No. C00-2083 MJM.
September 27, 2001.
OPINION and ORDER
In this action, Plaintiff Everett Richardson, by his mother Willa Richardson, seeks judicial review of an administrative decision on his application for disability insurance benefits. After thorough review, the Court concludes that the decision to deny benefits is not supported by substantial evidence on the record as a whole.
Plaintiff Willa Richardson applied on behalf of her son, Everett Richardson, for title XVI supplemental security income (SSI) benefits on October 20, 1995. Ms. Richardson alleged that her son is disabled due to a disruptive behavior problem, impulse control disorder, a parent-child relational problem, borderline intellectual functioning and attention deficit disorder. Plaintiff's application was denied on initial review and again on reconsideration. A hearing before Administrative Law Judge (ALJ) Donald R. Holloway was held April 9, 1998. In an opinion dated June 12, 1998, the ALJ denied benefits. On August 18, 2000, the Appeals Council denied Plaintiff's request for review. This action for judicial review was timely filed on September 11, 2000.
The Eighth Circuit Court of Appeals has explained the standard for judicial review of an ALJ's denial of Social Security benefits as follows:
We must uphold the ALJ's decision if it is supported by substantial evidence. See Metz v. Shalala, 49 F.3d 374, 376 (8th Cir. 1995). Our task is not to reweigh the evidence, and we may not reverse the Commissioner's decision merely because substantial evidence would have supported an opposite conclusion or merely because we would have decided the case differently. See Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993). In determining whether substantial evidence supports the ALJ's decision, we must consider evidence in the record that supports the ALJ's decision as well as evidence that detracts from it. See Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir. 1993).Harwood v. Apfel, 186 F.3d 1039, 1042 (8th Cir. 1999). "Substantial evidence is relevant evidence which a reasonable mind would accept as adequate to support the [ALJ's] conclusion." Wieler v. Apfel, 179 F.3d 1107, 1109 (8th Cir. 1999) (citing Pierce v. Apfel, 173 F.3d 704, 706 (8th Cir. 1999)); accord, Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000) ("Substantial evidence is less than a preponderance, but is enough so that a reasonable mind would find it adequate to support the ALJ's conclusion.") (citation omitted).
The Court's review must look at the record as a whole to determine whether the Commissioner's findings are supported by substantial evidence. Wieler, 179 F.3d at 1109. The Eighth Circuit has held that reviewing for substantial evidence on the record as a whole "requires a more scrutinizing analysis" than the traditional "substantial evidence" test. Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987). In Gavin, the court explained:
In the review of an administrative decision, `the substantiality of evidence must take into account whatever in the record fairly detracts from its weight.' Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488 (1951). Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. See Steadman v. Securities and Exchange Comm'n, 450 U.S. 91, 99 (1981). It follows that the only way a reviewing court can determine if the entire record was taken into consideration is for the district court to evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.Gavin, 811 F.2d at 1199; accord, Burress v. Apfel, 141 F.3d 875, 878 (8th Cir. 1998).
Everett Richardson ("Everett") was born on January 10, 1983. (Tr. 94). He was 12 years old when his application was originally filed and is now 18 years old. Because Plaintiff was under 18 when his claim was adversely decided, his case will be reviewed under the regulations for establishing disability for minors. At the time Plaintiff's claim was decided, disability in a minor was statutorily defined as follows:
An individual under the age of eighteen (18) shall be considered disabled for the purposes of this title if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death, or which have lasted, or can be expected to last for a continuous period of not less than 12 months.
Welfare Reform Act at § 211(a)(4) (codified at 42 U.S.C. § 1382c(a)(3)(C)(i)). The regulations establish a three-step process for determining whether a child is eligible for SSI benefits on the basis of a disability. The first step requires the ALJ to determine whether the child is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b) (2001). If the child is not engaged in substantial gainful activity, the ALJ must, at step two, determine whether the child had a severe impairment or a combination of impairments that caused more than a minimal functional limitation. 20 C.F.R. § 416.924(c). If the child's impairment or combination of impairments is severe, the third step involves determining whether the child had a condition that met, medically equals, or functionally equals an impairment listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P. If the ALJ decides, as he did in this case, that the plaintiff's impairment does not meet or medically equal a listed impairment, then he must view the record as a whole in order to determine whether the impairment is "functionally equal" to any listed impairment. 20 C.F.R. § 416.926a.
All citations to the Code of Federal Regulations refer to the 2001 edition unless expressly noted.
Functional equivalence is measured by considering the effects of the child's impairment(s) with respect to six broad domains of functioning: cognition; communication; motor abilities; social abilities; personal/behavioral patterns; and concentration, persistence and pace in task completion. See 20 C.F.R. § 416.926a. Under the functional equivalence rules in effect at the time of this case, Plaintiff is disabled if his condition results in "extreme" limitation in one broad area of functioning or "marked" limitation in two broad areas of functioning. 20 C.F.R. § 416.926a(b)(2). An extreme impairment exists if there is "no meaningful functioning in a given area," 20 C.F.R. § 416.926a(c)(3)(ii)(C), while a marked limitation is one that is "more than moderate" and "less than extreme" and "interfere[s] seriously with the child's functioning." 20 C.F.R. § 416.926a(c)(3)(i)(C).
Alternative measures of functional equivalence, as set out in the regulations, are not relevant to this case. See 20 C.F.R. § 416.926a.
At issue in this case is whether the record supports the ALJ's determination that Plaintiff was not disabled because his impairments were not functionally equal to a listed impairment. Specifically, Plaintiff challenges the ALJ's finding that he had only a marked limitation in the social development area and a less than marked limitation in the area of concentration, persistence and pace. The Court agrees that substantial evidence supports the ALJ's finding as to the social development domain, which is defined as the child's "ability or inability to form and maintain relationships with other individuals and with groups." 20 C.F.R. § 416.926a(c)(4)(iii). While the record clearly evidences intermittent difficulties with disruptive and inappropriate behavior in the classroom setting, there is also substantial evidence that Plaintiff was able to carry on social relationships with his peers and maintain relationships with family members.
The Court disagrees, however, with the ALJ's determination that the record supports a finding that Plaintiff has a "less than marked" limitation in the area of "concentration, persistence and pace." The regulations define this domain as the child's "ability or inability to attend to, and sustain concentration on an activity or task, such as playing, reading, or practicing a sport, and the ability to perform the activity or complete the task at a reasonable pace." 20 C.F.R. § 416.926a(c)(4)(vi). See also 20 C.F.R. § 416.924a(b)(5) ("We will consider how effectively you function by examining how independently you are able to initiate, sustain, and complete your activities despite your impairment(s), compared to other children your age who do not have impairments."). As will be discussed, from the earliest entries onward the record is replete with evidence demonstrating ongoing, persistent and significant difficulties in Plaintiff's ability to concentrate, maintain attention, and stay on task without nearly constant individual supervision and encouragement. To facilitate discussion of this conclusion, the Court will set out in relative detail the record evidence before the ALJ at the time of his decision.
The Record Evidence
At age 10, Everett moved from Chicago to Waterloo with his mother and siblings. (Tr. 140). His father remains in the Chicago area and Everett has somewhat sporadic contact with him. During his fifth grade year at Roosevelt Elementary in Waterloo, Everett received Chapter I assistance whereby his teacher noted that he had difficulty following direction and routines, became very easily frustrated, and needed constant modeling. (Tr. 140). By the third trimester, however, the teacher noted that "Everett was trying to do better both in his work and in his effort [and] that he had learned to work on his own without disrupting others." (Tr. 140).
In September 1995, Ms. Richardson again sought evaluation of her son's problems. (Tr. 163-166). Area Education Agency 7 (AEA-7), a division of special education, agreed to evaluate and test Everett in response to Ms. Richardson's concerns about his achievement problems and attention span delays. (Tr. 140). The AEA-7 evaluation included teacher interviews, psychological testing and behavioral observation by a school psychologist and an AEA-7 consultant. (Tr. 140-162). First to evaluate Everett was Christine Carpenter, a school psychologist with AEA-7. (Tr. 144-149). In her report, Ms. Carpenter summarizes the findings from interviews with Everett's three academic teachers, which suggest that the improvements reported by Everett's fifth grade teachers had not been sustained. They described Everett's punctuality and attendance as good but reported that he was able to follow teacher directions only 40% of the time. (Tr. 144). He required a great deal of instruction in order to follow through on a task and could not complete a task when faced with obstacles. (Tr. 144-145). He is reported to have difficulty adjusting to new tasks and challenges. (Tr. 145). He completed from 50 to 80% of his assignments but was currently failing almost all courses. (Tr. 144). He was reported to be "on task" from 10 to 60% of the time and could accept and improve from correction only 0 to 30% of the time (Tr. 144). He demonstrated self-control from 20 to 75% of the time. (Tr. 144-145). "Typical inappropriate behavior" included disruptive talking and noises, arguing, disrespectful comments, name calling, and lying. (Tr. 145).
Ms. Carpenter's behavioral observations are consistent with his teachers' generally negative assessments of Everett's attention abilities. Ms. Carpenter noted that although Everett first appeared pleased about the evaluation process,
[a]s test items became more difficult, he became frustrated and gave up easily. It took much encouragement to get him to attempt items. After approximately 30 minutes of testing a bathroom break was taken. Everett was able to return to testing and stay on task for approximately 20 more minutes. He then became somewhat agitated stating he wanted to go to home economics. At that time testing was discontinued and he was allowed to go back to class. Later in the day testing was resumed and completed. Everett continued to need much encouragement. He was easily frustrated when items became difficult and asked to quit. Everett was given a great deal of encouragement and frequent breaks . . .
Standard diagnostic testing was also conducted. Plaintiff's full scale standard score on the Wechsler-III, designed to assess general intelligence and scholastic aptitude, was in the 7th percentile in comparison with students his age, placing him in the "slow learner" classification range. (Tr. 146). Everett's results on the Stanford-Binet Intelligence Scale III were consistent with those on the Wechsler-III, again suggesting low average to slow learner cognitive skills. (Tr. 146). The Child Behavior Checklist, completed by Everett's three academic teachers, yielded some inconsistent results but "[a]ll three teachers indicated Everett is demonstrating defiant, disturbing, disruptive, and demanding behaviors in the classroom." (Tr. 147). "In the area of attention, all three teachers indicated he has a lot of difficulty concentrating, fidgets, daydreams, acts impulsively, has poor school work, and is inattentive." (Tr. 147). On the Conner's Teacher Questionnaire, all three teachers scored Everett clinically significant for conduct problems and hyperactivity. (Tr. 147). The results of a subsequent Behavior Assessment System for Children (BASC) by the same three teachers again suggested a high level of maladjustment. (147-148). According to Ms. Carpenter, "Everett's profile [on the BASC] suggests attention problems and learning problems with significant externalizing behavior problems (hyperactivity, aggression and conduct problems). Adaptive or coping skills measure in the at-risk to clinically significant range." (147-148).
On October 9, 1995, Carol Baker, a consultant to AEA-7 reviewed the plaintiff's file and interviewed him for an evaluation. (140-143). She noted Everett's generally failing grades in all subjects during his sixth grade year and his significant attendance problems — 79 ½ days absent and 42 days tardy. Ms. Baker also administered standard educational assessment tests. In several areas — particularly those requiring reading skills — Everett scored in the first to second percentile, placing him at the second to third grade level. (Tr. 141-142). Everett's highest scores came in the mathematics area, where he generally placed at the fifth grade level. (Tr. 141-142). Again, Ms. Baker's behavioral observations of the testing conditions are relevant:
This is probably minimal performance because Everett has a very difficult time staying on task. At times he was even laying [sic] on two chairs. It was found that the best way to keep his attention was to feed him popcorn.
Everett is old enough for eighth grade and still has so much trouble focusing that he gets up and leaves the testing area. When given verbal directions to try to control his inattention and refocus his attention, he does try to please and do what is asked. It is the feeling of this examiner that he cannot control his lack of attention.
Ms. Baker also observed Everett in the classroom on two separate occasions:
Everett was first observed in-school suspension room for 40 minutes. . . . He was on task 0 percent of the time. One of the main concerns for his off-task behavior was the repetitiveness of his actions. He looked toward his work and then turned his head to his shoulder and back again to his book. He did this 17, 19, 21 and 17 times in timed one minute intervals. He never really focused on anything. He did this for the entire time I was there except for one 90 second interval when he had been redirected by the supervisor.
Because of what I had seen, I observed [Everett] the next day in his regular class for 30 minutes. They were taking a spelling test and I am not sure that he really tried to write the words. . . . he closed his book. The repetitive action he was doing in the room was whacking his pencil on everything in a rhythmic way. He was on task 0 percent of the time.
In December 1995, Thomas Zilner, one of Plaintiff's teachers over the previous two to three months, completed a questionnaire submitted by the SSA in conjunction with plaintiff's disability benefits application. (Tr. 128-130). Mr. Zilner saw Everett for two classes a day. With respect to Everett's functioning in relation to other students, Mr. Zilner reported Everett as "below average" in the following areas: attention span, concentration, and on-task behavior; ability to work independent of teacher supervision; attendance and ability to complete assignments on time; how the student responds to change of routine in a classroom environment. (Tr. 129). Mr. Zilner reported Everett's "main problem" as "incomplete work and attendance." (Tr. 129). He saw no particular problems with Everett's ability to get along with peers and teachers or his hygiene and self-care. (Tr. 129).
In March 1996, Everett was evaluated by N.S. Pangilinan, M.D., a psychiatrist to whom he was referred by SSA. (Tr. 170-175). Dr. Pangilinan observed Everett to be "fairly cooperative, pleasant and relating throughout the session." (Tr. 174). Dr. Pangilinan diagnosed Everett with probable ADHD, possible depression, and a possible learning disability. (Tr. 174). Dr. Pangilinan noted that at the time of his evaluation he had not seen the AEA-7 report or obtained any feedback from teachers, both of which would be "helpful" to the evaluation process. (Tr. 174). Finally, Dr. Pangilinan documented that he "advise[d] the mother to get professional help for Everett explaining that medication and counseling might be helpful for him." (Tr. 174).
In April 1996, Janet S. McDonough, Ph.D., a clinical psychologist, reviewed Everett's case for the SSA. This included review of the AEA-7 report and diagnostic test results, school records, and Dr. Pangilinan's March 1995 evaluation report. (Tr. 93). There is no indication that Dr. McDonough ever personally evaluated Plaintiff. Based on the case file, Dr. McDonough concluded that Everett had a moderate limitation in cognitive functioning, noting that "[i]t is likely that his poor attendance affects his achievement." (Tr. 89). In the area of concentration, persistence and pace, Dr. McDonough found a moderate limitation, noting the probable ADHD diagnosis and the evidence that Everett "is off-task in school, distractible, and disruptive at times." (Tr. 90). In the area of social development, Dr. McDonough found a less than moderate limitation, noting that although Everett is verbally aggressive in school, he has friends in the community and maintains relationships with family members. (Tr. 91). Dr. McDonough concluded that:
[a]t the present time, [Everett] has a severe impairment that has reduced his ability to function cognitively, and in the concentration/persistence/pace domain. His impairment does not substantially reduce his ability to function independently, appropriately and effectively in an age-appropriate manner. It is not comparable in severity to one that would disable an adult.
(Tr. 92). Dr. McDonough recommended that Everett undergo another psychiatric exam to assess his possible ADHD. (Tr. 93).
In July 1996, Everett was again referred by the SSA for re-evaluation by Dr. Pangilinan. (Tr. 168-169). Everett's conduct was markedly different at this second meeting:
Everett was quite different in his presentation today. He was in a playful, goofing around mood during this visit. He hardly sat, was roaming around the room, throwing a piece of paper against the wall, fidgeting with many items in the office. At certain points, I firmly told him that he should sit down and we should visit seriously but he would only comply for a short time and then he was up again and back again to his playful, goofing around mood. This became quite frustrating for the undersigned and I had to dismiss him early from the session.
. . . It does appear that [Everett] suffers from Attention Deficit Hyperactivity Disorder. And his behavior during our visit today clearly point [sic] to this. On our first visit he seemed a lot more appropriate, was able to sit without much fidgeting or inappropriate behavior. Perhaps, he was less inhibited today given the fact that I had seen him previously. It was hard for him to focus on the task today. At one point, he grabbed a handful of paperclips from my desk and began throwing them all over the floor and against the wall. I finally terminated the interview after repeated warning to refrain from goofing around and not taking this interview seriously. After he left the office, he went outside and began throwing paperclips against my window.
(Tr. 168-169). Dr. Pangilinan's diagnosis following this second evaluation was ADHD, possible conduct disorder unspecified, and possible learning disorder. (Tr. 169). Again, Dr. Pangilinan advised Everett's mother that he was in need of professional help in the form of counseling and, possibly, medication. (Tr. 169).
The next record entry regarding Everett's functioning is an SSA teacher questionnaire completed by Henry Galloway on March 11, 1997. (Tr. 132-134). At the time, Mr. Galloway was a juvenile court facilitator at the Educational Discipline Center (EDC) where Everett was attending school during this period due to behavior problems when attending regular classes. Mr. Galloway reported that he had known Everett for about a year and during the school term saw him approximately 5 days a week, 6 ½ hours a day, although Everett's attendance at school was inconsistent. (Tr. 132). With regard to Everett's academic performance and behavior, Mr. Galloway wrote:
Everett does average work academically. However his behavior has been consistent from the first day that he came to EDC. His behavior is sporadic. He acts very childish and immature at times and there is [sic] times when he is on task. He is often pulled in to other students' inappropriate behavior. He often times blurts out in class and uses inappropriate language.
(Tr. 132). As to the particular area of attention span, concentration, and on-task behavior, Mr. Galloway reported that "Everett appeared to have the ability to stay focused when he needed to. However there were some days when he was easily distracted. Other students could anger him to the point of blurting out or get him to play around." (Tr. 133). Mr. Galloway also noted behavior problems with regard to "difficulties following staff directions, swearing, horseplay and controling [sic] anger." (Tr. 133). With regard to Everett's ability to work independent of teacher supervision, Mr. Galloway observed that "Everett appears to work better when he was alone or when his friends were not in the classroom." (Tr. 133). He reported that attendance continued to be a major concern, with Everett missing 18 days in the first semester. (Tr. 133). He further noted that Everett appeared to adjust well to changes at school and got along with most of his peers and staff members. (Tr. 133). As a final observation, Mr. Galloway noted that "Everett has caused class room disruption to the point of us recommending that his mother attend classes with him. He has a difficult time staying focused after he has had difficulties in the class room." (Tr. 134).
On March 14, 1997, Everett was evaluated by Ralph Scott, Ph.D., a licensed psychologist, to whom he was referred for evaluation by the SSA. (Tr. 176-180). Unlike the prior evaluations by Dr. Pangilinan, Everett did not attend this appointment alone; accompanying him were his mother, a family friend and his young nephew. At the time of the evaluation, Everett was a student at EDC for the second year in a row because of behavioral problems. (Tr. 177). He had recently been expelled from EDC for a week because of disruptive behavior directed toward a teacher. (Tr. 173).
Dr. Scott administered several WRAT-R subtests for comparison with the October 1995 diagnostic testing. (Tr. 178). Both his arithmetic and spelling standard scores fell below the first percentile. (Tr. 178). Dr. Scott reported that "[t]hroughout this testing, where he was given individual attention, Everett sincerely applied himself, and attempted to do his best." (Tr. 178). However, he also noted that Everett frequently sucked his lower lip and twisted his ears into pretzel-like formations. (Tr. 176). Dr. Scott diagnosed the plaintiff with a disruptive behavior problem, impulse control (habit) disorder, a learning disorder, and a parent-child relational problem. (Tr. 179). His summary reflects his conclusion that Everett's reported problems stem largely from unmet emotional needs due to his dysfunctional family situation and his mother's inadequate coping and management skills:
Everett is an emotionally needy child; he was initially resistive but when alone with the examiner he relished individual attention, and was an interesting and quite intelligent and observant conversationalist. Further assessment might clarify why Everett laced his conversation with profanity; Everett is clearly an angry and frustrated adolescent, whose basic needs are only irregularly met at home. Moreover, when seen alone, Everett was not motorically overactive; although he was inattentive and impulsive, his behavior is not characteristic of an organically impaired person, but rather of a person with profound unmet emotional needs and lack of impulse control. Everett's unusual habits are linked to his emotional factors: for example, asked why he frequently twists his ears and sucks his lips, Everett replied that he feels more comfortable when he is doing something. . . .
Everett is a vulnerable adolescent who is likely to follow the delinquent trends of his older brothers unless interventional steps are taken, which presumably should include opportunities to relate to a male adult. This examiner is troubled by Willa's [Everett's mother] difficulty in dealing with her own problems and by the limited consistency of the management tactics she employs. Everett's self-isolating tendencies and limited constructive channels for emotional release are linked to his temper outbursts which create problems for himself and for others. . . .
An angry and frustrated child who possesses few positive coping strategies, Everett needs assistance in developing appropriate channels for emotional expression. Also, although Everett's cognitive abilities fall below average, he possesses abilities which have not been developed and utilized: his academic achievement problem falls significantly below cognitive potentials. Everett's communication skills are limited, and exacerbate his proclivity to self-isolate and then angrily lash out. . . . Everett's social and personal behavior growth is severely delayed. Everett's ability to concentrate, persist and maintain pace when relating to others is limited and no higher than the 12th percentile if compared with his age-mates. Everett is unable to handle cash.
In April 1997, Steven Warner, Ph.D., a psychologist reviewed the case file for SSA and found no evidence of limitation in any functional domains except social development, where he found a marked limitation. (Tr. 73-76). Dr. Warner did not personally evaluate the plaintiff and the evaluation form does not specify what records and reports were included in the review.
Everett apparently refused to attend the attend the administrative hearing on his disability application. His mother testified on his behalf.
As discussed above, in Part I, in reviewing the ALJ's decision, this Court must evaluate in detail the evidence used in making the disability decision in light of the evidence in the record as a whole. See Gavin, 811 F.2d at 1199. The weight, or substantiality, of the evidence must be considered in balancing evidence which is contradictory. See Steadman, 450 U.S. at 99. Applying these principles to the instant record, the Court concludes that there is insufficient evidence to support the ALJ's determination that Plaintiff's functional limitation in the area of concentration, persistence and pace is "less than marked." Rather, the record overwhelmingly demonstrates persistent attentional difficulties which consistently seriously interfere with Everett's ability to function.
It is somewhat difficult to fully identify the basis for the ALJ's finding on this issue. The decision includes a relatively lengthy synopsis of the case, however there is no concerted attempt to address the evidence as it pertains to each of the six areas of functioning. Instead, after summarizing the case file, the ALJ includes one paragraph recording his rather conclusory findings on all of the functional domains. As to Plaintiff's concentration, persistence and pace, the ALJ stated as follows:
Finally, the undersigned finds the child has shown a less than marked limitation in attention, concentration, and pace, as noted by Dr. Scott during the testing. Although the child was initially hyperactive, he responded well to individual attention.
The Court takes some issue with the ALJ's characterization of Dr. Scott's report as it pertains to the concentration, pace and persistence domain. While the ALJ's summary of Dr. Scott's findings and observations is not wholly inaccurate, it is far from complete. As set out above, Dr. Scott also noted Everett's fidgeting and repetitive movements, and concluded his report with the observation that Everett's "ability to concentrate, persist and maintain pace when relating to others is limited and no higher than the 12th percentile if compared with his age-mates." (Tr. 179). See Williams v. Apfel, 1997 WL 681305 (S.D.N.Y.) (remanding for further consideration of concentration, persistence and pace domain where ALJ focused only on positive comments made by evaluators and teachers without explaining basis for disregarding or discounting negative comments). That said, if Dr. Scott's evaluation was the only evidence in the record, the Court would be constrained to affirm the ALJ's finding as there can be no question that there is inconsistent evidence within Dr. Scott's report and, standing alone, it could not be said that the ALJ's reading of that report was clearly erroneous. However, there is far more than just Dr. Scott's report in this record, almost all of which is inconsistent with, and of substantial more weight than, Dr. Scott's one-time, relatively brief consultative evaluation. See Quinones v. Chater, 117 F.3d 29, 35 (2d Cir. 1997) (finding reports of psychologists "at best inconclusive" with respect to claimant's functioning in concentration, persistence and pace domain: "Standing against the reports of [claimant's] teachers, who dealt with her on a daily basis over at least a school year, these reports do not by themselves amount to `substantial evidence' supporting the Commissioner's finding."); Straw v. Apfel, 2001 WL 406184, *6-7 (S.D.N.Y.) (finding ALJ improperly relied primarily on one-time psychological evaluation where the bulk of record evidence demonstrated that child suffered from marked limitation in concentration domain in non-structured settings).
Significantly, the Court is troubled by the little weight apparently given by the ALJ to the consistent reports by teachers and educational evaluators regarding Everett's attentional difficulties. See Trudell v. Apfel, 130 F. Supp.2d 891, 895 (E.D.Mich. 2001) (rejecting ALJ's finding that child claimant had only moderate limitation in concentration domain and noting that "[a] substantiality of evidence evaluation does not permit a selective reading of the record"). While the traditional disability inquiry tends to value the opinions of medical sources over non-medical sources, that practice makes less sense at the "functional equivalent" step of the analysis which looks at how the child's impairments affect his or her ability to function in specified areas. And as this Court reads the regulations, the observations and opinions of a child's teachers are particularly informative at this step due to the teachers' regular, ongoing interaction with, and observation of, the child over a sustained period of time. See 20 C.F.R. § 416.924a(a) (relevant information includes nonmedical sources such as teachers); 20 C.F.R. § 416.924a(a)(iii) (relevant school information includes: teachers' reports "about how [claimant is] functioning there on a day-to-day basis compared to other children [his or her] age who do not have impairments" as well as reports that "show the results of formal testing or that describe any special education instruction or services, . . . or any accommodations in a regular classroom"). In this sense, a teacher can be aptly analogized to a treating physician whose opinion is given considerable weight in the traditional analysis because of the physician's ongoing relationship with his patient. Cf. 20 C.F.R. § 416.927(d)(2) (explaining that, generally, more weight is given to treating sources "since these sources are likely to be the medical professionals most able to provide a longitudinal picture of [the claimant's] medical impairment(s)") (emphasis added). See also Colon v. Apfel, 133 F. Supp.2d 330, 342 (S.D.N.Y. 2001) (noting that "information from educational agencies and personnel . . . can suggest a greater severity of impairment than can be shown by objective medical evidence alone) (citing 20 C.F.R. § 416.929(c)(3)).
Looking to the teachers' reports in this case, every single teacher reported Everett's significant problems with concentration, focus, maintaining attention and staying on task. While a few teachers noted Everett's efforts to stay on task when he was given individual attention, there is no indication that those efforts were successful or sustainable for any length of time. See 20 C.F.R. § 416.924a(b)(3)(i) ("When we evaluate your functioning, . . . [w]e will also look at how well you do the activities [that other children your age typically do] and how much help you need from your . . . teachers, or others.") (emphasis added). Indeed, in-school observation by one evaluator on two separate occasions showed Everett to be on-task zero percent of the time and "incapable of controlling his lack of attention." (Tr. 142). See Roelandt v. Apfel, 125 F. Supp.2d 1138, 1148 (S.D.Iowa 2001) (reversing ALJ denial of benefits and finding substantial evidence of marked limitation in ability to attend and complete tasks where evidence from teachers and father showed that claimant is not able to focus and maintain attention absent significant individual supervision); Carballo v. Apfel, 34 F. Supp.2d 208, 220 (S.D.N.Y. 1999) (rejecting ALJ finding of less than moderate limitation in concentration domain where the record "is notable for its many, striking, and unanimous references to the difficulties [the claimant] experiences in this domain," including the need for constant support, repetition and redirection). Cf. Bridges v. Massanari, 2001 WL 883218 (E.D.La.) (finding less than marked limitation where claimant responded to direction and authority in a more structured environment and " could easily be redirected to work, completed class work timely and adequately, and could sustain an ordinary daily routine without supervision") (emphasis added).
Equally troubling is the ALJ's failure to explain his virtually complete reliance on Dr. Scott's evaluation over those by other medical sources such as Dr. Pangilinan and/or Christine Carpenter, a school psychologist with AEA-7. See Scullark v. Apfel, 1998 WL 472059 (S.D.N.Y.) (remanding for further consideration of concentration domain where ALJ selectively relied on some evidence without explaining basis for disregarding or discounting contradictory evidence). Dr. Pangilinan's highly disparate experiences with Everett are wholly consistent with Everett's teachers' nearly unanimous reports as to his inability to maintain focus and composure. And at the very least, the stark differences between Dr. Pangilinan's first and second evaluations undermines the reliability of the earlier evaluation and further emphasizes the relatively lesser weight that should be given to one-time evaluations away from the child-claimant's usual settings and routines. See 20 C.F.R. § 416.924a(b)(6) ("Children may function differently in unfamiliar or one-to-one settings than they do in their usual settings at home [or] at school . . . . you may appear more or less impaired on a single examination (such as a consultative examination) than indicated by the information covering a longer period. . . . We will look at your performance in a special situation and at your typical day-to-day functioning in routine situations. We will not draw inferences about your functioning in other situations based only on how you function in a one-to-one, new, or unusual situation."). In this respect, the AEA-7 evaluations and testing, which took place at Everett's school, would seem a more reliable indicator of Everett's level of functioning in his "regular" setting. As detailed above, the testing done during that evaluation was significantly affected by Everett's attentional difficulties. Nearly constant encouragement and redirection was required and one examiner found that feeding Everett popcorn was the best way to facilitate completion of the diagnostic testing.
There can be no question that such limited attentional abilities would, and did, seriously interfere with Plaintiff's functioning in school and it is certainly not a stretch to reason that Everett's more visible and disruptive behavior problems are exacerbated by his attention deficits and vice versa. That said, however, it is not appropriate, or permissible, under the regulations to "collapse" criteria or categories for the functional equivalence analysis; in other words, the ALJ cannot disregard evidence of functional impairment in the concentration, persistence and pace domain under the rationale that the same evidence was already "credited" toward an assessment of a marked limitation in the social development domain. See Quinones v. Chater, 117 F.3d 29, 35 (2d Cir. 1997) (finding error in district court's disregard of lack of concentration evidence for concentration, persistence, and pace domain because had already considered that evidence in finding marked limitation in other area) (citing, inter alia, 58 Fed. Reg. 47,532, 47,558 (1993), for Commissioner's official comment in 1993 to the effect that "impairments in one domain can affect a child's performance in other areas").
In conclusion, the Court does not dispute that where an administrative record supports disparate findings, the ALJ's factual determinations must be accepted. But the record in this case simply does not contain substantial evidence to support the finding that Everett's impairment in the domain of concentration, persistence and pace is less than marked. Aside from a few sporadic and anomalous reports, the record on the whole speaks for itself and permits only one conclusion: that Everett's impairments have resulted in an ongoing and consistent marked limitation in the area of concentration, persistence and pace. While there may be justifiable frustration with Ms. Richardson's failure to more vigorously pursue treatment options for her son, that does not change the inescapable conclusion that Everett's deficiencies in this domain seriously interfere with his functioning.
The court notes that the regulations require a claimant to follow treatment prescribed by his physician "if the treatment can reduce [the child's] functional limitations so that they are no longer marked and severe." 20 C.F.R. § 416.930. On the record before the Court, there is no evidence that medication has ever been prescribed for Plaintiff's attention deficit disorder and/or behavioral problems. Accordingly, the Court finds it inappropriate to speculate as to whether and to what extent any such treatment might affect or alleviate the plaintiff's functional difficulties. See Rushing v. Massanari, 2001 WL 1006105 (D.Kan.) (characterizing "key issue" as "whether substantial evidence in the record supports the ALJ's finding that plaintiff's impairments [stemming from ADHD] can be controlled by medication").
III.Because Plaintiff has demonstrated marked impairment in two functional domains, he is entitled to a determination of disability under the Social Security Act. Accordingly, the Court will reverse and remand to the Commissioner for calculation and payment of benefits.
For the reasons discussed herein, it is ordered:
The ALJ's decision denying benefits is REVERSED and this matter is REMANDED to the Commissioner for the calculation of benefits consistent with the opinion filed herewith.
Done and so ordered.