Opinion
04 Civ. 7409 (GEL).
September 29, 2005
Michael D. Hampden, Legal Services for Children, Inc., New York, NY, for plaintiff.
Susan D. Baird, Assistant United States Attorney, Southern District of New York (David N. Kelly, United States Attorney, on the brief), New York, NY, for defendant.
OPINION AND ORDER
On behalf of her son, Jesus Jorge ("Jorge"), plaintiff Wanda Vazquez ("Vazquez") brings this action for review of the final decision of the Commissioner of Social Security ("the Commissioner"), who denied Jorge's application for Supplemental Security Income ("SSI") benefits. The Commissioner moves for reversal and remand, pursuant to the fourth sentence of 42 U.S.C. § 405(g), for further administrative proceedings, on the ground that the Administrative Law Judge ("ALJ") did not properly apply the law and regulations regarding medical opinion evidence, failed to evaluate plaintiff's credibility, and to consider evidence furnished to the Appeals Council. Plaintiff cross-moves for judgment on the pleadings, contending that the record establishes that Jorge meets the Social Security Administration's ("SSA") listing for mental retardation in individuals under eighteen. In the alternative, plaintiff moves for remand to the Commissioner. For the reasons stated below, the Commissioner's motion is granted, and plaintiff's motion is denied.
BACKGROUND
The following facts are taken from the administrative record.
I. Jesus Jorge's Personal History
A. Social History
Jesus Jorge, born on August 18, 1989, resides with his mother and his brother in the Bronx. (Tr. 62, 496.) Jorge's mother, Wanda Vazquez, has been a single parent since 1998 (Tr. 117,514), and serves in the United States Army. If Vazquez is away for military service, Jorge's maternal grandmother, Luz Cruz, cares for him. (Id.) Jorge has weekly contact with his father. (Tr. 392.) English is the primary language spoken in the home, although Spanish is also spoken. (Tr. 118.) Since second grade, Jorge has been a special education student in the New York City public schools. (Tr. 116.)
Although Jorge has continually received mandated special education services and has made progress, he is still unable to function on the same level as his age-equivalent peers, and had to repeat fourth grade. Evaluators sometimes report that Jorge is cooperative, but often note certain unusual behaviors. For example, an evaluator from the Board of Education observed that "he was very serious and quiet . . .[,] did not engage in spontaneous conversation[,] . . . [and] did not respond to praise. . . ." (Tr. 121.) Another evaluator from the Kennedy Child Study Center reported that during a writing task, Jorge stated, "I don't feel like writing" and then sat in silence with his head down. (Tr. 264.) The ALJ also conveyed that Jorge was "polite and cooperative for the most part, but either remained silent or refused to answer questions when they were not to his liking" and that he "was mildly hostile at other times." (Tr. 19.)
His mother and teachers report that Jorge prefers to be by himself rather than with other children. (See, e.g., Tr. 99, 153, 160.) Evaluators also often notice his shyness or sporadic eye contact. (See, e.g., Tr. 274, 299, 349, 358, 362, 382.) His mother states that he has a very short temper, will push other children, and has been in fights at school. (Tr. 99-100, 250.) He is frequently angry or frustrated at his brother. (Tr. 375.) Some reports note his poor impulse control (see, e.g., Tr. 160, 352), but another found his impulse control to be adequate for his age. (See Tr. 296.) Teachers often remark that Jorge is easily frustrated (see, e.g. Tr. 134, 138, 258), and that if he is assigned a task that he regards as too difficult, he becomes upset and cries, gets angry, or shuts down. (Tr. 250, 259, 269, 294, 350.) One teacher reported that this occurs regularly, about once or twice a week. (Tr. 250.) Evaluators also find Jorge to be depressed (Tr. 297), and Jorge himself describes himself as feeling depressed, and that he frequently feels sad and irritable. (Tr. 373, 374.)
Jorge's mother reports that he has poor dexterity and upper body strength, confirmed by medical evaluations. For example, a pediatric occupational therapist found that Jorge "had a great deal of difficulty using his upper extremities in a controlled symmetrical manner," that he had "some difficulty processing tactile input," and he exhibited "weakness in his shoulders and hands which impacts on hand use." (Tr. 280.)
B. Medical Evaluations
In February 2001, Dr. H. Porter, an SSA consultant, found that Jorge had a learning disorder impairment that was severe, but did not medically meet any disability on the "Listing of Impairments" ("Listings") promulgated by the SSA. He found that Jorge had a "marked" impairment in "acquiring and using information," but "less than marked" impairments in "attending and completing tasks" and "interacting and relating with others." He wrote that Jorge needs improvement sustaining attention, had adequate impulse control, and was angry, depressed, and aware of his academic delays. (Tr. 73-78.)
In January 2000, Jorge was evaluated by Dr. Gloria Reyes, a doctor at Morrisania Diagnostic and Treatment Center, Jorge's treating source for his psychiatric impairments. She assessed Jorge as having learning problems and speech impairments. (Tr. 315.) In August 2000, Dr. Robert DeVita opined that Jorge was learning impaired, probably secondary to psychiatric and behavioral problems, and recommended a psychiatric evaluation. He also noted that Jorge's ability to behave in an age-appropriate manner was moderately affected. (Tr. 298-300.) Subsequently, Jorge did have a psychiatric evaluation by Dr. L. Marcuzzo. The report simply states that while Jorge tended to answer monosyllabically, he was relevant and coherent, but Dr. Marcuzzo did not provide any further in-depth analysis. He opined that Jorge has speech delay and a learning disability. (Tr. 301-02.)
In December 2001, Dr. Yusuf Salim found no evidence of a thought disorder. However, he did diagnose Jorge with depressive disorder, relational problems, and mixed receptive expressive language disorder. (Tr. 295-97.) In May 2002, Dr. Jorge Oldan found that Jorge had "poorly socially modulated eye contact" for social interactions, but that his thought process was logical, sequential, and spontaneous. He also noted that Jorge describes himself as feeling depressed, but did not explore this further. He opined that Jorge's interactions suggested Pervasive Developmental Disorder. (Tr. 374-77.)
C. Educational and Other Evaluations
Jorge has had multiple educational and psychological evaluations. Through the Board of Education's Division of Special Education, Jorge was placed in the Modified Instructional Services III ("MIS III") program, delineated specifically for children who are speech and/or language impaired. He is classified as Speech Impaired and placed in a special education class, with a ratio of 12 students to 1 special education teacher to 1 paraprofessional. (Tr. 403, 404, 406, 417, 429.) He also receives one-on-one counseling and participates in speech/language therapy. (Id.)
Jorge's evaluations often describe his "delays in receptive language" (Tr. 122), "delays in auditory processing, critical thinking, problem solving, understanding figurative language . . . and absurdities." (See, e.g., Tr. 131.) Teachers explain that Jorge "often needs instructions, directions and explanations repeated" and that he has poor listening skills "due to short attention span." (Tr. 134.)
Additionally, educational evaluations often demonstrate that Jorge's academic skills test below his age level. For example, in one study by the Kennedy Child Study Center in November 2000, he tested 3 to 4 1/2 years below age level. (Tr. 264, 266.) Two years later, in another study conducted by the Kennedy Child Study Center in May 2002, he tested five years below on word knowledge and general fund of knowledge. (Tr. 353-54.)
II. Procedural History
On March 1, 2000, Vazquez filed an application for SSI benefits on behalf of her son, Jorge, alleging that he was disabled due to a speech impairment and learning disability. (Tr. 62-64, 80.) The application was denied (Tr. 24), and then denied again on reconsideration. (Tr. 25.) Plaintiff requested a hearing, and was granted one before ALJ Paul A. Heyman on October 30, 2002. (Tr. 21, 502-27.) Jorge was represented by a non-attorney from a community organization, Bronx Independent Living Services. (Tr. 33.) The ALJ considered the case de novo, and on December 2, 2002, found that Jorge was not disabled. (Tr. 13-21.) On July 15, 2004, the Appeals Council denied plaintiff's request for review (Tr. 3-5), and plaintiff brought this timely action on September 17, 2004.
DISCUSSION
I. Legal Standard
A. Standard of Judicial Review
In reviewing the decision of the Commissioner, a district court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). It is not the district court's "function to determine de novo whether [a claimant] is disabled." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (internal quotation marks and emphasis omitted). A district court may "set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence." Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998);see also 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ."). Furthermore, "it is up to the agency, and not [the district court] to weigh the conflicting evidence in the record." Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
The Commissioner's findings as to any fact are conclusive if supported by "substantial evidence." 42 U.S.C. § 405(g). In the context of Social Security benefits, "substantial evidence" has been defined as "more than a mere scintilla . . .[,] mean[ing] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). "The substantial evidence standard applies not only to the Commissioner's findings of fact, but also to her inferences and conclusions." Toribio v. Barnhart, No. 02 Civ. 4929 (GEL), 2003 WL 21415329, at *2 (S.D.N.Y. Jun. 18, 2003). Moreover, such inferences and conclusions must be affirmed even where the reviewing court's own analysis may differ, so long as substantial evidence supports the Commissioner's decision. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) ("[T]he court may not substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review"); see also DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir. 1998) (affirming Commissioner's decision where there was substantial evidence both for and against the decision).
Due to the "essentially non-adversarial nature" of a disability benefits hearing, "[i]t is the ALJ's duty to investigate and develop the facts and develop the arguments both for and against the granting of benefits." Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004) (citation omitted). In light of these procedural obligations, a district court reviewing a benefits denial may not simply accept the administrative determination based on a cursory review of a record that includes plausible testimony, documentary evidence, or expert opinion that supports the administrative determination. Rather, the district court must carefully evaluate the record to "determine whether the ALJ complied with all the relevant regulations." Thomas v. Barnhart, No. 01 Civ. 518 (GEL), 2002 WL 31433606, at *4 (S.D.N.Y. Oct. 30, 2002). "Where there are gaps in the administrative record," a remand for further development of the evidence is appropriate. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999).
B. Standard for Determining Disability for Children
The SSI program is a federal program providing benefits to needy aged, blind or disabled individuals who meet the statutory requirements. 42 U.S.C. § 1381. To qualify for disability benefits, 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).
To determine whether a child is disabled, the ALJ engages in a three-step analysis. See 20 C.F.R. § 416.924(a). First, the Commissioner must consider whether the child claimant is working and if so, whether the work constitutes "substantial gainful activity." Id. at § 416.924(b). If the child is working in "substantial gainful activity," then he or she will not be awarded SSI benefits. Id. Second, the Commissioner must determine whether the child has a "medically determinable impairment(s) that is severe." Id. at § 416.924(c). A severe impairment is an impairment that is more than a slight abnormability. Id.
Last, if the child claimant suffers such a severe impairment, the Commissioner must determine whether the impairment meets, medically equals, or functionally equals an impairment in the Listing of Impairments issued by the SSA. Id. at § 416.924(d). A child's impairment is medically equal to a disability in the Listings if it is "at least equal in severity and duration" to the listed impairment. Id. at § 416.926(a). A child claimant possesses the functional equivalent of a listed impairment if he demonstrates an "extreme" limitation in one of six domains of functioning or "marked" limitations in two domains. Id. at § 416.926a(a). For children ages three to eighteen, the six domains of functioning are: (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. Id. at § 416.926a(b)(1)(i)-(vi).
II. Plaintiff's Motion for Judgment on the Pleadings
The ALJ here determined that Jorge fulfilled the requirements of steps one and two in the three-step analysis used to analyze a child's claim of entitlement to SSI benefits. The ALJ found that Jorge had never engaged in any substantial gainful activity, and that his learning and speech delays, depressions, and gross and fine motor impairments all constituted severe impairments. (Tr. 17.) However, the ALJ found that Jorge failed to meet the last prong, concluding that the claimant had "marked limitations in interacting and relating with others," but "less than marked limitations in the areas of acquiring and using information, attending and completing tasks, moving about and manipulating objects, and caring for himself, and no limitations in the area of general health and physical well-being." (Tr. 18.)
Plaintiff argues that the ALJ erred by failing to consider whether Jorge met the mental retardation listing. Plaintiff also contends that the record conclusively demonstrates that he satisfies three variations of the listing for mental retardation, under listings 112.05(D), 112.05(E), and/or 112.05(F), and requests that the court grant his motion for judgment on the pleadings. (P. Mem. 4.) While the ALJ conclusorily states that "the claimant's condition does not meet the criteria of Section 112.00 (Mental Disorders)," he provides no analysis for his conclusion. (See Tr. 18.) This failing alone justifies a remand, but further analysis is required to determine if judgment on the pleadings is appropriate.
A. Listings § 112.05(D) and (E)
To medically meet a mental retardation Listing, plaintiff must have a condition "[c]haracterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning," and fulfill the requirements of one of six additional criteria listed under § 112.05(A)-(F). 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.05. Plaintiff argues that Jorge meets the requirements of paragraphs (D), (E), and (F) of § 112.05.
Listings § 112.05(D) and § 112.05(E) both first require that the claimant have "a valid verbal, performance, or full scale IQ of 60 through 70." Id. at § 112.05(D), (E). Additionally, § 112.05(D) requires "a physical or other mental impairment imposing an additional and significant limitation of function.Id. at § 112.05(D). Alternatively, § 112.05(E) has as its second requirement a "marked impairment in age-appropriate social function," "marked impairment in age-appropriate personal functioning," or "marked difficulties in maintaining concentration, persistence, or pace." Id. at § 112.05(E); 112.02(B)(2)(b), (c), (d).
Plaintiff contends that Jorge meets the first requirement of § 112.05(D) and (E). In an examination administered by the Kennedy Child Study Center in May 2002, Jorge obtained a Verbal IQ score of 64 on a Stanford-Binet Intelligence Scale. (Tr. 350.) This IQ score indeed would put Jorge squarely in the "mentally retarded" range, placing him in the first percentile, with a fund of word knowledge and general knowledge more than five years below his age level, and his understanding of social norms more than seven years below age level. (Tr. 353-354.) However, Jorge has been tested several other times, sometimes with similar scores, but at other times with scores placing him either in the "slow learner" or "average" category. On five IQ tests administered from 1996 through 2003, Jorge's overall IQ was measured at 68, 76, 93, 74, and 92.
Below is a table of Jorge's IQ evaluation results compiled from the administrative record.
While Jorge argues that some of these tests are out-of-date, as they were conducted more than two years prior to the ALJ's decision, the Commissioner notes that the tests were conducted during the time frame that Jorge contends he was disabled. The most recent test available was conducted in May 2003, resulting in a verbal IQ score of 95, and a full scale score of 92 ("Average"). (Tr. 383.) However, the test used on that occasion is not an expressly approved instrument for assessing intelligence. See Community Legal Services, SSA Childhood Disability Evaluation Issues at 32, http://www.clsphila.org/ abc_march98_training.htm#MentalRetardation (last visited Sept. 27, 2005). "Genuine conflicts in the medical evidence are for the Commissioner to resolve." Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); see also Richardson v. Perales, 402 U.S. 389, 399 (1971) ("The trier of fact has the duty to resolve that conflict[ing medical evidence]."). On the present record, a reasonable factfinder could conclude that Jorge met the first requirement of § 112.05(D) and (E). Nevertheless, it is the role of the ALJ to resolve the differing evidence, not of this Court. Therefore, the Court can not conclude that the ALJ was obligated to find that Jorge meets Listing 112.05(D) or (E).
If Jorge meets the IQ requirement, then plaintiff has provided convincing evidence such that he could meet the Listings under § 112.05(D) and (E). The second requirement for Listing § 112.05(D) is "a physical or other mental impairment imposing an additional and significant limitation of function," and is discussed further under Part II.B.
The second requirement for Listing § 112.05(E) can be met by a "[m]arked impairment in age-appropriate cognitive/communicative function, documented by medical findings. . . ." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.05(E); § 112.02(B)(2)(a). The ALJ found that Jorge had a marked impairment in "interacting and relating with others." (Tr. 19.) This finding is supported by substantial evidence, including the following cited by the ALJ: an August 2000 psychiatric evaluation reporting limited speech, depressed mood and constricted effect (Tr. 301-02); a November 2000 psychological evaluation noting an appearance of worry, nervousness, quiet speech and low self-esteem; a May 2002 psychological examination noting sporadic eye contact, tangential comments, and few friends; a May 2002 psychiatric evaluation reporting symptoms of depression and impairment in the development of reciprocal social interactions suggestive of a pervasive development disorder (Tr. 373); and an October 2002 educational evaluation finding him "moderately related," with fleeting eye contact, serious expression and worried mood. (Tr. 362-63.) The record contains further evidence not cited by the ALJ, including an evaluation at Saint Vincents Hospital which found that Jorge had numerous features of Asperger's Syndrome. (Tr. 437.) Additionally, multiple education progress reports note that he is withdrawn, guarded, shy, easily frustrated, and that he tends not to socialize with other kids and sometimes resorts to fighting. (Tr. 130, 138, 153, 155, 250, 75, 261, 299, 301, 321.)
B. Listing § 112.05(F)
Plaintiff also argues that he meets the Listing under § 112.05(F) because he has both a "marked impairment in . . . cognitive/communicative function" and a "physical or other mental impairment imposing an additional and significant limitation of function." (P. Mem. 11-19.) Plaintiff argues that he satisfies the first element of § 112.05(F), providing considerable evidence showing that he has a severe impairment in age-appropriate cognitive/communicative functioning.
Evaluations conducted for the SSA have diagnosed Jorge with learning disabilities. For instance, in August 2000, an SSA consultant in pediatrics found Jorge "learning impaired, probably secondary to psychiatric and behavioral problems." (Tr. 299.) Similarly, a psychiatric examination by an SSA consultant diagnosed Jorge with a learning disability (Tr. 302), and the Morrisania Diagnostic and Treatment Center similarly diagnosed Jorge with Learning Disability and Speech Impairment. (Tr. 316.) These reports are supported by Jorge's educational evaluations, which consistently discuss his significant lags in cognitive skills. For example, in September 1998 when in third grade, an education evaluation placed Jorge 1 1/2 grades below his expected level in reading and math. (Tr. 90, 100.) Jorge repeated fourth grade, and after doing so, Jorge was still reading, writing and spelling at a second grade level. (Tr. 137.) In other evaluations, even greater lags were assessed. In a study by the Kennedy Child Study Center in November 2000, he tested 3 to 4 1/2 years below age level. (Tr. 264, 266.) Two years later, in another study conducted by the Kennedy Child Study Center, he tested five years below on word knowledge and general fund of knowledge. (Tr. 353-54.)
One document, if authenticated, provides strong support for a finding that Jorge meets the Listing. This report states that Jorge has a "marked" to "extreme" limitation in the functional domain of "acquiring and using information," and that he has "severe developmental delays in the areas of language and memory and is seriously impaired in processing verbal information." (Tr. 470.) However, the document itself is unsigned and undated. Plaintiff represents that the report is from Cecily Dell, Ph.D., Jorge's treating therapist at Morrisania Diagnostic and Treatment Center. However, the ALJ, as the factfinder, is in the best position to determine whether the report was in fact prepared by Dr. Dell.
The ALJ found that Jorge's speech delays were "severe." (Tr. 21.) Indeed, Jorge presents ample evidence of speech delays. For example, a Social Security consulting physician found a "marked" limitation in Jorge's communicative functioning (Tr. 75), and in the special education program at school, he is classified as "speech impaired." (Tr. 135, 187, 242.) Since 1997, he has been placed in the MIS III classes, which are specifically for children who are speech and/or language impaired. See Advocates for Children, Special Education in New York City, http://www.advocatesforchildren.org/resource/specialnyc.php3 (last visited Sept. 27, 2005). His significant language delays have warranted placing him in a self-contained class with a limited student-teacher ratio (Tr. 165, 208, 233), and has consistently received speech/language therapy. (Tr. 141, 147, 167, 188, 208, 244.) Jorge's treating psychiatrist also diagnosed him with Communication Disorder. (Tr. 439.)
Plaintiff offers persuasive evidence that Jorge meets the second prong. The second prong of § 112.05(F) is the same requirement under the second prong of § 112.05(D), requiring "an additional and significant limitation of function" where it is a "severe" impairment. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.05(F). The ALJ found that Jorge has three severe impairments: learning and speech delays, depressive disorder, and gross and fine motor impairment. (Tr. 21 at ¶ 2.) An ALJ's determination supported by available evidence is "tantamount to a finding that each of the[ ] impairments satisfies the second prong of Listing 112.05F." Cruz v. Barnhart, No. 04 Civ. 9794 (DLC), 2005 WL 2010152, at *12 (S.D.N.Y. Aug. 23, 2005). See also Campos v. Barnhart, No. 01 Civ. 10005 (SAS), 2003 WL 21243036, at *8 (S.D.N.Y. May 28, 2003); Castillo v. Barnhart, No. 00 Civ. 4343 (MBM), 2002 WL 31255158, *9-12, (S.D.N.Y. Oct. 8, 2002). As discussed, the record contains substantial evidence illuminating Jorge's learning and speech delays. The record also contains evidence of Jorge's depression (see, e.g. Tr. 297, 373, 374) and motor impairments. (See, e.g., Tr. 279, 280.)
In addition to the specific requirements of each Listing, plaintiff must also demonstrate "significantly subaverage general intellectual functioning with deficits in adaptive functioning" in order to meet any of the Listings under § 112.05. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.05. In April 2002, the SSA published revisions to the rules for disability determinations, clarifying the meaning of this phrase. Specifically, the definitions of mental retardation is "consistent with, if not identical to, the definitions of [mental retardation] used by the leading professional organizations," all of which "require significant deficits in intellectual functioning, as evidenced by IQ scores of approximately 70 or below." Cruz, 2005 WL 2010152, at *12, quoting Technical Revisions to Med. Criteria for Determinations of Disability, 67 Fed. Reg. 20018, 20022 (Apr. 24, 2002). The major professional organizations include the American Association on Mental Retardation (AAMR) and the American Psychological Association, which publishes the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) ("DSM-IV"). Id.
Although Jorge's IQ has been assessed below 70, it has also been assessed above 70. Plaintiff validly points out that Jorge has deficits in several of the adaptive functioning skill-areas, such as communication, social functioning and academics. (P. Mem. 26.) However, each of these definitions requires a limitation in two or more skills areas, in conjunction with the subaverage general intellectual functioning, defined as an IQ score of 70 or below. See Technical Revisions, 67 Fed. Reg. at 20022 (explaining, for example, that the DSM-IV defines mental retardation as "significantly subaverage general intellectual functioning . . . that is accompanied by significant limitations" in certain skill areas) (emphasis added). As Jorge has multiple IQ scores both below and above 70, it is for the ALJ to reconcile these scores. Thus, the Court is unable to conclude that as a matter of law, the ALJ was required to find that plaintiff meets or medically equals the Listings.
C. Marked Limitations
Jorge argues that the record establishes that he functionally equals the listings by having marked limitations in two of the six domains of childhood functioning. (P. Mem. 31.) The ALJ found that Jorge had a "marked" limitation in "interacting and relating with others," but "less than marked limitations in the areas of acquiring and using information, attending and completing tasks, moving about and manipulating objects, and caring for himself, and no limitations in the area of general health and physical well-being." (Tr. 18.)
The ALJ's finding of a "marked" limitation in "interacting and relating with others" is amply supported by the record, with multiple references to shyness and sporadic contact (see, e.g., Tr. 274, 299, 349, 358, 362, 382), preferences to be by himself (see, e.g., Tr. 99, 153, 160), and poor coping skills. (See, e.g., Tr. 138, 142, 148, 151, 250, 261, 270, 293, 372.) The ALJ himself noted that at the hearing, Jorge sometimes "remained silent or refused to answer questions when they were not to his liking" or was mildly hostile. (Tr. 19.) Additionally, a medical evaluation found that Jorge had numerous features of Asperger's Syndrome. (Tr. 437.)
Plaintiff argues that Jorge also has a "marked" limitation in "acquiring and using information," pointing out that both an SSA pediatric consultant and Jorge's treating therapist concluded that he has a marked limitation in this domain (Tr. 74, 470), and that several tests evaluating Jorge's expressive language skills, specifically the CELF-3 test, a standardized test of language deficits, showed deficits of more than three standard deviations. (Tr. 286, 276, 357.) These results certainly could support an ALJ's finding of a marked impairment in "acquiring and using information." Nevertheless, the record also contains evidence that supports the ALJ's finding. For example, Dr. Salim found that plaintiff's thinking was relevant and logical (Tr. 297); Dr. Marcuzzo found that plaintiff's insight and judgment were adequate (Tr. 302); Dr. Oldan found that plaintiff's thought process was logical (Tr. 376); and Dr. Devita opined that plaintiff was able to perform age-appropriate activities. (Tr. 299.) In weighing the various reports, the ALJ could place greater value on the CELF-3 test and education evaluations, as these evaluations are specifically designed to evaluate cognitive function and any ongoing educational evaluations are likely to be more comprehensive than a one-time visit with a physician. Nevertheless, while the ALJ could disregard certain physicians' reports, he is not obligated to, and this Court cannot find that the evidence conclusively establishes that plaintiff functionally meets the listings. Therefore, plaintiff's judgment on the pleadings is denied.
III. The Commissioner's Motion for Remand
The Commissioner moves for remand for further administrative proceedings, arguing that the ALJ did not correctly apply the law and regulations regarding medical opinion evidence. Specifically, the ALJ did not evaluate the February 2, 2001 opinion of state agency review physician, Dr. Porter, who opined that plaintiff had a marked limitation in the domain of acquiring and using information. (Tr. 75.) Under the Commissioner's regulations, the ALJ must consider the opinions of the state agency physicians. 20 C.F.R. § 416.927(f)(1). Moreover, the ALJ also did not evaluate plaintiff's credibility, as required by regulation. See 20 C.F.R. § 416.929.
An ALJ is obligated to examine the sufficiency of the evidence in relation to the specific requirements of an applicable listing. In Morales v. Barnhart, 218 F. Supp. 2d 450 (S.D.N.Y. 2002), the court reversed the ALJ's determination, and ultimately granted plaintiff's request for judgment on the pleadings, as the ALJ merely determined in a "wholly conclusory manner" that plaintiff had not met the listed impairment. Id. at 460. Similarly, the ALJ here conclusorily stated that plaintiff did not meet the mental retardation listings, but failed to provide any reasoning or explanation.
Moreover, while the ALJ found three severe impairments, he failed to give consideration to the combined effect of the impairments, as required by regulation. See 20 C.F.R. § 416.923 ("If we do find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability process."); 20 C.F.R. § 416.924a(b)(4) (requiring examination of combined effects of multiple impairments in children). The ALJ concluded that plaintiff did not have a combination of medically determinable physical or mental impairments that results in marked and severe functional limitations, yet did not provide any analysis or discussion. These failings also warrant a remand for further development of the record.
Upon remand, the ALJ can consider evidence that plaintiff submitted to the Appeals Council. This evidence includes Individual Education Program reports dated March 14, 2001 and February 7, 2002, both of which indicate that plaintiff required speech therapy in school. (Tr. 394-403, 404-16.) These IEP reports are valuable as they demonstrate that the Department of Education (formerly the "Board of Education"), which has consistently tracked Jorge's progress through the years, continually and consistently finds that Jorge is speech-impaired and requires speech therapy.
Plaintiff has also included a report submitted to the Appeals Council, dated September 24, 2002, completed by Dr. Cecily Dell, Ph.D., and signed by a physician, expressly noting plaintiff's history of marked developmental delays and impaired memory. (Tr. 442-48.) The ALJ can also examine an unsigned, undated assessment and determine whether it is attributable to Dr. Dell. As part of the ALJ's affirmative obligation to develop the record, the ALJ is to give "[s]pecial evidentiary weight to the opinion of the treating [source]." Clark, 143 F.3d at 118; see 20 C.F.R. § 404.1527(a)(2), (d)(2) (stating that medical opinions include statements from psychologists and that "[g]enerally, we give more weight to opinions from [the claimant's] treating sources"). The unsigned report would strongly support Jorge's contention that he functionally meets the listings, as it states that plaintiff has a marked limitation in interacting and relating with others, and in moving about and manipulating objects, and a marked to extreme limitation in acquiring and using information, and in attending and completing tasks. (Tr. 470-75.)
Without proper consideration of the medical evidence and plaintiff's credibility, the administrative record is incomplete. Furthermore, the addition of the latest education reports and the report purportedly written by Dr. Dell would assist in a more accurate assessment of Jorge's condition. Finally, plaintiff has consented to a remand. Accordingly, the Commissioner's motion for remand is granted.
IV. Interim Benefits; Timing of Hearing
Plaintiff requests that the Court award interim benefits if it remands the case. The Court has the authority to award interim benefits to SSI claimants. See New York v. Sullivan, 906 F.2d 910, 918 (2d Cir. 1990) (stating that a district court has the "remedial power" to award interim benefits prior to administrative readjudication of SSI claims); Nieves v. Barnhart, No. 02 Civ. 9207 (RWS), 2005 WL 668788, at *3-4 (S.D.N.Y. March 23, 2005) ("[This Court retains its power to provide [interim benefits] under appropriate circumstances."). Nevertheless, because there is insufficient evidence in the record to support a conclusion that Jorge is entitled to SSI benefits, claimant's request for interim benefits is denied.
The Court also declines to place a specific time restriction on the Commissioner to complete administrative proceedings, as it is an unwarranted intrusion of the administrative process. See Heckler v. Day, 467 U.S. 104, 112 (1984). However, in light of the fact that it has been over five years since Jorge first applied for SSI benefits, and that Jorge is now 16 years old, the Commissioner is urged to proceed expeditiously.
CONCLUSION
In conclusion, defendant's motion for remand is granted and the case is remanded to the Commissioner for further proceedings consistent with this opinion. Plaintiff's motion for judgment on the pleadings is denied.
SO ORDERED.
DATE TEST VERBAL SCORE FULL SCALE CITATION SCORE March WISC-III Verbal IQ: 63 Full Scale IQ: 68 (Tr. 224) 1996 ("Deficit") ("Deficit") May Stanford-Binet IV Verbal Reasoning: 79 Composite IQ: 76 (Tr. 259) 2000 ("Low Average"); ("Slow Learner") Short-Term Memory: 68 ("Mentally Retarded") Nov. WISC-III Verbal: 96 General Cognitive (Tr. 270) 2000 ("Average") Ability: 93 ("Average") May Stanford-Binet IV Verbal Reasoning: 64 Composite: 74 (Tr. 350) 2002 ("Mentally Retarded") ("Slow Learner") May Wechsler Verbal: 95 Full Scale: 92 (Tr. 383) 2003 Abbreviated Scale of Intelligence ("WASI")