Opinion
02 Civ. 9207 (RWS).
November 12, 2004
KENNETH ROSENFELD, ESQ., JAMES M. BAKER, ESQ., Attorneys for Plaintiff, Of Counsel, New York, NY, NORTHERN MANHATTAN IMPROVEMENT CORPORATION.
LORRAINE S. NOVINSKI, Assistant US Attorney Of Counsel, HONORABLE DAVID N. KELLEY, New York, NY, United States Attorney for the Southern District of New York, Attorneys for Defendant.
OPINION
The defendant Jo Anne B. Barnhart, Commissioner of the Social Security Administration (the "Commissioner") has moved to remand the case of plaintiff Nancy Nieves o/b/o Jennifer Nieves ("Ms. Nieves or the "Plaintiff") to the Commissioner to correct errors made by the Administrative Law Judge ("ALJ"). The Plaintiff has cross-moved on the pleadings for a remand for an order restoring the benefits of Jennifer Nieves ("Jennifer"). For the reasons set forth below, both the motion of the Commissioner and the cross-motion of the Plaintiff are granted in part and denied in part. The case will be remanded to the Commissioner and interim benefits will be provided as of March 29, 2002.
These proceedings, including the disposition of the instant motions, represent a process which has been maladministered to the detriment of a disadvantaged child whom the process was intended to serve. This Court's ruling today is based in large measure on the need to redress a delay which can best be endured by the Commissioner, not the child.
Prior Proceedings
The Plaintiff filed on Jennifer's behalf the initial application for Child Supplemental Security Income ("SSI") benefits on November 18, 1994, when Jennifer was slightly under three years of age. (Tr. 11.) Jennifer was established as disabled under the provisions of the Social Security Act by a decision of the Social Security Administration ("SSA") on January 17, 1995 (Tr. 53). According to this initial determination, Jennifer's disability apparently consisted of significant developmental delays in the areas of cognition and expressive and receptive communication skills.
The application is not in the file but the date is referenced in the ALJ's April 16, 2001 decision.
Pursuant to a periodic assessment, SSA notified Ms. Nieves on January 27, 1999 that it had determined that Jennifer's condition had improved and that she was no longer disabled. (Tr. 56-59.) After Ms. Nieves, proceeding pro se, requested reconsideration of this determination, it was affirmed by an agency hearing officer on January 20, 2000. (Tr. 66-69, 75-94.) Ms. Nieves then requested a hearing before an agency administrative law judge ("ALJ") (Tr. 70-71). A hearing was held before ALJ Robin J. Arzt on October 19, 2000. (Tr. 26-50.)
ALJ Arzt issued her decision on April 16, 2001. (Tr. 8-25.) She found that Jennifer had the following severe impairments: expressive and receptive language delays, an articulation disorder, and possible mental retardation. (Tr. 18, 23.) However, ALJ Arzt also found that Jennifer's impairments, singly and in combination, failed to meet or medically equal any of the listed impairments. (Tr. 23.) Insofar as functional equivalence was concerned, the ALJ found that Jennifer had only a less-than-marked limitation in the domain of acquiring and using information, and no limitations at all in the remaining five domains. (Tr. 21-22, 24.) She also determined that there had been substantial medical improvements in Jennifer's condition between January 17, 1995 (the date benefits were first awarded) and January 27, 1999 (the date benefits were terminated). (Tr. 23.)
The ALJ evaluated Jennifer's claim under both the interim final regulation issued in 1997 and the final regulation issued in 2000. (Tr. 20-24.) These final rules, which the ALJ was bound to apply, went into effect on January 2, 2001. See Determining Disability For a Child Under 18, 65 Fed. Reg. 54747 at 54751 (Sept. 11, 2000) (codified at 20 CFR pts. 4 16). The ALJ also devoted considerable attention to evaluating Jennifer's claim under three methods for determining functional equivalence that were abolished by the 2000 regulation. (Tr. 18-19, 23-24.)
The Plaintiff, still proceeding pro se, filed a request for SSA Appeals Council review on May 18, 2001. (Tr. 6-7.) The Appeals Council issued an order refusing to review the claim on March 29, 2002.
This action was filed by the Plaintiff on November 19, 2002. On September 18, 2003, the Commissioner sought a remand to correct two errors that she admits were committed by the ALJ. First, the ALJ made inconsistent statements as to the weight given to findings by psychologist Donna LoBiondo ("Dr. LoBiondo"). Second, the ALJ failed to obtain records of Jennifer's psychiatric treatment by Lori Kanowitz ("Kanowitz") of the Department of Psychiatry of the Bronx Lebanon Hospital Center (Def. Memorandum in Further Support pp. 8-9.) The Plaintiff on October 31, 2003 cross-moved for judgment on the pleadings and for an order restoring the benefits granted in 1995. By agreement of the parties, the motions were heard and marked as fully submitted on February 4, 2004.
The Administrative Record
The administrative record in this case consists, in large measure, of documents evidencing medical, psychological and educational assessments conducted between 1994 and 1999. These documents, and other relevant portions of the record, are summarized below.
The January 17, 1995 determination that Jennifer had a disability was based in large part on a series of evaluations performed by the Interdisciplinary Center for Child Development in August 1994. According to these evaluations, Jennifer manifested significant delays in expressive and receptive language ability. (Tr. 171-75.) Despite corrective surgery, her speech intelligibility was judged to be poor due to the residual effects of a cleft palate. Id. Psychological testing (Tr. 176-79) and an additional bilingual educational evaluation (Tr. 180-82) detected substantial delays in an array of developmental areas.
There are also some records pertaining to Jennifer's physical health during this period, which do not appear to show any significant problems. (Tr. 183-91)
The record includes educational and psychological evaluations of Jennifer in December 1995, i.e., just before Jennifer turned four and relatively soon after the decision to award benefits was made. (Tr. 212-219.)
In the spring of 1996 (by which time Jennifer was a little more than four years old), another cluster of assessments was conducted. There are social history updates with background information on Jennifer and her family. (Tr. 198-201.) There are speech-language and educational progress reports. (Tr. 206-210.) Based on these reports and evaluations, Jennifer was classified by the New York City Board of Education as speech impaired and she was recommended for continued placement in a full-time special education class with speech and language therapy and counseling to address behavior issues. (Tr. 237-64.)
There are no school reports from the 1996-97 school year.
The educational progress report (Tr. 209-10) appears to be incomplete.
The Individualized Education Program ("IEP") containing these recommendations (Tr. 237-62) was based on the December 1995 evaluations as well as July 1995 assessments not contained in the record.
For the next school year, 1997-98, Jennifer's first grade year, there is only an individualized education program ("IEP") from December 1997. (Tr. 223-36.)
For the 1998-99 school year, Jennifer's second-grade teacher wrote positive assessments of Jennifer on October 19, 1998 and May 1, 1999. (Tr. 116-120, 137-41.) The May, 1999 assessment described Jennifer as speaking well, behaving well, and always able to complete her work on time. (Tr. 137, 140.) On October 12, 1998, a speech-language evaluation determined that Jennifer, then six years and ten months old, performed on most measures of language ability at the level of a child of five and one-half year old. (Tr. 270-71.) On October 15, 1998, a psychological evaluation performed by Dr. LoBiondo determined that Jennifer had an IQ of 69. (Tr. 272-74.) Dr. LoBiondo characterized Jennifer's overall degree of developmental delay as "mild." (Tr. 271.) On February 18, 1999, an educational evaluation performed by the New York City Board of Education's Division of Special Education determined that Jennifer was (1) unable to read any words (Tr. 195); (2) unable to consistently recognize letters of the alphabet (Tr. 196-96); and (3) performing mathematics at a level below that of a typical first grader. (Tr. 196.) On April 26, 1999, Jennifer's school guidance counselor reported that Jennifer was responding well to therapy designed to address social-emotional delays. (Tr. 130-35.)
A third report by the same teacher apparently pertains to a different child named "Desiree." (Tr. 122-26.)
Concerned that Jennifer's language limitations would artificially depress any measure of verbal IQ, Dr. LoBiondo used a test that relied only on performance abilities. (Tr. 273.)
On one test, Jennifer could only recognize 1 of 30 letters presented to her, while on another she correctly identified all upper case letters and 23 out of 26 lower case letters. (Tr. 195.)
For the 1999-2000 school year, there is a December 21, 1999 report from Jennifer's third grade teacher which refers to "moderate to severe" language delay and difficulty with reading and math. (Tr. 146.) According to this report, Jennifer also needed to improve social interaction skills and had some difficulties with completion of tasks. (Tr. 144-46.) In a June 6, 2000 report, Jennifer's school counselor noted progress with speech and with social interaction during group counseling sessions, but recommended additional counseling. (Tr. 305.) Finally, two documents, dated February 9 and October 17 of 2000, indicate that Jennifer was receiving therapy with Kanowitz of Bronx-Lebanon Hospital's Department of Psychiatry. These documents provide no information about the reasons for, or results of, such treatment. (Tr. 284-86, 308.)
Ms. Nieves testified at the October 19, 2000 hearing before the ALJ that Jennifer was still in special education and that she received speech therapy. (Tr. 32-33.) Ms. Nieves further testified that Jennifer had two operations to repair her cleft palate at the age of three, as a result of which her speech had improved. (Tr. 34-35.) Ms. Nieves testified that Jennifer was otherwise physically healthy. (Tr. 33-34.)
Asked about Jennifer's behavior problems, Ms. Nieves testified that Jennifer would get angry when people did not understand her, and would "go to the wall and hit it and head bang and like that." (Tr. 39.) According to Ms. Nieves, Jennifer would also throw tantrums if Ms. Nieves refused to help her with her homework. (Tr. 40.) Ms. Nieves testified that since Jennifer was unable to read by herself, Ms. Nieves had to do her homework and reading for her. (Tr. 40.) Ms. Nieves testified that Jennifer's teachers told her not to do this, but Ms. Nieves said that if she refused, Jennifer would "go to the wall and head bang and cry."Id. Ms. Nieves testified that Jennifer displayed no such behavior problems at school. (Tr. 40-41.)
Ms. Nieves testified that she began taking Jennifer for treatment with Kanowitz in February 1999. (Tr. 42-43.) She testified that she was prompted to do this based on concerns about Jennifer's behavior and the possibility that Jennifer might suffer from mental retardation. (Tr. 43.) Ms. Nieves was unable to tell the ALJ much about the treatment Jennifer received and reported that the people treating Jennifer had not yet figured out what Jennifer's problem was. (Tr. 43-44, 46-48.) During the course of the hearing, Ms. Nieves apparently provided the ALJ with a letter written by Kanowitz that concerned Jennifer's treatment. (Tr. 42). Discussion
____ The Commissioner seeks a remand to the ALJ to correct the errors of law committed in the ALJ's opinion of April 16, 2002 without disturbing the January 29, 1999 termination of benefits. The Plaintiff seeks a reversal of the termination of benefits and a full restoration of all benefits or alternatively a remand to the Commissioner for a hearing and determination.
1. Standard of Review
In reviewing a denial of disability benefits, the Court is constrained by the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq., which provides that "the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g); see also Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). Thus, the Commissioner's determination must be upheld if the court finds there is substantial evidence supporting it, even if there is also substantial evidence for the claimant's position. See DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998) (affirming the Commissioner's decision where there was substantial evidence for both sides); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). A determination of the Commissioner may be set aside only when that determination is "based upon legal error or not supported by substantial evidence." Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)); accord Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citing Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998)); see generally 42 U.S.C. § 405(g). In short, a court reviewing a decision of the Commissioner may not decide the case de novo. See Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (stating that the reviewing court cannot "weigh the conflicting evidence in the record"); Pratts, 94 F.3d at 37 (stating that reviewing court does not "determine de novo whether [a claimant] is disabled").
In reviewing a denial of disability benefits, the Court must first assess the decision "to determine whether the Commissioner applied the correct legal standard." Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Rosado, 290 F. Supp. 2d at 436. The Court then "examines the record to determine if the Commissioner's conclusions are supported by substantial evidence." Tejada, 167 F.3d at 773; Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Rosado, 290 F. Supp. 2d at 436.
When a claimant is unrepresented at the administrative hearing, as was the case here, "the ALJ is under a heightened duty `to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (quoting Echevarria v. Sec'y of Health Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)); see also Pratts, 94 F.3d at 37. As the Second Circuit has noted, the application of the burden of proof is "`particularly elusive in cases involving Social Security benefits,' in part because the proceedings `are not designed to be adversarial' and certainly are not likely to be such when the claimant, as here, is unrepresented." Donato v. Sec'y of Health Human Servs., 721 F.2d 414,418 (quotingSchauer v. Schweiker, 675 F.2d 55 (2d Cir. 1982)); see also Almonte v. Apfel, No. 96 Civ. 1119, 1998 WL 150996 at *6 (S.D.N.Y. Mar. 31, 1998).
2. Legal Framework for Assessing Eligibility for Child SSI Benefits
Since 1974, disabled children from low-income families have been entitled to receive cash benefits from the Social Security Administration ("SSA"). This entitlement is provided pursuant to Title XVI of the Social Security Act, which is known as the Supplemental Security Income ("SSI") program. To qualify for SSI benefits, a child must satisfy two requirements. First, the child's income and assets (including income and assets imputed to the child from her parents) must not exceed certain limits. 42 U.S.C. § 1382(a)(1). Second, the child must have a disability which the SSI defines a a "medically determinable physical or mental impairment, which results in marked and severe functional limitations." 42 U.S.C. § 1382c(a)(3)(C).
Implementing regulations published by the Commissioner set out a multi-step "sequential evaluation process" for determining whether a child is disabled. 20 C.F.R. § 416.924. At Step 1, the Commissioner inquires whether the child is working at the "substantial gainful activity" level. If so, the claim is denied. If not, the claim proceeds to Step 2. 20 C.F.R. § 416.924(a), (b). At Step 2, the Commissioner screens out de minimis claims, i.e., those in which the child does not have a severe impairment. 20 C.F.R. § 416.924(c). At Step 3, the Commissioner determines whether the child has an impairment or combination of impairments which "meet, medically equal, or functionally equal a [listed impairment]" 20 C.F.R. § 416.924(d). If so, the claim is accepted; if not, it is denied.Id.
Listed impairments are specified at 20 C.F.R. Pt. 404, Subpt. P, App. 1.
For a child to qualify as disabled, specified medical findings must be presented to show that the effects of the condition are sufficiently severe. 20 C.F.R. § 416.925(c), (d). If the child is missing a required finding or exhibits the condition at an insufficiently severe level but has other medical findings of "equal medical significance," she will be said to "medically equal" the listing. 20 C.F.R. § 416.926(a)(1)(ii).
If the child neither "meets" nor "medically equals" a listing, she can nevertheless qualify for SSI benefits if her impairment "functionally equal[s]" the severity of a listed impairment. 20 C.F.R. §§ 416.924(d), 416.926a. Functional equivalence looks at the child from the perspective of how the child's impairments affect "broad areas of functioning" known as "domains." 20 C.F.R. § 416.926a(b)(1). Children are evaluated in terms of six of these domains: "(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. For each domain, the Commissioner determines whether the degree of limitation, if any, qualifies as "marked," or "extreme." 20 C.F.R. §§ 416.926a(d), (e). A child is deemed disabled if she has an extreme limitation in at least one domain or marked limitations in two or more domains. 20 C.F.R. § 416.926a(d).
A "marked" limitation is one which "interferes seriously with [the child's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i).
An "extreme" limitation is one which "interferes very seriously with [the child's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(3)(i).
Where IQ tests or other standardized assessments are used, the degree of the limitation is based on how many standard deviations below the norm the child scores. 20 C.F.R. § 416.926a(e). A marked limitation is shown by a test score between two and three standard deviations below the test's norm. 20 C.F.R. § 416.926a(e)(2)(i). An extreme limitation is shown by a test score of at least three standard deviations below the norm. 20 C.F.R. § 416.926a(e)(3)(i).
It should also be noted that the Commissioner's regulations on childhood disability changed during the pendency of Plaintiff's claim before the agency. See Determining Disability For a Child Under 18, 65 Fed. Reg. 54747. Prior to January 2, 2001, the Commissioner utilized a set of "interim final" regulations published on February 11, 1997. Id. The Commissioner subsequently published the final, current version of the regulation on September 1, 2000 to govern the adjudication of claims on or after January 2, 2001. Id.
In order to have a marked or extreme limitation in a particular domain, it is not necessary for all activities or functions within the domain to be restricted. 20 C.F.R. §§ 416.926a(e)(2)(i), 416.926a(e)(3)(i). A marked or extreme limitation may be present "when [the] impairment(s) limits only one activity [within the domain] or when the interactive and cumulative effects of [the] impairment(s) limit several activities." Id.
When there are multiple impairments within a single domain, each of which, considered separately, imposes a less-than-marked limitation, the resulting total limitation imposed by all impairments may, nevertheless, be marked or even extreme. 20 C.F.R. § 416.926a(c). For example, a child may suffer from borderline intellectual functioning which, considered alone, imposes a less-than-marked limitation in the domain of acquiring and using information and a second impairment, such as attention deficit hyperactivity disorder, which also imposes a less-than-marked limitation in the same domain. Based on the regulations, the combined effects of these impairments can be considered together, and the cumulative limitation can qualify as marked or extreme. See Encarnacion ex rel. George v. Barnhart, 191 F. Supp. 2d 463, 474 (S.D.N.Y. 2002) ("[A]n impairment that causes a less than marked limitation in the area of social functioning in addition to the presence of another less than marked limitation caused by a different impairment may contribute to the finding of a marked or extreme limitation in the area of social functioning."), aff'd 331 F.3d 78 (2d Cir. 2003).
Although a child needs two marked limitations or one extreme limitation to qualify for benefits, SSA must take a child's less than marked limitations into account when determining whether this standard has been met. See Encarnacion, 331 F.3d at 90 ("[T]he Act appears to require that each of the claimant's impairments be given at least some effect during each step of the disability determination process."). Thus, if an ALJ concludes that the degree of limitation caused by a particular impairment is less than marked, she cannot simply assign it "zero weight in the ultimate decision whether or not to award benefits." Id. Instead, "each of a child SSI claimant's impairments must be taken into account in SSA's bottom-line assessment of the child's disability." Id. at 92.
Even if a child is found disabled and therefore eligible for SSI benefits, the child is not necessarily entitled to a continuation of those benefits indefinitely. Rather, the Commissioner is required to perform periodic reviews to determine whether the child remains disabled as defined by the SSA regulations. 20 C.F.R. § 416.994a(a). The Commissioner first considers whether there has been medical improvement in the child's condition. 20 C.F.R. § 416.994a(a)(1). In general, if there is has been no medical improvement, then the child's disability will be found to have continued. Id. If there has been medical improvement, the Commissioner must then determine whether the condition on which the earlier disability finding was based either singly or in combination with other impairments meets or equals (either medically or functionally) a listed impairment. Id. 3. Flaws in the Record Developed by the ALJ
The parties are in agreement that there are at least two significant flaws in the record developed by the ALJ.
First, plaintiff testified at the hearing that Jennifer had seen a psychiatrist for almost two years. (Tr. 41.) Despite this testimony, the ALJ made no attempt to obtain records of this treatment, relying instead on testimony elicited from the Plaintiff that Jennifer's problems were limited to reading and a learning disability. (Tr. 45-46.) This was a violation of the ALJ's affirmative duty to assist a claimant, especially one not represented by counsel, in fully developing the record. See, e.g., Echevarria, 685 F.2d at 755.
Second the ALJ made inconsistent statements in her decision about the weight that she accorded to Dr. LoBiondo's assessment. Specifically, the ALJ rejected Dr. LoBiondo's statement that Jennifer's performance indicated an IQ of 69, purportedly because this finding was contradicted by other evidence in the record. (Tr. 20.) However, elsewhere in her decision, the ALJ stated that Dr. LoBiondo's findings were well-supported, and she indicated that she accepted Dr. LoBiondo's opinion. By making these contradictory statements concerning the weight accorded Dr. LoBiondo's assessment, the ALJ failed to uphold her duty to provide the Plaintiff with a clear statement of the reasons for the Commissioner's denial of Jennifer's claim. See, e.g., Treadwell v. Schweiker, 698 F.2d 137, 142 (2d Cir. 1983) ("[I]t is an elementary rule that the propriety of agency action must be evaluated on the basis of stated reasons.")
4. Remand is a Proper Remedy
The parties differ on how to properly remedy the flawed record developed by the ALJ. The Plaintiff argues that the proper remedy is to annul the January 27, 1999 termination of the benefits and restore the status quo before the termination was made. The defendant argues that annulment of the termination is not warranted, and that the appropriate remedy is a remand to the Commissioner for further proceedings.
The remedy sought by Plaintiff — annulment of the termination — is only appropriate if "the ALJ reached a mistaken conclusion on an otherwise complete record." Rosa v. Callahan, 168 F.3d 72, 83 (citing Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)). Where gaps exist in the administrative record, the appropriate remedy is to remand the case to the Commissioner for further proceedings. Id. at 82.
A. The Administrative Record is Incomplete with Regard to Medical Improvement
For the relevant time period, the record is incomplete on the question of medical improvement. Jennifer was awarded benefits in 1995 based on evidence of significant delays in expressive and receptive communication skills, significant delays in cognitive ability, and some evidence that she was easily frustrated and occasionally aggressive. At the time of the ALJ's decision in April 2001, the most recent assessment of Jennifer's cognitive abilities was the October 15, 1998 evaluation, which placed her in the range of mild mental retardation. (Tr. 272-74.) The most recent comment on her communication problems — contained in her third grade teacher's report of December 21, 1999 — was that Jennifer still experienced "moderate to severe language delay." (Tr. 146.) As to frustration and aggressive behavior, Jennifer had been under psychiatric care for unspecified behavior problems for perhaps two years, which certainly suggests a continuation, if not an increase, of her earlier difficulties. (Tr. 41-47, 284-86, 308.) The absence of these records renders the administrative record incomplete with respect to the issue of medical improvement.
There is a dispute between the parties as to the relevant time period. Based on the cases cited by the parties (none of which are controlling), this dispute appears to focus on the proper interpretation of 42 U.S.C. § 423(f), which provides that when the SSA terminates a claimant's benefits, it must examine "all the evidence available in the individual's case file, including new evidence concerning the individual's prior or current condition" to determine whether "the individual is now able to engage in substantial gainful activity. . . ." Plaintiff interprets this provision to mean that the Commissioner must determine whether any medical improvement occurred between January 17, 1995 and April 16, 2001 (the date of the ALJ's decision). The Commissioner argues that the relevant time period is January 17, 1995 to January 27, 1999 (the date that the benefits were terminated). The statutory provision is ambiguous, and both interpretations are plausible. However, this court is bound to follow an agency's permissible interpretation of an ambiguous statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Therefore, the Commissioner's interpretation must control.
The gaps in the record resulting from the ALJ's failure to seek these records can only be remedied by remanding the case so that the Commissioner can obtain those records. See, e.g., Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999). As the Court observed in Rosa:
In a case . . . in which the primary problem with the decision below is that the ALJ failed adequately to develop the record before her, it is appropriate for this Court simply to exercise its "power," also under [42 U.S.C.] § 405(g), to "remand the cause for a rehearing. Id. at 83 n. 8 (quoting 42 U.S.C. § 405(g)). Therefore, all such records of Jennifer's psychiatric treatment are relevant to the question of her condition at the time that the benefits were terminated, and all such records should be considered upon remand.B. The Administrative Record is Incomplete with Respect to Satisfaction of Disability Requirements
The ALJ's finding that Jennifer did not meet current SSI disability standards is similarly in dispute. The plaintiff has argued that Jennifer's cognitive limitations, as evidenced by Dr. LoBiondo's test results, satisfied the requirements of the SSA's disability listings. Plaintiff accurately observes that no medical expert questioned the validity of Dr. LoBiondo's results. The Plaintiff also contends that Jennifer satisfied the SSA "two marked limitation" standard.
Two SSA physicians found on the basis of the results of Dr. Lobiondo's IQ testing that Jennifer was markedly limited in cognitive function. (Tr. 277-282.)
Even if the IQ score reported by Dr. LoBiondo is considered valid, a dispute remains as to whether Jennifer evidenced significantly subaverage intellectual functioning and deficits in adaptive functioning. The defendant argues that Jennifer's treating physician had reported in September 1998 that Jennifer was functioning at an age-appropriate level in all areas — motor skills, sensory abilities, communication, cognition and social/emotional skills. (Tr. 267-68). The defendant also argues that in October 1998, Jennifer's teacher had reported that her speech was clear and that she had no problems with frustration tolerance, social interactions, self-care activities, or timely completion of tasks. (Tr. 116-18). Finally, defendant points out that Plaintiff conceded at the hearing before the ALJ that Jennifer's speech had improved and her conduct at school was good. (Tr. 40).
As discussed above, the Commissioner, and not the Court, is responsible for weighing conflicting evidence in the record.See e.g., Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998) (citing Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997)). In light of the ALJ's inconsistent statements concerning Dr. LoBiondo's findings and the other conflicting evidence in the record, it is appropriate to remand this case for further proceedings.
C. The Presumption Of Disability
SSA regulations provide that unless both medical improvement and non-disability under current program standards are shown, the recipient's entitlement to benefits must continue. 20 C.F.R. §§ 416.994a(a)(1), 416.994a(b)(1)-(3). Based on prior decisions, Plaintiff argues that SSA regulations provide that once a claimant has established disability, she is entitled to a continuing presumption of such disability. De Leon v. Sec'y of Health and Human Servs., 734 F.2d 930, 937 (2d Cir. 1984); see also Hoffman v. Halter, 140 F. Supp. 2d 1056, 1060 (C.D. Cal. 2001); Romero v. Heckler, 586 F. Supp. 840, 847 (S.D.N.Y. 1984); Velazquez v. Heckler, 586 F. Supp. 125, 127 (S.D.N.Y. 1984).
The Commissioner argues that post-DeLeon amendments to SSA regulations eliminated this presumption in favor of the claimant.See 20 C.F.R. § 416.994a(a)(2) (stating that determinations as to whether a claimant's disability continues "will be made on a neutral basis, without any initial inference as to the presence or absence of disability being drawn from the fact that [claimant has] been previously found disabled.") The Plaintiff argues that the Commissioner's reading of the SSA regulations is at odds with the Congressional intent that animated passage of the Social Security Disability Benefits Reform Act of 1984 (the Reform Act"), which Plaintiff argues codified the DeLeon holding and the holdings of ten other circuit courts that a presumption of continuing disability had always been contained in the Social Security Act. See generally Vitale v. Sec'y of Health and Human Servs., 673 F. Supp. 1171, 1179-80 (N.D.N.Y. 1987).
The Reform Act was intended, in part, to resolve a conflict between the Secretary of Health and Human Services and the majority of the federal courts of appeals. Most of the circuit courts had taken the position that pursuant to the Social Security Act, termination of SSI benefits was warranted only if there was substantial evidence that the claimant's medical condition had improved. Despite these holdings, the Secretary had routinely terminated benefits if there was substantial evidence that the claimant was not disabled, without regard to whether there was evidence of demonstrable medical improvement in the underlying condition. The Reform Act resolved this conflict in favor of the circuit courts, providing that the SSA could not terminate SSI benefits unless there was substantial evidence of medical improvement. See H.R. Rep. 98-618, 23-44 (1984),reprinted in 1984 U.S.C.C.A.N. 3038, 3060-78.
The 1984 Act itself contained language, now codified at 42 U.S.C. § 423(f), that is nearly identical to that found in 20 C.F.R. § 416.994a(a)(2). The import of this statutory provision (and therefore of the Commissioner's parallel regulation) was not to eliminate the continuing presumption of disability codified by the 1984 legislation but to prescribe that disability should be determined without regard to previous determinations of disability only if the initial presumption has been overcome through the presentation of substantial evidence of medical improvement.
42 U.S.C. § 423(f) technically applies only to adult claims under Title II of the Social Security Act. The corresponding provision governing children's SSI claims is found at 42 U.S.C. § 1382c(a)(4).
In the present case, the termination determination may, or may not, have appropriately overcome the presumption, a review which cannot be achieved on this incomplete administrative record for the reasons set forth above. 5. Full Restoration of Benefits Is Not Appropriate at this Point
The remedy sought by the Plaintiff — annulment of the termination of benefits — is appropriate only when "the ALJ reached a mistaken conclusion on an otherwise complete record."Rosa, 168 F.3d at 83 (citing Balsamo, 142 F.3d at 80). Here, not only is the record incomplete, but the evidence in the record as it now stands would not appear to require a finding that the ALJ's conclusion was mistaken. Accordingly, annulment of the termination is not appropriate.
6. Interim Benefits are Granted
The prior determinations established: (1) that a remand is required to permit the creation of an appropriate record for ALJ review; and (2) that annulment of termination of benefits is not appropriate at this juncture. What remains to be resolved is whether or not the Plaintiff is entitled to interim benefits for Jennifer pending the outcome of the remand proceedings. This Court has inherent power to award interim benefits to SSI claimants. Day v. Schweiker, 685 F.2d 19, 24 (2d Cir. 1982),rev'd on other grounds, Heckler v. Day, 467 U.S. 104 (1984). Courts in this district have exercised this remedial power to award interim benefits "where a claimant is faced with unreasonable delay attributable to the [Commissioner]." Weiser v. Sec'y of Dep't of Health, 645 F. Supp. 602, 603 (S.D.N.Y. 1986); see also Hinton v. Sullivan, 737 F. Supp. 232, 234-35 (S.D.N.Y. 1990); Cohen v. Heckler, 599 F. Supp. 837, 839 (S.D.N.Y. 1984).
Here, the Commissioner has conceded that the ALJ failed to request Jennifer's psychiatric records and to provide a clear statement of the weight accorded Dr. Biondo's assessment, and that these failures violated the ALJ's affirmative duty to assist an unrepresented claimant. See Commissioner's Memorandum at 3-4. These failures on the part of the ALJ are the primary cause of the delays that have beset the adjudication of Jennifer's rights to SSI benefits.
Delay, of course, is harmful for any litigant, but particularly in connection with benefits for children which are not to replace lost income, but to enable low-income families to afford special education, medical treatment, physical rehabilitation, early intervention services, and personal needs assistance for the child. See, e.g., 20 C.F.R. § 416.640(e)(2) (describing permissible uses of retroactive SSI benefit payments); see also Maldonado v. Apfel, 55 F. Supp. 2d 296, 297-98 (S.D.N.Y. 1999).
Based on the foregoing, it is determined that Jennifer is entitled to interim benefits as of the date of the erroneous Appeals Council determination.
Conclusion
Because the decision of the ALJ is now acknowledged to be flawed and was not corrected in the prior administrative process, the January 1999 termination remains in effect. If upon remand, it is determined that the termination was made in error, full restoration of benefits is appropriate. If after an appropriate review, the termination is upheld, Jennifer will not receive further benefits.
In the interim, Jennifer should not bear the burden of a cumbersome and maladministered process which began by the errors committed by the ALJ on April 16, 2001, which the Appeals Council confirmed by its refusal to review the Plaintiff's claim on March 29, 2002, and which has continued throughout the more than two years that it has taken this Court to resolve this action. In order to redress this error and to accomplish equity, the Plaintiff is entitled to an award of interim benefits from the date of the refusal of the Appeals Council to review the erroneous determination of the ALJ.
The motion for remand to the Commissioner for a new hearing and decision upon an appropriate record is granted. Until that determination is made, interim benefits will be provided as of March 29, 2002. These interim benefits will terminate in the event that the January 1999 termination is affirmed on an appropriate record. The motion for remand to the Commissioner for an annulment of the prior termination and calculation of benefits is denied.
It is so ordered.