical evidence in the record, see Conlin v. Colvin , 111 F. Supp. 3d 376, 388 (W.D.N.Y. 2015), Ms. Meranto's findings relating to T.A.’s behavioral issues were significant and, given the ALJ's apparent determination that T.A. had less than marked limitations in the above-mentioned domains, he should have explained why he found Ms. Meranto's assessment relating to Plaintiff's behavioral issues to be unpersuasive. The ALJ's failure to address these points is particularly problematic when, at the administrative hearing in October 2018, T.A.’s mother testified that she had received contact from T.A.’s school regarding his behavior on at least 10 occasions (despite that the school year had just started), and that he was currently suspended for fighting and "being aggressive with another student and punching a student in the face." (Dkt. 6 at 56-57).
Accordingly, remand of this matter is required. On remand, the ALJ is directed to address the entirety of Ms. Meranto's psychological evaluation, including the portions of the evaluation addressing T.A.’s social/emotional functioning and behavior in the classroom, and whether her conclusions are supported or contradicted by the record.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 8) is granted to the extent that the matter is remanded for further administrative proceedings. Defendant's motion for judgment on the pleadings (Dkt. 9) is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.