Opinion
No. 00 Civ. 4693.
May 17, 2001
For Plaintiff: Christopher James Bowes, Esq. Center for Disability Advocacy Rights ("CEDAR"), Inc..
For Defendant: Lorraine S. Novinski Assistant United States Attorney.
OPINION AND ORDER
I. INTRODUCTION
Plaintiff, Leyda Serrano, brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of the Social Security Administration (the "Commissioner") denying her son's claim for supplemental security income ("SSI") benefits. The Commissioner moved for judgment on the pleadings and plaintiff cross-moved for an order remanding the case for a new hearing and decision. For the following reasons, the Commissioner's motion is granted and his determination is affirmed. Plaintiff's motion is therefore denied.
Although the caption identifies Jonathan Cotis as the plaintiff, the real plaintiff is Jonathan's mother, Leyda Serrano, who brought the claim on behalf of her son. Throughout this Opinion, Serrano will be referred to as plaintiff and Jonathan will be referred to by name.
Plaintiff acted pro se in the proceedings before the Social Security Administration but is now represented by counsel.
II. BACKGROUND
A. Procedural Background
Plaintiff filed an application on behalf of her son for SSI benefits on March 11, 1996. Tr. 52-54. At that time, Jonathan Cotis, who was nine years old, suffered from attention deficit hyperactivity disorder ("ADHD"). Tr. 29. His application was denied initially, Tr. 58, and on reconsideration, Tr. 66. Plaintiff then requested a hearing before an administrative law judge ("ALJ"), Tr. 67, which was held on November 14, 1997. Tr. 34-51. On January 29, 1998, the ALJ issued a decision finding that Jonathan had not been disabled at any time through that date. Tr. 29-33. This decision became final on March 11, 2000, when the Appeals Council denied plaintiff's request for review. Tr. 22-23.
"Tr. ___" refers to pages in the Administrative Record filed with the Commissioner's answer.
B. Factual Background
1. Medical Evidence
Plaintiff, born March 31, 1988, began receiving psychiatric treatment at Harlem Hospital Center at age four. Tr. 146. Jonathan had not shown any improvement by August 1995 when he was placed on medication. Id. A hospital report dated April 9, 1996, indicates that Jonathan was taking 25 milligrams of Ritalin a day. Tr. 143.
In a report dated April 1, 1996, Dr. Benjamin Chukwuocha, one of Jonathan's treating psychiatrists, diagnosed Jonathan as exhibiting mild inattentiveness, fidgeting, and slight hyperactivity due to ADHD. Tr. 101. Jonathan had originally presented with marked inattention, impulsivity, hyperactivity and poor frustration tolerance. Tr. 104. Jonathan was treated with individual psychotherapy, behavior modification and Ritalin (15 mg in the morning, 10 mg at noon). Id. As of the date of Dr. Chukwuocha's report, Jonathan had shown tremendous improvement. Tr. 105. Dr. Chukwuocha noted that Jonathan's home functioning and academic performance had both improved and he was reported to be well focused, more attentive, less hyperactive and less impulsive. Id. According to Dr. Chukwuocha, Jonathan was functioning in an age-appropriate manner in the areas of fine/gross motor skills, sensory abilities, communication skills, cognitive skills and social/emotional skills. Tr. 102-03. I.Q. testing revealed scores of 84 verbal, 94 performance, and 89 full scale, which indicate a normal intelligence quotient. Tr. 103.
A Psychological Assessment completed in August of 1995 by the New York City school system revealed scores of 84 verbal, 94 performance and 87 full scale which were described as low average, average and low average, respectively. Tr. 127. The examining psychologist noted that" [o]verall higher potential is suggested." Tr. 129.
On October 15, 1996, Jonathan underwent a consultative examination by Dr. T. Virey, a pediatrician. Tr. 149-51. Dr. Virey's examination indicated that Jonathan was alert, active and answered questions age-appropriately. Tr. 150. Mental status and affect were described as normal. Id. Jonathan demonstrated a slightly short attention span and slight hyperactivity. Id. In Dr. Virey's opinion, Jonathan's ability to do age-related activities and behave in an age appropriate manner was only mildly affected. Tr. 151.
Dr. Charles M. Plotz, a medical advisor, was present at Jonathan's hearing. Based on his review of the entire record, Dr. Plotz testified that Jonathan's ADHD was reasonably controlled by medication. Tr. 47. In a Pre-Hearing Memorandum, Dr. Plotz reported that Jonathan's disorder was "moderate" and responded favorably to Ritalin. Tr. 176. Dr. Plotz remarked that Jonathan "does not have a condition which is serious and severe enough to meet or equal a listing." Id.
Another psychiatrist, Dr. Alexander Alerte, reported that he had been treating Jonathan twice monthly since August 12, 1997. Tr. 170. The treatment consisted of individual and family psychotherapy and three doses of Ritalin a day. Tr. 173. In his report dated October 23, 1997, Dr. Alerte noted that Jonathan responded fairly well to the medication, Tr. 173, and has shown significant improvement in the severity of his symptoms which included poor attention span, decreased memory, distraction, restlessness, moderate hyperactivity, and impulsivity. Tr. 170.
2. Other Evidence
Jonathan's second grade school teacher, Ms. Arthurs, completed a report dated April 2, 1996 in which she stated:
See Quinones on Behalf of Quinones v. Chater, 117 F.3d 29, 35 (2d Cir. 1997) for a discussion of the importance of teachers' reports for evaluating concentration, persistence or pace in a child's SSI case.
Jonathan [Cotis] was displaying attention deficit disorder in the beginning of the 1995-96 school year. He was placed on medication and now he is able to focus on his school work and be brings in homework assignments. He is our main and most responsible class monitor. He completes assignments and his academic performance has improved.
Tr. 97.
On June 24, 1996, plaintiff confirmed that Jonathan had been doing much better in school since the date the application was filed. However, on October 31, 1996, plaintiff reported that Jonathan's condition had worsened. Tr. 91. This temporary regression was corroborated by Ms. Mones, Jonathan's guidance counselor. Tr. 160. Ms. Mones sent plaintiff a letter dated November 17, 1995, where she stated that "Jonathan has a great deal of trouble sitting in class maybe medication will help." Tr. 163. In a letter dated November 8, 1996, Ms. Mones states:
Jonathan showed a marked improvement this year, and was able to focus on his work, as well as socialized with his peers in a positive manner. As a result of this improvement, he received a great deal of positive reinforcement by every adult he came in contact with.
This past week we saw a tremendous regression in Jonathan's work and socialization. He began fighting again his work in class suffered greatly. This child was doing wonderful[ly] on the course of medication he was on. We cannot understand why there was a change in medication when, in fact, it had done nothing but cause Jonathan to revert back to old negative behaviors.
Tr. 160-61. On January 14, 1997, Ms. Mones reported that Jonathan was currently receiving medication for his hyperactivity. Tr. 162. She did not report any behavioral problems at this time. Id.
III. DISCUSSION
1. Substantial Evidence
A. Legal Standard
A final determination by the Commissioner must be affirmed if it is not the result of legal error and is based on substantial evidence See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (findings of the Commissioner as to any fact shall be conclusive if supported by substantial evidence); 42 U.S.C. § 405 (g). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted). "To determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence. . . Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (internal quotation marks and citation omitted). However, the court cannot second guess the Commissioner's decision "even if it might justifiably have reached a different result upon a de novo review." Jones V. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (internal quotation marks and citation omitted); see also Rich v. Apfel, No. 97 Civ. 2288, 1998 WL 458056, at *10 (S.D.N.Y. Aug. 5, 1998).
The substantial evidence standard governs judicial review of children's SSI benefits claims. See Brown on Behalf of Brown V. Chater, 932 F. Supp. 71, 74 (S.D.N.Y. 1996).
2. Requirements for Eligibility
The SSI program is a federal program that provides benefits to needy, aged, blind or disabled individuals who meet the statutory requirements. See 42 U.S.C. § 1381. The eligibility standard for a child's disability benefits was amended in 1996 by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the "Act"), Pub.L. 104-193, 110 Stat. 2105 (1996), which became effective August 22, 1996. It was the intent of Congress to tighten eligibility standards. See Nelson v. Apfel, 131 F.3d 1228, 1234-35 (7th Cir. 1997). Accordingly, the Commissioner published "interim final" regulations which govern Jonathan's case. To qualify for disability benefits under the Act, a child must have
All further references are to the interim final regulations published on February 11, 1997.
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).
A determination that a child is disabled requires a three-step analysis. See 20 C.F.R. § 416.924(a). First, the ALJ must consider whether the child is engaged in substantial gainful activity. See 20 C.F.R. § 416.924 (b). If the child is so engaged, he or she will not be awarded SSI benefits. See id. Second, the ALJ must consider whether the child has a severe impairment. See 20 C.F.R. § 416.924(c). A severe impairment is an impairment that is more than a slight abnormality. See id. Third, if the impairment is severe, the ALJ must consider whether the impairment meets or is medically or functionally equal to a disability listed in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listings"). See 20 C.F.R. § 416.924(c). Only if the impairment is severe and meets or is medically or functionally equal to a disability in the Listings will it constitute a disability within the meaning of the Act. See 20 C.F.R. § 416.924(d).
To determine whether an impairment is functionally equal to a disability included in the Listings, the ALJ must assess the child's developmental capacity in five specified areas. See 20 C.F.R. § 416.926a(c). The five categories are: (1) cognitive/communicative development, (2) motor development, (3) social development, (4) personal development, and (5) concentration, persistence or pace. See 20 C.F.R. § 416.926a(c)(4).
Concentration, persistence or pace evaluates the ability to sustain concentration on an activity or task and to complete the task at a reasonable pace. See 20 C.F.R. § 416.926a(c)(4)(vi).
If the child claiming SSI benefits has marked limitations in two categories or an extreme limitation in one category, the child's impairment is functionally equal to a disability in the Listings. See 20 C.F.R. § 416.926a(b)(2). A marked limitation is an impairment that is "more than moderate" and "less than extreme." See 20 C.F.R. § 416.926a(c)(3)(i)(C) An extreme limitation exists when there is no meaningful functioning in one of the five categories. See 20 C.F.R. § 416.926a(c)(3)(ii)(C).
B. The ALJ's Decision
Applying the above analysis, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act and thus not entitled to SSI benefits. Tr. at 33. Based on the complete record before him, the ALJ found that Jonathan's ADHD did not result in marked and severe functional limitations. Tr. 30. In reaching this conclusion, the ALJ took into account the reports of Jonathan's treating physicians, Drs. Chukwuocha and Alerte, the consultative examination performed by Dr. Virey, the hearing testimony of Dr. Plotz, and the evaluation by Jonathan's teacher, Ms. Arthurs. Tr. 30-31. These sources, all of which were consistent with each other, reported that Jonathan had slight hyperactivity but that his condition was well controlled with medication. Id.
The ALJ also considered the subjective allegations regarding Jonathan's condition but found them inconsistent with his activities of daily living and therefore not fully credible. Tr. 31. In denying benefits, the ALJ summarized that Jonathan
only exhibited mild inattention and was only slightly hyperactive. [Jonathan's] fine/gross motor skills, sensory abilities, communication skills, cognitive skills and emotional skills were all age appropriate. [Jonathan] had also displayed tremendous improvement in school as he was more focused, less hyperactive and had less problems in school. [Jonathan's] home functioning and academic performance greatly improved.
Tr. 32. The ALJ concluded that "psychological and behavioral condition do not markedly and severely restrict any specific ability to function." Id.
C. Duty to Develop the Record
When a claimant is unrepresented by counsel, the ALJ is under a heightened duty to "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (internal quotation marks and citation omitted). Indeed, the ALJ "has a duty to adequately protect a pro se claimant's rights `by ensuring that all of the relevant facts [are] sufficiently developed and considered.'" Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (quoting Hankerson 636 F.2d at 895). This is especially true if the claimant is a child. See Rivera v. Apfel, 99 F. Supp.2d 358, 363 (S.D.N.Y. 2000). There is no indication here that the ALJ neglected this duty. The complete record contained substantial evidence to support the conclusion that Jonathan was only moderately limited with regard to concentration, persistence or pace. There were no gaps in the record. See Rosa v. Callahan, 168 F.3d at 79, n. 5 ("[W]here the ALJ already possesses a `complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.")
Nevertheless, plaintiff argues that the ALJ committed legal error and failed to sufficiently develop the record in a number of ways. Plaintiff first argues that the Commissioner erred in sending Dr. Chukwuocha a form that failed to ask any questions about concentration, persistence or pace and personal functioning. This argument is contradicted by the record as the form clearly asks about "attention and concentration." Tr. 105. Although Dr. Chukwuocha did not respond to that particular question, he did comment on Jonathan's attention and concentration. Dr. Chukwuocha reported that Jonathan's memory was good, his information was full, and his ability to perform calculations was fair. Id. Jonathan's insight and judgment were reported as good. Id. The fact that the form did not include the words "concentration, persistence or pace" is irrelevant as the form contained specific questions pertaining to those functions.
Plaintiff's argument that the report also failed to ask questions about personal functioning is similarly contradicted. When asked about Jonathan's ability to care for himself, including his grooming and hygiene, Dr. Chukwuocha responded that Jonathan was always well groomed and neatly dressed. Tr. 105. Elsewhere in his report, Dr. Chukwuocha repeated that Jonathan was "[a]lways charming, well groomed and neatly dressed." Tr. 104.
Plaintiff also objects to the general medical form sent to Dr. Alerte because it does not expressly elicit information regarding functional limitations in the areas of communication/cognition, personal functioning, and concentration, persistence or pace. According to plaintiff, Dr. Alerte's comments regarding Jonathan's current symptoms clearly required the ALJ to re-contact Dr. Alerte for additional information. Plaintiff's reliance on Rosa v. Callahan, 168 F.3d at 79, is misplaced. Rosa stands for the proposition that "an ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record." Id. Here, because the ALJ did not reject Dr. Alerte's diagnosis of ADHD, Rosa's holding is inapposite.
Plaintiff also argues that the ALJ never recognized that Dr. Alerte was Jonathan's treating physician and that he ignored Dr. Alerte's findings regarding the severity of Jonathan's ADHD. The record refutes these arguments. The ALJ expressly stated that Jonathan "was under the care of Dr. A. Alerte." Tr. 31. Although the ALJ did not reiterate the list of current symptoms as described by Dr. Alerte, he did state that Dr. Alerte noted that Jonathan had "showed significant improvement in the hyperactivity and inattention that he previously displayed." Id. Jonathan's limitations are confined to one area of functioning — concentration, persistence or pace. Accordingly, to be found disabled, Jonathan must demonstrate limitations so severe as to leave him with no meaningful functioning in that area. See 20 C.F.R. § 416.926a(c)(3)(ii)(C). Dr. Alerte's description of Jonathan as inattentive, easily distracted and moderately hyperactive does not indicate a complete lack of meaningful function. Furthermore, Dr. Alerte's observation of significant improvement with medication is consistent with Dr. Chukwuocha's findings. Accordingly, the fact that the ALJ did not delve into Dr. Alerte's findings in detail is not evidence that he ignored them. More likely, he found them cumulative to those of Dr. Chukwuocha and therefore required no repetition.
Plaintiff's argument that the Commissioner violated his own rules by sending Jonathan to a pediatrician, rather than a psychiatrist, for a consultative examination is equally meritless. Contrary to plaintiff's assertion, the Programs Operations Manual ("POMS") does not unequivocally require the Social Security Administration to use a psychiatrist or psychologist for consultative exams involving mental disorders. The POMS does state the general rule that examinations of mental disorders "must be performed by a psychiatrist or psychologist" but it also identifies an exception for very young children for whom a pediatrician "may be the best CE source." See POMS § DI 25025.015(A)(2).
Furthermore, if such a requirement did in fact exist, the Commissioner's decision to have a pediatrician perform Jonathan's consultative examination would be considered harmless error. As the POMS makes clear, consultative examinations are only necessary when the child's treating physicians do not provide the necessary information. See id. Here, the record contains two reports from Jonathan's treating psychiatrists, both of which diagnose ADHD. Dr. Virey's impression of mildly affected ADHD and his observations of normal mental status, slightly short attention span and slight hyperactivity can be seen as surplusage. Because the ALJ did not rely solely on Dr. Virey's report, the inclusion of such report in the record is, at best, harmless error.
In a similar vein, plaintiff objects to the ALJ's reliance on the testimony of Dr. Plotz who, according to plaintiff, has no qualifications in the field of psychiatry and is therefore incapable of testifying in cases of childhood mental disorders. Dr. Plotz' Pre-Hearing Memorandum indicates otherwise. According to the Memorandum, Dr. Plotz established the Department of Family Practice of the State University of New York Health Science Center at Brooklyn twenty years ago. Tr. 176. This organization was "deeply involved with the physical and emotional health of children" which included the determination and impact of childhood disability. Id. In addition, Dr. Plotz has been specially trained in psychiatry and holds a government rating in psychiatry. Id. It would thus appear that Dr. Plotz is well qualified to testify in cases such as Jonathan's.
Dr. Plotz' psychiatric credentials are, in any event, irrelevant. Contrary to the ALJ's statement that Dr. Plotz diagnosed Jonathan with ADHD, Tr. 31, the hearing testimony clearly indicates that Dr. Plotz merely summarized the medical evidence already in the record, he did not make any independent diagnosis of Jonathan's condition. Tr. 45 ("[Jonathan] has been diagnosed as having an attention deficit hyperactivity disorder and he has been reasonably well controlled on Ritalin."). Because Dr. Plotz was merely offering his opinion on medical evidence submitted by others, his qualifications as a medical doctor are more than sufficient to render him qualified to give such a limited opinion.
Plaintiff's reliance on Sherrill v. Secretary of Health and Human Servs., 757 F.2d 803, 805 (6th Cir. 1985), and Tuohy v. Secretary of Health and Human Servs., No. 93-1814, 1994 WL 454880, at *7 (6th Cir. 1994) (unpublished), is misplaced. In both Sherrill and Tuohy, the ALJ relied on the testimony of medical advisors who were not specialized in the applicable field of medicine to the exclusion of treating physicians who found the claimants disabled. See Sherrill, 757 F.2d at 805 ("[T]he district court relied heavily upon the ambivalent testimony of a non-treating physician to the exclusion of evidence offered by psychiatrists who, in essence, stated that Sherrill is disabled because of her psychiatric impairment."); Tuohy, 1994 WL 454880, at *7 ("[T]he testimony of the medical advisor, a thoracic surgeon who does not specialize or have any expert knowledge in the area of MS, and indeed who sends his patients with MS to see a neurologist, does not rise to the level of substantial evidence to support the ALJ's determination that Ms. Tuohy did not suffer from any functional limitations from the MS during the period in question."). While Dr. Plotz does opine that Jonathan does not have a condition which is serious or severe enough to meet or equal a listed impairment, this finding is not contrary to those of Jonathan's treating psychiatrists. In fact, it is consistent with the evidence from the treating physicians thus making Sherrill and Tuohy inapposite.
In sum, here is a child with moderate ADHD which is well controlled by Ritalin. Both of his treating psychiatrists indicated that he has shown great improvement, Dr. Chukwuocha as of April 1, 1996, and Dr. Alerte as of October 20, 1997. While Jonathan did temporarily regress in late October of 1996, it was apparently due to a change in the dosage of his medication. See Plaintiff's Memorandum of Law in Support of Cross Motion for Judgment on the Pleadings at 8, n. 7. Since that time, Jonathan's condition has been stabilized and he is functioning at an age appropriate level. Jonathan's impairment is simply not severe enough to warrant an award of SSI benefits. To award benefits solely on the basis that some impairment exists would unduly drain the limited resources of the Social Security program.
IV. CONCLUSION
For the foregoing reasons, I conclude that: (1) the ALJ applied the correct three step analysis in determining Jonathan's entitlement to SSI benefits; (2) the ALJ's determination denying SSI benefits was supported by substantial evidence; and (3) the ALJ fulfilled his duty to fully develop the record and committed no legal errors. The final decision of the Commissioner is therefore affirmed. The Clerk of the Court is directed to close this case.
SO ORDERED: