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finding ALJ's determination not set forth with "sufficient specificity" where she failed to adequately explain which evidence was considered at each step
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Case No. 03-CV-3235 (FB).
June 14, 2004
LAURENCE BECK, ESQ. Brooklyn, NY, Appearances for the Plaintiff.
ROSLYNN R. MAUSKOPF, ESQ. United States Attorney Eastern District of New York, By: LESLIE BRODSKY, ESQ. Brooklyn, NY, for the Defendant.
MEMORANDUM AND ORDER
Plaintiff Inez Fernandez ("Fernandez") brings this action on behalf of her minor son Christopher Pacheco ("Christopher") seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for social security income ("SSI") benefits. Both parties have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). The Commissioner contends that the Administrative Law Judge's ("ALJ") determination that Christopher was not disabled is supported by substantial evidence. Plaintiff argues that the case should be remanded because: (1) the ALJ failed to fully develop the record; (2) the ALJ failed to adequately explain her findings, and (3) the ALJ's determination was not supported by substantial evidence. For the reasons set forth below, the Court remands to the ALJ for further proceedings.
Fernandez filed this action, pro se, on behalf of her son; however, she erroneously captioned the case to reflect Christopher as the plaintiff; accordingly, the Court construes the complaint as appropriately brought by Fernandez, on behalf of her son. Fernandez later obtained counsel and is no longer proceeding pro se.
I.
The Administrative Record ("R.") before the Court discloses that on July 19, 1999, Fernandez applied for SSI benefits on behalf of Christopher, born September 10, 1992, alleging that Christopher was disabled because of asthma and attention deficit hyperactivity disorder ("ADHD").
A. Testimonial Evidence
A hearing was held before the ALJ on November 18, 2002; at the hearing, Fernandez was not represented by an attorney, but by a family worker from Christopher's school. Only Fernandez and Christopher testified; there was no testimony from a treating physician or social worker, nor any other medical expert.
Fernandez testified about her son's academic problems, his behavioral problems at home, at school and with his friends, and his inability to sit still and focus. She testified that Christopher's behavior had improved with treatment (Ritalin), but that he had stopped taking medication due to side effects; Christopher was also receiving psychotherapy on a weekly basis. With regard to Christopher's asthma, Fernandez testified that he was not active and does not run because "he'll be out of breath." R. at 52. Christopher testified, inter alia, about his relationship with his family and friends, and that he had difficulty reading.
B. The Medical Evidence Before the ALJ
The medical evidence consists of: (1) treatment notes from social worker Amy Zwick ("Zwick") and treating physician Dr. Louis Lockhard ("Dr. Lockhard"), both from the Bedford-Stuyvesant Community Mental Health Center ("BSCMHC") — where Christopher receives treatment for ADHD and behavioral problems — from April 28, 1999 to September 15, 1999, as well as a letter from BSCMHC social worker Madeline Infante ("Ms. Infante") dated August 12, 2002, R. at 190-197, 200-205, 217-219; (2) a report dated July 30, 1999 from Dr. Farideh Vaziri ("Dr. Vaziri") who had treated Christopher for his asthma and ADHD, R. at 219-226; (3) a report dated August 2, 1999 from Dr. Rodolfo Sandin ("Dr. Sandin") who had treated Christopher for his ADHD, R. at 251-252; (4) a report dated August 3, 1999 from SSA examining consultant Dr. Tomasito Virey ("Dr. Virey"), including the results of a pulmonary function test, R. at 227-234; (5) an intelligence evaluation conducted by Dr. Steven Fried, Ph.D. dated August 7, 1999, R. at 235-248; (6) a consultative psychiatric examination report by Dr. Margaret Chu ("Dr. Chu") dated August 7, 1999, R. at 249-250; (7) a report by Christopher's second grade teacher dated November 15, 1999, R. at 161-165; (8) a report by SSA non-examining psychologists and physicians dated November 29, 1999, R. at 253-256; (9) a treatment note from Dr. Anthony Celentano, another treating physician, dated August 12, 2000, R. at 266-268, and (10) Christopher's Individualized Education Plan ("IEP") dated January 2002, accompanied by a letter from school social worker Marva Martin ("Ms. Martin"). R. at 269-282.
These records reveal that Christopher has repeatedly been diagnosed with ADHD, has difficulty completing many tasks without assistance because of hyperactivity and inability to focus, has aggression problems, and needs continuing psychotherapy; some of Christopher's treating sources describe his impairments due to ADHD as moderate, with likely improvement in the future, whereas others describe his limitations as more severe. His asthma was described as "mild" by treating physician Dr. Vaziri, R. at 219, but was more recently described as a "serious medical condition" by Dr. Celentano. R. at 266. Although treatment notes from various treating sources were submitted, only Dr. Vaziri and the SSA consultants provided opinions as to whether Christopher's impairments amounted to a disability.
C. The ALJ's Findings
The relevant statute governing a minor's entitlement to disability benefits provides that:
An individual under the age of 18 shall be considered disabled for the purposes of this title 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.42 U.S.C. § 1382c(a)(3)(C)(i).
Under the Commissioner's regulations, a sequential analysis is utilized. See 20 C.F.R. § 416.924(a)-(d). The first step is to determine whether the child is engaged in any substantial gainful activity. The second step is to decide whether the child has a medically severe impairment or combination of impairments. The third step is to determine whether the child's impairments medically meet or equal or functionally equal any impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. See, e.g., Williams ex rel. Torres v. Barnhart, ___ F. Supp.2d ___, 2004 WL 868206, *2 (explaining three step evaluation). If a child's impairments medically meet or equal a listed impairment, the child will be found disabled. See 20 C.F.R. § 416.926. If a child's impairments do not medically meet or equal any impairment contained in the listing of impairments, the Commissioner will then assess all functional limitations caused by the child's impairments. See 20 C.F.R. § 416.926a(a). If the functional limitations caused by the child's impairments are the same as the disabling functional limitations caused by a listed impairment, the Commissioner will find that the impairments are functionally equivalent in severity to that listed impairment. Id. An impairment or combination of impairments functionally equals a listed impairment if it results in "marked" limitations in two domains of functioning or an "extreme" limitation in one domain. 20 C.F.R. §§ 416.926(a) and (d). See Encarnacio ex rel. George v. Barnhart, 331 F.3d 78, 87-89 (2d Cir. 2003) (discussing regulations pertaining to assessing functional limitations of children).
Applying the regulations, the ALJ first summarized some of the relevant medical evidence, discussing only the report from Dr. Sandin, the report from Ms. Infante, the letter from Ms. Martin, Christopher's IEP, some laboratory results, and the hearing testimony. The ALJ found that 1) Christopher had never engaged in substantial gainful activity; 2) that his asthma and ADHD were severe impairments, and 3) that these impairments did not medically meet or equal any impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. See R. at 20. The ALJ further determined that Christopher's impairments were not "functionally equivalent" to a listed impairment, because he only had a "marked" limitation in one domain — attending and completing tasks. Id.
The entirety of the ALJ's evaluation of each domain can be summarized as follows: With regard to acquiring and using information, and without reference to any specific evidence, the ALJ concluded that Christopher had a "less than marked limitation of functioning" because he "requires help with academics and is enrolled in special classes for math and reading." R. at 17. This statement obviously does not explain why Christopher does not have a limitation; presumably, the ALJ meant to say that Christopher does not require help with academics. With regard to attending and completing tasks, the ALJ found that Christopher had a "marked limitation of functioning" based upon Ms. Martin's letter and his IEP; however, the ALJ did not explain why his limitation was marked rather than severe but noted that the social worker reported that Christopher "cannot sit for any given time period or complete any task assignment." R. at 17. With regard to interacting and relating with others, the ALJ concluded that Christopher had a "less than marked limitation of functioning" because he "has friends and likes art and basketball. He sees his father every other weekended and goes shopping and to the movies with his father." R. at 18. With regard to health and physical well-being, the ALJ concluded that Christopher had a "less than marked limitation of functioning" because he "has improved on medication," despite that his medication had been discontinued because of side-effects. R. at 19. Without explicit reference to Christopher's asthma, the ALJ concluded that he did not "have a condition which is characterized by frequent episodic illnesses . . . [or] does not require treatment over a long period of time." Id. The ALJ found Christopher was not limited in any of the other domains; thus, the ALJ concluded that Christopher was not disabled. Id. The ALJ's determination became the final decision of the Commissioner on June 4, 2003, when the Appeals Council denied plaintiff's request for review. R. at 4-7. This action followed.
II.
The Court must determine whether the findings of the ALJ are supported by "substantial evidence in the record as a whole." Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000)). However, the Court "must first satisfy [itself] that the claimant has had a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act." Echevarria v. Secretary of Health and Human Services, 685 F. 2d 751, 755 (2d Cir. 1982) (quotation omitted).A. Failure to Weigh Evidence and Adequately Explain Determination
It is self-evident that a determination by the [ALJ] must contain a sufficient explanation of [her] reasoning to permit the reviewing court to judge the adequacy of [her] conclusions," Rivera v. Sullivan, 771 F. Supp. 1339, 1354 (S.D.N.Y. 1991) (citing inter alia, Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988)); moreover, the courts in this Circuit have repeatedly held that an ALJ's "failure to acknowledge relevant evidence or explain its implicit rejection is plain error." Kuleszo F/K/A Dillon v. Barnhart, 232 F. Supp.2d 44, 57 (W.D.N.Y. 2002). Although "every conflict in the record [need not be] reconciled by the ALJ . . . the crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). See also Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983) ("Although we do not require that, in rejecting a claim of disability, an ALJ must reconcile explicitly every conflicting shred of medical testimony, we cannot accept an unreasoned rejection of all the medical evidence in a claimant's favor."). Furthermore, an ALJ cannot "pick and choose evidence in the record that supports [her] conclusions." Rivera, 771 F. Supp. at 1354 (quoting Fiorello, 725 F.2d at 175-76).
Here, the ALJ not only ignored much of the relevant medical evidence before her, she failed to adequately explain which evidence she was considering (and rejecting) in assessing Christopher's functioning in each domain. See, e.g. Morgan v. Chater, 913 F. Supp. 184, 188 (W.D.N.Y. 1996) (remanding because inter alia, the ALJ failed to discuss "what evidence he relied upon, and what evidence he rejected in making [his] finding"). For example, in concluding that Christopher had a less than marked limitation in the "acquiring and using information" domain, the ALJ summarily concluded, without specific reference to any particular evidence, that he "requires help with academics and is enrolled in special classes for math and reading." R. at 17. The ALJ did not address highly probative evidence, such as Christopher's January 2002 IEP which states that he reads on only a second grade level. See 20 C.F.R. § 416.926a(e)(2)(i) (a limitation is "marked" when standardized testing shows functioning two standard deviations below mean levels). Similarly, with regard to the summary conclusion that Christopher had a less than marked limitation in the "interacting and relating with others" domain, the ALJ failed to consider any of the evidence that suggested Christopher had trouble relating to children his age — such as his mother's testimony and comments regarding Christopher's aggressive behavior with other children found in the reports of Ms. Zwick and Ms. Infante, his therapists; rather, the ALJ focused on Christopher's relationship with his father. See 20 C.F.R. 416.926a(i)(2)(iv) (assessing this domain requires inter alia, the child's ability to "develop more lasting friendships with children [his] own age"). Furthermore, in determining that Christopher had a less marked limitation with respect to his health and physical well-being, the ALJ made no reference to his asthma, nor to any of the evidence that suggested it was either a mild or serious condition that impacted his functioning.
Finally, in concluding that Christopher had a marked limitation in attending and completing tasks, the ALJ discussed the letter of only one school social worker; the ALJ ignored other evidence found in the reports of Ms. Infante, Dr. Chu and Dr. Fried discussing Christopher's inability to focus and concentrate. Furthermore, the one letter the ALJ did consider, and cite with approval, suggests Christopher's limitation is severe: he "cannot sit for any given time period or complete any task assignment." R. at 269. See 20 C.F.R. § 416.926a(e)(3)(i) ("We will find that you have an extreme limitation in a domain when your impairment(s) interferes [sic] very seriously with your ability to independently initiate, sustain, or complete activities.").
On remand, the ALJ should carefully weigh all of the medical evidence presented, especially with regard to the three domains discussed herein, explain which evidence she is crediting or rejecting in making her determination, and if necessary, explain why evidence — especially by treating sources — supporting a finding of marked or extreme limitation in any domain is rejected.
B. Failure to Fully Develop the Record
The responsibility of an ALJ to fully develop the record is a bedrock principle of Social Security law, see Brown v. Apfel, 174 F.3d 59 (2d Cir. 1999), especially where, as here, the claimant was not represented by a lawyer at the hearing. See Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) ("[t]he ALJ has a duty to adequately protect a pro se claimant's rights by ensuring that all of the relevant facts [are] sufficiently developed and considered.") (internal quotations omitted). The obligation to develop the record includes assembling the claimant's complete medical history and recontacting the claimant's treating physician if the information received from the treating physician or other medical source is inadequate to determine whether the claimant is disabled. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing 20 C.F.R. § 404.1512).
First, it is well-established that the opinion of a treating physician plays a central role in evaluating Social Security claims. See Green-Younger, 335 F.3d at 106 (discussing the treating physician rule). In this case, treatment notes by various treating sources were submitted, but with the exception of Dr. Viziri (and the SSA consultants), there are no disability evaluations by Christopher's treating physicians, therapists or social workers. The ALJ had an affirmative duty to obtain such opinions, especially since each treating source described the effects of both his ADHD and asthma with differing degrees of severity. See, e.g., Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999) (when faced with incomplete information as to the underlying basis of a medical assessment, the ALJ should have taken steps to obtain additional information from the treating physician). Second, the ALJ erred in failing to obtain Christopher's pre-January 2002 IEPs. Third, the ALJ should have obtained full treatment records and an opinion from Dr. Celentano — apparently Christopher's most recent treating physician — who only summarily indicated that Christopher's asthma was a serious condition. On remand, the ALJ should endeavor to obtain full treatment records from Dr. Celentano and the pre-January 2002 IEPs. The ALJ should then obtain the opinions of Christopher's treating sources with regard to the severity of both his ADHD and asthma.