Summary
finding analysis of this domain insufficient because, inter alia, "the ALJ fail[ed] to adhere to the SSA regulations by not considering the impact of [claimant's] language delays on his socialization skills"
Summary of this case from Miller ex rel. K.A.M. v. Comm'r of Soc. Sec.Opinion
No. 02 CV 4930 (SJ).
March 26, 2004
SHAONTEL THOMPSON, Brooklyn, NY, Pro Se.
ROSLYNN R. MAUSKOPF, United States Attorney, Eastern District of New York, Brooklyn, New York, Kathleen A. Nandan, Assistant U.S. Attorney, (Of Counsel), Attorneys for Defendant.
MEMORANDUM AND ORDER
Pro se Plaintiff Shaontel Thompson ("Plaintiff") brings this action on behalf of her minor son, Shyheim Thompson ("Shyheim"), pursuant to the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3). She seeks review of the determination by the Social Security Administration Commissioner ("the Commissioner") finding her son not disabled and denying his application for children's Supplemental Security Income ("SSI") benefits. Currently before this Court is the Commissioner's motion for judgment on the pleadings and Plaintiff's opposition to that motion. Having reviewed the record and listened to oral argument, the Court finds that there is not substantial evidence to support the Commissioner's finding that Shyheim is not disabled within the meaning of the Social Security Act ("the Act"). For the reasons that follow, the Court reverses the Commissioner's determination and remands the case solely for the calculation of benefits.
PROCEDURAL HISTORY
Plaintiff filed an application for SSI benefits on behalf of Shyheim on April 2, 1999, alleging Shyheim was disabled due to a learning disability and breathing problems. (Tr. 110-14, 118.) An initial hearing was held on May 1, 2000 before Administrative Law Judge ("ALJ") Roy Lieberman, though the hearing did not result in a decision. (Tr. 32-57.) Following a second hearing, ALJ Robin R. Palenske found on April 25, 2002 that Shyheim was not under a disability. (Tr. 5-14.) On July 31, 2002, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. On September 4, 2002, Plaintiff filed this appeal.
FACTUAL BACKGROUND
I. Family HistoryShyheim Harrison was born on January 26, 1995 and currently lives with his mother and two sisters. (Tr. 110-11.) Plaintiff rents her home, and the family is supported on public assistance. (Tr. 111.) When Plaintiff filed for SSI benefits, Shyheim and his family had been living in New Haven, Connecticut. (Tr. 110.) Shyheim was six years old at the time and had been in kindergarten for two years because his family had moved several times. (Tr. 66-67.) The family currently lives in Brooklyn, New York. (Def.'s Mem. L. at 1.)
II. Scholastic Record and Special Education Services
On August 8, 1997, Shyheim's mother took him to Hill Health Center due to concerns regarding possible developmental delays in language, motor skills, and adaptability. (Tr. 188.) The Center's examiner noted that Shyheim's speech was unclear, and his score on the Visual Reception Scale test placed him below average for his age. (Tr. 186, 188.) On February 11, 1999, Katherine Gabrielson, a Developmental Specialist affiliated with the New Haven Public Schools Early Childhood Assessment Team ("ECAT"), performed an educational evaluation of Shyheim after he was referred to her by his Head Start program. (Tr. 214-18.) Although Shyheim presented as a playful child, easily separated from his mother, he scored well below the cutoff on the Preschool Developmental Inventory ("PDI"). (Tr. 215.) Other testing indicated significant developmental delays in the areas of cognitive development, fine motor skills, social-emotional development, and academic readiness skills. (Tr. 218.) Referring to Shyheim as a "distractable child," Diane Henley, a Speech/Language Pathologist with the New Haven Public Schools Department of Pupil Personnel and Special Education, assessed moderate receptive and express language delays and immature phonological process. (Tr. 226, 229.)
Shyheim's performance on a Vineland Adaptive Behavior Scales test administered on February 2, 1999 indicated moderately low scores in receptive and written communication, and low scores in expressive communication, personal and community daily living skills, interpersonal relationships, and play and leisure time. (Tr. 220.) An additional Vineland Adaptive Behavior Scales test conducted six weeks later, on March 16, 1999, showed extreme weakness in communication skills and moderately low delays in daily living skills, socialization and fine motor skills. (Tr. 169, 171.) Shyheim's coping skills and gross motor skills were both adequate. (Tr. 171.)
A psychological evaluation conducted by the New Haven Public School system on March 1 and March 3, 2000 referred to teacher reports indicating that Shyheim was making steady progress in his special education pre-school class, demonstrated age-appropriate skills in many areas, and interacted well in the classroom setting with both peers and adults. (Tr. 167.) Shyheim was on task sixty percent of the time throughout the evaluation, though he often appeared restless and squirming. (Id.) The report also indicated that although Shyheim usually chose to play alone, his limited interaction with other students was age-appropriate. (Id.)
III. Mental Health Diagnoses and Treatment
On October 1999, Dr. Lester Bentley ("Dr. Bentley"), M.S., N.C.S.P, a Mental Health Coordinator at Clifford Beers Clinic, diagnosed Shyheim with Attention Deficit Disorder ("ADD") involving interpersonal difficulties with siblings. (Tr. 286-89.) Shyheim had been undergoing individual and family therapy to develop strategies to manage his behavior. (Tr. 286.) Having observed Shyheim once a week for ten weeks, Dr. Bentley noted the Shyheim exhibited high motor activity, difficulty concentrating, and forgetfulness. (Tr. 47, 287.) He also observed that Shyheim "impulsively created difficulties with other children" and was "at times irritable with siblings." (Tr. 288.) Although Dr. Bentley indicated in his May 1, 2000 testimony that some children with attention disorders have been known to benefit from Ritalin, Plaintiff ultimately decided against the medication. (Tr. 48, 40.)
In a childhood disability evaluation form completed November 18, 1999 by Robert Deutsch, Ph.D., a State agency consultant, and reviewed by Dr. Antonia L. Maningas, a State agency medical consultant, Shyheim was diagnosed with an unspecified communication disorder, developmental delays, and Attention Deficit Hyperactivity Disorder ("ADHD"). (Tr. 290.) On May 1, 2000, Plaintiff told the ALJ that Shyheim had been undergoing speech and language therapy two to three times a week, but was not seeing a psychologist on a regular basis. (Tr. 67-68.)
On May 8, 2000, Dr. Bentley referred Shyheim to Children's Day Hospital due to out of control behavior, including temper tantrums, aggressiveness, and hyperactivity. (Tr. 297.) An evaluation completed by Children's Day Hospital on May 24, 2000 related that although Shyheim had responded well to a structured milieu, played appropriately, and displayed concentration, he continued to exhibit disruptive behavior in groups, his communication skills were minimal, and he did not initiate conversation or give appropriate answers to questions. (Id.) It was recommended that Shyheim continue intensive speech and language services and remain in the Special Education Program, and that a Social Worker and Behavior Specialist work with Plaintiff on skills necessary to deal with ongoing behavioral problems. (Id.)
In Shyheim's most recent psychiatric evaluations on December 12, 2001 and January 7, 2002, Dr. Eddie Tessnear, Ph.D. noted that "there certainly is not sufficient evidence to warrant use of medication for ADHD at this time," and that it was unclear whether Shyheim truly had ADHD (Tr. 308.) This latter finding was corroborated by the March 21, 2002 expert testimony of Dr. Helen Cannon. (Tr. 73.)
IV. Domain-Specific Record Evidence
A. Acquiring and Using Information
The domain of "acquiring and using information" for six-to-twelve year-old children analyzes the child's ability to learn to read, write, do math, and discuss history and science, as well as the ability to demonstrate what he has learned in both academic and daily living situations. 20 C.F.R. § 416.926a(g)(2)(iv). The child should be able to "use increasingly complex language . . . to share information and ideas with individuals or groups, by asking questions and expressing [his] own ideas, and by understanding and responding to the opinions of others." Id. There are numerous references to Shyheim's limitations in this domain. Testing indicates a General Intellectual Ability (GIA) in the low to low average range. (Tr. 301.) Teachers reported problems with acquiring sound-symbol correspondence, reading and writing skills, and number concepts, and there was a risk that Shyheim would not be promoted to first grade due to his academic difficulties. (Tr. 69, 297A, 298.) It has been noted that Shyheim showed steady progress in his special education preschool class and demonstrated age-appropriate skills in several areas (Tr. 167.) However, the record also evidences severe language delays, resulting in both oral and written language difficulties.
See, e.g., Tr. 186 (1997 examination indicates unclear speech), Tr. 215 (1999 preschool evaluation indicates significant delays in nonverbal and language skills), Tr. 234 (1999 preschool evaluation summary states Shyheim's "speech was not always intelligible"), Tr. 169 (1999 Vineland Adaptive Behavior Scales test indicates extreme weakness in communication skills), Tr. 229 (1999 Preschool Language Scale shows moderate receptive/expressive language delays and immature phonological process), Tr. 290 (SSA consultant report diagnoses Shyheim with unspecified communication disorder), Tr. 168 (1999 speech evaluation indicates inaccurate "articulation for the syllabic combinations"), Tr. 297 (2000 psychological evaluation diagnoses Shyheim with mixed receptive-expressive language disorder).
B. Interacting and Relating with Others
In the domain of "interacting and relating with others," the SSA considers "how well you initiate and sustain emotional connections with others, develop and use the language of your community, cooperate with others, comply with rules, respond to criticism, and respect and take care of the possessions of others." 20 C.F.R. § 416.926a(i). The record contains a wealth of evidence regarding Shyheim's problematic conduct in this domain, particularly with respect to his behavior at home. For his biannual physicals, Shyheim was described as "uncooperative" and "oppositional." (Tr. 281, 284.) He sometimes had temper tantrums and fought with the neighborhood children. (Tr. 297A, 298-99.) Although he could be playful and was easily separated from his mother, Shyheim exhibited play skills significantly below age expectations, had interpersonal difficulties with his siblings, and often demanded instant gratification, which forced him to be excluded from group activities. (Tr. 215, 217, 288.) Although one evaluation reported good interaction with peers and adults, the record makes multiple references to Shyheim's social aggressiveness as well as his inability to initiate conversation and answer questions correctly. (Tr. 167, 47-48, 283, 297.)
C. Attending and Completing Tasks
The domain of "attending and completing tasks" involves "how well you are able to focus and maintain your attention, and how well you begin, carry through, and finish your activities, including the pace at which you perform activities and the ease with which you change them." 20 C.F.R. § 416.926a(h). As noted, several doctors and psychologists have diagnosed Shyheim with ADD and ADHD, a disorder characterized by a short attention span and difficulty concentrating on any one idea or task for an extended period of time. (Tr. 55, 286, 290.) Many reports have documented Shyheim's inability to focus on his assignments, though the record also contains some evidence of improvement in this area.
See, e.g., Tr. 280 (1999 physical examination notes that Shyheim was "easily distracted"), Tr. 226 (1999 speech/language evaluation describes Shyheim as a "distractable child who experienced difficulty remaining seated"), Tr. 287 (1999 psychological evaluation indicates high motor activity, forgetfulness, impulsiveness, and an inability to complete tasks), Tr. 167 (2000 psychological evaluation notes that Shyheim "appeared somewhat restless at times, as he was frequently observed squirming or moving around in his seat"), Tr. 299 (2001 psychological evaluation reports that Shyheim had difficulty understanding and following instructions).
See, e.g., Tr. 167 (2000 public school evaluation notes that Shyheim was "on task sixty percent of the time"), Tr. 297 (2000 letter from Children's Day Hospital indicates that Shyheim "plays appropriately, displaying concentration"), Tr. 308 (2002 psychological evaluation notes that short-term memory and planning skills do not appear to be problematic), Tr. 73 (2002 expert testimony opines that Shyheim's limitations with respect to attention difficulties are less than marked).
D. Health and Physical Well-Being
The domain of "health and physical well-being" deals with the "cumulative physical effects of physical or mental impairments and their associated treatments or therapies on your functioning." 20 C.F.R. § 416.926a(1). Although Plaintiff initially claimed Shyheim was disabled due to his breathing problems, his upper respiratory complaints have disappeared following his tonsillectomy on April 5, 1999. (Tr. 237, 281.)
THE COMMISSIONER'S STANDARD FOR SSI BENEFITS BASED ON CHILDHOOD DISABILITY
In order to qualify for SSI: (1) a child's income and assets (including those imputed from the child's parents) must fall below a specified amount, and (2) a child must be "disabled" — i.e., must have 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 twelve months." 42 U.S.C. § 1382(a)(3)(c)(i).
The SSA regulations set forth a three-step "sequential evaluation process" for determining whether a child is disabled. 20 C.F.R. § 416.924. The first step inquires whether the child is working at the "substantial gainful activity" level. If yes, the child is not disabled. 20 C.F.R. § 416.924(a). If no, the evaluation inquires whether the child has any "severe" impairment or combination of impairments, defined as more than a "slight abnormality or combination of slight abnormalities that causes no more than minimal functional limitations." 20 C.F.R. § 416.924(c). If the child does not have a severe impairment, he is not disabled. If the child does have a severe impairment, the third step in the sequential analysis requires a determination of whether the child has an impairment or combination of impairments that "meet, medically equal, or functionally equal" the listed impairments located in Appendix 1 to Part 404, Subpart P of 20 C.F.R. § 416.924(d). If yes, the child is disabled; if no, the child is ineligible for SSI benefits. Id.
At issue in this case are limitations that are alleged to be "functionally equal" to a listed impairment. Functional equivalence is determined by evaluating how the child's limitations affect six "broad areas of functioning" known as "domains." 20 C.F.R. § 416.926a(b)(1). The relevant domains in this case are: (1) acquiring and using information, (2) attending and completing tasks, (3) interacting and relating with others, and (4) health and physical well-being.
A child is deemed to be disabled if he has an "extreme" limitation in one domain, or "marked" limitations in two or more domains. 20 C.F.R. §§ 416.926a(d). A "marked" limitation is one that "interferes seriously with [the child's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). An "extreme" limitation is one that interferes "very seriously" with the same ability. 20 C.F.R. § 416.926a(e)(3)(i). In areas of functioning that can be measured by a standardized test, a test score two or more standard deviations ("SDs") below the norm for that test constitutes a marked limitation, while a test score three or more SDs below the norm constitutes an extreme limitation. 20 C.F.R. § 416.926(e)(2)(i).
For a child to have a marked or extreme limitation in a particular domain, not all activities or functions encompassed by the domain need be impaired. For instance, a twelve-year old child could have a marked or extreme limitation in the domain of acquiring and using information if he had a serious learning disability which had prevented him from learning to read and write even though he was of normal intelligence and had good verbal communication skills. See, e.g., Quinones v. Chater, 117 F.3d 29, 31-32, 36 (2d Cir. 1997).
Alternatively, when a child suffers from multiple impairments within a single domain, each of which, when considered separately, imposes a less-than-marked limitation, the combined result nonetheless may be marked or extreme. See, e.g., Encarnacion v. Barnhart, 191 F. Supp.2d 463, 474 (S.D.N.Y. 2002) (finding that two less-than-marked limitations in the area of social functioning may cumulatively contribute to the finding of a marked or extreme limitation in the area of social functioning).
DISCUSSION
I. Standard of Review
The Social Security Act, 42 U.S.C. § 301 et seq., provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). In reviewing a denial of disability benefits, therefore, a court may not determine disability de novo, see Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000), but may reverse a finding of the Commissioner only if that finding is not supported by substantial evidence in the record. See 42 U.S.C. § 405(g) (made applicable to SSI cases by 42 U.S.C. § 1383(c)(3)). This substantial-evidence test applies not only to the Commissioner's findings of fact, but also to the inferences and conclusions of law to be drawn from those facts. See Carballo ex rel. Cortes v. Apfel, 34 F. Supp.2d 208, 214 (S.D.N.Y. 1999).
Substantial evidence is "more than a mere scintilla"; it is "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 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In determining whether the administrative findings are supported by substantial evidence, the reviewing court must "examine the entire record, including contradictory evidence." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999). Although the Commissioner need not have reconciled every conflict, see Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981), "crucial factors . . . must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
II. The ALJ's Findings Are Not Supported by Substantial Evidence
The Court finds that the ALJ's reasoning does not sufficiently acknowledge and weigh the conflicting evidence contained in the record, and that some of her findings are not supported by substantial evidence. Because an ALJ's "failure to acknowledge relevant evidence or explain its implicit rejection is plain error," Rivera v. Sullivan, 771 F. Supp. 1339, 1354 (S.D.N.Y. 1991), the Court must now determine whether the record as a whole would support a finding that Shyheim's impairment(s) are functionally equivalent to impairment(s) in the Listings.Id. at 549.
The ALJ (1) noted that Shyheim had not been engaged in substantial gainful activity since the alleged onset date and (2) found that although Shyheim had a medically determinable combination of severe impairments, including "language disorder, mixed receptive and expressive speech language disorder, learning disorder, and attention deficit hyperactivity disorder," none were medically or functionally equivalent to any of those listed in the SSA regulations (Tr. 9, 11.) The ALJ thus concluded that Shyheim was not disabled. (Tr. 13.) Specifically, the ALJ found that Shyheim had a less-than-marked limitation in the two domains of "acquiring and using information" and "attending and completing tasks," and between no limitation and less-than-marked limitations in "interacting and relating to others." (Tr. 12.)
A. Acquiring and Using Information
In support of her finding that Shyheim has less-than-marked limitations in acquiring and using information, the ALJ notes that Shyheim's I.Q. score "did not meet or equal the Listing criteria for mental retardation," and that "speech therapy would be beneficial in overcoming his language and speech disorders." (Tr. 12.) The record contains some evidence in support of this conclusion. Reports by Shyheim's teachers, for instance, indicate progress in several areas, and Shyheim's most recent psychological evaluation places his General Intellectual Ability in the borderline category between low and low average, and his cognitive efficiency in the low average to average range. (Tr. 167, 301.)
The ALJ, however, does not address the significant quantity of evidence in the record indicating continued impairment in Shyheim's intellectual and academic functioning. First, the ALJ could have found Shyheim to be mentally retarded regardless of whether his I.Q. score met the Listing criteria for mental retardation. 20 C.F.R. § 416.926a(a) ("When we make a finding regarding functional equivalence, we will assess the interactive and cumulative effects of all of the impairments for which we have evidence, including any impairments you have that are not `severe'"). Second, Shyheim's reading and writing skills are undeniably impaired. His teachers have identified poor reading skills, frequent reversals of letters and numbers, and difficulty with written expression, all of which might have prevented Shyheim from being promoted to the first grade. (Tr. 69, 297A, 298.) Third, the record indicates that Shyheim has significant receptive and expressive language delays. See supra, n. 2. His test scores show an extreme weakness in communication skills, and a score more than two SDs below the mean satisfies the SSA's regulatory definition of a marked limitation. (Tr. 169; 20 C.F.R. § 416.926a(e)(2)). Finally, even if Shyheim's intellectual and academic impairments do not individually constitute marked or severe limitations, they cannot collectively be dismissed as less-than-marked if the impairments in combination may amount to a marked limitation. See Encarnacion, 191 F. Supp.2d at 474; 20 C.F.R. § 416.926a(c)(3)(C) ("[m]arked limitation 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").
B. Interacting and Relating with Others
In finding between no limitation and less-than-marked limitations in the domain of interacting and relating with others, the ALJ notes that Shyheim "interacted well with his peers" and "responded well to the structured milieu" of Children's Day Hospital. (Tr. 12.) Her decision relies heavily on "significant discrepancies in the mother and teacher's reports" regarding Shyheim's behavior. (Id.) In focusing exclusively on the report of a public schools evaluator, however, the ALJ discounts Shyheim's many documented behavioral problems, including his aggressiveness towards his sisters and his history of temper tantrums and disruptive behavior at school. (Tr. 47-48, 283, 297.) She cites Shyheim's healthy interaction with his peers, but neglects to mention that he also "chose to play alone for much of the time." (Tr. 167.) The ALJ also fails to consider Shyheim's functioning outside of the structured and highly supportive setting of a special education classroom or a mental health clinic. See 20 C.F.R. § 416.924a(b)(5)(iv) (stating that determination of child's limitations should be based, in part, on how child behaves when structures are removed). There is ample evidence that Shyheim's behavior at home was extremely problematic; he sometimes had temper tantrums, did not always follow instructions, was fidgety, and even fought with neighborhood children. (Tr. 297A, 298-99.) Finally, the ALJ fails to adhere to the SSA regulations by not considering the impact of Shyheim's language delays on his socialization skills.See Kittles v. Barnhart, 245 F. Supp.2d 479, 491 (2d Cir. 2003) (holding that under the Final Rules, speech and language are to be considered in two domains, "acquiring and using information" and "interacting and relating with others").
C. Attending and Completing Tasks
In finding less-than-marked limitations in the third domain, the ALJ seems to rely again on the conflicting reports between the teachers and Plaintiff, and the fact that Shyheim's diagnosis of ADHD was contested by the opinion of a consulting psychologist and the testimony of a pediatric expert. (Tr. 308, 72-73.) Some record evidence supports the ALJ's finding. A March 2000 report by a public school evaluator, for instance, noted in his classroom observation that Shyheim was "on task sixty percent of the time." (Tr. 167.) Shyheim was also observed at times to display concentration. (Tr. 297.)
The ALJ's decision, however, makes no attempt to reconcile these positive pieces of evidence with the numerous indications of Shyheim's continued hyperactivity and inability to concentrate. See supra, n. 3. The ALJ also completely disregards the related diagnosis of ADD by Dr. Bentley, a school psychologist who had seen Shyheim ten times over a period of two weeks and testified at the May 1, 2000 hearing. (Tr. 48, 286-89.) The ALJ should have granted the testimony of Dr. Bentley, a treating psychologist, considerably more weight. 20 C.F.R. § 416.927(d)(2); Colon v. Apfel, 133 F. Supp.2d 330, 342 (S.D.N.Y. 2001).
CONCLUSION
The record contains substantial evidence of Shyheim's disability on account of having marked limitations in three domains of functioning: acquiring and using information, interacting and relating with others, and attending and completing tasks. Because the record provides "persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980), the Court reverses the Commissioner's determination and remands the case solely for the calculation of benefits.
SO ORDERED.