VAZQUEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Madeline Cox Arleo on 12/19/2019. (ams, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NELLY VAZQUEZ,
Plaintiff,
No. 18-1496
v.
OPINION
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ARLEO, UNITED STATES DISTRICT JUDGE.
Before the Court is Nelly Vazquez’s (“Plaintiff”) request for review, ECF No. 13, pursuant
to 42 U.S.C. §§ 1383(c)(3), 405(g), of the Commissioner of Social Security’s (“Commissioner”)
denial of Plaintiff’s application on behalf of her minor son, A.H., for supplemental security income
(“SSI”) benefits. Plaintiff argues that: (1) the ALJ failed to adequately set forth the basis for her
findings; and (2) the ALJ’s conclusions were not supported by substantial evidence. For the
reasons set forth in this Opinion, the Court VACATES and REMANDS this case for further
proceedings.
I.

STANDARD OF REVIEW AND APPLICABLE LAW
A. Standard of Review
The Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.

§ 405(g). The Commissioner’s application of legal precepts is subject to plenary review. Markle
v. Barnhart, 324 F.3d 182, 187 (3d Cir. 2003). Factual findings must be affirmed if they are
supported by substantial evidence. Id. Substantial evidence “means such relevant evidence as a
reasonable mind might accept as adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995).

Stated differently, substantial evidence consists of “more than a mere scintilla of evidence but may
be less than a preponderance.” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004).
Even if this Court would have decided the matter differently, it is bound by the Commissioner’s
findings of fact so long as they are supported by substantial evidence. Hagans v. Comm’r of Soc.
Sec., 694 F.3d 287, 292 (3d Cir. 2012) (quoting Fargnoli v. Massanari, 247 F.3d 34, 35 (3d Cir.
2001)).
B. The Three-Step Child Disability Test 1
A child is considered disabled under the Social Security Act (the “Act”) if: (1) the child is
not working; (2) the child has a “severe” impairment or combination of impairments; and (3) the
impairment, or combination of impairments, was of Listing-level severity, meaning the
impairment(s) meets, medically equals, or functionally equals the severity of an impairment listed
in 20 C.F.R. § 404, Subpart P, Appendix 1. T.C. ex rel. Z.C. v. Comm’r of Social Sec., 497 F.
App’x 158, 160 (3d Cir. 2012) (citing 20 C.F.R. § 416.924(a)). In applying this test, the
Commissioner must consider all evidence in a claimant’s case record, including medical evidence,
test scores, information from medical sources, and statements from non-medical sources who
know the claimant. 20 C.F.R. § 416.924a(a).
At step three, “functional equivalence” is determined by evaluating the following six
domains of functioning: (1) acquiring and using information; (2) attending and completing tasks;
(3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for
yourself; and (6) health and physical well-being. T.C. ex rel. Z.C., 497 F. App’x at 160 (quoting
20 C.F.R. § 416.926a(b)(1)).

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Plaintiff’s son was born on May 16, 2005, and was eleven years old at the time of the Commissioner’s decision on
remand, making him a child under the Act. See 20 C.F.R. § 416.926a(g)(2)(iv).

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“A medically determinable impairment or combination of impairments functionally equals
a listed impairment if it ‘result[s] in “marked” limitations in two domains of functioning or an
“extreme” limitation in one domain.’” Id. (quoting 20 C.F.R. 416.926a(a)). A “marked” limitation
in a domain is one that “interferes seriously” with the 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 ability to independently initiate, sustain, or complete activities. Id.
§ 416.926a(e)(3)(i).
II.

BACKGROUND
A. Procedural History
On April 11, 2012, Plaintiff filed an application for SSI on behalf of her son A.H., alleging

that A.H. became disabled on November 15, 2011, due to attention deficit hyperactivity disorder
(“ADHD”). Administrative Transcript (“Tr.”) 117, ECF No. 8. Plaintiff’s claim was denied
initially on August 25, 2012, and upon reconsideration on May 14, 2013. Tr. 158-62, 166-68. On
September 12, 2014, an Administrative Law Judge (“ALJ”) issued an opinion concluding that the
child was not disabled. Tr. 136-53. On December 21, 2015, the Appeals Council granted
Plaintiff’s request for review, vacated the ALJ’s decision, and remanded the case for further
consideration. Tr. 154-57. On February 24, 2017, a different ALJ issued an opinion on remand
concluding that the child was not disabled. Tr. 14-32. The Appeals Council denied Plaintiff’s
request for review of the remand decision on December 1, 2017. Tr. 3-8. Plaintiff appealed to
this Court on February 2, 2018. ECF No. 1.

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B. Factual Background
1. Partial Hospital Program and April 2012 Assessment
From November 2011 to January 2012, A.H. attended a Partial Hospital Program at
Trinitas Regional Medical Center (“Trinitas”) for psychiatric treatment. Tr. 413. On January 18,
2012, A.H. underwent a psychiatric assessment for aggressive behavior attributed to combined
ADHD and oppositional defiance disorder (“ODD”). Tr. 396-411, 413. On April 4, 2012, Dr.
Paul Kennedy evaluated A.H. because of disruptive behavior at school. Tr. 413-16. At the time
of the evaluation, A.H. was not on medication because Plaintiff had declined to allow him to take
any. Tr. 413. Dr. Kennedy diagnosed A.H. with ADHD and gave him a Global Assessment of
Functioning (“GAF”) score of 45. Tr. 415. A.H. was admitted to a partial hospital program to
prevent hospitalization. Id. At that time, Plaintiff agreed to authorize the use of psychotropic
medication to help the child’s ADHD symptoms. Id.
2. Child Function Report
At some point, Plaintiff completed a “Function Report – Child Age 3 to 6th Birthday” (the
“Function Report”) for the child. Tr. 270-77. The Function Report, which is undated, indicated
certain limitations in A.H.’s abilities to communicate and understand and use what he had learned.
Tr. 270, 273. Plaintiff reported that the child’s impairment affected his behavior with other people.
Tr. 275. Plaintiff also noted that A.H.’s physical abilities were limited but did not specify how.
Id.
3. 2012 to 2014 Group Therapy and Medication Management
Between 2012 and 2014, A.H. received group therapy and medication management
services from Trinitas. Tr. 473-554. A.H. needed considerable redirection during some therapy
sessions, but he was able to follow directions with minimal redirection during others. Tr. 485,

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487, 491, 493. On several occasions, Plaintiff and other caregivers reported that the medication
was helping the child with no side effects or behavioral problems. Tr. 497, 506, 511, 513, 534.
However, treatment notes indicate that Plaintiff did not always give A.H. his medication. Tr. 47576, 483-84, 516.
4. May 2012 Special Education Evaluation
On May 17, 2012, A.H.’s school evaluated him for special education services. Tr. 433-46.
Plaintiff reported seeing a tremendous difference in the child since he began taking medication the
previous month. Tr. 434. His Full Scale Intelligence Quotient (“FSIQ”) was 99, which fell within
the average range. Tr. 445. While A.H. had average overall cognitive ability, testing revealed that
his overall adaptive skills were below average. Tr. 444-45. The evaluation team concluded that
A.H. would benefit from special education services.

Id.

The school developed an initial

Individualized Education Plan (“IEP”) for A.H. in June 2012. Tr. 460-66.
5. December 2012 and March 2013 Teacher Questionnaires
In December 2012, Susan Ackerman, A.H.’s special education teacher, completed a
questionnaire. Tr. 295-302. Ms. Ackerman reported that A.H. generally had slight to very serious
problems with attending and completing tasks, including a preoccupation with keeping organized
and taking inappropriate amounts of time to complete assignments. Tr. 296. In the domain of
acquiring and using information, she rated A.H. as having slight to serious problems, particularly
with reading and writing. Tr. 297. Ms. Ackerman indicated that A.H. generally had slight to
obvious problems in the domain of interacting and relating with others, but noted that he had a
very serious problem with expressing anger appropriately. Tr. 298.
In March 2013, Ms. Ackerman completed a second questionnaire. Tr. 303-10. She
reported obvious to serious problems in the domain of acquiring and using information, explaining

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that A.H. took excessive amounts of time to perform written assignments because he was
preoccupied with neatness. Tr. 304. She indicated that A.H. had slight to very serious problems
with attending and completing tasks and could be disruptive, aggressive, and non-compliant even
with individual assistance. Tr. 305. Ms. Ackerman also reported slight to very serious problems
in the domain of interacting and relating with others. Tr. 306.
6. August 2012 and May 2013 Disability Determination Explanations
In August 2012, Theresa Soricelli, a disability examiner, and Sharon Flaherty, Ph.D,
completed a Disability Determination Explanation (“DDE”) in connection with Plaintiff’s initial
SSI application. Tr. 117-25. They concluded that while A.H.’s impairment was severe, his
condition did not meet, medically equally, or functionally equal a Listing. Tr. 120-22. According
to the DDE, A.H. had either less than marked or no limitations in five domains of functioning. Tr.
121-22. The DDE did not contain a rating for interacting and relating with others. Tr. 121. The
DDE noted that while A.H. “had tremendous problems earlier in the year,” Plaintiff reported seeing
a drastic improvement since the child began taking medication. Id.
In May 2013, Pathfins Okezie, a disability examiner, and Joan F. Johnson, Ph.D, completed
a second DDE. Tr. 126-35. The DDE reported a marked limitation in the domain of interacting
and relating with others and either less than marked or no limitations in the other domains. Id.
The DDE reviewers concluded that A.H. had a severe impairment, but it did not satisfy the
requirements of a Listing. Tr. 131.
7. August 2014 Responses to Interrogatories
On August 8, 2014, Dr. Sreedevi Chandrasekhar responded to interrogatories provided by
the ALJ. Tr. 555-70. According to Dr. Chanrasekhar, A.H. exhibited no or less than marked
limitations in all domains of functioning when taking medication. Tr. 568-69. He noted that there

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had been significant problems from approximately April 2012 to March 2013. Tr. 565. However,
once the child began regularly taking medication, he was doing well. Id. The responses stated
that “medication compliance is crucial” and that A.H.’s behavior was unacceptable when off
medication. Tr. 565.
8. April 2015 IEP
In April 2015, A.H.’s school developed another IEP for him. See Tr. 351-70. The IEP
reported that A.H. struggled with reading grade-level texts and required many modifications. Tr.
353. According to the IEP, the child’s reading scores corresponded with “low levels of a second
grade student,” despite receiving fourth-grade reading instruction. Id. The IEP reported fewer
problems with A.H.’s math functioning, noting that he had received a perfect score of 300 on a
2014 state standardized test and had an average FSIQ of 99. Id. The IEP further explained that
A.H. was “a bright student” who needed “lots of motivation and redirection to succeed in the
classroom.” Id. Overall, while A.H. continued “to have instances of poor decision making,” the
IEP found that he had “been mostly successful with the classroom behavior management plan.”
Tr. 354.
9. September 2015 to June 2016 School Disciplinary Records
By letter dated September 27, 2015, A.H.’s school notified Plaintiff that A.H. had
“threaten[ed] to shoot and kill a classmate parent [sic]” and was required to undergo psychiatric
evaluation before he could return to school. Tr. 384. Between March 2016 and June 2016, A.H.
was suspended from school on four occasions for disrespecting staff, defying authority, fighting,
and theft. Tr. 378-79.

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C. The ALJ Decisions
1. The Initial ALJ Decision
In the initial decision, the ALJ concluded that the child’s ADHD 2 was a severe impairment,
but the impairment did not meet, medically equal, or functionally equal a Listing. Tr. 142. The
ALJ found: (1) a marked limitation in the domain of interacting and relating with others; (2) less
than marked limitations in the domains of acquiring and using information and attending and
completing tasks; and (3) no limitations in the domains of moving about and manipulating objects,
caring for yourself, and health and physical well-being. Tr. 144-50. In making her determination,
the ALJ considered Plaintiff’s hearing testimony and “g[a]ve great weight” to Dr. Chanrasekhar’s
2014 interrogatory responses. Tr. 143-44. The ALJ also noted that school records indicated that
A.H. had an average FSIQ, high visual-motor testing scores, and below average adaptive skills.
Tr. 144. The ALJ concluded that A.H.’s marked and less than marked limitations “were likely the
result of noncompliance with recommended medication.” Id.
On December 21, 2015, the Appeals Counsel vacated and remanded the initial ALJ
decision. Tr. 154-57. The Appeals Council directed the ALJ on remand to: (1) explain the
evidentiary basis and rationale for its findings; and (2) consider evidence proffered by the child’s
teacher and other non-“acceptable medical sources.” Tr. 155.
2. The ALJ Remand Decision
On remand, the ALJ summarily addressed steps one and two of the three-part child
disability test. First, she found that A.H. had not engaged in substantial gainful activity since the
SSI application date. Tr. 20. Second, she found that A.H.’s ADHD and ODD were severe
impairments. Id. At step three, the ALJ found that none of his impairments individually or in

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Plaintiff’s initial claim for disability listed only ADHD as an impairment. See Tr. 117.

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combination met, medically equaled, or functionally equaled the severity of a Listing. Tr. 20-28.
The ALJ found a marked limitation in the domain of interacting and relating with others. Tr. 25.
She found less than marked limitations in three domains of functioning: (1) acquiring and using
information; (2) attending and completing tasks; and (3) and caring for yourself. Tr. 23-24, 27.
The ALJ found no limitations in two domains of functioning: (1) moving about and manipulating
objects; and (2) health and physical well-being. Tr. 26-27. Accordingly, the ALJ concluded that
A.H. was not disabled within the meaning of the Act. Tr. 28.
In support of her findings, the ALJ assigned “great weight” to the 2012 and 2013 DDE
determinations.

Tr. 23.

According to the ALJ, medical, treatment, and school evidence

corroborated the DDE reviewers’ finding of a less than marked limitation in the domain of
acquiring and using information. Id. The ALJ noted that A.H.’s roughly average IQ scores
supported this determination, as did the April 2015 IEP, which indicated an improvement in the
child’s academic functioning since 2012 to 2013. Id. The ALJ also accorded significant weight
to the reviewers’ determination that A.H. exhibited a less than marked limitation in his ability to
attend and complete tasks while on medication, but marked limitations in that domain without
medication. Id.
The ALJ cited school and treatment records as evidence that A.H.’s condition had
improved over time. Tr. 22-23. Specifically, the ALJ noted that the April 2015 IEP showed that
A.H. got along well with his peers and was accepting of adult assistance. Id. Treatment records
through 2014 further suggested an improvement, particularly when A.H. took medication on a
consistent basis. Tr. 23.
In finding a marked limitation in the domain of interacting and relating with others, the
ALJ relied principally on the 2012 and 2013 teacher questionnaires and the 2015 and 2016 school

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disciplinary records. Tr. 22. The ALJ referenced Ms. Ackerman’s observations that A.H. had
outbursts, threw temper tantrums, and required close teacher supervision and structured
monitoring. Id. The ALJ accorded only partial weight to the teacher questionnaires on the basis
that they were “remote” and not wholly supported by the record, although she did not indicate how
with any specificity. Id. With respect to the school disciplinary records, the ALJ concluded that
there was insufficient information surrounding the September 2015 incident, and further noted that
there was some improvement in the child’s behavior thereafter “as there were no suspensions or
interpersonal misconduct problems in the Fall of 2015.” Id. However, the decision indicates
neither the date on which A.H. returned to school nor the results of the school-ordered psychiatric
evaluation.
III.

ANALYSIS

Plaintiff seeks reversal on the basis that the record contains substantial evidence to support
a finding of disability, or in the alternative, remand on the basis that the ALJ failed to consider all
relevant evidence and sufficiently explain her reasoning. The Commissioner argues that the ALJ’s
findings are supported by substantial evidence. The Court agrees with Plaintiff and finds remand
appropriate in light of the ALJ’s failure to assess all relevant evidence and adequately explain the
evidentiary basis for her conclusions.
An ALJ must provide “a clear and satisfactory explication of the basis on which [her
decision] rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). In so doing, an ALJ must
consider all pertinent evidence and explain the reasons for discounting contradictory evidence.
Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121-22 (3d Cir. 2000). Although an ALJ is not
required to use “particular language or adhere to a particular format,” the ALJ must sufficiently
explain her findings “to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir.

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2004). Where probative and available evidence is not explicitly weighed, remand is appropriate.
Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979) (citations omitted).
Here, the ALJ failed to set forth her basis for finding that A.H.’s impairments did not meet
or medically equal a Listing. While the ALJ identified the relevant medical Listings, the opinion
offers no analysis for its conclusion that the record does not demonstrate the symptoms enumerated
in each Listing. See Tr. 20. Rather, in finding no medical equivalence, the ALJ simply stated, in
conclusory fashion and without reference to record evidence, that the record did not satisfy the
Listings. See id. While the ALJ was not required to use particular language in making her
determination, such conclusory statements do not permit meaningful review. See Jones, 364 F.3d
at 505.
In evaluating A.H.’s functional equivalence, the ALJ failed to consider how much assistance
A.H. needed to function as compared with other non-impaired children his age. Under 20 C.F.R.
§ 416.924a(b)(5)(ii), when determining functional equivalence, the ALJ must assess “how
independently [the child is] able to function compared to other children [his] age who do not have
impairments,” including whether the child “need[s] help from other people, or . . . special
equipment, devices, or medications to perform [his] day-to-day activities.” The regulations further
provide that the ALJ must consider the effects of structured or highly supportive settings in
determining the presence of a disability, including classroom settings and accommodations. 20
C.F.R. § 416.924a(b)(5)(iv). Here, although the ALJ referenced treatment records indicating that
the child’s behavioral symptoms had improved while on psychotropic medication, she did not
explain what weight, if any, was given to the fact that A.H. needed medication to perform his
day-to-day activities. See Tr. 23. Indeed, several parts of the record, including the May 2012
special education evaluation and Dr. Chanrasekhar’s 2014 interrogatory responses, suggest that

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A.H. benefitted greatly from taking medication, and the ALJ should consider all such evidence on
remand. The ALJ also failed to consider if the child was on medication when he exhibited
behavioral problems in 2015 and 2016 and whether he is still compliant with his medication. On
remand, testimony should be taken from a treating physician who can opine on whether the laterdocumented behavioral problems would have occurred while A.H. was on medication.
Similarly, while the decision noted that A.H. required redirection, motivation, and other
assistance from his teacher in the classroom, it is not clear whether the ALJ considered this
evidence in evaluating any domain other than interacting and relating with others. See Tr. 22-23.
Notably, the ALJ made no mention of the fact that A.H. was receiving special education services
in her decision, as contemplated by the regulations. On remand, the ALJ should consider the
impact of such services on A.H.’s ability to function. See A.B. on Behalf of Y.F. v. Colvin, 166
F. Supp. 3d 512, 520 (D.N.J. 2016) (remanding for consideration of impact of structured school
setting on child’s ability to function).
The ALJ’s decision also improperly discounted certain probative evidence without rational
explanation. For example, the ALJ accorded “great weight” to the DDE reviewers’ determinations
from 2012 and 2013, but she assigned only “partial weight” to Ms. Ackerman’s questionnaire
responses from the same period on the basis that they were “remote” and “not wholly supported
by the record.” Id. The ALJ neither specified which parts of the questionnaire responses were
unsupported by the record nor reconciled how those responses were “remote” while the DDE
reviewers’ determinations were not. In fact, the record appears to corroborate at least some of Ms.
Ackerman’s observations. As just one example, Ms. Ackerman noted in both the 2012 and 2013
questionnaires that A.H. exhibited serious problems in reading comprehension, and the April 2015
IEP documented similar concerns regarding A.H.’s reading ability. Tr. 297, 304, 353.

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Furthermore, in analyzing the 2015 and 2016 school disciplinary records, the ALJ
concluded that there was insufficient evidence regarding the September 2015 incident, while
discounting the fact that the record includes a letter from a social worker indicating that the child
was required to undergo a psychiatric evaluation “[d]ue to . . . social and emotional difficulties”
before returning to school. Tr. 384. The ALJ also noted that there was some improvement in the
child’s behavior after the September 2015 incident, yet failed to reconcile this conclusion with the
record evidence showing that the child received four separate school suspensions for behavioral
problems only a few months later. Tr. 378-79. The ALJ’s failure to properly consider all relevant
evidence compels remand. See A.B. on Behalf of Y.F., 166 F. Supp. at 522 (remanding for failure
to weigh probative evidence).
IV.

CONCLUSION

For the reasons stated above, the Court finds that the ALJ failed to adequately set forth the
basis for her decision and explicitly weigh all probative evidence of disability. The ALJ’s decision
is VACATED and REMANDED for further proceedings consistent with this Opinion. On
remand, the ALJ is directed to address all evidence of impaired functionality as well as her reasons
for rejecting or discounting that evidence. In remanding today, the Court makes no factual
findings. An appropriate Order accompanies this Opinion.

Date: December 19, 2019

/s/ Madeline Cox Arleo
Hon. Madeline Cox Arleo
UNITED STATES DISTRICT JUDGE

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