Opinion
21-cv-00978 (GHW) (SDA)
07-07-2022
Janet Jackson, Plaintiff, v. Kilolo Kijakazi,[1] Defendant.
HONORABLE GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
STEWART D. AARON UNITED STATES MAGISTRATE JUDGE
Plaintiff Janet Jackson (“Jackson” or “Plaintiff”) brings this action pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the “Commissioner”) that denied her application for Supplemental Security Income (“SSI”) benefits. (Compl., ECF No. 1, ¶ 6.) Presently before the Court are the parties' cross-motions, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings. (Pl.'s Not. of Mot., ECF No. 21; Comm'r Not. of Mot., ECF No. 27.)
For the reasons set forth below, I respectfully recommend that Plaintiff's motion for judgment on the pleadings be GRANTED, the Commissioner's cross-motion be DENIED and this action be remanded for further proceedings.
BACKGROUND
I. Procedural Background
Plaintiff received SSI benefits based on her asthma beginning at the age of 3 and then continued to receive SSI benefits based on her learning disability and attention deficit hyperactivity disorder (“ADHD”) from the age of 13 due to marked impairments in acquiring and using information and interacting and relating with others. (Administrative Record, ECF No. 14 (“R.”), 59, 99.) As required by law, when Jackson turned 18, the Social Security Administration (“SSA”) conducted a continuing disability review based on the adult standards of disability defined by 20 C.F.R. § 416.902 and determined that Jackson no longer was disabled as of May 18, 2017. (Id.)
ADHD includes a combination of persistent symptoms, such as difficulty sustaining attention, hyperactivity, and impulsive behavior . . . [a]dditionally, children struggling with ADHD may also experience symptoms of low self-esteem, troubled relationships, and poor performance in school.” Estrella o/b/o M.R.E. v. Berryhill, No. 15-CV-06966 (CS) (LMS), 2017 WL 2693722, at *2 n.5 (S.D.N.Y. June 22, 2017) (citing Diseases & Conditions: Attention-deficit/hyperactivity disorder (ADHD) in children, Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/adhd/home/ovc-20196177).
An individual who receives SSI as a child must, upon attaining age 18, have his or her disability redetermined. 42 U.S.C. § 1382c(a)(3)(H)(iii); 20 C.F.R. § 416.987. The redetermination is governed by 20 C.F.R. § 416.920(c)-(h); that is, by the same multi-step process that applies to new adult disability applications except that the first step - determining whether the applicant engaged in “substantial gainful activity” - is not used for redetermining disability at age 18. See 20 C.F.R. § 416.987(b).
On January 24, 2018, Jackson made a timely request for a hearing. (R. 361.) A hearing was held on August 6, 2019 before Administrative Law Judge (“ALJ”) Mark Solomon. (R. 325.) In a decision dated September 18, 2019, ALJ Solomon found Jackson not disabled. (R. 292-304.) Jackson timely requested a review of the ALJ's decision on October 24, 2019. (R. 397.) The Appeals Council denied Plaintiff's request for review on July 22, 2020 (R. 310-14), making the ALJ's decision the Commissioner's final decision. This action followed.
II. Non-Medical Evidence
Jackson was born on March 14, 1999 and was 18 years old on May 18, 2017, the date of SSI benefits cessation. (R. 272, 285.) She is a resident of New York, New York. (See R. 289.) Jackson completed high school and attended some college. (R. 240, 296.) As a senior in high school, Jackson was given two Individualized Education Programs (“IEP”) by the New York State Office of Temporary & Disability Assistance, dated October 6, 2016 and April 27, 2017. (R. 585-97, 764772.) The 10/6/16 IEP noted that Jackson's reading and math level were functioning at ¶ 9th grade level while she was in 11th grade, but that during 12th grade Jackson showed vast improvement and moved up a level. (R. 586.) The 4/27/17 IEP noted that Jackson attained a Full Scale IQ of 62, referring to the 5/17/16 psychological evaluation conducted by Jennifer Seidel, Ed.M. (R. 764.) Both IEPs reported that Jackson's mother brought her to school every day and Jackson reported that she could travel independently via public transportation. (R. 586, 764.) Jackson's medical conditions resulted in her missing school, but she demonstrated responsibility in making up missed work. (Id.) Both IEPs noted that Jackson was able to solve long, complex problems and write essays, but her teachers reported that she often needed extra time to process lessons and information and that she could become overwhelmed if work was presented as one large task. (Id.) Jackson was able to follow rules and directions the first time they were given, she asked for clarification or help as needed, and she got along well with peers, but could become frustrated if she sensed she was being bullied or treated unfairly. (Id.) During the first three years of high school, Jackson demonstrated significant growth in her social skills and relationships with peers. (R. 587.) Both IEPs noted that Jackson often missed school because of doctor appointments. (R. 587, 765.)
See Section III.A., infra.
After high school, Jackson attended Birmingham Community College for a short period. (R. 241.) In 2019, Jackson attended the School for Cooperative Technical Education (“Co-op Tech”) from January to June 2019. (R. 240, 244-46.) Jackson worked part-time as a camp counselor in the summer of 2018 and 2019. (R. 246, 253.)
III. Medical Evidence Before the ALJ
A. Medical Evidence Prior To March 14, 20175, Age 18 Redetermination Date
Jackson met her developmental milestones until the age of 2 years old when she was struck by a vehicle. (R. 614.) Jackson's mother, Sia George (“George”), stated during a psychosocial evaluation by David De Jesus, LMSW, on January 10, 2015, that Jackson's behavior changed after being hit by the vehicle. (Id.) Jackson has been in therapy and counseling for behavioral problems, ADHD and learning disability since the age of 3. (Id.)
On October 16, 2012, Jackson was evaluated by the Department of Education afterJackson's mother requested new testing. (R. 1510.) Based on an intelligence assessment, Jackson had a Full Scale IQ of 77 within the upper portion of the borderline range. (Id.)
On March 26, 2013, Dr. Charles Yurkewicz performed a psychological evaluation ofJackson, who was 14 years old at the time, and determined that Jackson had a Full Scale IQ of 63, placing her within the Mild Mental Retardation range, and Jackson scored within the “Moderate Low” adaptive level for communication, and the “Low” adaptive level for daily living skills, socialization, and overall adaptive behavior composite skills. (R. 930.) However, despite her previous diagnosis of ADHD, Jackson's attention, concentration and activity level appeared to be within normal limits during the evaluation. (Id.)
Plaintiff attained age 18 on March 14, 2017, and upon redetermination, was determined to be no longer disabled as of May 18, 2017. (See R. 292.) However, given that the SSA considers an “age 18 redetermination to be a new claim filed on the day a person attains age 18,” see n.16, infra (citing SSA Program Operations Manual System (“POMS”) DI 24503.050.D.8)), and that the ALJ's decision focused on evidence dating after Plaintiff turned 18, the Court summarizes the medical evidence using the March 14, 2017 date that Plaintiff turned 18 as a benchmark.
In 2013, Jackson's mental health treatment commenced at the Upper Manhattan Mental Health Center (“UMMHC”) after leaving Grand Wyndham Manhattan Mental Health Clinic (“Grand Wyndham). (R. 863.) Jackson was treated at UMMHC for generalized anxiety disorder, oppositional defiant disorder (“ODD”), major depressive disorder, ADHD and was prescribed Prozac, Risperidone, Atarax, Tenex, Adderall and Trazadone. (R. 705-31, 863-893, 896, 918-28, 945, 983-1258.)
Jackson had received outpatient therapy at the Grand Wyndham Manhattan Mental Health Clinic from age 3 to 13 to address anxiety and problems with attention and concentration. (R. 863.)
Children with ODD present with symptoms of frequent and persistent patterns of anger, irritability, arguing, and defiance or vindictiveness toward authority figures. Estrella o/b/o M.R.E., 2017 WL 2693722, at *2 n.5 (citing Diseases & Conditions: Oppositional defiant disorder (ODD), Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/oppositional-defiant-disorder/basics/definition/con-20024559 (last visited May 19, 2017)).
Risperidone is an atypical antipsychotic medication that is used to treat the symptoms of schizophrenia as well as episodes of mania (frenzied, abnormally excited, or irritated mood) or mixed episodes of mania and depression. Narvaez v. Comm'r of Soc. Sec. Admin., No. 18-CV-01130 (SDA), 2019 WL 4386030, at *1 n.5 (S.D.N.Y. Sept. 13, 2019). Risperidone “works by changing the activity of certain natural substances in the brain.” Id.
Atarax, or Hydroxyzine, “is used to help control anxiety and tension caused by nervous and emotional conditions.” Lopez v. Comm'r of Soc. Sec., No. 18-CV-07564 (JGK) (SDA), 2020 WL 364861, at *3 n.6 (S.D.N.Y. Jan. 4, 2020), report and recommendation adopted, No. 18-CV-07564 (JGK), 2020 WL 364172 (S.D.N.Y. Jan. 22, 2020) (citing Drugs and Supplements: Hydroxyzine (Oral Route), Mayo Clinic: https://www.mayoclinic.org/drugs-supplements/hydroxyzine-oral-route/description/drg-20311434 (last visited Dec. 31, 2019)).
Tenex is a brand of guanfacine that is used to treat ADHD. See Drugs.com: https://www.drugs.com/mtm/tenex.html (last visited Jul. 4, 2022).
Adderall is an amphetamine prescribed for treatment of ADHD; its generic form is Amphetamine Salt Combo. See Price ex rel. A.N. v. Astrue, 42 F.Supp.3d 423, 427 n.9 (E.D.N.Y. 2014) (citing Adderall, PDR Health, Physician's Desk Reference, available at http://www.pdrhealth.com/drugs/adderall (last visited July 31, 2014).
Trazadone is an antidepressant. See Wallace v. Berryhill, No. 14-CV-02066 (NSR) (LMS), 2017 WL 9534743, at *3 n.6 (S.D.N.Y. Aug. 14, 2017), report and recommendation adopted, No. 14-CV-02066 (NSR) (LMS), 2017 WL 4011494 (S.D.N.Y. Sept. 11, 2017) (citing Drugs and Supplements: Trazodone (Oral Route), Mayo Clinic, http://www.mayoclinic.org/drugs-supplements/trazodone-oral-route/description/drg-20061280 (last visited July 10, 2017).
On May 17, 2016, Jackson was referred for a developmental disability psychological evaluation at YAI National Institute for People with Disabilities (“YAI”), which was conducted by Jennifer Seidel, Ed.M. (R. 953-56.) The evaluation showed that Jackson had a Full Scale IQ of 62, placing her within the Mild Intellectual Disability range. (R. 954.) Jackson scored within the “Low” adaptive level for communication, daily living skills, socialization, and overall adaptive behavior composite skills. (R. 955-56.)
B. Medical Evidence After March 14, 2017
Plaintiff's arguments do not discuss Plaintiff's asthma and arthritis diagnoses in relation to the ALJ's decision; thus, the Court does not include evidence relating to those diagnoses in the summary of the medical evidence.
1. UMMHC
Jackson continued her mental health treatment at UMMHC from May 2017 through November 2018. (R. 1255-1348.) During this period she was treated by Enahka Graham, LMSW (“LMSW Graham”) for therapy and by Dr. Lorena Grullon-Figueroa, and her successor, Dr. Manuel Mosquera, for medication management. (See, e.g., R. 897, 1256, 1266, 1307, 1313.) During her therapy sessions with LMSW Graham, Jackson reported difficulty sustaining concentration due to her ADHD (see R. 1248, 1249, 1275, 1322, 1340), and feelings of nervousness and anxiety caused by crowds, traffic and traveling alone (R. 1253. 1264, 1270), prom and graduation (R. 1259), work and camp activities (R. 1270, 1278), academic courses, schoolwork and beginning college (R. 1295, 1301, 1305, 1309, 1312). Jackson was generally receptive and engaged during her therapy sessions with Graham. (See R. 1248, 1265, 1269, 1275, 1278, 1281, 1286, 1287, 1296, 1302, 1309, 1313, 1316, 1322, 1231, 1233, 1234, 1237 1340.) On June 1, 2017, LMSW Graham provided a letter stating that she had been providing individual psychotherapy services to Jackson since March 2017 and that Jackson was being treated for anxiety and ADHD. (R. 897.)
Dr. Grullon-Figueroa noted during her treatment of Jackson that Jackson denied side effects from medications (R. 1266, 1272, 1276, 1282, 1289, 1293, 1297); appeared calm and cooperative and made good eye contact (R. 882, 1267, 1272, 1276, 1282, 1289, 1293, 1298); had good hygiene and grooming (R. 1267, 1272, 1276, 1283, 1289, 1293, 1298); had no abnormal thoughts or hallucinations (R. 882, 1267, 1272, 1276, 1289, 1293-94, 1298); and had normal cognition. (R. 882, 1267, 1272, 1276, 1283, 1289, 1294, 1298.) On June 1, 2017, Dr. Grullon-Figueroa provided a letter confirming Jackson's diagnoses of generalized anxiety disorder, oppositional defiant disorder, major depressive disorder and ADHD, and prescriptions of the medications Adderall, Risperdal, Prozac, Tenex and Trazadone. (R. 896.)
On October 26, 2017, Basil Lucas, LMSW (“LMSW Lucas”) provided a letter noting that Jackson was diagnosed with unspecified anxiety, but that while working with her, LMSW Lucas noticed signs of other intellectual, developmental and mental health issues. (R. 935.) He stated that Jackson had graduated with an IEP diploma, but that she was only permitted to graduate with the indication that she has special needs and would need ongoing accommodation for studying and examinations. (Id.) He stated that Jackson still struggled to control her affect and mood, and that she had intellectual deficits, anxiety and poor response to stress. (Id.) He reported that Jackson only was able to function with the assistance of medication and her mother, who handled all the important and personal family issues. (Id.) LMSW Lucas opined that Jackson still qualified for SSI support and that her goals of gaining independence and working were a long way off. (Id.)
2. April 25, 2017 Consultative Examination -- Haruyo Fujiwaki, Ph.D.
On April 25, 2017, Dr. Haruyo Fujiwaki, conducted a consultative psychiatric evaluation of Jackson. (R. 733-38.) Jackson reported that she had difficulty falling asleep, dysphoric moods, loss of energy, irritability, sometimes not wanting to go to school, getting easily annoyed, anxiety, getting overwhelmed, agitation, short-term memory deficits and concentration difficulties. (R. 735.) On mental status examination, Jackson was cooperative in responding to questions, but irritable and resistant and her manner of relating, social skills, and overall presentation was fair to poor due to irritability and difficulty in understanding. (R. 736.) Jackson complained of being in a small examination room and requested to leave the door open. (Id.) Her affect and mood were irritated and she exhibited impaired attention and concentration (unable to count to 10 or make simple calculations), mildly impaired recent and remote memory skills (able to recall 3 out of 3 objects with delay and unable to repeat numbers backward), somewhat limited general fund of information, fair to poor insight and fair judgment. (Id.)
Dr. Fujiwaki noted that Jackson did not know how to cook, she did any food shopping with her mother, her mother managed her money, she took public transportation with her mother, and sometimes she cleaned or did laundry if she was not in pain. (R. 737.) He found that vocationally, Jackson was able to understand, remember or apply simple directions and instructions; however, she was moderately to markedly limited in understanding, remembering or applying complex directions and instructions, and using reason and judgment to make work-related decisions. (Id.) He also found that she was moderately limited in interacting adequately with supervisors, co-workers and the public, sustaining concentration and performing a task at a consistent pace, sustaining an ordinary routine and regular attendance at work, regulating emotions, controlling behavior, and maintaining well-being. (Id.) She could maintain personal hygiene and appropriate attire but was moderately limited in awareness of normal hazards and taking appropriate precautions. (Id.) Ultimately, Dr. Fujiwaki diagnosed Jackson with unspecified depressive disorder, unspecified anxiety disorder, unspecified learning disorder, and ruled out intellectual disabilities as mild. (Id.)
3. Treating Nurse Practitioner, Raissa Wu
On June 16, 2017, Raissa Wu, a nurse practitioner at Bellevue Hospital (“Bellevue”), where Jackson was seen for her physical impairments, provided a letter stating that Jackson was “diagnosed with mild mental retardation, mod persistent, ADHD/anxiety disorder, irregular menses, [and] Juvenile Rheumatoid Arthritis,” and opined that Jackson was not capable of making important decisions for herself and needed her mother to accompany her to her medical appointments. (R. 901.) Nurse Wu had treated Jackson at Bellevue since 2003 for her various physical and mental impairments. (R. 939.)
4. Licensed Psychologist, Juliana Bates, Ph.D.
On July 5, 2017, Dr. Juliana Bates, Ph.D., a licensed psychologist at the Albert Einstein College of Medicine, provided a letter stating that Jackson came to Dr. Bates's research facility for an evaluation to determine whether she met criteria for participation in a sensory processing study for Autism Spectrum Disorders. (R. 941-42.) At this visit, Dr. Bates performed the Autism Diagnostic Observation Schedule, 2nd Edition (“ADOS-II”), which assessed specific communication skills, social interactions, and responses to the environment that are of particular interest in the diagnosis of an autism spectrum disorder. (R. 941.) Following administration of the ADOS-II, Dr. Bates diagnosed Jackson with Autism Spectrum Disorder, Severity Level, which indicated that she was “requiring support” in both social communication and restricted, repetitive behaviors. (Id.)
5. April 15, 2019 Consultative Examination -- Rachel Mayers, Psy.D.
On April 15, 2019, Dr. Mayers conducted a consultative intelligence evaluation of Jackson. (R. 1571-86.) Dr. Mayers observed Jackson's motor behavior to be restless and sometimes agitated, noting that at the onset of the evaluation Jackson threw everything off the desk and kept grabbing things, put a safety pin in her mouth and had poor eye contact; however, as the evaluation progressed, Jackson seemed to calm down and her motor behavior and eye contact normalized. (Id.) With respect to Jackson's speech and language skills, Jackson demonstrated difficulties with expressive language and word finding and Jackson's attitude toward the evaluation was initially uncooperative and resistant but she became more cooperative and friendly as the evaluation progressed. (Id.) Jackson was able to recall and understand most instructions, although she required repetition of instructions because of difficulty in understanding or deliberately failing to attend. (Id.) She was initially careless, impulsive and rapid with her responses, but she responded more carefully and worked with reflection and deliberation as the assessment progressed while her attention and concentration fluctuated. (Id.) Dr. Mayers noted that although Jackson evidenced mild distress during the evaluation, she easily and quickly became more comfortable and any distress was not thought to have a negative impact on her performance. (R. 1574.) Dr. Mayers assessed that Jackson's test results were reliable and yielded a Full Scale I.Q. Score of 74, which was in the very low range of cognitive functioning. (Id.)
Jackson demonstrated relative strengths in verbal comprehension and perceptual reasoning; however, she scored in the very low range on the Vocabulary Index, which measures general fund of word knowledge. (Id.) Dr. Mayers noted that although her performance on tasks ranged from average to very low, Jackson's performance did not meet the criteria for intellectual disability. (R. 1575.) With respect to her mode of living, Jackson reported that she was in a vocational training program but her mother reported that she often missed it because either Jackson is sick or her mother is sick or because of doctors' appointments. (R. 1572.) Jackson reported that her mother had to help her bathe and groom due to her arthritis; that she did not cook or prepare food because she was scared to; that she was able to wash dishes, but her mother did this most of the time; that she did not shop alone and that her mother managed her money and that she did not take public transportation because she was frightened. (R. 1575.) Jackson stated that her difficulties were caused by autism, learning disabilities and anxiety. (R. 1576.) She stated that she did not really socialize because she is “not a people person” but she loved her family. (Id.) She watched television, went to class or stayed home with her mother, went to evening YAI programs and recreational programs, and had a phone on which she used social media and played games. (Id.)
Dr. Mayers opined that Plaintiff had mild limitations of her abilities to understand, remember or apply simple directions and instructions, and moderate limitations of her abilities to understand, remember or apply complex directions and instructions, and moderate-to-marked limitations of her abilities to interact adequately with supervisors, co-workers and the public, use reason and judgment to make work-related decisions, sustain concentration and perform at a consistent pace, sustain an ordinary work routine and regular attendance at work, regulate emotions, control behavior and maintain her well-being. (R. 1576.) There was no limitation of her ability to maintain personal hygiene and appropriate attire. (Id.) There was moderate limitation of her ability to be aware of normal hazards and take appropriate precautions. (Id.) Dr. Mayers opined that Plaintiff's difficulties were caused by learning disabilities, autism and anxiety and assessed that Plaintiff's examination was consistent with psychiatric problems that may significantly interfere with her ability to function on a daily basis. (Id.) Dr. Mayers diagnosed Jackson with moderate autism spectrum disorder, specific learning disorder, unspecified anxiety disorder, unspecified depressive disorder and dyslexia. (Id.)
IV. The August 6, 2019 Administrative Hearing
Plaintiff appeared for an administrative hearing before ALJ Solomon on August 6, 2019. (R. 233-71.)
A. Relevant Testimony Regarding Jackson's Right to Counsel
Jackson appeared at the hearing without legal representation. (R. 235.) The ALJ explained Jackson's right to representation, stating the following:
I'm going to explain to you on the record your rights of representation. And, after I explain those rights, I'm going to give you a chance to consult with your mom as to whether you want to get representation or not. You do have the right to try to seek assistance from either an attorney or a non-attorney representative. If you were to obtain such assistance, you do not have to pay the attorney or representative directly. They only get paid in the event there is an award of benefits made to you. There are also certain non-profit organizations, which will represent claimants without any fees whatsoever, if you meet their requirements. The purpose of having representation is that the attorney or representative can assist you in obtaining evidence, they can explain medical and legal terms, the legal processes in great detail, and most importantly they will present your case in the way that it's going to be most favorable to you. However, the law does not require that you be represented. If you choose to, you may represent yourself. If you choose to represent yourself, it is my obligation as the judge to do everything that's reasonable to try to obtain all evidence, which I think is necessary to properly resolve your case. Just in summary, if you want to get representation, you can. And, if you, or you can try to get it, and if you do get representation, you don't have to pay them from your own pocket, or if you proceed without representation, it's my job as the judge to try to get all evidence that I need to resolve the case.(R. 235-36.)
When asked whether she understood these rights, Jackson responded, “[s]omewhat.” (R.236.) The ALJ then said, “Do me a favor. Take your hand away from your mouth, sit up straight, move closer to the table. Move your chair closer to the table. Thank you. Okay. You said somewhat. Okay. Basically, all I'm saying, is if you want to get a lawyer, you can try to get one. You don't pay them if you get one. Okay. If you don't get one, we can proceed without the lawyer. And, if there is any evidence that I need, I try to get it. Okay. Do you understand that now?” (R. 236-37.) Jackson then responded, “Yes.” (Id.)
The ALJ once more explained that Jackson could either proceed by representing herself, in which case the ALJ would try to obtain any additional evidence as necessary, or Jackson could choose to “be represented,” in which case the ALJ would grant an adjournment to obtain an attorney. (R. 237-38.) Jackson responded that she understood and stated, “I want to represent myself.” (R. 238.) The ALJ also gave Jackson the opportunity to consult with her mother; however, Jackson refused to do so. (Id.)
For the same reasons set forth in footnote 13, supra, the Court will not include testimony relating to Jackson's diagnoses of arthritis and asthma in the summary of the hearing testimony.
Jackson testified that she lives with her mother and brother. (R. 241-42.) She previously had attended Birmingham Community College, but stopped attending because her mom got sick and “almost died a few times” and because Jackson, her mother, and her brother are all disabled so she helps take care of her mother and brother sometimes. (R. 241.) As a result, and because she “[got] sick a lot,” Jackson missed class time, but was able to attend her medical appointments. (Id.) Jackson testified that the last schooling she received was at Co-op Tech where she attended a program in medical billing and coding in June 2019. (R. 244-45.) Jackson testified that she missed a lot of classes during the past semester, so she was transferred to a culinary arts program at Co-op Tech which she planned to begin in September 2019 (i.e., the month after the hearing). (R. 244-46.) That program consisted of one class for half a day five days a week. (R. 252-53.)
Jackson testified that she worked as a camp counselor for children with disabilities in the summer of 2018 at the Center for Human Development and Family Services (“CHDFS”), where she also received services herself. (R. 246.) She stated that it was a part-time position and that she was only able to work part-time rather than full-time because of her doctor's appointments. (Id.) Jackson worked four days a week, from 9:00 a.m. to 5:00 p.m. on Mondays, Tuesdays and Thursdays, and from 9:00 a.m. to 1 p.m. on Fridays. (R. 254.) Her responsibilities included playing with the children and helping them do basic math, taking them to the bathroom, and distributing their food. (Id.)
Jackson testified that she was unable to sit for longer than a few minutes because of her ADHD, autism and back pain caused by disc scoliosis. (R. 247.) She stated that she needs to sit if she was in pain or tired, but that when she sat her kneecaps locked and got stiff, which made it hard to walk. (Id.) Jackson testified that she needs to be around elevators because she cannot walk up the stairs. (Id.)
Jackson stated that she only could concentrate for a few minutes because she always was thinking of doing other things, she cannot ever complete a task in the same day, and that her mind always was wandering. (R. 248.) She testified that she could wash dishes sometimes, but she did not know how to do the laundry and the noises of the washing machine and dryer were too loud and hurt her ears. (R. 249.) She further testified that she was not able to go shopping by herself because she did not feel safe in her neighborhood and she was not good at counting money. (R. 249-50.) She stated that she only could travel by herself taking public transportation if she knew the route, but that her mother traveled with her to school and back. (R. 250-51.)
C. Mother's Testimony
George, Jackson's mother, testified at the hearing. (R. 257.) George testified that, on a typical day, Jackson worked a little, but most of the time she was home or at her vocational training at Co-op Tech. (Id.) George stated that she traveled and did shopping with Jackson. (R. 259.) George testified that Jackson did not like people staring at her, she did not trust people because she had been bullied most of her life, she did not have friends and had a hard time communicating with people. (R. 260.) George testified that Jackson did not cook (but was learning how to make microwaveable dishes at Co-op Tech) and that she cannot wash her own clothes. (R. 261.)
D. Vocational Expert Testimony
Vocational Expert (“VE”) Juanita Pritchard also testified at the hearing. (R. 265-71.) ALJ Solomon asked Pritchard to hypothetically consider an individual of Plaintiff's age, education and work experience, and who could perform work at all exertional levels, but who was otherwise limited as follows: she could do occasional climbing, stooping, balancing, kneeling, crouching and crawling; she had to avoid concentrated exposure to respiratory irritants and weather extremes; she was able to remember, understand and carry out simple instructions, make simple work-related decisions, maintain a regular schedule, maintain attention and concentration for rote work and perform a job with only occasional close interpersonal contact with the general public; and she could do work requiring a high volume or fast-paced assembly line production quotas. (R. 266.) In response, Ms. Pritchard opined that such a person could perform the light unskilled job of hand packager, Department of Labor, Dictionary of Occupational Titles (“DOT”) Job Code No. 559.687-074, of which there were 558,000 jobs nationally; the unskilled sedentary job of sorter, DOT Job Code No. 920.587-108, of which there were 588,000 jobs nationally; and the medium unskilled job of hand packager, DOT Job Code No. 920.587-18, of which there were 664,000 jobs nationally. (R. 267.)
The VE also testified that an individual who is off-task outside of regularly scheduled breaks more than ten percent of the workday, or an individual who missed more than one day per week, would be deemed unable to work. (R. 267.) The VE stated that, if an individual were unable to remember, understand or carry out simple instructions, there would be no jobs that such an individual could perform. (R. 268.)
V. ALJ Solomon's Decision and Appeals Council Review
Applying the Commissioner's five-step sequential evaluation, see infra Legal Standards Section II, minus step one (as is the rule for redetermining disability at age 18), at step two, the ALJ determined that the following impairments were severe: “rheumatoid arthritis; asthma; moderate major depressive disorder; generalized anxiety disorder; oppositional defiant disorder; and attention deficit hyperactive disorder.” (R. 294.)
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 295.) The ALJ specifically considered Listings 14.09 (Inflammatory Arthritis), 12.04 (Depressive, Bipolar and Related Disorders), 12.06 (Anxiety and Obsessive-Compulsive Disorders) and 12.10 (Autism Spectrum Disorder). (Id.) The ALJ found that “[t]he severity of the claimant's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of listings 12.04, 12.06, and 12.10.” (Id.) The ALJ considered the “paragraph B” criteria, and found that Jackson had moderate limitations in understanding, remembering or applying information and concentrating, persisting or maintaining pace, and mild limitations in interacting with others and adapting or managing oneself. (R. 295-96.) The ALJ opined that because Jackson's mental impairments did not cause at least two “marked” limitations or one “extreme” limitation, the “paragraph B” criteria was not satisfied. (R. 296.)
For the same reasons set forth in footnotes 13 and 14, supra, the Court will not include portions of the ALJ's findings relating to Jackson's diagnoses of arthritis and asthma in the summary of the ALJ's opinion.
The ALJ then assessed Jackson's RFC, determining, with respect to Jackson's mental impairments, that she was able “to remember, understand and carry out simple instructions, make simple work related decisions, maintain a regular schedule, maintain attention and concentration for rote work, and endure up to occasional close interpersonal contact with the general public” and that she could “also perform work that avoid[ed] high volume or fast paced assembly line production quotas.” (R. 296-97.) The ALJ noted that, while he found that “the histories of [Jackson's] physical and mental impairments warrant up to the above, more than minimal limitations,” he also found “the mental treatment and education records pertinent to the period at issue show the claimant made significant improvements and developments in informational skills, interactive skills, and routine or pace skills to perform activities within the above residual functional capacity.” (R. 298.) The ALJ also noted that he gave partial weight to the medical opinions of the consultative sources, i.e., Dr. Fujiwaki and Dr. Mayers, finding their opinions unpersuasive where they noted up to marked limitations based on Jackson's mental impairments. (See R. 300-01, 302.) The ALJ also found unpersuasive the medical opinions of the treating sources Nurse Wu and LMSW Lucas. (R. 301.)
The ALJ moved on to step five because Jackson did not have any past relevant work, as she was a minor prior to redetermination of disability. (R. 303.) At step five, the ALJ considered Jackson's age, education and job skills, along with his RFC determination and VE testimony, and concluded that there are jobs in the national economy that Jackson could perform, including occupations testified to by the VE of hand packager of any industry (644,000 jobs in the national economy), inspector and hand packager for plastic products (568,000 jobs in national economy), and nut sorter (558,000 jobs in national economy). (R. 303-04.) Thus, the ALJ concluded that Jackson's disability ended on May 18, 2017 and Jackson had not become disabled again since that date. (R. 304.)
Following the ALJ's decision, Plaintiff sought review from the Appeals Council, which denied her request on December 18, 2020. (R. 310-14.)
LEGAL STANDARDS
I. Standard Of Review
A motion for judgment on the pleadings should be granted if it is clear from the pleadings that “the moving party is entitled to judgment as a matter of law.” Burns Int'l Sec. Servs., Inc. v. Int'l Union, United Plant Guard Workers of Am., Local 537, 47 F.3d 14, 16 (2d Cir. 1995) (citing Fed.R.Civ.P. 12(c)). In reviewing a decision of the Commissioner, a court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
“The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.” Ulloa v. Colvin, No. 13-CV-04518 (ER), 2015 WL 110079, at *6 (S.D.N.Y. Jan. 7, 2015) (citing Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)). “Even if the Commissioner's decision is supported by substantial evidence, legal error alone can be enough to overturn the ALJ's decision[.]” Id.; accord Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). A court must set aside legally erroneous agency action unless “application of the correct legal principles to the record could lead only to the same conclusion,” rendering the errors harmless. Garcia v. Berryhill, No. 17-CV-10064 (BCM), 2018 WL 5961423, at *11 (S.D.N.Y. Nov. 14, 2018) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)).
Absent legal error, the ALJ's disability determination may be set aside only if it is not supported by substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (vacating and remanding ALJ's decision). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). However, “[t]he substantial evidence standard is a very deferential standard of review-even more so than the clearly erroneous standard, and the Commissioner's findings of fact must be upheld unless a reasonable factfinder would have to conclude otherwise.” Banyai v. Berryhill, 767 Fed.Appx. 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019) (summary order) (emphasis in original) (citation and internal quotation marks omitted). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995).
II. Determination Of Disability
On January 18, 2017, the Social Security Administration (“SSA”) promulgated a final rule that dramatically changes the nature of the evaluation of medical opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical Opinion Evidence, 60 Fed.Reg. 5844 (Jan. 18, 2017) (codified at 20 C.F.R. §§ 404 & 416). These new regulations apply only to claims filed with the SSA on or after March 27, 2017. However, the SSA considers an “age 18 redetermination to be a new claim filed on the day a person attains age 18.” See SSA POMS DI 24503.050.D.8; (Comm'r Mem., ECF No. 28, at 25.) Accordingly, since Plaintiff turned 18 on March 14, 2017, the Court is referring to the version of the regulations effective before March 27, 2017.
A person is considered disabled for benefits purposes when she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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. § 423(d)(1)(A).
[A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(2)(A).
In determining whether an individual is disabled, the Commissioner must consider: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam) (citations omitted).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 416.909, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled.
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 to subpart P of part 404 of this chapter and meets the duration requirement, we will find that you are disabled.
(iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled.20 C.F.R. § 416.920(a)(4) (internal citations omitted). However, for redetermination of disability at age 18, the Commissioner will not use step one for individuals who are doing substantial gainful activity. See 20 C.F.R. § 416.987(b).
“When determining whether a claimant is disabled due to a mental impairment, an ALJ must apply a ‘special technique' at the second and third steps of the five-step framework.” Cherry v. Comm'r of Soc. Sec., No. 17-CV-07999 (VEC), 2019 WL 1305961, at *11 (S.D.N.Y. Mar. 22, 2019) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). First, the ALJ must determine if the claimant has a “medically determinable mental impairment.” Id. If the claimant is found to have such an impairment, the ALJ must “rate the degree of functional limitation,” across four broad functional areas: (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist or maintain pace; and (4) adapt or manage oneself. See 20 C.F.R. §§ 416.920(a), 404.1520a(b)-(c); see also 20 C.F.R. Pt. 404, Subpt. P App'x 1 § 12.00E.
After the first three steps (assuming that the claimant's impairments do not meet or medically equal any of the Listings), the Commissioner is required to assess the claimant's RFC “based on all the relevant medical and other evidence in [the claimant's] case record.” 20 C.F.R. § 404.1520(e). A claimant's RFC is “the most [the claimant] can still do despite [the claimant's] limitations.” 20 C.F.R. § 404.1545(a)(1).
The claimant bears the burden of proof as to the first four steps. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is only after the claimant proves that she cannot return to work that the burden shifts to the Commissioner to show, at step five, that other work exists in the national and local economies that the claimant can perform, given the claimant's RFC, age, education and past relevant work experience. Id. at 51-52.
III. Duty to Develop the Record
Because social security proceedings are “essentially non-adversarial,” the ALJ has an affirmative duty to develop the record. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009) (internal citation omitted); see also Rosa, 168 F.3d at 79 (“[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history.”). An ALJ “must ensure that “[t]he record as a whole [is] complete and detailed enough to allow the ALJ to determine claimant's residual functional capacity.” Casino-Ortiz v. Astrue, No. 06-CV-00155 (DAB) (JCF), 2007 WL 2745704, *7 (S.D.N.Y. Sept. 21, 2007) (citing 20 C.F.R. § 404.1513(e)(1)-(3)).
The duty to develop the record “encompasses not only the duty to obtain a claimant's medical records and reports but also the duty to question the claimant adequately about any subjective complaints and the impact of the claimant's impairments on the claimant's functional capacity.” Pena v. Astrue, No. 07-CV-11099 (GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008).
DISCUSSION
Plaintiff argues that this action should be remanded because (I) the “ALJ failed to sufficiently advise Plaintiff of her right to counsel at the hearing resulting in prejudice to Plaintiff because the ALJ failed to conduct[] a full and fair hearing and failed to properly develop the record” (Pl.'s Mem., ECF No. 22, at 14-21); and (II) the “ALJ failed to properly evaluate the opinion evidence resulting in an RFC that was not based on substantial evidence.” (Id. at 21-26.) Although I find that the ALJ sufficiently advised Plaintiff of her right to counsel, I agree that the ALJ failed to conduct a full and fair hearing and properly develop the record, thus requiring remand.
I. Waiver of Right to Counsel
Plaintiff first argues that the “ALJ failed to fulfill his [duty] to ensure [Jackson] understood her right to legal counsel and that she understood the consequences of waiving her right to representation,” particularly in light of her learning disability. (Pl.'s Mem. at 14-15.) The Court finds this argument unpersuasive.
“Although a claimant does not have a constitutional right to counsel at a social security disability hearing, she does have a statutory and regulatory right to be represented should she choose to obtain counsel.” Lamay, 562 F.3d at 507 (citing 42 U.S.C. § 406 and 20 C.F.R. § 404.1705). If “properly informed of this right, a claimant may waive it.” Id. “[A]n ALJ need only ensure ‘(1) that the claimant received advance written notice about his or her right to obtain counsel or representation for the purposes of the administrative review process; (2) that the notification provided to the claimant adequately informed the claimant of the availability of free legal services to assist him or her with the administrative review process; and (3) that the claimant acknowledges these rights during the administrative hearing and adequately waives such rights if he or she elects to proceed pro se.'” Butler v. Comm'r of Soc. Sec., No. 18-CV-05293 (PGG) (SN), 2019 WL 4545639, at *5 (S.D.N.Y. Aug. 14, 2019), report and recommendation adopted, 2019 WL 4534419 (S.D.N.Y. Sept. 18, 2019).
In Lamay, the Second Circuit held that the ALJ's statements put the claimant sufficiently “on notice that she could be represented by counsel, and that organizations existed that might provide, or help [the claimant] find, free or contingency-based representation.” Id. at 509 (where the ALJ stated, “You have a right to be represented at the hearing. If you are not represented but would like to be, your Social Security office will give you a list of legal referral and service organizations.”). Thus, when the plaintiff in Lamay indicated twice that she preferred to proceed without counsel, the Court found that she knowingly and voluntarily waived her right to representation. Id. at 509-10.
In the instant case, Plaintiff received a written notice prior to the hearing, dated May 21, 2019, notifying her that “[she] may choose to have a representative help [her]” and that some representative may charge a fee while others may represent her for free. (See R. 384.) The notice included an enclosure explaining in detail her right to representation by counsel. (See R. 389-90.) At the hearing, ALJ Solomon explained to Plaintiff that she had the right to seek representation from either an attorney or non-attorney representative and that she would not have to pay for such representation. (R. 235.) He then explained that the purpose of having representation was so that the representative could assist Plaintiff in obtaining evidence, explaining legal and medical terms, and presenting Plaintiff's case in a way that is most favorable to Plaintiff. (R. 236.) Although Plaintiff initially stated that she only “somewhat” understood these rights, the ALJ once again explained that Plaintiff could get a lawyer without paying for one or she could proceed without representation, to which Plaintiff responded that she understood. (R. 236-37.) The ALJ then, for a third time, explained to Plaintiff that she either could choose to proceed with testimony unrepresented or she could choose to get representation, in which case the ALJ would permit Plaintiff to leave and return on a different day with an attorney. (R. 237-38.) Once again, Plaintiff responded that she understood and, when the ALJ gave her the option to consult with her mother prior to making a decision, Plaintiff refused and then stated, “I want to represent myself.” (R. 238.)
The foregoing colloquy was not a “limited dialogue,” as Plaintiff contends. (See Pl.'s Mem. at 14-15.) Rather, it was quite fulsome and goes beyond what other courts have found to be deficient. Plaintiff cites to Samuel v. Comm'r of Soc. Sec., No. 14-CV-04634 (PKC), 2015 WL 5774850, at *11 (E.D.N.Y. Sept. 30, 2015), and several cases cited therein, to support her assertion that the ALJ failed to adequately inform Jackson of her right to counsel in light of her learning disability and autism. (See Pl.'s Mem. at 15.) However, the ALJ in Samuel hardly offered a fraction of the colloquy that ALJ Solomon offered to Plaintiff, merely stating, “[y]ou are here without representation, sir? . . . You wish to proceed today without representation? . . . You're aware that you have a right to a representative? . . . But you wish to proceed without one, is that correct?” See Samuel, 2015 WL 5774850, at *10. In other cases cited by both the Samuel court and by Plaintiff, the ALJ did not explicitly notify the plaintiff of the right to a representative. See Collado v. Astrue, No. 05-CV-03337 (KMK) (LMS), 2009 WL 2778664, at *11 (S.D.N.Y. Aug. 31, 2009) (noting that ALJ did not orally notify plaintiff of her right to retain counsel or representative for purposes of hearing); Leonard v. Comm'r of Soc. Sec., No. 05-CV-01084 (FJS) (GHL), 2008 WL 3285947, at *7 (N.D.N.Y. Aug. 7, 2008) (noting that ALJ failed to advise plaintiff explicitly that she had right to representative).
The Court finds that the ALJ's three separate explanations that Plaintiff had a right to representation by counsel, and that she would not have to pay for such representation, satisfy the Second Circuit's standard under Lamay. See Lamay, 562 F.3d at 509. Outside of initially answering “somewhat” to the ALJ's initial inquiry of her understanding of her right to counsel, Plaintiff's remaining testimony at the hearing demonstrated consistent understanding of the questions posed to her by the ALJ. Thus, the Court concludes that Plaintiff knowingly and voluntarily waived her right to counsel.
II. Development of the Record
The Court next considers whether the ALJ met his heightened duty to develop the record. “Before reviewing whether the Commissioner's final decision is supported by substantial evidence under 42 U.S.C. § 405(g), the court must first be satisfied that the ALJ provided plaintiff with a full hearing under the Secretary's regulations and also fully and completely developed the administrative record.” Craig v. Comm'r of Soc. Sec., 218 F.Supp.3d 249, 261 (S.D.N.Y. 2016) (cleaned up). Where a “claimant is unrepresented by counsel, the ALJ is under a heightened duty ‘to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'” Echevarria v. Sec'y of Health & Hum. Servs., 685 F.2d 751, 755 (2d Cir. 1982) (citations omitted). Further, the duty to develop the record is “doubly heightened” where a claimant is both unrepresented and has mental impairments. See Maldonado v. Comm'r of Soc. Sec., 524 F.Supp.3d 183, 193 (S.D.N.Y. 2021).
After careful review of the record in this case, the Court finds that the ALJ failed to fulfill his “doubly heightened” duty to develop the record in light of Plaintiff's pro se status and the evidence of her mental impairments. There are two areas where the ALJ failed to develop the record: (A) Plaintiff's absenteeism and the causes for her absenteeism, and (B) Plaintiff's mental impairments and how these impairments affected her functioning.
A. Absenteeism
During the hearing, Plaintiff testified she stopped attending classes at Birmingham Community College, “because [her] mom got sick.” (R. 241.) However, she later stated that she missed class time “because I get sick a lot, too.” (Id.) Plaintiff also testified that she missed classes in her medical billing and coding program at Coop Tech, and had to transfer out of that program as a result, because she “used to get sick.” (R. 245-46.) The ALJ never followed up about the sickness to which Plaintiff was referring in her testimony that resulted in her absenteeism.
In addition to Plaintiff's own testimony, there is other evidence in the record regarding Plaintiff's absenteeism. (See R. 1243, 1271, 1274, 1323, 1328, 1332, 1345 (missed therapy appointments at UMMHC); R. 1572 (Plaintiff missing vocational training due to sickness).)
The ALJ's failure to develop the record on Plaintiff's absenteeism was prejudicial because the ALJ's decision and the VE's testimony about available jobs were predicated on Plaintiff's lack of absenteeism. In arriving at his RFC determination, the ALJ concluded that Plaintiff could maintain a schedule, and discounted opinion evidence of moderate to marked limitations in her ability to sustain a routine and regular attendance. (R. 302.) In addition, the VE testified that an individual absent more than one day per week would be deemed unable to work. (R. 267.)
The Court notes that, although the ALJ purported to rely on Plaintiff's “reliable attendance for treatment” (R. 302), the ALJ failed to address in his decision Plaintiff's missed therapy appointments cited in the previous footnote.
B. Mental Impairments
Despite Plaintiff's diagnoses of unspecified depressive disorder, unspecified anxiety disorder, autism and a learning disorder (see, e.g., R. 737, 941, 1576), the ALJ never questioned Plaintiff about these mental impairments or how these impairments affected her functioning.The ALJ asked Plaintiff about her ability to sit, to which she responded that she could not sit still because of ADHD and autism. (R. 246-47.) However, the ALJ did not adequately explore how these mental impairments (or her learning disorder) impacted Plaintiff's functional ability. The ALJ specifically asked only about physical reasons she could not sit, and about her ability to concentrate. (R. 247-48.) Moreover, despite Plaintiff's Full Scale IQ scores from 2012 through 2019, which consistently ranged from mild intellectual disability to borderline, the ALJ neither addressed these scores in his decision nor did he inquire into how Plaintiff's IQ scores affected her functional ability.
Although Plaintiff's age 18 redetermination listed intellectual disorder as one of her medically determinable impairments (see R. 278), the ALJ failed to consider her learning disability at step two. (See Pl.'s Mem. at 15-16.) On remand, the ALJ should consider each of Plaintiff's medical impairments, determine if they are severe and, if applicable, evaluate Plaintiff's impairments under the appropriate Listing, i.e., Listing 12.05 (Intellectual Disorder).
The Court acknowledges that Plaintiff's most recent Full Scale IQ score was 74, which is within the borderline range; however, Plaintiff's lowest Full Scale IQ score of 62 warrants consideration on remand, as discussed in the previous footnote, both in evaluating Plaintiff's impairments under Listing 12.05, see Davis v. Astrue, No. 06-CV-00657 (LEK), 2010 WL 2925357, at *5 (N.D.N.Y. July 21, 2010) (“courts tend to prefer the lowest IQ score across multiple valid tests”), and in determining Plaintiff's residual functional capacity.
Based on the foregoing, ALJ did not fulfill his “doubly heightened” duty to develop the record. See Maldonado, 524 F.Supp.3d at 194 (remanding for failure to develop record where ALJ asked essentially no specific questions about numerous mental conditions that claimant alleged she had or that were reflected in records already before ALJ); Selmo v. Barnhart, No. 01-CV-07374 (SHS), 2002 WL 31445020, at *8-11 (S.D.N.Y. Oct. 31, 2002) (remanding for further development of record due to ALJ's failure to adequately question pro se claimant at hearing regarding nature and extent of subjective symptoms and ability to meet specific demands of work).
For these reasons, I respectfully recommend that this action be remanded for further development of the record. Accordingly, I do not address Plaintiff's remaining argument regarding substantial evidence. See Selmo, 2002 WL 31445020, at *7 (“Indeed, if the reviewing court finds that the claimant has not been given an adequate hearing, ‘the court should remand even if the original determination is supported by substantial evidence.'”) (quoting Jasmin v. Callahan, No. 97-CV-02429, 1998 WL 74290, at *4 (S.D.N.Y. Feb. 20, 1998)).
CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's motion be GRANTED, the Commissioner's cross-motion be DENIED; and this case be remanded for further administrative proceedings.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any requests for an extension of time for filing objections must be addressed to Judge Woods.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).