Opinion
00 Civ. 3701 (BSJ)(AJP).
December 21, 2000.
REPORT AND RECOMMENDATION
To the Honorable Barbara S. Jones, United States District Judge:
Plaintiff Petra DeLeon brings this action on behalf of her minor child, Juan Agosto, pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny Agosto disability benefits. The Commissioner has moved for judgment on the pleadings. For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be granted.
PROCEDURAL BACKGROUND
On September 26, 1996, DeLeon filed an application for Social Security Supplemental Security Income ("SSI") benefits on Agosto's behalf based upon a claim that Agosto suffered from a history of traumatic experiences, separation anxiety, "school phobia" and suicidal ideation. (Administrative Record filed by the Commissioner ["R."] 65-68, 74A-74D.)
The application was denied on April 22, 1997. (R. 43-44.) DeLeon requested reconsideration of the denial of benefits based upon Agosto's learning disorder, behavior and hyperactivity. (R. 45.) The application was denied upon reconsideration on November 12, 1997. (R. 49-52.) At DeLeon's request (see R. 53-54), a hearing was held before an administrative law judge ("ALJ") on September 1, 1998. (R. 24-37.) On March 25, 1999, the ALJ issued his decision finding that Agosto was not disabled. (R. 10-23.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied the request for review on February 19, 2000. (R. 5-6.) This action timely followed.
The issue before the Court is whether the Commissioner's decision that Agosto was not disabled is supported by substantial evidence.
FACTS
A. The Hearing Before the ALJ
On September 1, 1998, the ALJ held a hearing on DeLeon/Agosto's SSI application. (R. 24-37.) Present at the hearing were DeLeon, Agosto and a Spanish interpreter. (R. 24.) Although notified of their right to representation, DeLeon and her son appeared and testified without the assistance of an attorney. (R. 26-27.) At the time of the hearing, Agosto was eleven years old and in sixth grade. (R. 28, 31, 33.)
1. DeLeon's Testimony
DeLeon testified that Agosto is enrolled in special education classes and is an "average" student. (R. 30.) She also stated that he is bilingual and takes classes conducted in English. (R. 30.) Agosto did not have any physical impairments. (R. 28.)
DeLeon testified that Agosto does not have difficulty speaking, writing or drawing but has impaired social conduct. (R. 29-31.) According to DeLeon: "His conduct is not very good at all . . . He gets out of the classroom without permission and . . . he's always fighting with the other students, he leaves the classroom, and they have to send him back and they have to take him to the office and they tell me, they call me to come and pick him up." (R. 31.)
DeLeon testified that Agosto has never tried to seriously injure himself but does sometimes "hit himself with his hands" and "like[s] to play with matches." (R. 32.) She stated that Agosto can wash and dress himself. (R. 33.) DeLeon further testified that Agosto enjoys watching television and is capable of sitting through an entire television program. (R. 33.) Finally, DeLeon requested that the ALJ obtain updated documentation of Agosto's medical and educational records, to which the ALJ agreed. (R. 36-37.)
2. Agosto's Testimony
Agosto briefly testified. (R. 33-35.) He stated that he could understand English and "sort of" liked school. (R. 33.) Agosto also told the ALJ that his favorite subject in school was math and that he likes to play football and basketball. (R. 34-35.)
B. The Medical Evidence
From March 12-28, 1996, Agosto was hospitalized at New York Hospital for impulsive behavior and suicidal ideation. (See R. 74A.) Agosto's need for treatment for depression was caused by the murder of his brother and the deaths of his father, grandmother and uncle in close succession. (R. 92-94, 193.) Agosto's brother was shot and killed by the father of one of Agosto's classmates when coming to Agosto's assistance during an argument with the classmate. (R. 93, 222.) The medical records state that after this incident, Agosto became truant because he was unwilling to remain in the same class with the boy whose father had killed his brother. (R. 222.)
Following hospitalization, Agosto received individual and family mental health treatment for approximately two years from the Crotona Park Community Mental Health Center at Bronx Lebanon Hospital for hyperactivity and oppositional behavior. (R. 193, 214.)
1. Bronx Lebanon Hospital Records
Agosto's medical records with the Crotona Park Community Mental Health Center at Bronx Lebanon Hospital date from April 1996 to November 1998. (R. 140, 244.) In an April 10, 1996 examination, psychiatrist Dr. Arthur Gillman described Agosto as overactive yet cooperative and capable of speaking clearly and relating well with others. (R. 77-78, 81.) Dr. Gillman found Agosto to be anxious, depressed and unhappy. (R. 78, 81.) Agosto admitted to experiencing suicidal thoughts but told Dr. Gillman that he had never formulated a specific plan to commit suicide and would not do so. (R. 78, 82.) Agosto claimed anxiety about being called on in school. (R. 81.) Dr. Gillman diagnosed Agosto with dysthymic reaction, i.e., prolonged mourning, with a probable attention deficit hyperactivity disorder, and prescribed Wellbutrin. (R. 80, 82.)
On April 26, 1996, psychiatrist Dr. Celina Mele evaluated Agosto. (R. 83-85.) DeLeon told Dr. Mele that Agosto suffered from a long history of oppositional behavior, including disobeying authority figures, engaging in temper tantrums and acting in a disrespectful, disruptive and inattentive manner. (R. 83.) Dr. Mele found Agosto "extremely active [and] inattentive" but not suicidal or depressed. (R. 84.) Agosto told Dr. Mele that he did not like school. (R. 84.) Dr. Mele found Agosto's intelligence level to be "low average to average" and diagnosed him with attention deficit hyperactivity disorder and oppositional defiant disorder. (R. 84.) Dr. Mele discontinued the Wellbutrin and prescribed Vistaril and Ritalin instead. (R. 84-85.)
In December 1996, psychiatrist Dr. Alberto Baltasteros evaluated Agosto, diagnosed attention deficit hyperactivity disorder and dysthymic disorder, and prescribed Vistaril and Ritalin. (R. 174.)
In a July 1997 evaluation, DeLeon told psychiatrist Dr. Leonard Kahn that Agosto had been "helped [a] great deal" by the Ritalin and was continuing to take it regularly as prescribed. (R. 218.) Dr. Kahn next evaluated Agosto on September 24, 1997. (R. 219-20.) At the evaluation, DeLeon again reported that Agosto was improving with the Ritalin but "has very stubborn insistence on having his way, or getting what he wants or else he has a tantrum: screaming, cursing, throwing things." (R. 219-20.) Dr. Kahn found Agosto in a "friendly, pleasant mood," doubted if he had attention deficit disorder as opposed to a conflict based disturbance, and continued his medication. (R. 220-21.)
In October 1997, Dr. Mele reexamined Agosto. (R. 224-25.) Her report states that Agosto attends school regularly and has not been depressed lately. (Id.) Dr. Mele also found Agosto had "improved judgment" and a near normal attention span and activity level. (R. 225.) However, Agosto complained that the Ritalin was not helpful. (R. 225.) Dr. Mele diagnosed him with attention deficit hyperactivity disorder. (Id.)
Dr. Mele and a social worker, Andrew Morgan, continued to treat Agosto through November 1998. (R. 224-44.) By January 1998, Dr. Mele found Agosto's activity level had reached normal limits and his attention span was almost within normal limits. (R. 229.) Dr. Mele reported that Agosto was friendly and his mood euthymic. (Id.) She increased his dosages of Ritalin and Vistaril. (R. 230.)
In May 1998, Agosto's mother and teachers continued to report his tendency for oppositional behavior. (R. 234.) In addition, Dr. Mele became suspicious that Agosto was not taking his medication because, due to a missed doctor's appointment, he should have run out of Ritalin by the date of his May evaluation. (Id.) Dr. Mele reported that Agosto had not been given Ritalin on the morning of his appointment and was "active, disruptive [and] inattentive, although friendly." (R. 234-235.) She prescribed Ritalin and Vistaril. (R. 235.)
In October 1998, Dr. Mele learned that DeLeon had "misplaced" Agosto's bottle of Ritalin, and as a result, Agosto did not receive his medication in September and October 1998. (R. 240.) In her final evaluation in the record, Dr. Mele described Agosto's behavior as "reportedly very active, inattentive and disruptive at school." (R. 240.) However, she found Agosto "very friendly, cooperative, [and] in [a] euthymic mood" but with a heightened activity level and shortened attention span. (Id.) In November 1998, Morgan reported that Agosto "has been doing good in school" but still has trouble controlling his anger at home. (R. 244.)
2. New York City Board of Education Records
On May 14, 1996, psychologist Dr. D. Eberle evaluated Agosto for the New York City Board of Education. (R. 91-102.) The evaluation was performed at DeLeon's request to assess Agosto's "emotional issues, school phobia and academic delays." (R. 92.) Dr. Eberle reported that Agosto attended school only four times since February 1996 and has been school phobic since the first grade. (R. 92, 93-101.) Dr. Eberle also noted that Agosto "does not want to have anything to do [with] school." (R. 102.) He described Agosto as "friendly and cooperative" and "engaging and polite." (R. 95.) Agosto's speech was clear and comprehensible, and he was "very articulate." (R. 95-96, 99.) Dr. Eberle noted that Agosto "fidget[ed] and moved around a lot." (R. 95.) Dr. Eberle found Agosto to be an "angry youngster who is afraid of death and losing people he gets close to." (R. 102.)
Dr. Eberle reported that Agosto's test scores on the Wechsler Intelligence Scale for Children placed him in the "low average range of intelligence." (R. 97, 101.) Agosto had a verbal I.Q. of 97, a performance I.Q. of 78, and a full scale I.Q. of 86. (R. 91.)
Dr. Eberle concluded that Agosto "would benefit from a nurturing, therapeutic setting that could address his school phobia and emotional issues." (R. 102.) He also recommended continued outside counseling and school counseling. (Id.)
3. Dr. R. Dwarka's Records
On September 25, 1997, Dr. R. Dwarka submitted a report stating that he had treated Agosto for separation fear and controlled asthma eight times between May 1992 and October 1996. (R. 189-92.) Dr. Dwarka reported, "At [the] age of 6 years old, [the] child did not want to attend school, he had [a] number of behavior problems, fights, and gets tantrums at school." (R. 189.)
Dr. Dwarka's report referred any other questions pertaining to Agosto's mental health to his treating psychiatrist. (R. 190.)
4. New York Diagnostic Center's Records
On October 24, 1997, psychiatrist Dr. Richard King evaluated Agosto. (R. 193-95.) He reported that Agosto established good eye contact, was cooperative and exhibited no acute distress. (R. 193.) Dr. King described Agosto's speech as "coherent and relevant, age-appropriate, without thought disorder." (R. 193-94.) Dr. King also noted that Agosto did not exhibit "evidence of hyperactivity or increased psychomotor movement in the interview." (R. 194.) He described Agosto's mood as "euthymic, not significantly depressed or anxious." (Id.) Dr. King found that Agosto showed no suicidal ideation. (Id.)
Dr. King described Agosto's insight and judgment as age-appropriate but his intellect as beneath his age level. (R. 194.) Agosto's attention and concentration were adequate. (Id.) Dr. King reported that Agosto "demonstrate[d] beneath age-appropriate behavior at school but age-appropriate behavior at home and with [his] peers." (Id.) Dr. King diagnosed Agosto with childhood learning disorder, adjustment disorder and mild to moderate anxiety and depression. (Id.) He ruled out conduct disorder and attention deficit hyperactivity disorder. (Id.) He noted that Agosto "might benefit from psychiatric treatment and special education." (Id.)
C. The Educational Evidence
Agosto has been in special education classes since the fourth grade. (See R. 193.)
In April 1996, DeLeon requested that Agosto receive an educational evaluation to assess his school phobia and to determine whether he qualified for a smaller class. (R. 126.) Stephen Geller, an educational evaluator, examined Agosto on May 14, 1996. (R. 86-90). At the time of the evaluation, Agosto was in the second grade. (R. 86.) Geller noted that Agosto had attended only four days of school since January. (R. 87.) Geller found that Agosto separated easily from his mother, conversed in an appropriate manner, attended to all tasks given and remained attentive and cooperative throughout the evaluation. (Id.)
Geller reported that Agosto functioned above or within his current age and grade level in all areas except oral reading, phonics, integrated written spelling and integrated reading, where he performed at a first grade level. (R. 87-90.) Geller recommended that Agosto participate in small group instruction in these areas. (R. 90.) Geller cited Agosto's school phobic condition "as the primary deterrent in preventing [him] from having a successful school career." (R. 90.)
In June 1996, the Board of Education developed an individualized instructional environment with counseling for Agosto. (R. 106-21). The individualized program was provided because Agosto needed "a small structured therapeutic environment with counseling to address his emotional needs." (R. 108.) A November 18, 1987 evaluation of Agosto's progress in the individualized educational program (R. 201-10) indicated that although Agosto still experienced some problems in his academic performance, his social and emotional skills were age appropriate. (R. 204.)
D. The ALJ's Decision
On March 25, 1999, the ALJ issued his written decision. (R. 10-23.) He first reviewed the applicable legal standard (R. 14-15) and the medical and other evidence in the record (R. 15-17). The ALJ found that Agosto was not engaged in "substantial gainful activity" during any part of the period under adjudication. (R. 18, 22.) The ALJ also found that Agosto "has attention deficit hyperactivity disorder (ADHD), a learning disorder, and a conduct disorder, impairments which are severe within the meaning of 20 C.F.R. § 416.924(c)." (R. 18; see also R. 22.) The ALJ also found, however, that Agosto's impairments neither meet nor functionally equal the criteria for any impairment listed at 20 C.F.R. part 404, subpart P, appendix 1. (R. 18, 23.)
The ALJ found that Agosto does not exhibit "marked" or "extreme" limitations in any broad or specific areas of functioning. (R. 18-21, 23.) However, the ALJ did determine that Agosto experiences slight impairments in three broad are as of functioning: (1) cognition/communication, (2) social development, and (3) concentration, persistence or pace. (R. 19-21.) Citing Agosto's average IQ, the ALJ attributed much of Agosto's cognitive delay to his sporadic attendance at school. (R. 19.) The ALJ found that any recent difficulty in social development could be attributed, at least in part, to Agosto's failure to take Ritalin on a regular basis. (R. 20.) The ALJ also found that although the medical record indicates that Agosto experienced problems in the broad category of concentration, persistence or pace, he has improved and seems to function well on Ritalin when he takes it. (R. 21.)
The ALJ found that Agosto does not suffer from episodic illness of a severity which is functionally equivalent to a listed impairment or require treatment which could result in severe functional limitations. (R. 21-22.)
The ALJ concluded: "Because the claimant does not have an impairment or combination of impairments which medically meets or equals or functionally equals a listed impairment, it must be concluded that the claimant is not 'disabled' for purposes of eligibility for Supplemental Security Income." (R. 22.)
ANALYSIS
I. STANDARD OF REVIEW
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Roy v. Apfel, No. 99-6153, 201 F.3d 432 (table), 1999 WL 1295361 at *1 (2d Cir. Dec. 22, 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983); Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N Y March 29, 2000) (Peck, M.J.); Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *7 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.). "Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision." Fernandez v. Apfel, 1998 WL 603151 at *7.
See also, e.g., Jones v. Apfel, 66 F. Supp.2d 518, 522, 536 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 423 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); Burris v. Chater, 94 Civ. 8049, 1996 WL 148345 at *2 (S.D.N.Y. April 2, 1996); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *6 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.); Francese v. Shalala, 897 F. Supp. 766, 770 (S.D.N.Y. 1995); Coleman v. Shalala, 895 F. Supp. 50, 54 (S.D.N.Y. 1995); 42 U.S.C. § 405(g).
See also, e.g., Duvergel v. Apfel, 2000 WL 328593 at *7; Jones v. Apfel, 66 F. Supp.2d at 536; Burris v. Chater, 1996 WL 148345 at *3; Francese v. Shalala, 897 F. Supp. at 770.
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971).
Accord, e.g., Curry v. Apfel, 209 F.3d at 122; Roy v. Apfel, 1999 WL 1295361 at *1; Coleman v. Apfel, No. 99-6107, 199 F.3d 1321 (table), 1999 WL 1024705 at *1 (2d Cir. Nov. 8, 1999); Perez v. Chater, 77 F.3d at 46; Duvergel v. Apfel, 2000 WL 328593 at *7; Jones v. Apfel, 66 F. Supp.2d at 536; Fernandez v. Apfel, 1998 WL 603151 at *8; Pickering v. Chater, 951 F. Supp. at 423; Walzer v. Chater, 1995 WL 791963 at *6.
"[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207 (1983); accord, e.g., Fernandez v. Apfel, 1998 WL 603151 at *8; Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at *4 (S.D.N.Y. Jan. 13, 1998). The Court must be careful not to "'substitute its own judgment for that of the [Commissioner], 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); see also, e.g., Toles v. Chater, No. 99-6065, 104 F.3d 351 (table), 1996 WL 545591 at *1 (2d Cir. Sept. 26, 1996); Fernandez v. Apfel, 1998 WL 603151 at *8; Fuller v. Apfel, 1998 WL 9402 at *4.
The Court will not defer to the Commissioner's determination if it is "'the product of legal error.'" See, e.g., Duvergel v. Apfel, 2000 WL 328593 at *7; Jones v. Apfel, 66 F. Supp.2d at 536; see also, e.g., Fernandez v. Apfel, 1998 WL 603151 at *8; Burris v. Chater, 1996 WL 148345 at *3; Francese v. Shalala, 897 F. Supp. at 770.
II. THE APPLICABLE LAW
Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the "PRWORA"), Pub.L. No. 104-193, 1996 U.S. Code Cong. Admin. News (110 Stat.) 2105, a disability exists for purposes of SSI benefits if a child under the age of eighteen:
[1] has a medically determinable physical or mental impairment, [2] which results in marked and severe functional limitations, and [3] 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 . . . [however,] no individual under the age of 18 who engages in substantial gainful activity . . . may be considered to be disabled.42 U.S.C. § 1382c(a)(3)(C)(i)-(ii); see, e.g., Quinones v. Chater, 117 F.3d 29, 33 n. 1 (2d Cir. 1997); Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *9 (S.D.N Y Sept. 11, 1998) (Peck, M.J.).
See also, e.g., Carballo v. Apfel, 34 F. Supp.2d 208, 216 (S.D.N.Y. 1999); Almonte v. Apfel, 96 Civ. 1119, 1998 WL 150996 at *1 n. 2 (S.D.N.Y. March 31, 1998); Evans v. Apfel, 96 Civ. 7741, 1998 WL 91127 at *4 (S.D.N.Y. March 2, 1998); Diaz v. Apfel, 994 F. Supp. 541, 545-46 (S.D.N.Y. 1998); Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at *6 (S.D.N.Y. Jan. 13, 1998).
The implementing regulations provide a three-step process for determining eligibility. 20 C.F.R. § 416.924(a). In the first step, the ALJ must determine whether the child is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). If so, there can be no finding of disability. 20 C.F.R. § 416.924(a)-(b); see also, e.g., Fernandez v. Apfel, 1998 WL 603151 at *9. If not, the analysis proceeds to step two, which requires the ALJ to determine whether the child has a severe impairment or combination of impairments. 20 C.F.R. § 416.924(c); see, e.g., Fernandez v. Apfel, 1998 WL 603151 at *9. If the impairment(s) constitutes a "slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations," the child will not be found to have a severe impairment. 20 C.F.R. § 416.924(c); see also, e.g., Fernandez v. Apfel, 1998 WL 603151 at *9. If there is a finding of severe impairment, however, the analysis proceeds to step three, which requires the ALJ to determine whether the impairment(s) meet, medically equal, or functionally equal in severity a listed impairment in appendix 1. An impairment(s) causes marked and severe functional limitations if it meets or medically equals in severity the set of criteria for an impairment listed in the Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter, or if it is functionally equal in severity to a listed impairment. 20 C.F.R. § 416.924(d); see also, e.g., Fernandez v. Apfel, 1998 WL 603151 at *9-10. If this equivalency test is satisfied, and the statute's durational requirement is satisfied as well, then the child will be found to be disabled. 20 C.F.R. § 416.924(d)(1). Otherwise, he will not. 20 C.F.R. § 416.924(d)(2); see also, e.g., Fernandez v. Apfel, 1998 WL 603151 at *9-10; Diaz v. Apfel, 1998 WL 78247 at *4.
See, e.g., De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at *4 (S.D.N.Y. July 12, 2000); Salomon v. Apfel, 99 Civ. 4250, 2000 WL 776924 at *3 (S.D.N.Y. June 15, 2000); Duvergel v . Apfel, 97 Civ. 7131, 1999 WL 178780 at *5 (S.D.N.Y. March 31, 1999); Carballo v. Apfel, 34 F. Supp.2d 208, 216 (S.D.N.Y. 1999); Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *9 (S.D.N.Y. Sept. 11, 1998); Scullark v. Apfel, 97 Civ. 7138, 1998 WL 472059 at *6 (S.D.N.Y. Aug. 6, 1998); Diaz v. Apfel, 994 F. Supp. at 545.
III. APPLICATION OF THE LEGAL STANDARD TO AGOSTO'S CLAIM
Since the ALJ found that Agosto satisfied the first two requirements of the three-step test, the Court need only review the ALJ's application of the third step.
The Court therefore must determine whether substantial evidence supports the ALJ's conclusion that Agosto's impairments are not functionally equivalent to an impairment listed at 20 C.F.R. part 404, subpart P, appendix 1. To support a finding of functional equivalence, Agosto's impairments must either: (1) result in "extreme limitation of one specific function;" (2) produce "extreme limitations in one area of functioning or marked limitations in two" or more "broad areas of development or functioning;" (3) exhibit "episodic criteria," such as "frequent illnesses or attacks;" or (4) require medical treatment over a long time period that itself "causes marked and severe functional limitations." 20 C.F.R. § 416.926a(b)(1)-(4); see, e.g., De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at *4 (S.D.N.Y. July 12, 2000).
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); see also, e.g., De Medina v. Apfel, 2000 WL 964937 at *5; Salomon v. Apfel, 99 Civ. 4250, 2000 WL 776924 at *3 (S.D.N.Y. June 15, 2000).
The record indicates that Agosto does not suffer from any extreme limitations of function, because Agosto is capable of functioning, at some level, in all areas. In addition, he is not prone to frequent illness and does not receive medical treatment which results in severe functional limitations.
Thus, the inquiry focuses on whether Agosto suffers from functional limitations resulting from conditions which are "marked" in at least two broad areas of functioning. Under this requirement, five broad areas of functioning must be assessed: (1) cognitive and communicative development; (2) motor function; (3) social development; (4) personal development; and (5) concentration, persistence and pace. 20 C.F.R. § 416.926a(c)(4); see also, e.g., De Medina v. Apfel, 2000 WL 964937 at *5; Salomon v. Apfel, 2000 WL 776924 at *3.
The ALJ reviewed the evidence as to all five broad areas and found that Agosto has no limitations in motor function and personal development and less than marked limitations with regard to his cognitive function, social development and concentration, persistence and pace. (R. 19-21.) In making this determination, the ALJ was required to consider "all of the relevant evidence in the record, including: '(1) the objective medical facts; (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant's symptoms submitted by the claimant, his family, and others; and (4) the claimant's educational background, age, and . . . experience.'" De Medina v. Apfel, 2000 WL 964937 at *4 (quoting Marrero v. Apfel, 87 F. Supp.2d 340, 346 (S.D.N.Y. 2000)); see also, e.g., Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988).
Furthermore, because Agosto appeared pro se before the ALJ, the ALJ was under a heightened duty "'to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Carballo v. Apfel, 34 F. Supp.2d 208, 214 (S.D.N.Y. Feb. 5, 1999) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)); see also, e.g., De Medina v. Apfel, 2000 WL 964937 at *4; Salomon v. Apfel, 2000 WL 776924 at *5.
The ALJ met these standards in evaluating Agosto's claim.
A. Cognitive and Communicative Development
The regulations define cognitive function as a child's "ability or inability to learn, understand, and solve problems . . .; the ability to retain and recall information . . . [;] [and] the ability or inability to comprehend and produce language . . . in order to communicate." 20 C.F.R. § 416.926a(c)(4)(i); see also, e.g., 20 C.F.R. § 416.926a(c)(5)(iv)(A); De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at *6 (S.D.N.Y. July 12, 2000) The ALJ found that Agosto is only slightly limited with regard to his cognitive and communicative function based upon the medical record and Agosto's and DeLeon's testimony. (R. 19-20.) Substantial evidence supports the ALJ's determination.
When Agosto was in second grade, the educational evaluator, Stephen Geller, found no deficits in Agosto's experience or receptive language skills (R. 87-88) and no deficits in his memory skills (R. 88). Agosto's math skills were above age and grade level expectations, while "[i]n the areas of oral reading, phonic skills, integrated written spelling skills and integrated reading skills, [Agosto was] functioning on a 1st grade level of performance," i.e., one year below his actual grade. (R. 90.) Geller recommended small group instruction (R. 90) — and Agosto later was placed in a special education class (R. 70) — which he believed would allow Agosto "to eventually work up to his fullest potential." (R. 90.) Geller also noted that Agosto's "'School Phobic' condition must be addressed as the primary deterrent in preventing [Agosto] from having a successful school career." (R. 90.)
The record contains many other recognitions of Agosto being "school phobic." (See, e.g., R. 81, 93, 102, 110-11, 135.)
Agosto's standardized testing scores fall within the average to low average intelligence range. (R. 80, 97, 101-02, 111.) DeLeon herself described Agosto's intelligence level as "average." (R. 30.) The medical and educational records indicate that Agosto attended school only four times between February and May 1996. (E.g., R. 87, 92-94.) As the ALJ correctly concluded, "[i]t is likely that much of [Agosto's] academic delay is due to his failure to attend school on a regular basis and not due to any cognitive problems." (R. 19.)
In evaluating Agosto for the New York City Board of Education, Dr. Eberle determined that Agosto would benefit from a nurturing academic setting that could address his school phobia and emotional issues. (R. 102.) The record indicates that Agosto began participating in such a program in September 1996. (R. 106-21; see also R. 30.) Agosto's most recent educational evaluation, held about one year after he began participating in the individualized program, states that he attained almost all of the short-term educational objectives set for him. (R. 201-11.)
Agosto's treating psychiatrists at Bronx Lebanon Hospital also noted Agosto's improved behavior when he took his medication. In October 1997, Dr. Mele found Agosto had "improved judgment" and a near normal attention span. (R. 225.) In November 1998, social worker Morgan reported that Agosto "has been doing good in school" but still has trouble controlling his anger. (R. 244.)
The evidence indicates that Agosto does not suffer from a "marked limitation" in his cognitive development, because his impairments do not "interfere seriously with [his] functioning." 20 C.F.R. § 416.926a(c)(3)(i)(C). Accordingly, the Court will not disturb the ALJ's finding that Agosto is not markedly impaired in his cognitive domain. See, e.g., Fernandez v. Apfel, 97 Civ. 6939, 1998 WL 603151 at *12 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.) (affirming ALJ's finding of less than marked impairment in communicative domain despite two reports stating that plaintiff exhibits moderate limitation in this area); Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at *10-11 (S.D.N.Y. Jan. 13, 1998) (affirming ALJ's finding of less than moderate impairment in communicative domain based on the sum total of the evidence even though reports described plaintiff as exhibiting a "moderate" impairment in articulation and exhibiting other speech and language difficulties).
B. Motor Function and Personal Development
The ALJ reasonably found that Agosto's motor function and personal development are not limited. (R. 20, 21.) Neither DeLeon's testimony, Agosto's testimony or the medical evidence indicates that Agosto experiences any difficulties in these areas. Agosto testified that he enjoys playing sports. (R. 34.) DeLeon testified that her son has no difficulty running, playing, writing or drawing. (R. 31.) In the area of personal development, neither DeLeon, Agosto or any of his doctors or evaluators reported that he has difficulty attending to his personal needs. The ALJ's conclusion in these two areas is supported by substantial evidence.
C. Social Development
The regulations define the area of social development as a 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); see also, e.g., 20 C.F.R. § 416.926a(c)(5)(iv)(C); De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at *6 (S.D.N.Y. July 12, 2000); Salomon v. Apfel, 99 Civ. 4250, 2000 WL 776924 at *4 (S.D.N.Y. June 15, 2000). The ALJ found that Agosto was only slightly impaired in this area based upon the testimony of his mother, and educational and medical reports. (R. 20.) Although Agosto's mother and doctors frequently reported Agosto's tendency for severe oppositional behavior, the record contains substantial evidence to support the ALJ's finding.
Agosto's mother and teachers described Agosto as disobedient, disruptive and belligerent. (E.g., R. 31, 83.) However, throughout this same time period, Agosto's doctors and his educational evaluator found him to be cooperative, friendly, appropriately conversant and capable of relating well with others. (R. 78, 81, 84, 87, 95, 229, 234-35.) When evaluating Agosto on April 10, 1996, Dr. Gillman reported, "Child is a depressed unhappy looking 8-year-old . . . who relates well — but needs to have attention." (R. 81.) Agosto's educational evaluator found that Agosto "tended to all tasks given and attempted to do difficult assignments even if unsure of the correct responses . . . He smiled readily, initiated spontaneous speech and responded in a positive manner to all praise and encouragement that was given. Juan Carlos [Agosto] also asked appropriate questions when in doubt as to how to proceed on difficult assignments and remained cooperative and attentive throughout the evaluation session." (R. 87.) In addition, Dr. King reported that Agosto enjoys playing sports and video games with his friends, suggesting that he is capable of relating well to his peers when he can control his anger. (R. 194.)
Medical evaluations in the record contain conflicting statements concerning whether Agosto's medication improved his social development. Agosto first began taking Ritalin in May 1996. (R. 84-85.) In both July and September 1997, DeLeon stated that her son's condition had improved with the drug. (R. 218, 219). However, in October 1997, Agosto began to complain that the Ritalin was not helpful. (R. 225.) In May 1998, Agosto's mother and teachers continued to report Agosto's tendency for oppositional behavior. (R. 234.) At this time, Dr. Mele became suspicious that Agosto was not taking his Ritalin as prescribed. (R. 234.) Her suspicions were confirmed in October 1998, when she learned that Agosto's mother had misplaced his bottle of Ritalin several months ago. (R. 240.) In November 1998, Agosto's social worker, Morgan, reported that Agosto was doing well in school and on the school bus, and he was trying to control his temper, although not always succeeding in that at home. (R. 243-44.)
In sum, although Agosto's mother and teachers describe his behavior as disruptive, the record contains abundant evidence that Agosto is capable of appropriate social interaction when he is "in a good mood" (e.g., R. 74C) and when he takes his medication (R. 218, 219). Agosto also appeared to be making progress in controlling his temper by October-November 1998, when the medical records stopped. While the record contains some conflicting evidence concerning the effectiveness of Agosto's medication, this conflict was within the ALJ's discretion to resolve. See, e.g., De Medina v. Apfel, 2000 WL 964937 *6 (affirming ALJ's finding that plaintiff exhibits less than marked impairment in the area of social development as conflicting statements in the record pertaining to plaintiff's social impairments are "well within the ken of the ALJ to resolve"). Taken as a whole, there is substantial evidence to support the ALJ's finding that Agosto's social impairments do not "interfere seriously with [his] functioning." 20 C.F.R. § 416.926a(c)(3)(i)(C).
Accordingly, the Court will not disturb the ALJ's finding that Agosto suffers a slight impairment in this area. See, e.g., Salomon v. Apfel, 2000 WL 776924 at *4 (affirming ALJ's finding of less than marked impairment in the area of social development as collective evidence provides "'more than a mere scintilla [of evidence]'" to support the ALJ's decision); Duverge v. Apfel, 97 Civ. 7131, 1999 WL 178780 at *6-8 (S.D.N.Y. March 1999) (ALJ's finding that child was not disabled was supported by substantial evidence based on "the record as a whole" even though plaintiff was diagnosed with conditions resulting in "severe impairments.").
D. Concentration, Persistence and Pace
The regulations define the area of concentration, persistence and pace as the child's "ability 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. § 416.926a(c)(5)(iv)(E). The ALJ found that Agosto was slightly impaired in this area based upon "evidence of hyperactive behavior and trouble attending to classes." (R. 21.) However, the ALJ also noted that three of Agosto's doctors described his attention span as adequate. (R. 21.) In addition, Agosto's mother testified that he likes to watch television and is capable of sitting through an entire program. (R. 21.) According to the ALJ's own assessment, although Agosto "is an active child," he was "kept on point at the hearing." (R. 21.) The record contains substantial evidence to support the ALJ's determination.
Throughout the course of Agosto's mental health treatment, several of Agosto's doctors and evaluators reported his difficulty sitting still and concentrating. (E.g., R. 82, 95.) Dr. Eberle noted that Agosto "was fidgety and moved around a lot. He stood, knelt, wiggled in his chair and appeared to have difficulty sitting still and concentrating." (R. 95.) However, the record also indicates that Agosto was capable of focusing on activities and completing them in an appropriate manner. For example, in a May 1996 educational evaluation, Agosto was described as capable of attending to all tasks given. (R. 87.) In October 1997, Dr. Mele reported that Agosto's attention span and activity level were almost within normal limits. (R. 225). A few months later, in January 1998, she found that Agosto's condition had further improved, with his activity level reaching normal limits and his attention span near normal. (R. 229.) In addition, when completing Agosto's Medical History Report and Disability Report for the Social Services Administration in September 1996, Agosto's mother wrote, that he "does H.W. [homework] regularly although it takes him very long to complete it. He likes watching TV, play video games and goes out to play with friends. He likes to write a lot has all kinds of stationery material, can be helpful around the house when in a good mood, but explodes frequently bangs head on wall throws things at others to hurt them . . ." (R. 74C.)
While reasonable minds might differ on whether Agosto had a slight or marked impairment in the area of concentration, persistence and pace, the ALJ's opinion need only be supported by relevant evidence "as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); see also, e.g., Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *13 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.); Dawson v. Apfel, 96 Civ. 6023, 1997 WL 716924 at *2 (S.D.N.Y. Nov. 17, 1997); Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at *4 (S.D.N.Y. Jan. 13, 1998). "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207 (1983); accord, e.g., Fernandez v. Apfel, 1998 WL 603151 at *13. It is not for this Court to decide the issue de novo. There is substantial evidence in the record to support the ALJ's conclusion that Agosto had only a slight impairment in the area of concentration, persistence and pace. See, e.g., Fernandez v. Apfel, 1998 WL 603151 at *13 (affirming ALJ's finding that plaintiff was less than moderately impaired in the area of concentration, persistence and pace where ALJ's decision based on "substantial evidence" despite two teachers reports stating that plaintiff was markedly impaired in this domain); Counterman v. Chater, 923 F. Supp. 408, 413-14 (W.D.N.Y. 1996) (affirming ALJ's finding that plaintiff was less than moderately impaired in the area of concentration, persistence and pace, because "while there was some evidence that [plaintiff] has a short attention span, becomes easily distracted, and needs additional time to complete certain tests, other evidence suggests that her attention and concentration are normal . . . and that [plaintiff] has no trouble being by herself and doing things requiring attention and concentration"); Baker v. Secretary, Dep't of Health Human Servs., 874 F. Supp. 41, 47 (N.D.N.Y. 1995) (affirming ALJ's finding that plaintiff was less than moderately impaired in the area of concentration, persistence and pace where plaintiff engaged in recreational activities and was able to focus on tasks in the classroom and complete some classroom tasks on his own, despite other evidence of concentration weaknesses and need for individualized monitoring in the classroom). Accordingly, the Court will not disturb the ALJ's finding that Agosto was slightly impaired in this area.
CONCLUSION
For the reasons set forth above, because there is substantial evidence to support the ALJ's finding that Agosto is not disabled, the Commissioner's motion for judgment on the pleadings should be granted.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Barbara S. Jones, 40 Centre Street, Room 2103, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Jones. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).