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Straw v. Apfel

United States District Court, S.D. New York
Apr 20, 2001
98 Civ. 5089 (RPP) (S.D.N.Y. Apr. 20, 2001)

Summary

holding that ALJ failed to provide a full and fair hearing where, inter alia, he failed to seek information or report from claimant's treating psychologist

Summary of this case from Paredes v. Comm'r of Soc. Sec.

Opinion

98 Civ. 5089 (RPP)

April 20, 2001

Counsel for Plaintiff: James M. Baker, Esq., Center for Disability Advocacy Rights New York, N.Y. 10003.

Counsel for Defendant: Mary Jo White, United States Attorney for the Southern District of New York, By: Susan D. Baird, Esq., New York, N.Y. 10007.


OPINION AND ORDER


Plaintiff Patricia Straw ("Plaintiff") moves on behalf of her minor son, Joseph Straw, for an order pursuant to 42 U.S.C. § 405 (g) reversing the determination of the defendant the Commissioner of Social Security ("Defendant") in this case and remanding Plaintiff's claim solely for calculation of benefits, or in the alternative, remanding Plaintiff's claim for a new hearing and decision. Defendant cross-moves for an order pursuant to Federal Rule of Civil Procedure (" Fed.R.Civ.P.") 12(c) granting judgment on the pleadings. For the following reasons, Plaintiff's motion for an order reversing Defendant's determination and remanding Plaintiff's claim solely for calculation of benefits is granted. Defendant's motion is denied.

BACKGROUND

On October 31, 1994, Plaintiff filed an application for Supplemental Security Income ("SSI") benefits on behalf of her minor son, Joseph Straw, who was then six years old. The application was denied at the initial and reconsideration levels of administrative review, whereupon Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Transcript dated Oct. 6, 1998, ("Tr.") at 39, 41-54.) On February 13, 1996, a hearing was held before ALJ Mary E. Cerbone in New York City. Plaintiff who was not represented by counsel, testified as the only witness at the hearing, and various medical and other records were introduced into evidence. (Id. at 22-34, 55-137.) At the conclusion of the hearing, Plaintiff requested that the ALJ hold the record open so that she could obtain a report from Joseph's treating psychologist, Dr. Katz. (Id. at 31-33.) After suggesting that such a report was unnecessary, the ALJ agreed to hold the record open for almost two weeks for the report, but remarked that, "If it's . . . not here, I'll just proceed without it." (Id. at 32.) No report was submitted from Dr. Katz.

On April 18, 1996, the ALJ issued a decision finding that Joseph was not eligible for SSI benefits as a disabled child. (Id. at 10-18.) In her decision, the ALJ found that Joseph had a moderate impairment in the domains of cognitive functioning and concentration, persistence or pace. (Id. at 17.) The ALJ also found, however, that Joseph had less than moderate impairment in the domain of motor functioning and no impairment in the domains of communicative functioning, social functioning, or personal/behavioral functioning. (Id.)

On June 12, 1996, Plaintiff filed a request for Appeals Council review of the ALJ's determination. (Id. at 7-9.) On July 9, 1997, the Appeals Council issued a notice declining to review the claim. (Id. at 5-7.) On March 10, 1998, the Appeals Council reissued its decision after the July 9, 1997, decision was returned by the post office as undeliverable. (Id. at 4.) The ALJ's decision of April 18, 1996, thereby became the final decision of the Commissioner of Social Security.

On July 17, 1998, Plaintiff filed a complaint in this action, and Plaintiff's request to proceed in forma pauperis was granted by Chief Judge Griesa. On July 20, 2000, Defendant filed an answer and the administrative record. On September 25, 2000, Plaintiff moved upon an accompanying memorandum of law and upon all the proceedings had and papers filed, for an order pursuant to 42 U.S.C. § 405 (g), reversing the determination of the Defendant and remanding Plaintiff's claim solely for calculation of benefits, or, in the alternative, remanding Plaintiff's claim for a new hearing and decision. On November 7, 2000, Defendant moved upon the answer, the administrative record, and an accompanying memorandum of law, on submission, for an order granting Defendant's cross-motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). On November 20, 2000, Plaintiff submitted a reply memorandum of law. On December 19, 2000, oral argument was heard on the motions. Pursuant to an Order of the Court dated April 5, 2001, Defendant submitted an additional memorandum of law dated April 6, 2001, and Plaintiff submitted an additional memorandum of law dated April 10, 2001.

There was a substantial delay in the proceedings. On September 19, 1998, the case was dismissed because Plaintiff failed to respond by September 10, 1998, to the Court whether she had obtained counsel, as required by the Court's August 31, 1998, memorandum endorsement of Defendant's letter dated August 12, 1998. On September 23, 1998, a copy of the memorandum endorsed letter was returned to the Court marked "unclaimed." On September 28, 1998, Plaintiff filed a notice of appeal from the order of dismissal. On June 30, 2000, the Second Circuit Court of Appeals dismissed the appeal upon stipulation of the parties to withdraw the appeal without prejudice to give Plaintiff an opportunity to make a motion pursuant to Fed.R.Civ.P. 60(b). On July 11, 2000, by memorandum endorsement upon a letter to the Court from Plaintiff's counsel, the Court vacated the judgment dismissing the action, reopened the action, and ordered counsel to submit a briefing schedule by July 20, 2000.

On September 14, 2000, Defendant submitted to the Court, and served upon counsel for Plaintiff, a corrected copy of the administrative record and a complete copy of the record.

DISCUSSION

In deciding a motion for judgment on the pleadings, the court is generally limited to considering the factual allegations set forth in the complaint and the corresponding answer. Fed.R.Civ.P. 12(c). A party is entitled to judgment on the pleadings only if it is clear that no material issues of fact remain to be resolved and that it is entitled to judgment as a matter of law. See Juster Assocs. v. Rutland, 901 F.2d 266, 269 (2d Cir. 1990).

Fed.R.Civ.P. 12(c) provides:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Plaintiff moves for an order reversing Defendant's determination pursuant to 42 U.S.C. § 405 (g), which provides in pertinent part:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision. . . . 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) (2000).

Plaintiff asserts that the ALJ's decision was erroneous and must be reversed for two reasons: (1) because the ALJ abdicated her responsibility to conduct a full and fair hearing and develop a record adequate for decision making; and (2) because the ALJ mis-assessed the evidence in the record of Joseph's disability. Plaintiff argues that the existing record is adequate to establish Joseph's disability. Defendant responds that substantial evidence of record demonstrates that Joseph was not disabled and that the decision of the ALJ must be affirmed.

A. The ALJ's Failure to Develop the Record

With regard to Plaintiff's first claim, the Second Circuit has held that, in deciding whether the disability determination under review is supported by substantial evidence, a court should "first satisfy [itself] that the claimant has had "a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the [Social Security] Act.'" Echevarria v. Sec'y of Health and Human Svcs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Sec'y of HEW, 463 F.2d 38, 43 (2d Cir. 1972)). "The need for this inquiry arises from the essentially non-adversarial nature of a benefits proceeding . . . the ALJ, unlike a judge in a trial, must himself affirmatively develop the record." Id. "Where . . . the 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.'" Id. (quotingHankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980)). This is especially true if the claimant is an infant. Rivera v. Apfel, 99 F. Supp.2d 358, 363 (S.D.N.Y. 2000). "A reviewing court is charged with the responsibility of ensuring the evidence is both "developed and considered.'" Cullinane v. Sec'y of Dept. of Health and Human Svcs., 728 F.2d 137, 139 (2d Cir. 1984).

Here, where the claimant was both unrepresented and a child, the ALJ failed to fulfill her duty to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts. The hearing was brief: the transcript fills only ten pages, of which only six or seven represent actual testimony given by Plaintiff regarding Joseph. (Tr. at 24-34.) The ALJ failed to ask any substantive follow-up questions regarding testimony given by Plaintiff about Joseph's conditions. For example, when Plaintiff testified that Joseph received "counseling once a week," the ALJ failed to inquire as to the reason why and what treatment he received. (Id. at 26.) When Plaintiff testified that Joseph received "reading resource because they are still trying to figure out why he is not reading," the ALJ did not ask any follow up questions other than how often he received the reading assistance. (Id.) Plaintiff testified that Joseph had a "motorgraphic" problem, specifying that "he has a . . . hard time using objects . . . pencils and scissors and things like that, he's unable to — he's beginning, now to be able to do complete tasks." (Id. at 27.) Rather than inquiring about the extent of Joseph's difficulty using pencils and scissors, or asking whether or how these difficulties impacted his ability to write, the ALJ changed the subject, asking whether there were any siblings. (Id.) When informed that Joseph was going to have neurological testing, or that he had poor social judgment, or that he had continuing problems with urinary incontinence, or that Plaintiff had to go to school "every day" to deal with unspecified problems, the ALJ asked no follow up questions. (Id. at 29-30.)

The ALJ similarly failed to develop the written record, failing to request test data supporting the summaries provided in Joseph's 1996 Individualized Education Program ("IEP"). She did not seek information from Joseph's classroom teachers, although that information would have been helpful to assess Joseph's abilities in the area of concentration, persistence or pace. See Quinones v. Chater, 117 F.3d 29, 34-35 (2d Cir. 1997) (discussing the importance of teachers' reports for evaluating concentration, persistence and pace in child's SSI case). Finally, the ALJ failed to seek information or a report from Dr. Katz, the treating psychologist, and while she agreed to keep the record open to permit Plaintiff to attempt to obtain such a report, the ALJ did not herself obtain the report when the pro se Plaintiff failed to submit it.

In sum, despite the ALJ's obligation to affirmatively develop the record, the ALJ failed to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.

B. Substantial Evidence

Despite the ALJ's failure to properly develop the record, Plaintiff contends that the record is sufficient to show that the ALJ's decision was not supported by substantial evidence. "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). The Supreme Court has held that substantial evidence," in the context of reviewing a decision of the Commissioner of Social Security, is "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Second Circuit has held that "when we review the record for substantial evidence, "we review the record as a whole.'" Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (quotingState of New York v. Sec'v of Health and Human Svcs., 903 F.2d 122, 126 (2d Cir. 1990)). "[I]n assessing whether the evidence . . . is substantial, [the court] will not look at that evidence in isolation but rather will view it in light of other evidence that detracts from it."Id. "Where there is substantial evidence to support either position, the determination is one to made by the factfinder." Id. The court is not to determine de novo whether the plaintiff is disabled. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).

In this case, the ALJ used the standard in effect for assessing a childhood disability case at that time, which provided that a child would be entitled to benefits if he or she suffered from a "medically determinable physical or mental impairment of comparable severity" to one that would disable an adult. 42 U.S.C. § 1382c(a)(3)(A) (1994). In determining whether a child's impairment is of comparable severity to one that would disable an adult, the ALJ followed the four-step procedure set forth in 20 C.F.R. § 416.924 (b) (1994). This procedure required the ALJ to determine if: (1) the child was engaged in a substantial gainful activity; (2) if not so engaged, whether the child had an impairment or combination of impairments that were "severe"; (3) if the child had a severe impairment, whether the impairment "meets or equals in severity" any impairment listed in 20 C.F.R. part 404, subpart P, appendix 1; and (4) if the child's impairment was not listed but was nonetheless severe, the ALJ would conduct an individualized functional assessment ("IFA") to determine whether such an impairment would disable an adult. See id. § 416.924(b)-(f) (1994). The IFA focuses on the child's functioning with respect to six "domains of development or functioning": (1) cognition; (2) communication; (3) motor abilities; (4) social abilities; (5) personal/behavioral; and (6) concentration. See id. § 416.924d(c) (h) (1994). An ALJ should "generally find comparable severity" if the IFA showed that the child was impaired to a marked degree in one domain and to a moderate degree in at least one other domain, or if the child was impaired to a moderate degree in three of the six domains. See Id. § 416.924e(c)(2)(i) (ii) (1994).

The standard of disability changed on August 22, 1996, with the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act. Pub.L. 104-193, 110 Stat. 2105 (1996). It is recognized that Congress's intent was to tighten eligibility standards through this legislation. Nelson v. Apfel, 131 F.3d 1228, 1234-35 (7th Cir. 1997). Under the new standard,

An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
42 U.S.C. § 1382c(a)(3)(C)(i) (2000). The standard no longer compares the child's impairment to that which would disable an adult. Under the "interim final regulations," published on February 11, 1997, the first two steps the ALJ must perform under the new law are essentially the same as those under the prior law. See 20 C.F.R. § 416.924 (a)-(c). The primary difference is that if the child does not have a "listed impairment," the ALJ no longer performs an LEA, but rather decides whether the impairment "functionally equals" a listed impairment. Id. §§ 416.924(d), 416.926a. Rather than considering "domains," the ALJ looks at five "broad areas of development," which are the same as the domains, but which collapse cognition and communication into the "area" of cognition/communication. Id. § 416.926a(c)(4). More importantly, a child must now have one extreme or two marked impairments in lieu of the prior standard of one marked plus one moderate or three moderates. See id. § 416.926a(b)(2). The regulations do not define the terms "moderate" or "marked," providing only that "a marked limitation means . . . when standardized tests are used as the measure of functional abilities, a valid score that is two standard deviations or more below the norm for the test (but less than three standard deviations)." 20 C.F.R. § 416.926a(c)(3)(A). The regulations also unhelpfully explain that, for children from age three to attainment of age eighteen, marked limitation means "`more than moderate' and "less than extreme.'" Id. at § 416.926a(c)(3)(C).

Citations are to the interim final regulations published on February 11, 1997, unless otherwise indicated by date.

On January 2, 2001, the final regulations went into effect for determining eligibility under the revised standard in 42 U.S.C. § 1382c(a)(3)(C)(i). However, the Commissioner has taken the position in official comments accompanying publication of the final regulations that cases under judicial review should continue to be governed by the interim final regulations which were published on February 11, 1997. See 65 Fed. Reg. 54747, 54751 (Sept. 1, 2000). Additionally, under the final regulations, the substantive law is unchanged; a child must still have two marked impairments to meet the eligibility requirement. 20 C.F.R. § 416.926a(d) (2001). The final regulations do provide some additional instruction for determining when a limitation is "marked," stating, "[w]e will find that you a have a `marked' limitation in a domain when your impairment(s) interferes seriously with your ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(1) (2001).

Comments to the publication of the final regulations provide that, "[i]n final § 416.926a(e)(2), `Marked limitation,' we reorganized the provisions of § 416.926a(c)(3)(i) from the interim final rules to provide the general definition of `marked' first. We explain that a child has a `marked' limitation in a domain when his or her impairment(s) `interferes seriously' with functioning in the domain before we provide the more specific definition based on standardized testing." 65 Fed. Reg. 54747, 54757 (Sept. 11, 2000).

In this case, the ALJ's decision was based on the pre-1996 standard. In her decision under that standard, the ALJ, after conducting the four part analysis, found that Joseph had a moderate impairment in the two domains of cognitive functioning and concentration, persistence and pace. (Tr. at 17.) The ALJ also found, however, that Joseph had less than moderate impairment in the domain of motor functioning and no impairment in the domains of communicative functioning, social functioning, or personal/behavioral functioning. (Id.)

1. Cognition

Cognition/communication is defined in the regulations as "the ability or inability to learn, understand, and solve problems through intuition, perception, verbal and nonverbal reasoning, and the application of acquired knowledge. . . ." 20 C.F.R. § 416.926a(c)(4)(i).

The ALJ concluded that Joseph suffered a moderate impairment in the domain of cognitive functioning. (Id.) In reaching her conclusion, the ALJ noted that Joseph had been classified as learning disabled and that he attended the resource room one time per week. (Id.) The ALJ also noted, however, that his scores on the Weschler Intelligence Scale for Children — Revised ("WISC-R") given in November 1994 were indicative of higher intellectual potential and that his performance IQ tests had revealed scores improving from the borderline range to the low average range. (Id.)

At the hearing, Plaintiff testified that Joseph attended the resource room for reading therapy twice a week. (Tr. at 26.) She explained that "he has reading resource because they are still trying to figure out why he is not reading." (Id.)

The ALJ did not appear to consider the fact that in standardized tests of academic achievement which were administered at the same time as the IQ tests in 1994, Joseph's standard score of 63 for reading was between two and three standard deviations below the norm for the test. (Tr. at 105.) His score of 64 on the writing test was also between two and three standard deviations below the norm. (Id.) The regulations provide that "a marked limitation means when standardized tests are used as the measure of functional abilities, a valid score that is two standard deviations or more below the norm for the test (but less than three standard deviations)." 20 C.F.R. § 416.926a(c)(3). Joseph's limitation in the area of cognitive skills, specifically in the areas of reading and writing, appears to have met the definition of a marked limitation at the time that test was given. Testing given slightly more than one year later in January 1996 indicates that Joseph's score in the area of reading and writing had improved to beginning first grade level, which was between one and two standard deviations below the norm. (Tr. at 129.) V

Thus, while the evidence demonstrates that Joseph suffered a marked impairment in 1994 in the area of cognition, it does not demonstrate that Joseph's marked impairment in the area of cognitive function lasted for a period of twelve months. Accordingly, the ALJ's finding that Joseph suffered only moderate impairment in the area of cognition is supported by substantial evidence.

2. Concentration, persistence or pace

Concentration, persistence or pace is defined as: "The 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).

In reaching her conclusion that Joseph suffered only a moderate impairment in the domain of concentration, persistence or pace, the ALJ relied primarily on evidence from a November 21, 1994, psychological test, which was administered in a structured setting, during which Joseph was able to stay "alert and well focused" despite a considerable amount of extraneous noise in the testing room and that the examiner summarized that "on a one to one basis, Joseph can control his impulses." (Tr. at 15-16, 91.) However, the regulations provide that "[c]hildren with serious impairments may spend much of their time in structured or highly supportive settings . . . whether a regular classroom in which you are accommodated or a special classroom. . . . If your symptoms or signs are controlled or reduced by the environment in which you live, we will consider your functioning outside of this highly structured setting." 20 C.F.R. § 416.924c(d). The ALJ improperly disregarded the following evidence that Joseph suffered from a serious impairment in concentration, persistence or pace in non-structured settings.

The final regulations state that, "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." 20 C.F.R. § 416.924a(b)(6) (2001) (effective Jan. 1, 2001). The comments to this new regulation state that it reflects the Social Security Administration's "longstanding policy" on structured settings, and specifies that ADHD is a disorder "that may not be as manifest in unusual setting as . . . in typical settings, such as at home and at school. A child with such an impairment may appear to be relatively normal in an unusual setting but be very limited in others." 65 Fed. Reg. 54747, 54753, 54781 (Sept. 11, 2000).

At the hearing, Plaintiff provided information regarding Joseph's diagnosis of attention deficit hyperactivity disorder ("ADHD"). (Tr. at 16-17, 27-28.) In a note dated April 4, 1995, Joseph's treating psychologist, Dr. Katz, stated that Joseph was in treatment for ADHD and learning disabilities, and that "all of his grade-appropriate skills and abilities are retarded." (Id. at 121.) Dr. Katz recommended a trial of Ritalin to control Joseph's impulsivity. (Id.) Although Joseph was later prescribed Ritalin to treat his ADHD, the treatment was discontinued due to severe side effects and at the time of the hearing his physicians were apparently considering a different drug. (Id. at 28, 130.) In a report dated June 14, 1995, from the Department of Psychiatry of New York Hospital-Cornell Medical Center, Joseph was diagnosed with Attention Deficit/Hyperactivity Disorder, Combined Type. (Id. at 134.) Plaintiff reported to the evaluators that Joseph was frequently hyperactive, with low frustration tolerance and a loud impulsive manner. (Id. at 135.) The evaluators found that, although Joseph was "able to focus on specific tasks for short periods of time," he "appeared hyperactive and intrusive throughout much of the interview during the present evaluation and demonstrates poorer impulse control in group settings." (Id. at 136.) Joseph was given a "GAF" (Global Assessment of Functioning) score of 50 (id. at 134), which indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." AMERICAN PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS ("DSM-IV") 32 (4th Ed. 1994). At the hearing held February 13, 1996, Plaintiff stated that Joseph's hyperactivity had not abated. (Tr. at 28.) Plaintiff also reported that Joseph's "lack of control [and] impulse problems," as well as his enuresis, had forced him to leave a summer camp after only two weeks although he was supposed to stay for a month. (Id.)

Even in the structured setting of the one-to-one November 21, 1994, psychological test, from which the ALJ concluded that Joseph's impairment was moderate, there was corroboration that Joseph suffered a marked impairment in concentration, persistence or pace. The examiner noted that Joseph was able to control his impulses "with a few reminders and limit setting." (Id. at 91.) She also noted that, "the child worked very slowly with hands-on tasks." (Id. at 89.) "He mimicked the exertion of effort by panting for breath" during the Coding subtest, but "[i]n spite of the effort he made, he completed the task very slowly." (Id.) The examiner went on to note that "he became very distracted; he resorted to structuring the task for himself by completing it vertically rather than horizontally as he was directed." (Id.) While working on the Bender Gestalt Test, "Joseph asked the examiner to `Hold on' while he engaged in a "scribble project' in lieu of completing the last design." (Id. at 107.) Substantial evidence thus demonstrates that Joseph's limitations interfered seriously with his ability to independently initiate, sustain, and complete activities, and thus Joseph suffered a marked impairment in the area of concentration, persistence or pace. See 20 C.F.R. § 416.926a(e)(2)(1) (2001).

The report from the 1994 psychological examination is out of order in the transcript. Page five is located at 107, while the remainder of the report can be found at pages 87-91 of the transcript.

Accordingly, together, the substantial evidence of record demonstrates that for at least twelve months Joseph had a marked impairment in his ability to attend to, and sustain concentration on, an activity or task, and in the ability to perform the activity or complete the task at a reasonable pace. Thus the ALJ's conclusion that Joseph suffered only moderate as opposed to a marked impairment in the domain of concentration, persistence and pace is not supported by substantial evidence.

3. Motor function

Motor function is defined as: "The ability or inability to use gross and fine motor skills to relate to the physical environment and serve one's physical purposes. It involves general mobility, balance, and the ability to perform age-appropriate physical activities involved in play, physical education, sports and physically related daily activities other than self-care." 20 C.F.R. § 416.926a(c)(4)(ii).

In the domain of motor function, the ALJ's conclusion that Joseph had less than moderate impairment is not supported by substantial evidence. While the ALJ acknowledged that Joseph had "been found to have delayed perceptual motor skills," and that he received occupational therapy two times per week, she concluded, "[h]owever, his motor delays impede his ability to perform few motor tasks." (Tr. at 17.)

A "marked" impairment "may arise when several activities or functions are limited or even when only one is limited as long as the degree of limitation is such as to interfere seriously with the child's functioning." 20 C.F.R. § 416.926a(c)(3)(i)(C). Here, although Joseph is concededly able to participate in activities such as regular gym class that require gross motor control, in the area of fine motor control, contrary to the ALJ's finding, Joseph was described in 1994 as exhibiting "serious" delays in grapho-motor functioning, which "significantly" impeded his performance on the IQ test. (Tr. at 89.) Grapho-motor problems were also evident in Joseph's educational testing, and both his 1994 and 1996 IEPs provided for twice-weekly occupational therapy to address the problem. (Id. at 102, 106, 110, 126.)

During the examination administered on November 21, 1994, Joseph "became noticeably frustrated, particularly with graphomotor tasks," which he had "considerable difficulty with" even with tracing over an upper case "Z." (Id. at 106.) "He could print only very few letters on dictation, and he was unable to write his name." (Id.) "In his attempt to copy his name he could only produce "eSOJ" with a reversed /S/ and generally poor letter formation." (Id.) During the mathematics portion of the test, Joseph asked his evaluator if he could verbally state the responses to the calculation items instead of writing them, since writing numerals was "as with all graphomotor tasks," difficult for him, and his score on the mathematics calculation subtest reflected that modification. (Id. at 102.) Joseph's goals in his 1994 IEP included copying uppercase letters, printing uppercase letters on dictation with 75% accuracy, copying his full name, and writing his full name on request. (Id. at 113.)

More than a year later, in January 1996, Joseph's performance on four measures of motor proficiency showed him to be nearly three years delayed. (Id. at 132.) At that time, Joseph was seven years, eleven months old. (Id.) The January 1996 report states that "in the classroom, he has difficulty with directional, spatial, and organization during writing activities. He has difficulty recalling how to form letters and reverses 50% of his numbers." (Id.) The report goes on to state that "[t]hese deficits impact his ability to participate in the classroom." (Id.) Among his goals in the 1996 IEP are "Joe will print the upper and lower case alphabet with adequate sizing and spacing . . . will write his numbers with no reversals . . . will learn to tie his shoes . . . [and] will learn to don and doff attire requiring zippers and buttoning." (Id. at 133.) At the hearing, Plaintiff testified that Joseph still had difficulty with his fine motor skills, and that although he was beginning to be able to do such tasks, "he has a . . . hard time using objects . . . pencils and scissors and things like that." (Id. at 27.) Substantial evidence thus demonstrates that Joseph's' impairment interfered seriously with his fine motor skills, and thus Joseph suffered a marked impairment in the area of motor function. See 20 C.F.R. § 416.926a(e)(2)(1) (2001).

Accordingly, together, the substantial evidence of record demonstrates that for at least twelve months Joseph suffered a marked impairment in the ability to use fine motor skills to relate to the physical environment and serve one's physical purposes, and in the ability to perform age-appropriate physical activities, such as writing and dressing and using pencils and scissors. Thus the ALJ's conclusion that Joseph suffered less than moderate rather than a marked impairment in the area of motor function is not supported by substantial evidence.

4. Personal function

Personal function is defined as "The ability or inability to help yourself and to cooperate with others in taking care of your personal needs, health and safety (e.g., feeding, dressing, toileting, bathing; maintaining personal hygiene, proper nutrition, sleep, health habits; adhering to medication or therapy regimens; following safety precautions.") 20 C.F.R. § 416.926a(c)(4)(v).

With regard to personal function, the ALJ's conclusion that Joseph had no impairment is also not supported by substantial evidence. The regulations define personal functioning as "the ability or inability to help yourself and to cooperate with others in taking care of your personal needs, health and safety (e.g., feeding, dressing, toileting . . . .") 20 C.F.R. § 416.926a(c)(4)(v). The ALJ completely ignored substantial evidence in the record relating to Joseph's enuresis (urinary incontinence), which was documented throughout the record. (Tr. at 28, 57, 75, 89, 109, 130, 135.) Joseph's mother withdrew him from both kindergarten and first grade due to enuresis, stating that "[h]e is unable to attend regular school due to the fact he is en[u]retic [sic] and has several accidents a day." (Tr. at 75, 109.) The ALJ ignored this evidence of impairment in personal function, even though she noted in her decision that, during the 1994 psychological examination, the examiner commented that Joseph "had wet his pants during the lunch break." (Tr. at 15.) Defendant asserts that evidence in the record "does not reflect anything which would indicate limitations in [the personal] domain." (Memorandum of Law In Support of the Commissioner's Cross-Motion, dated Nov. 7, 2000 ("Def. Mem.") at 16-17.) Defendant also points out that the 1996 education report states that his enuresis was "successfully dealt with, " however, that report only addresses Joseph's nighttime enuresis, while it was his daytime enuresis that interfered with his attendance of public school two years in a row. (Tr. at 130.) At the 1996 hearing, Plaintiff stated that it was partly due to Joseph's enuresis that he had been forced to leave camp after only two weeks of the one month program during the previous summer. (Id. at 28.) Although Plaintiff further stated that "[i]t seems to have calmed down. He's not having those accidents like he was in July," the evidence shows that Joseph suffered a limitation because of enuresis for at least a period of several years. (Id.) The fact that Joseph was withdrawn from school two years in a row due to his enuresis is substantial evidence of at least moderate impairment in the area of personal function which the ALJ ignored in the record. Together, the substantial evidence of record demonstrates that for at least twelve months Joseph suffered at least a moderate impairment in the ability to help himself and to cooperate with others in taking care of his personal needs, specifically with toileting. Thus the ALJ's conclusion that Joseph had no impairment is not supported by substantial evidence.

In sum, upon a review of the record as a whole, the relevant evidence is not adequate to support the ALJ's conclusion that Joseph is not disabled. See Richardson v. Perales, 402 U.S. at 400. Rather, the substantial evidence demonstrates that Joseph has marked limitations in the two areas of concentration, persistence or pace, and motor function and moderate limitations in the two areas of cognition and personal function. Since Joseph has marked limitations in two areas of development, he meets the eligibility requirements under both the pre-1996 and the current standard for determining eligibility for child SSI benefits. For the foregoing reasons, Plaintiff's motion for an order reversing the determination of Defendant is granted and Defendant's motion for judgment on the pleadings is denied.

C. Disposition

"The Social Security Act is a remedial statute, to be broadly construed and liberally applied." Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988) (quotation and citation omitted). Where plaintiff is entitled to benefits under the Social Security Act, as here, remand to the Commissioner for further evidentiary proceedings would serve no useful purpose. See Balsamo v. Chater, 142 F.3d 75, 82 (2d Cir. 1998); Williams v. Bowen, 859 F.2d at 261; Maldonado v. Apfel, No. 98 Civ. 9037 (AKH), 2000 WU 23208 at *3 (S.D.N.Y Jan. 13, 2000). As the court stated inMaldonado, "[o]ne important purpose for awarding disability benefits to children is to empower them to overcome their disabilities." Id. In the case at hand, Plaintiff applied for benefits in October 1994, when Joseph was six years old. Joseph is now thirteen. Here, as in Maldonado, "[t]he benefits that plaintiff will receive will come too late for his infancy, when many experts believe the learning process is at its critical stages." Id. More than one half the time during which Joseph is eligible for child disability benefits has elapsed. There is no justification for further delay. This matter is hereby remanded to the Commissioner solely for the purpose of the prompt calculation of the benefits to which Plaintiff is entitled.

CONCLUSION

For the foregoing reasons, Plaintiff's motion for an order reversing the determination of Defendant and remanding Plaintiff's claim solely for calculation of benefits is granted. Defendant's cross-motion for an order granting judgment on the pleadings is denied. This matter is hereby remanded to the Commissioner solely for the purpose of the prompt calculation of the benefits to which Plaintiff is entitled.

IT IS SO ORDERED.


Summaries of

Straw v. Apfel

United States District Court, S.D. New York
Apr 20, 2001
98 Civ. 5089 (RPP) (S.D.N.Y. Apr. 20, 2001)

holding that ALJ failed to provide a full and fair hearing where, inter alia, he failed to seek information or report from claimant's treating psychologist

Summary of this case from Paredes v. Comm'r of Soc. Sec.

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

Summary of this case from Richardson v. Massanari

declining to remand where plaintiff was entitled to benefits and there was no justification for further delay

Summary of this case from Morales v. Barnhart
Case details for

Straw v. Apfel

Case Details

Full title:PATRICIA STRAW o/b/o JOSEPH STRAW, Plaintiff, v. KENNETH S. APFEL…

Court:United States District Court, S.D. New York

Date published: Apr 20, 2001

Citations

98 Civ. 5089 (RPP) (S.D.N.Y. Apr. 20, 2001)

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