Opinion
02 Civ. 1748 (MBM).
March 10, 2003
JAMES M. BAKER, ESQ., CHRISTOPHER J. BOWES, ESQ., Center for Disability Advocacy, New York, NY, Attorneys for plaintiff
JAMES B. COMEY, ESQ., United States Attorney for the Southern District of New York, LORRAINE S. NOVINSKI, ESQ., Assistant U.S. Attorney, New York, NY, Attorneys for Defendant.
OPINION AND ORDER
Plaintiff Brunilda Navarro seeks judicial review of a decision by the Commissioner of Social Security denying supplemental security income ("SSI") benefits to her son, Luis Grullon, age 13. Although she is now represented by counsel, she initially appeared pro se and sought the benefits on the ground that her son is disabled by reason of a psychological impairment. Following denial of those benefits initially and on reconsideration, plaintiff sought and received a hearing before an Administrative Law Judge ("ALJ"), who found that Luis was not disabled within the meaning of applicable regulations and therefore not eligible for benefits. Now before the court are motions by plaintiff to reverse the Commissioner's decision, which was based on the ALJ's decision, and award benefits, and the Commissioner's motion to remand. For the reasons summarized below, the case is remanded to the Commissioner.
In order to obtain benefits under rules applicable to childhood disability determinations, plaintiff was required to show that her son had "marked" limitations in two of the six "domains" of functioning that the Commissioner considers when making such determinations. See, 20 C.F.R. § 416.926a(d). Plaintiff would have the court place conclusive reliance on the ALJ's finding that Luis had a marked impairment in the domain of acquiring and using information, but reject his finding that Luis had a less than marked impairment in the domains of attending and completing tasks, and interacting with others. In particular, plaintiff argues that evidence in the record is conclusive in establishing that he also had a marked impairment in the domain of interacting with others (Pl.'s Mem. at 19), and therefore should be awarded benefits. The Commissioner, through her counsel, argues that the decision of the ALJ is deficient for failure to explain how the ALJ weighed conflicting evidence in the record as to all determinations.
Plaintiff cites evidence in the administrative record that conflicts with the ALJ's determination of a less than marked impairment in the domain of interaction with others, but fails to note that there is evidence also in the record that supports it. Thus, plaintiff argues, correctly, that teachers in the third, fourth and fifth grades all reported problems with Luis's relationships to his peers (R 125-26, 150-53, 180, 186), but fails to note that at least one of those reports is fairly mild ("does have some difficulties in peer relationships" R 126), and that there is evidence in the record that "Luis, per teacher, relates well and is cooperative" (R 225). Further, although plaintiff would place dispositive reliance on findings by Luis's treating psychiatrist, Dr. Berk (Pl.'s Mem. at 20, citing R 273, 279), as the government points out, she does not mention that these findings do not appear to be consistent with Dr. Berk's own finding that Luis's score on the Global Assessment of Functioning, or GAF, scale was found to be 63, which suggests only mild impairment (R 273; Gov't Reply Mem. Ex. A).
Although plaintiff insists that defendant cannot abandon the ALJ's finding that Luis had a marked limitation in the domain of acquiring and using information (Pl.'s Mem. at 22), the record contains evidence that conflicts with that finding (e.g., R 157, 182) and the ALJ simply did not indicate how he weighed such. evidence.
It is the function of the agency and not of the court to weigh evidence. See Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). The Court of Appeals has said that, "When there are gaps in the administrtive record or the ALJ has applied an improper legal standard, we have . . . remanded to the [Commissioner] for further development of the evidence." Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). Of course, where "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," the proper remedy is to remand solely for the calculation of damages. Id. This is not one of the latter kinds of cases. The record contains apparently contradictory evidence that the ALJ simply did not resolve or explain.
Accordingly, the decision of the Commissioner will be vacated and the case remanded.
SO ORDERED.