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noting "the requirement under the final rules not only that the two prongs of 112.05D be met, but also that the diagnosis description . . . be met"
Summary of this case from Cruz v. BarnhartOpinion
00 Civ. 4343 (MBM)
October 7, 2002
CHRISTOPHER JAMES BOWES, ESQ., Center for Disability Advocacy Rights, Inc., New York, NY, (Attorney for Plaintiff), JAMES L. BERNARD, ESQ., Stroock Stroock Lavan, L.L.P., New York New York, (Attorney for the Plaintiff).
JAMES B. COMEY, SUSAN D. BAIRD, ESQ., New York, NY, United States Attorney for the Southern District of New York Assistant United States Attorney, (Attorneys for Defendant).
OPINION AND ORDER
Jacqueline Castillo sues pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) (2000), seeking review of the Commissioner of Social Security's ("the Commissioner") decision to deny Supplemental Security Income ("SSI") disability benefits to her son, Gabriel Sosa. Plaintiff seeks a judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), reversing the Commissioner's decision, finding Gabriel disabled within the meaning of the Social Security Act, and remanding solely for the calculations of benefits. The Commissioner concedes that the administrative law judge did not adequately explain his rationale f or denying Gabriel benefits, but seeks remand for further administrative proceedings rather than solely for calculation at benefits. For the reasons stated below, plaintiff's motion is granted, and the Commissioner's motion is denied.
Jo Anne B. Barnhart became the Commissioner of Social Security on November 9, 2001. Pursuant to Fed.R.Civ.P. 25(d)(1), Barnhart is hereby substituted as defendant in this lawsuit.
I.
Gabriel Sosa was born on June 4, 1989. (Tr. 69) He was almost eight years old when his mother, Jacqueline Castillo, applied for SSI disability benefits for him on April 7, 1997. (Tr. 69) Castillo reported in her son's application that he suffered from ADHD (attention deficit hyperactivity disorder) (Tr. 93) and was under the care of Dr. Carol Kessler, a psychiatrist at Bronx Lebanon Child and Adolescent Services. (Tr. 92) Castillo reported further that Dr. Kessler prescribed Ritalin for Gabriel's ADHD but that he suffered from "loss of appetite" as a side effect. (Tr. 104) Castillo said he was "hyperactive" and "aggressive." (Tr. 91) On a checklist in the application, she indicated her son could not, among other things, read capital letters of the alphabet or read simple words. He did not know the days of the week or months of the year, and could not tell time. (Tr. 122) On another checklist she indicated that he could not tie his shoelaces, take a bath or shower without help, brush his teeth or hair, or choose clothes by himself. (Tr. 125) Castillo wrote elsewhere on the application that "[h]e misbehaves in school if he doesn't have his medication" (Tr. 124) but "[i]f he is under medication he behaves." (Tr. 125)
On April 23, 1997, the New York State Department of Social Services, the office responsible for obtaining information in connection with Gabriel's SSI benefits application, provided Gabriel's school with a questionnaire seeking information about him. (Tr. 141-42) Marcella White, Gabriel's second-grade teacher, completed the questionnaire in May 1997. (Tr. 143-46) She stated that when Gabriel has not had his medicine "he disrupts the class and gets into fights with his peers" (Tr. 143), but if he has had his medicine "he follows directions and involves himself in the learning process." (Tr. 144) She noted that prior to lunch time (when Gabriel would take his medication) Gabriel might "laugh out loud for no apparent reason" and kick under his seat. (Tr. 143) She would then have to remove Gabriel from the group; he would "get angry;" and then he would start to cry. (Tr. 143) White would then comfort him, and he would resume work until he could take his Ritalin at lunch. (Tr. 143) White said of Gabriel's academic skills: "He has been able to do good work in math using concrete materials but he is unable to remember words and sounds. Very poor short memory as well as long term memory in reading." (Tr. 144) She said of his ability to complete tasks: "He copies the material but he is unable to do independent work unless the teacher is there to guide him. He needs constant reinforcement and praise." (Tr. 145) She stated also: "I do not allow him to do activities which might result in an injury . . . I know that he can hurt himself very easily because of his hyperactivity." (Tr. 145)
On May 1, 1997, Dr. Frederick Zuckerman, a consultative examiner, evaluated Gabriel. (Tr. 138-40) Dr. Zuckerman's report misstates Gabriel's age and grade, identifying Gabriel as "a six-year-old boy" who was in the first grade (Tr. 138-39), when in fact he was almost eight years old and in the second grade. (Tr. 69, 143) The doctor, describing Gabriel as "restless at first," said "[h]e was up and down on the sofa" and he "rubbed up against the couch, kind of squirming as he conducted himself." (Tr. 139) But Dr. Zuckerman said that Gabriel "has a smile on his voice, and he responded immediately and promptly and cooperatively." (Tr. 139) Dr. Zuckerman reported that Gabriel did not "talk about wanting to hurt himself." (Tr. 139) The doctor added: "He said he does not cry. At times he is sad, however. He has never thought of suicide. He does not hear voices." (Tr. 139) Dr. Zuckerman said he tested Gabriel in mathematics: "He does not have great confidence. Gabriel's lack of confidence is a real issue. He said he cannot count but indeed can count." (Tr. 139) However, Gabriel "could not read at all." (Tr. 139) Dr. Zuckerman reported that Gabriel's mother told him that her son is much better when he takes Ritalin: "If he gets the medicine, he listens. If he does not get the medicine, he doesn't listen." (Tr. 139) Dr. Zuckerman concluded that Gabriel had a diagnosis of ADHD that was "much improved under care with Ritalin, psychotherapy, and counselling [sic]." (Tr. 140)
On July 14, 1997, Dr. Kleinerman, a reviewer for the Social Security Administration ("SSA"), considered the evidence then in the record and concluded that Gabriel had a severe impairment, ADHD, but that the impairment did not meet, medically equal, or functionally equal the severity of a listed impairment. (Tr. 147-150)
Gabriel's SSI application was denied in July 1997. (Tr. 46-49) In her request for reconsideration, Castillo said: "The child is hyperactive, has emotional problems, is violent and is learning impaired. We need help." (Tr. 50) She reported that her "child must be supervised by adult at all times otherwise he could be badly hurt by himself or others" (Tr. 81) and "[h]e is having trouble paying attention in school." (Tr. 84) She stated also: "He is hyperactive and he gets frustrated and angry. He cannot control his actions." (Tr. 84)
On January 29, 1998, Dr. McClintock, another reviewer for the SSA, considered the medical evidence in the record and concluded that he agreed with the initial evaluation and decision. (Tr. 169-72) The SSA denied the application for reconsideration. (Tr. 53-56)
Castillo requested a hearing before an administrative law judge ("ALJ"). (Tr. 57, 87-88) On September 18, 1998, Gabriel and his mother appeared pro se at a hearing before the ALJ. (Tr. 23-43) Castillo used a Spanish translator. (Tr. 25) Castillo stated that she wanted to proceed without a lawyer (Tr. 26), but told the ALJ "I want you to know that I am a lay person, I don't know much about legal procedures and I will need the Judge's aid to be able to get the necessary information." (Tr. 27) She stated further: "I brought you the addresses and the rest of the things that are necessary to get the child's medical reports here." (Tr. 27) Gabriel's mother told the ALJ that Gabriel was receiving daily hormone injections from Dr. St. Louis at Bronx Associates and Pediatrics because of a "lag in his height." (Tr. 27-28) Castillo told the ALJ also that she wanted him to get information from Dr. Kessler, Gabriel's treating psychiatrist, and from Dr. Molly Nozyce, another psychiatrist who was scheduled to evaluate Gabriel. (Tr. 32-33, 40-42)
At the hearing, Gabriel's mother told the ALJ that her son is "extremely hyperactive and he does things which a boy is not suppose[d] to do." (Tr. 35) When he takes Ritalin, "he concentrates and he studies," but when he does not take his medicine, "he does not study, he does not pay attention, he is continuously active and he talks too much." (Tr. 36) Castillo explained that when Gabriel is medicated he is "very sedated" (Tr. 38), but when he does not have his medicine, "no one can withstand [sic] him." (Tr. 39) Castillo informed the ALJ that Gabriel suffers from loss of appetite when he takes Ritalin. She said the "pills take away his appetite entirely," so she feeds him in the morning before he takes his medicine and then he tries to have some lunch at school before he takes his next dose of Ritalin. (Tr. 36) Later in the hearing, the ALJ asked her: "So why don't you give him the medicine all the time?" Castillo responded: "It takes away his appetite, he can't eat." Gabriel added: "Then I can't eat." (Tr. 39)
The ALJ questioned Gabriel. The child initially said he had "no problem[s]," but at his mother's prompting, he told the ALJ about the "invisible" man who spoke to him, and said: "Well, he looks like my dad and every time . . . somebody [is] talking to me, he's invisible and then the little devil and the angel right here they be telling me to do myself in the pump. And one day I do myself in the pump and I got hurt right there. . . . In the pump in the street. On my bike it [threw] me in." (Tr. 31-32) The ALJ ascertained that the "pump" was a fire hydrant and that Gabriel rode his bike into it. Gabriel continued: "And then I started laughing because a little devil told me to start laughing and that hurted me." (Tr. 32) Gabriel's mother told the ALJ that this incident occurred several weeks prior to the hearing, and she said that Dr. Kessler had prescribed medication so that Gabriel would stop hearing the voices. (Tr. 32-33)
Gabriel told the ALJ that he played basketball and handball at school, and that his "best game" was baseball. (Tr. 30) The child told the ALJ he went to a Yankees game (Tr. 31) and informed him "I ride bikes ever since I was little." (Tr. 39) Gabriel also told the ALJ that his mother did not let him go outside alone because "if. nobody's there watching me I be climbing in the trees, throw myself off the tree and all that." (Tr. 34)
After the hearing, the ALJ sent a questionnaire to Dr. Nozyce seeking her opinion on Gabriel's functioning. (Tr. 210-12) The ALJ sent a questionnaire also to Dr. St. Louis. (Tr. 213) There is no response in the record from Dr. St. Louis and no indication that the ALJ attempted to follow up with the doctor. Thus there is no evidence in the record about the extent of Gabriel's growth impairment, other than the statements of Gabriel's mother. The ALJ apparently did not send a questionnaire to Dr. Kessler, although Gabriel's mother stated during the hearing that Dr. Kessler was treating and medicating Gabriel for his hyperactivity and his problem of "hearing voices." (Tr. 33, 36-37) Castillo noted in Gabriel's application for benefits that Dr. Kessler had been Gabriel's treating psychiatrist since September 1995 (Tr. 92), and wrote Dr. Kessler's name also in her request for reconsideration and in her request for a hearing. (Tr. 82, 88) Dr. Kessler's treatment notes do appear in the record. (Tr. 179-208) Thus, although the ALJ had Dr. Kessler's notes to evaluate, he did not seek an opinion about Gabriel's impairments from his treating physician, the doctor who was best-acquainted with his problems.
Dr. Nozyce evaluated Gabriel over three sessions and returned her completed questionnaire to the ALJ on October 2, 1998. (Tr. 209-212) As to cognitive functioning, Dr. Nozyce said she had administered the Wechsler Intelligence Scales for Children-Ill and determined that Gabriel had a verbal IQ of 66, a performance IQ of 79, and a full scale score of 74. (Tr. 211) She concluded: "These results indicate borderline intelligence with a language based learning disability." (Tr. 211) As to communicative functioning, she reported: "Gabriel has significant impairments in the understanding and expression of language. Skills are significantly below age expected levels." (Tr. 211) With regard to motor functioning, she noted: "[p]hysical activities limited due to his asthmatic condition." (Tr. 211) With regard to social functioning, Dr. Nozyce stated that she had not observed Gabriel in a social situation. (Tr. 212) With respect to personal/behavioral functioning, she reported: "The Vineland Adaptive Behavior Scales were administered and Gabriel, by mothers report, is functioning significantly below age expected levels in the area of social adaptive skills." (Tr. 212) Finally, she reported as to "concentration, persistence, and pace," that "Gabriel, when not on medication, has difficulty attending and concentrating." (Tr. 212)
The record contains treatment notes from the Department of Psychiatry at Bronx-Lebanon Hospital Center. (Tr. 176-208) These are weekly group therapy notes taken by psychiatric social worker Mary Leonard, medication records, and psychiatric notes taken by treating psychiatrist Dr. Kessler. On October 7, 1997, Leonard noted: "GS [Gabriel Sosa] has very limited reading skills, and would benefit from intensive training in phonics. He has K. level of phonics, and tends to reverse letters. . . . He seems to have no sight word vocabulary." (Tr. 178)
The first note in the record by Dr. Kessler is dated October 10, 1997. (Tr. 179) Dr. Kessler noted that she saw Gabriel with his mother and stated that Gabriel continued on Ritalin "with good control of ADHD" but that Gabriel's mother had discontinued his 3:00 p.m. dose of the medication due to "severe anorexia." (Tr. 179) On February 6, 1998, Dr. Kessler's notes indicate that she saw Gabriel and his mother and that Gabriel continued on Ritalin "with reportedly good control of ADHD" symptoms. Gabriel had "[s]ome loss of appetite" but "reportedly [ate] well once meds effects abate[d]." (Tr. 195) A note on March 10, 1998 stated that Gabriel continued on Ritalin "with good control of symptoms of ADHD, and denies side effects." (Tr. 199) On March 21, 1998, Dr. Kessler made the same note about Ritalin and added: "He is being seen by endocrinologist due to growth retardation, + will receive GH [growth hormone] injections." (Tr. 201) On June 18, 1998, she noted that Gabriel continued on Ritalin with "good control of ADHD symptoms, and denies side effects." (Tr. 201) She added: "He has begun trial of GH." (Tr. 201)
However, over the summer of 1998, Gabriel's condition worsened. On July 23, 1998, Dr. Kessler noted: "He continues on Ritalin, on pm basis during summer months. When off meds, he remains inattentive + hyperactive. He had nightmare recently. He continues to receive GH injections." (Tr. 200) On August 24 she said: "He is taking Ritalin on pm basis during summer months, + is quite hyperactive. He reports hearing voice on occasion, telling him not to sleep. Sleep onset is indeed poor, as per mother." (Tr. 203) On September 10, 1998, Dr. Kessler noted: `He returned to school, + is reportedly behaving very poorly — cursing, touching others' property. He continues to report hearing voice, day + night, telling him to do bad things." At this appointment, Dr. Kessler began prescribing Risperdal. (Tr. 204)
Risperdal is an antipsychotic drug used to treat schizophrenia.See Physicians' Desk Reference 1796 (56th ed. 2002).
Early in October 1998, Mary Leonard, the social worker at Bronx-Lebanon, noted that Gabriel was "quieter than usual" and "did not want to play." (Tr. 207) She said that Dr. Kessler had not increased the Ritalin dosage and that the "plan is to reduce medication." (Tr. 207) Leonard said it was "difficult to engage" Gabriel as he was "slow moving/slow thinking." (Tr. 207) She said he reported "no more voices since beginning meds, except when he was sick at home." Leonard added: "It is not clear if he was able to take meds at that time. He reports voices told him to fall off his bed, which he did." (Tr. 207) The last note from Dr. Kessler in the record, dated October 7, 1998, indicated that Gabriel continued on Ritalin and Risperdal. She said: "While on Ritalin he is quiet + subdued. Will attempt to decrease dose. . . . Gabriel hasn't heard voices since last visit." (Tr. 208)
Finally, the record contains various school records. It appears that Gabriel repeated second grade. In May 1997, Gabriel's teacher indicated he was in second grade (Tr. 143), but by the fall of 1998, he was only in the third grade. (Tr. 16, 202) An Individualized Education Plan ("IEP'"), developed on June 18, 1997, classified Gabriel as "learning disabled" and recommended supplemental instruction in the "Resource Room" everyday for one hour. (Tr. 143, 166) The IEP noted that Gabriel's receptive language functioning was assessed at the 1.4 grade level, his expressive language functioning at the 1.2 grade level, and his reading skills at the K-8 (eighth month of kindergarten) level. (Tr. 161) The IEP noted that Gabriel had not acquired any sight vocabulary in Spanish or English. (Tr. 161) The IEP assessed Gabriel's comprehensive skills and his math skills at a beginning first grade level. (Tr. 161) His writing skills were considered appropriate for his age. (Tr. 161) Another IEP, dated December 8, 1998, appears in the record. This IEP also classified Gabriel as "learning disabled" and recommended the resource room. (Tr. 243) A note from Gabriel's teacher stated that Gabriel was "one of her best students" and that he was "well liked by his peers and very helpful toward his teachers." (Tr. 248) Gabriel's teacher estimated his reading and mathematic skills at the 2.5 grade level. (Tr. 246)
Based on the record described above and the hearing testimony, the ALJ concluded on March 25, 1999 that Gabriel was not disabled. (Tr. 9-22) The Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 5-6) Castillo filed a complaint pro se in this court. The Commissioner moved for a judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), affirming the decision that Gabriel was not disabled within the meaning of the Social Security Act. Castillo initially filed a pro se response to the motion. After obtaining counsel, she withdrew her initial response and filed a cross-motion for a judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), reversing the Commissioner's decision and finding Gabriel disabled. Castillo also seeks attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). After Castillo filed her cross-motion, the Commissioner withdrew the motion for judgment on the pleadings and filed a cross-motion conceding that the administrative law judge did not adequately explain his rationale for denying Gabriel benefits, and seeking remand for further administrative proceedings. Castillo argues that further proceedings are not needed and seeks remand solely for the calculation of benefits.
II. A.
Since August 22, 1996, 42 U.S.C. § 1382c(a)(3)(C)(i) (2000) has provided that an individual under the age of 18 "shall be considered disabled . . . if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." However, "no individual under the age of 18 who engages in substantial gainful activity . . . may be considered to be disabled."Id. § 1382c(a)(3)(C) (ii).
Interim regulations interpreting this statute were in place from 1997 through 2000. See Supplemental Security Income; Determining Disability for a Child Under Age 18; Interim Final Rules With Request for Comments, 62 Fed. Reg. 6408 (Feb. 11, 1997) (codified at 20 C.F.R. pts. 404 416 (1998)) ("interim rules"). In September 2000, the Commissioner published revised final regulations for determining a child's disability, which have been effective since January 2, 2001. See Supplemental Security Income; Determining Disability for a Child Under 18, 65 Fed. Reg. 54,747 (Sept. 11, 2000) (codified at 20 C.F.R. pts. 404 416 (2002)) ("final rules"). These final rules state that "[w]ith respect to claims in which we have made a final decision, and that are pending judicial review in Federal court, we expect that the court's review of the Commissioner's final decision would be made in accordance with the rules in effect at the time of the final decision." 65 Fed. Reg. at 54,751.
The ALJ decided Gabriel's case on March 25, 1999. (Tr. 22) This court must review the decision in accordance with the interim rules, in effect at that time, rather than the final rules. See Morales ex rel. Morales v. Barnhart, No. 00 Civ. 9675, 2002 WL 1962001, at *7 n. 8 (S.D.N.Y. Aug. 21, 2002) ("Effective January 2, 2001, the Commissioner published revised final rules for determining a child's disability. Nonetheless, this Court applies the interim rules that were in effect at the time of the Commissioner's final decision, March 27, 1998."); Panos v. Barnhart, No. 00 Civ. 2252, 2002 WL 54609 (S.D.N.Y. Jan. 15, 2002) (applying interim rules to review of the Commissioner's October 1998 decision in the case).
It should be noted that if this court were to remand for further proceedings, as the Commissioner requests, the Commissioner would apply the final rules that have been in effect since January 2, 2001. The final rules state:
If the court determines that the Commissioner's final decision is not supported by substantial evidence, or contains an error of law, we would expect that the court would reverse the final decision, and remand the case for further administrative proceedings pursuant to the fourth sentence of section 205(g) of the Act, except in those few instances where the court determines that it is appropriate to reverse the final decision and award benefits, without remanding the case for further administrative proceedings. In those cases decided by a court after the effective date of the rules, where the court reverses the Commissioner's final decision and remands the case for further administrative proceedings, on remand, we will apply the provisions of these final rules to the entire period at issue in the claim.
65 Fed. Reg. at 54751.
A court may set aside a determination by the Commissioner only if it is based on legal error or is not supported by substantial evidence in the record. See 42 U.S.C. § 405(g), 1383(c)(3) (2000) ; Berry v.Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981). Substantial evidence is "more than a mere scintilla"; it is "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. NLRB, 305 U.S. 197, 229 (1938)); see also Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991).
Under the interim rules, to determine whether a child is disabled, the Commissioner engages in a three-step analysis. 20 C.F.R. § 416.924(a) (1998). First, the Commissioner must consider whether the child is engaged in "substantial gainful activity." Id. § 416.924(b). If the child is so engaged, he or she will not be awarded SSI benefits. Id. Second, the Commissioner must consider whether the child has a "severe" impairment. Id. § 416.924(c). The rules state: "If your impairment(s) is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations, we will find that you do not have a severe impairment(s) and are, therefore, not disabled."Id. Third, if the impairment is severe, the Commissioner must next consider whether the impairment meets or is medically or functionally equal to a disability listed in the designated "Listing of Impairments."Id. § 416.924(d); see also 20 C.F.R. pt. 404, subpt. P, app. 1 (1998) ("the listings"). An impairment will qualify as a disability under the Act only if it is severe and constitutes, or is medically or functionally equal to, a disability in the listings. 20 C.F.R. § 416.924(d). The impairment must also meet the duration requirement. Id. § 416.924(d)(1).
The ALJ, in assessing Gabriel's case, followed the three-step approach set forth in the interim rules. Applying the first step, the ALJ found that Gabriel had not performed any substantial gainful activity since March 10, 1997, the date the application for benefits was filed. (Tr. 14, 21) Applying the second step, the ALJ found: "The claimant has medically determinable impairments (or combination of impairments). The claimant's impairments that are considered to be `severe' under the Social Security Act are: ADHD and low IQ." (Tr. 21) The ALJ did not mention Gabriel's growth problems anywhere in the opinion. The ALJ did discuss Gabriel's problem of "hearing voices" but concluded that "there is no evidence that the claimant's alleged auditory hallucinations have ever caused more than a de minimis limitation of the claimant's overall functioning." (Tr. 16) Next, the ALJ considered whether Gabriel's impairments "meet or medically equal in severity the clinical criteria of any impairment" in the listings. (Tr. 17) Specifically, the ALJ considered the possible application of listing 112.05 (Mental Retardation) and listing 112.11 (Attention Deficit Hyperactivity Disorder), and concluded that Gabriel's impairments did not qualify under those listings. (Tr. 17, 21) Finally, the ALJ determined that none of Gabriel's impairments were "functionally equivalent" to a listed impairment. (Tr. 18-21)
B.
Plaintiff challenges the ALJ's determination that Gabriel did not meet mental retardation listing 112.05D. The interim rules contain introductory paragraphs that explain how to apply the listings. The introduction to the "mental disorders" listings states: "Listing 112.05 (Mental Retardation) contains six sets of criteria, any one of which, if satisfied, will result in a finding that the child's impairment meets the listing." 20 C.F.R. pt. 404, subpt. P, app. 1, § 112.00 (1998). Listing 112.05 provides:
112.05 Mental Retardation: Characterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning.
The required level of severity for this disorder is met when the requirements in A, B, C, D, E or F are satisfied.Id. § 112.05. The 112.05D requirements are: "A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant limitation of function." Id. § 112.05D. Therefore, to meet the level of severity for 112.05D, the child must satisfy a two-prong test: the child must establish the required IQ, and must show another impairment imposing "additional and significant limitation of function."
The ALJ's analysis of how the 112.05D listing applies to Gabriel consists of the following:
Listing 112.05(D) presumes disability if a child has a valid verbal, performance or full scale IQ of 60 through 70 and a physical or other mental impairment which imposes additional and significant limitations of function. In this case, the claimant received a verbal IQ test score of "66", but it appears that the child's ADHD problem has been effectively controlled by medication and that his low IQ test score has not resulted in a significant inability to learn in school, or in any inability to learn outside of school. No speech problem has been noted by any treating source, and I noticed none during the hearing.
(Tr. 17) (emphases in original)
The ALJ acknowledged Gabriel's verbal IQ of 66. (Tr. 17) Also, the Commissioner's initial memorandum in support of a judgment on the pleadings (now withdrawn), stated that the IQ score of 66 "satisfies the first prong of sub-paragraph (D)." (Def.'s Mem. at 23)
The Commissioner's initial memorandum stated also that Gabriel's ADHD qualified as an "other mental impairment" under the second prong of 112.05D, but argued that the disorder imposed "no more than slight limitation of functioning" and therefore did not satisfy the listing. (Def.'s Mem. at 23) The Commissioner has withdrawn this argument and now concedes that the ALJ did not adequately explain why Gabriel's ADHD did not satisfy the second prong of listing 112.05D. (Def.'s Reply Memo at 3) Indeed, the ALJ did not explain at all what standard he applied to reach the conclusion that Gabriel did not meet listing 112.05D. He said only that "it appears that the child's ADHD problem has been effectively controlled by medication" and that Gabriel's "low IQ test score has not resulted in a significant inability to learn in school, or in any inability to learn outside of school." (Tr. 17) Elsewhere in the opinion, the ALJ stated that "[t]here has been no diagnosis of mental retardation; the school records show that the claimant is able to learn with additional assistance." (Tr. 17) The ALJ did not make this statement in connection with listing 112.05D; thus, it is not clear what, if any, relevance the lack of diagnosis had to the ALJ's determination that Gabriel did not meet listing 112.05D
Castillo argues that the ALJ's own findings compel the conclusion that Gabriel's ADHD disorder satisfies the "other impairment" requirement of Listing 112.05D. Castillo cites language from the current listings (the final rules), which have been effective since January 2, 2001. The introduction to the mental disorders listings now states:
For listings 112.05D and 112.05F, we will assess the degree of functional limitation the additional impairment(s) imposes to determine if it causes more than minimal functional limitations, i.e., is a "severe" impairment(s), as defined in § 416.924(c). If the additional impairment(s) does not cause limitations that are "severe" as defined in § 416.924(c), we will not find that the additional impairment(s) imposes an additional and significant limitation of function.
20 C.F.R. Pt. 404, subpt. P, app. 1, § 112.00A (2002). Castillo argues that because the ALJ already found specifically that Gabriel's ADHD is "severe" within the meaning of section 416.924(c), Gabriel's ADHD satisfies the second prong of 112.05D. (Pl.'s Reply at 2) Therefore, Castillo argues, Gabriel meets both prongs of 112.05D by the ALJ's own findings and there is no need for further evidentiary proceedings. (Pl.'s Reply at 3-4)
The final rules do indisputably link section 416.924(c) to listing 112.05D. A finding that a child has an additional impairment (besides low IQ), and that this impairment is "severe" under section 416.924(c) means that the impairment satisfies the 112.05D requirement of an impairment imposing an "additional and significant limitation of function." However, this court must review the ALJ's decision under the interim rules, the rules in effect at the time of the ALJ's decision, rather than under the final rules. See Supplemental Security Income; Determining Disability for a Child Under 18, 65 Fed. Reg. 54,747, 54,751 (Sept. 11, 2000). The interim rules contain an introduction for the "mental disorders" listings that is identical in most respects to the final rules. See 20 C.F.R. Pt. 404, subpt. P, app. 1, § 112.00A (1998). However, the sentences linking the section 416.924(c) severity test to the 112.05D test are not present in the interim rules, and the interim rules provide no explanation of the meaning of the 112.05D requirement. The issue, then, is whether an "additional and significant limitation of function" has the same meaning under the interim rules as under the final rules.
For the reasons discussed below, this court concludes that the second prong requirement of listing 112.05D under the interim rules is the same as under the final rules. Therefore, the ALJ's finding that Gabriel's ADHD is "severe" is sufficient to satisfy prong two of 112.05D.
As a matter of logic, for an impairment to impose a "significant limitation of function" under 112.05D, it need not qualify as a disability under the listings. If the impairment in addition to low IQ under 112.05D met the requirements of another listing on its own, listing 112.05D would serve no purpose, as the child would already be disabled under that other listing. In Gabriel's case, the ALJ found that Gabriel's ADHD did not qualify as disabling under Listing 112.11 (the ADHD listing). (Tr. 17) However, Gabriel's ADHD need not meet the criteria of listing 112.11 for this impairment to be considered "significant" under the second prong of the 112.05D test.
The Second Circuit has not addressed the meaning of "additional and significant limitation of function" under the interim child disability rules, nor has any district court in this Circuit. Few courts have addressed the meaning of the 112.05D second prong requirement. In Bryant on Behalf of Bryant v. Apfel, 141 F.3d 1249 (8th Cir. 1998), the Eighth Circuit, applying the interim rules, said:
The second prong of the mental retardation listing, requiring an "additional and significant limitation of function," § 112.05(D), is met when a claimant "has a physical or additional mental impairment that has a `more than slight or minimal' effect on his ability to perform work." Sird v. Chater, 105 F.3d 401, 403 (8th Cir. 1997) (quoting Cook v. Bowen, 797 F.2d 687, 690 (8th Cir. 1986), and discussing the listing at § 12.05(C) which is the adult mental retardation standard). The additional impairment need not be disabling in and of itself but need only result in a significant work-related limitation of function to satisfy the adult standard. See id.Id. at 1252; see also Rucker for Rucker v. Apfel, 141 F.3d 1256, 1260 (8th Cir. 1998).
The Eighth Circuit cites cases interpreting listing 12.05C, which is an adult mental retardation listing. Listing 12.05C uses almost identical language to 112.05D. Listing 12.05C requires "[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." 20 C.F.R. Pt. 404, subpt. P, app. 1, § 12.05C (2002) (emphasis added). The difference, therefore, is that the adult standard requires that the limitation of function be work-related.
The current adult listings for mental disorders contain an introductory paragraph, similar to the current child disability listings, linking the meaning of "significant work-related limitation of function" to the assessment of whether the impairment is "severe" under step two of the Commissioner's process for determining disability. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00A (2002) ("For paragraph C, we will assess the degree of functional limitation the additional impairment(s) imposes to determine if it significantly limits your physical or mental ability to do basic work activities, i.e., is a `severe' impairment(s), as defined in §§ 404.1520(c) and 416.920(c). If the additional impairment(s) does not cause limitations that are `severe' as defined in §§ 404.1520(C) and 416.920(C), we will not find that the additional impairment(s) imposes "an additional and significant work-related limitation of function,' even if you are unable to do your past work because of the unique features of that work.").
However, the adult listings in effect at the time of the ALJ's decision in Gabriel's case, like the interim child listings, did not include an explanation of listing 12.05C's additional impairment requirement. See 20 C.F.R. pt. 404, subpt. P. app. 1, § 12.05C (1998). Yet prior to the publication of the current adult listings, the First, Fourth, and Tenth Circuits held that 12.05C's "significant work-related limitation of function" meant a limitation that was considered "severe" under step two of the Commissioner's process. See, e.g., Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997) ("[W]e conclude that a decision regarding whether a claimant has a § 12.05C `significant limitation' should `closely parallel' the step two standard. . . . "); Luckey v. United States Dep't of Health Human Servs., 890 F.2d 666, 669 (4th Cir. 1989) ("The Secretary's finding that Luckey suffers from a severe combination of impairments also established the second prong of section 12.05(C).");Nieves v. Sec'y of Health Human Servs., 775 F.2d 12, 14 (1st Cir. 1985) ("An impairment imposes significant limitations when its effect on a claimant's ability, to perform basic work activities is more than slight or minimal. . . . Because claimant's impairment was found to be severe, a fortiori it satisfies the significant limitations standard." (footnotes omitted)). The Fourth Circuit also stated an alternative basis for a claimant to satisfy 12.05C: "[W]e follow the rule that if a claimant cannot return to his past relevant work, he has established a work-related limitation of function which meets the requirements of § 12.05(C)." Flowers v. United States Dep't of Health Human Servs., 904 F.2d 211, 214 (4th Cir. 1990).
The Eleventh Circuit appeared to adopt the same severity test for listing 12.05C in Edwards v. Heckler, 736 F.2d 625 (11th Cir. 1984). The Court said:
Since the definition of severe impairment is almost identical to the second half of the section 12.05(C) test, we can also conclude that Edwards, by showing a severe impairment, has also shown a physical or other mental impairment imposing additional and significant work-related limitation of function. In other words, by showing the existence of a severe impairment, Edwards has shown that he meets the second-half requirement of section 12.05(C).Id. at 631. In Edwards by Edwards v. Heckler, 755 F.2d 1513 (11th Cir. 1985), the Court retreated from this holding, stating that "`significant' requires something less than `severe'" but "more than slight or minimal."Id. at 1515. However, it does not appear possible for an impairment to be less than "severe" but "more than slight or minimal," because "severe" includes the entire range above slight or minimal. See Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995) (holding that the step two severity test may do no more than "screen out de minimis claims"); see also Baneky v. Apfel, 997 F. Supp. 543, 546 n. 21 (S.D.N.Y. 1998) (questioning the Eleventh Circuit's approach); Peter J. Lemoine, Significant Work-Related Limitation of Function Under § 12.05(c), 51 Soc. Sec. Rep. Serv. 1003 (1996) (same). But even if the Eleventh Circuit's holding is correct and "significant" requires something less than "severe," under this test it is easier for a claimant to satisfy the 12.05C listing than under the test used by the First, Fourth, and Tenth Circuits.
The Eighth Circuit has held that the additional impairment under 12.05C must impose more than slight or minimal limitation of function, but has not said that the test under 12.05C is the same as the "severity" test at step two of the Commissioner's process. See Cook v. Bowen, 797 F.2d 687, 690 (8th Cir. 1986) ("An impairment imposes significant limitations when its effect on a claimant's ability to perform basic work is more than slight or minimal."); see also Warren v. Shalala, 29 F.3d 1287, 1291 (8th Cir. 1994). In Warren, the Eighth Circuit quoted the Eleventh Circuit's statement in Edwards by Edwards that "significant" involves something less than "severe." Warren, 29 F.3d at 1291. Finally, the Ninth Circuit, in Fanning v. Bowen, 827 F.2d 631 (9th Cir. 1987), said: "Other circuits have concluded that an impairment imposes a significant work-related limitation of function when its effect on a claimant's ability to perform basic work activities is more than slight or minimal." Id. at 633. The Court added: "We emphasize . . . that a finding of severity is not required to satisfy the more than slight or minimal effect standard."Id. at 633 n. 3 (citing Edwards by Edwards, 755 F.2d at 1515).
The definition provided in the current adult and child listings — that an impairment imposes a significant limitation of function if it is "severe" — is identical to the test already followed by the First, Fourth, and Tenth Circuits. The Eighth, Ninth, and Eleventh Circuits have agreed that an impairment meets the 12.05C test if it imposes "more than minimal" limitation of function, and these courts have said that an impairment that is less than "severe" satisfies the 12.05C requirement.
Only one district court within the Second Circuit has discussed the second-prong requirement of adult listing 12.05C in any detail. See Baneky v. Apfel, 997 F. Supp. 543 (S.D.N.Y. 1998). The Court held that "the correct legal standard for determining whether an `additional' impairment is `significant' within the meaning of Section 12.05(c) is whether the `additional' impairment is `severe' within the meaning of 20 C.F.R. § 404.1520(c)." Id. at 547. Part of that Court's reasoning was that the step-two severity test used language similar to the 12.05C test. Id. at 546. Compare 20 C.F.R. § 404.1520(c) (1998) ("If you do not have any impairment(s) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment. . . .") with 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C (1998) (requiring claimant to have "a physical or other mental impairment imposing additional and significant work-related limitation of function").
This similar-language rationale does not apply in the child disability context, where the severity test does not use the word "significant." However, courts applying the adult listings have linked the step two severity test to the 12.05C second-prong requirement; this approach supports such a reading under the child interim listings. The adult mental retardation listings are substantially similar to the child listings, and courts have treated these listings as analogous. See e.g., Bryant on Behalf of Bryant v. Apfel, 141 F.3d 1249, 1252 (8th Cir. 1998); Hall ex rel. Lee v. Apfel, 122 F. Supp.2d 959, 965 n. 3 (N.D. Ill. 2002). The cases interpreting adult listing 12.05C, cited above, support the view that a child satisfies interim listing 112.05D if he or she can show an IQ between 60 and 70 and an impairment that imposes "more than minimal" limitation of function, and thus meets the section 416.924(c) severity test.
Under the child disability interim rules, the severity test at step two of the Commissioner's process states: " You must have a severe impairment(s). If your impairment(s) is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations, we will find that you do not have a severe impairment(s) and are, therefore, not disabled." 20 C.F.R. § 416.924(c) (1998).
For the reasons stated above, this court concludes that the 112.05D second-prong requirement was the same under the interim child disability rules as it is under the final rules i.e., if the additional impairment was "severe" under section 416.924(c), then it meets the prong two requirement of 112.05D.
C.
The ALJ specifically found that Gabriel's ADHD met the severity test under section 416.924(c). (Tr. 21) There is substantial evidence to support the ALJ's finding that Gabriel's ADHD is "severe." To pass the section 416.924(c) test, the impairment must cause "more than minimal" limitation of function. The record supports the conclusion that Gabriel's ADHD, together with the side effects of his medication, reached this threshold.
The record contains statements from Gabriel's mother, teachers, and doctors that Ritalin controlled the child's hyperactivity. (Tr. 36, 125, 139-40, 144, 179, 195, 199, 201, 212) However, the medication also caused side effects. Gabriel's mother reported loss of appetite as a recurring side effect. (Tr. 36, 39, 104, 179, 195) It appears that when the effects of the dose of Ritalin abated, Gabriel's appetite came back. (Tr. 36, 195) But Gabriel's hyperactivity also returned when Gabriel did not take Ritalin throughout the day. When Gabriel took only an afternoon dose of Ritalin during the summer of 1998, he was hyperactive. (Tr. 200, 203) Dr. Kessler noted several times that Gabriel continued on Ritalin with "good control of ADHD symptoms, and denies side effects." (Tr. 199, 201) Thus it appears that Castillo and Gabriel did not report loss of appetite as a side effect at every appointment with Dr. Kessler. However, Castillo reported this side effect when she applied for benefits for Gabriel in April 1997. (Tr. 104) Dr. Kessler's notes indicate the problem in October 1997 (Tr. 179) and February 1998 (Tr. 195), and Castillo told the ALJ about the side effect at the hearing in September 1998. (Tr. 36, 39) The Ritalin appeared also to be causing Gabriel to be overly sedated in October 1998. Mary Leonard, Gabriel's social worker and Dr. Kessler, his psychiatrist, both observed this effect, and Dr. Kessler decided to decrease the Ritalin. dose. (Tr. 207-08)
Although the Ritalin did control Gabriel's ADHD symptoms, it also, at least at times, took away his appetite and sedated him. The regulations provide that the effects of medication must be taken into account in assessing the severity of an impairment. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 112.00F (1998) ("Psychotropic medicines used in the treatment of some mental illnesses may cause drowsiness, blunted affect, or other side effects involving other body systems. Such side effects must be considered in evaluating overall impairment severity."); 20 C.F.R. § 416.924c(c) ("We will also consider whether your medications create any side effects which cause or contribute to your functional limitations."). There is substantial evidence to support the ALJ's conclusion that Gabriel's ADHD was "severe" within the meaning of section 416.924(c) — that it imposed more than slight or minimal limitation of function.
Under the ALJ's own findings, Gabriel satisfies both prongs of listing 112.05D because 1) he has a verbal IQ of 66 and 2) he has a "severe" impairment of ADHD, thus satisfying the additional impairment requirement. In his opinion, the ALJ assumed that meeting the two prongs of 112.05D meant the child was disabled: "Listing 112.05(D) presumes disability if a child has a valid verbal, performance or full scale IQ of 60 through 70 and a physical or other mental impairment which imposes additional and significant limitation of function." (Tr. 17) Listing 112.05 states:
112.05 Mental Retardation: Characterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning.
The required level of severity for this disorder is met when the requirements in A, B, C, D, E or F are satisfied.
20 C.F.R. pt. 404, subpt. P. app. 1, § 112.05 (1998) In the interim rules, the introduction to the mental disorders listings states: "Listing 112.05 contains six sets of criteria, any one of which, if satisfied, will result in a finding that the child's impairment meets the listing."Id. § 112.00A.
Courts, in applying the interim rules, have held that a child is disabled if both prongs of 112.05D are satisfied, and have not required any additional demonstration that the child has "significantly subaverage general intellectual functioning with deficits in adaptive functioning."See Scott v. Barnhart, 297 F.3d 589, 596 n. 6 (7th Cir. 2002) ("We note that, at the time the ALJ rendered his opinion, the SSA regulations stated `Listing 112.05 (Mental Retardation) contains six sets of criteria, any one of which, if satisfied, will result in a finding that the child's impairment meets the listing.' Thus, in 1996, the regulations did not require that a claimant meet the diagnostic definition of the listing as well as one of the six sets of criteria to establish disability.") (citation omitted); Rucker for Rucker v. Apfel, 141 F.3d 1256, 1259-60 (8th Cir. 1998) ("A child satisfies the mental retardation listing and is disabled when the child has `[1] [a] verbal, performance, or full scale IQ of 60 through 70 and [2] a physical or other mental impairment imposing additional and significant limitation of function.'"); Fuget v. Massanari, 144 F. Supp.2d 1103, 1111-12 (S.D. Iowa 2001) (finding that a child had met the IQ and additional impairment requirements of 112.05D and remanding solely for the calculation of benefits).
This sentence quoted by the Court from the 1996 regulations is identical to the sentence in the interim rules, in place when the ALJ decided Gabriel's case.
D.
The question in this case is whether to remand for further administrative proceedings, or solely for the calculation of benefits. The Commissioner agrees that the ALJ did not adequately explain his conclusion that Gabriel's ADHD did not impose additional and significant limitation of function so as to satisfy 112.05D. However, the Commissioner argues that remand is necessary to obtain additional evidence concerning Gabriel's IQ; to obtain expert testimony to re-evaluate whether ADHD imposed additional and significant limitations of function; and to evaluate thoroughly whether Gabriel's condition met or equaled the requirements of any other listed impairments. (Def.'s Reply Mem. at 3) Castillo argues that remand is not necessary because the record contains all the facts that are necessary for this court to find that Gabriel is disabled under 112.05D. (Pl.'s Reply Mem. at 4)
The Second Circuit has held: "When there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the [Commissioner] for further development of the evidence." Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). However, where "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," the proper remedy is remand solely for calculation of benefits. Parker, 626 F.2d at 235; accord Carroll v. Sec'y of Health Human Servs., 705 F.2d 638, 644 (2d Cir. 1983).
Gabriel meets both prongs of 112.05D and therefore is disabled under the interim rules. Because both prongs of 112.05D are already met, further evidentiary proceedings would serve no purpose. The Commissioner has provided no reason why additional information concerning Gabriel's IQ is necessary or useful. Gabriel's IQ scores were current at the time of the ALJ's decision and the Commissioner has not suggested that the results are invalid or should be discredited. The Commissioner argues also that remand is necessary "for expert testimony to reevaluate whether ADHD imposed additional and significant limitations of function." (Def.'s Reply Mem. at 3) However, the ALJ already found that Gabriel's ADHD is "severe" under section 416.924(c) — thus the ADHD satisfies prong two of 112.05D under the interim rules. Furthermore, even if this court were to remand the case for further proceedings, on remand the Commissioner would apply the final rules. The final rules explicitly define an impairment imposing "additional and significant limitation of function" under 112.05D as an impairment that is "severe." See 20 C.F.R. pt. 404, subpt. P, app. 1, § 112.00A (2002). Thus, under the final rules, Gabriel automatically would satisfy prong two of 112.05D. No purpose would be served by an additional inquiry on remand regarding whether Gabriel's ADHD satisfies prong two of 112.05D.
A few courts have stated that an IQ within the numerical range might not automatically satisfy prong one of the adult analog 12.05C if the number is inconsistent with other evidence in the record. See Lowery v. Sullivan, 979 F.2d 835, 837-39 (11th Cir. 1992); Anderson v. Apfel, 996 F. Supp. 869, 872 (E.D. Ark. 1998). However, most courts assume that a valid IQ result in the numerical range satisfies the first prong of 12.05C, and no additional inquiry is appropriate. See Nieves v. Sec'y of Health Human Servs., 775 F.2d 12, 14 n. 5 (1st Cir. 1985) (citing cases). The Commissioner's initial motion conceded that Gabriel met prong one of 112.05D. (See Def.'s Mem. at 23)
The only potential additional issue on remand would be whether Gabriel satisfies the requirement under the final rules not only that the two prongs of 112.05D be met, but also that the diagnosis description of "significantly subaverage general intellectual functioning with deficits in adaptive functioning" be met. The Commissioner does state that "the record does not contain an actual diagnosis of mental retardation," but does not argue that an "actual diagnosis" is required. (Def.'s Reply Mem. at 4) In any event, this court reviews the ALJ's decision under the interim rules, not the final rules, and the interim rules do not require a separate finding with respect to the diagnosis description. Under the interim rules, Gabriel meets both prongs of 112.05D, and therefore comes within the listing. The Commissioner has failed to articulate any reason for obtaining additional evidence. Therefore, there is "persuasive proof of disability" and further evidentiary proceedings on remand would serve no purpose. See Parker, 626 F.2d at 235.
The final rules change the introductory paragraph and now state: "Listing 112.05 (Mental Retardation) contains six set of criteria. If an impairment satisfies the diagnosis description in the introductory paragraph and any one of the six sets of criteria, we will find that the child's impairment meets the listings." 20 C.F.R. pt. 404, subpt. P, app. 1, § 112.00A (2002). Thus the final rules require the satisfaction of the diagnosis description — that the child have "significantly subaverage general intellectual functioning with deficits in adaptive functioning." One district court, reviewing an ALJ's decision that applied the final rule version of 112.05D, held that the mental retardation diagnosis description was not automatically satisfied by an IQ of under 70. See Golden ex rel. Golden v. Barnhart, No. 01 C 50333, 2002 WL 1559675 (N.D. Ill. Jul. 16, 2002) (holding that claimant with IQ of 69 had not satisfied diagnosis description requirement and therefore was not entitled to benefits). Therefore, under the final rules, it appears an additional showing that Gabriel meets the diagnosis description, beyond the low IQ, may be required.
Castillo first filed an application for benefits for her son on April 7, 1997, five-and-a-half years ago. The remedy of remand solely for the calculation of benefits is specially warranted where, as here, a claimant has already waited a substantial amount of time since first applying for benefits. See Balsamo v. Chater, 142 F.3d 75, 82 (2d Cir. 1998);Carroll, 705 F.2d at 644. Accordingly, the Commissioner's decision is reversed, and plaintiff's case is remanded solely for the calculation of benefits. Plaintiff's counsel is directed to submit an application for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), based on contemporaneous time records, as required by New York State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983).
* * *
For the reasons stated above, plaintiff's motion for judgment on the pleadings is granted, the Commissioner's motion is denied, and the case is remanded solely for the calculation of benefits.