Pena v. Astrue
Filing
18
ORDER GRANTING THE COMMISSIONER'S 11 Motion to Remand; DENYING PLAINTIFF'S 13 Motion for Judgment on the Pleadings AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND O RDER, the Commissioner's motion for remand is granted, the plaintiff's cross-motion for judgment on the pleadings and remand solely for the calculation of benefits is denied, and the case is REMANDED to the Commissioner, pursuant to the fou rth sentence of 42 U.S.C. § 405(g), for further administrative proceedings, consistent with this Order and the Attached Written Memorandum and Order, at which the Administrative Law Judge will consider the validity of the IQ test administered by Dr. Cochrane, and complete the record, which has gaps from 2007 to 2009. The Commissioner is directed to ensure that the administrative proceedings will be held in an expeditious manner and without any undue delay. The Clerk of the Court is directed to close this case and to enter judgment. SO ORDERED by Judge Dora Lizette Irizarry on 7/8/2011. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MIRIAN PENA, on behalf of
:
H.P., a minor child,
:
Plaintiff,
:
:
-against:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,
:
:
Defendant.
:
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DORA L. IRIZARRY, United States District Judge:
MEMORANDUM & ORDER
10-CV- 2619 (DLI)
Plaintiff Mirian Pena, on behalf of her minor son, H.P., filed an application for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”) under the Social Security
Act (“Act”) on October 4, 2007. By a decision dated November 2, 2009, the Administrative Law
Judge (“ALJ”) concluded that plaintiff was not disabled within the meaning of the Act. On April
1, 2010, the ALJ’s decision became the Commissioner’s final decision when the Appeals Council
denied plaintiff’s request for review. On June 8, 2010, plaintiff filed the instant action seeking
judicial review of the denial of benefits. The Commissioner now moves for judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c), seeking remand for further administrative
proceedings.
Plaintiff cross-moves for judgment on the pleadings, seeking reversal of the
Commissioner’s decision and remand solely for the calculation of benefits.
For the reasons set forth below, the Commissioner’s motion is granted, the plaintiff’s
motion is denied, and the case is remanded to the Commissioner for further administrative
proceedings consistent with this Memorandum and Order.
1
BACKGROUND
A.
Non-medical and Testimonial Evidence
H.P. was born on October 4, 2000. (A.R. 1 at 133.) Plaintiff testified that H.P., at the age
of ten months, banged himself on the head. (A.R. at 52.) At fourteen months, he would throw
himself on the floor and hit himself on the head, and was not speaking at the age of two. Id.
Sometime around the age of two, H.P was enrolled in an early intervention school. (A.R. at 53.)
At the early intervention school, H.P. received speech and physical therapy, and could not walk
well or grab things well. Id. H.P. would also leave the apartment while his mother slept. (A.R. at
53.) Plaintiff also testified that H.P. began taking medication in 2005, but plaintiff stopped
administering the medication when someone told her that the medication was not good for the
child. (A.R. at 55.) The medication was resumed sometime in 2008, and when medicated, H.P.
was more tranquil and easier to manage. (A.R. at 55.) H.P.’s mother testified that, as a result of
the medication, his grades and behavior also improved, but not yet to an acceptable level. Id. At
school, H.P. would throw papers at other students as well as bang on their desks. (A.R. at 56.) At
home, H.P. could bathe and play with other children in the street outside, but only when
supervised by his mother. (A.R. at 57-58.) Plaintiff also testified that H.P. had trouble sleeping
and wet the bed each night. (A.R. at 63.)
At the hearing before the ALJ, H.P. testified that school was “good” and that he did not
have arguments with other children. A.R. at 87-88. When asked if he still pushed others to be
first in line, he responded, “I don’t do that anymore.” A.R. at 88. H.P. indicated that he did his
homework, and generally followed the teacher’s directions. A.R. at 89.
1
“A.R.” refers to the administrative record.
2
An Individualized Education Program (IEP) dated April 26, 2007 indicated a speech
impairment with receptive and expressive language delays. (A.R. at 223.) H.P. could ask and
answer questions using simple and complex sentences, but his language production did not
demonstrate mastery of syntactical rules that are “typically used by children his age.” Id. H.P.
could follow one- and two-step directives, but showed deficits in semantics and vocabulary,
inconsistently responded to wh- questions, and had difficulty with metalinguistic tasks such as
problem solving and making inferences. (A.R. at 223.) H.P. also was described as a “friendly,
happy, and energetic child.” (A.R. at 224.) A second IEP dated April 17, 2008, noted that H.P.
had made progress since the beginning of that school year and showed ability to improve in all
language areas. (A.R. at 290.) His behavior was noted to have improved, but he still showed
signs of social immaturity. (A.R. at 291.) The 2008 IEP recommended that H.P.’s speech
therapy continue. No behavior intervention plan was required. Id.
H.P.’s teacher, Ms. Almonte, completed a teacher questionnaire on December 18, 2007.
(A.R. at 165-72.) Ms. Almonte indicated that H.P. had an obvious problem waiting to take turns
and was rather impulsive. (A.R. at 167.) She also indicated that H.P had an obvious problem
expressing anger appropriately. (A.R. at 168.) Ms. Almonte noted no problem in maneuvering
around the classroom and manipulating objects. (A.R. at 169.) H.P. had serious problems with
being patient, identifying and appropriately asserting emotional needs, and responding
appropriately to changes in his own mood. (A.R. at 170.) Finally, Ms. Almonte described H.P. as
a sweet boy who loved to read, enjoyed being in school, and got along well with his classmates,
though noting problems with releasing his frustration appropriately. (A.R. at 172.)
3
B.
Medical and Psychiatric Evidence
Evidence from school-based specialists, treating doctors, and consulting doctors was
entered into the administrative record. On July 31, 2003, H.P. was evaluated by Maria Kober, a
bilingual speech language pathologist. (A.R. at 244.) On the Auditory Comprehension section of
the Preschool Language Scale-4, H.P. received a standard score of 84, indicating receptive
language skills to be borderline within the mean to mildly delayed. (A.R. at 245.) On the
Expressive Communication section of the same test, H.P. revceived a standard score of 69,
indicating expressive language skills to be moderately to severely delayed and two standard
deviations below the mean. (A.R. at 246.) Speech language therapy was recommended. (A.R. at
247.)
On August 5, 2003, H.P. received a bilingual educational evaluation from Ana Wegmann,
M.S. Spec. Ed. (A.R. at 248-49.) H.P. was found to have delays in the areas of cognitive (28%
delay) and fine motor skills (25%), with significant delays in speech and language skills (33%).
Id. H.P. was recommended to receive structured bilingual education with large and small group
activities, as well as individual assistance in areas of delay. (A.R. at 249.)
Irene Giusti, Ph.D., prepared a bilingual psycho-educational evaluation on September 3,
2003. (A.R. at 250-54.) During observations of H.P. at school, Dr. Giusti noted that H.P.’s
verbal comprehension was very low, he had a slow reaction time, and appeared to be lethargic.
(A.R. at 250.) The Bayley Scales of Infant Development showed that H.P. had a mental age
similar to a 22-month-old child, placing him in the low range for his age. (A.R. at 251.) On the
Vineland Adaptive Scales test, H.P.’s interpersonal relationships score (part of the socialization
domain) was the equivalent of a ten-month-old child. (A.R. at 252.) H.P.’s coping skills score
(also part of the socialization domain) was the equivalent of an eleven-month-old child. Id.
4
H.P.’s motor skills domain scores were adequate, but his scores in the communication, daily
living skills, and socialization domains were either low or moderately low. Id. Dr. Giusti
recommended educational services in light of H.P.’s severe cognitive delays. (A.R. at 253.)
Sometime in 2005, H.P. was diagnosed with ADHD by the National Pediatric Center and
prescribed Adderall and Risperdal. (A.R. at 299.) On January 7, 2005, psychologist Angel O.
Flores completed a psycho-educational evaluation. On the WPPSI-III test, H.P. received a full
scale IQ in the mental deficient range, though Dr. Flores noted that it was difficult to assess H.P.’s
true abilities due to his behavior during the evaluation. (A.R. at 240-41.) H.P.’s verbal IQ was
borderline, his performance IQ was deficient, and his processing speed IQ was borderline. (A.R.
at 241.) Dr. Flores described H.P. as an “active, distracted, impulsive, and immature boy who
demonstrated poor control over his impulses.” (A.R. at 242.) The final recommendation was for
a small-structured classroom environment to meet H.P.’s behavioral needs. (A.R. at 243.)
Elaine Bernabe, M.S., completed a speech-language annual progress note on January 24,
2005. (A.R. at 236-38.) H.P. had made significant progress in terms of his play skills and
showed a noted increase in his vocabulary. (A.R. at 236-37.) However, H.P. still had difficulty
following complex directions and in relaying what to do in different situations. Id. Receptive
language skills were delayed and ranged from the 36- to 42-month level.
(A.R. at 237.)
Expressive language skills were also delayed, assessed at the 30- to 36-month level. Id.
Mirian Olaechea completed an annual education progress note on February 1, 2005. (A.R.
at 234-35.) At the age of 51 months, H.P. was performing at approximately the 36-month level
with emerging skills. (A.R. at 234.) After long breaks from school, H.P. would have greater
difficulty relating with peers, sometimes screaming at them. (A.R. at 235.) H.P. had made steady
progress, but required adult supervision and intervention and would continue to benefit from a
5
special class setting. (A.R. at 235.)
After the initial application for benefits, Sheila Bernstein, a speech-language pathologist,
completed a bilingual speech-language evaluation on January 30, 2008. (A.R. at 273-75.) After
administering the TOLD-4-P, Bernstein noted that H.P. displayed below average results on the
picture vocabulary, relational vocabulary, syntactic understanding, and morphological completion
subtests. (A.R. at 275.) H.P.’s scores were average on the oral vocabulary and sentence imitation
subtests. Id. All of H.P. scores on the composites (listening, organizing, speaking, grammar,
semantics, spoken language) were below average. Id. H.P. presented with a moderate-severe
delay in language development with overall communication skills at the 5 ½ year level. Id. H.P.
did not demonstrate skills in Spanish. Id.
On January 31, 2008. Kenneth Cochrane, Ph.D., conducted a consultative child non-verbal
intelligence evaluation. (A.R. 262-65.) Dr. Cochrane noted that H.P. was uncooperative and
anxious during the evaluation, working impulsively and rapidly. (A.R. at 263.) Dr. Cochrane
administered the TONI-3 standardized non-verbal intelligence measure, resulting in a score of 70
within the mildly mentally retarded range. Id. H.P. was unable to dress, bathe, and groom
himself, and spent his days playing mostly alone. Id. The report noted many deficiencies in
H.P.’s ability to interact with others, including problems following directions, completing ageappropriate tasks, requesting assistance, and interacting with peers and adults. (A.R. at 264.) Dr.
Cochrane recommended that H.P. continue psychological and psychiatric treatment but that his
medication should be reexamined and possibly recalculated. Id. Dr. Cochrane’s final diagnosis
consisted of attention deficit hyperactivity disorder, cognitive disorder NOS, and mild mental
retardation. Id.
On February 20, 2008, Alan Dubro, Ph.D., performed a consultative psychiatric
6
evaluation. (A.R. at 268-72.) During the exam, H.P. was cooperative and demonstrated fluent
and clear speech without hyperactive behavior or lack of eye contact. (A.R. at 270.) Dr. Dubro
also noted that H.P.’s attention, concentration, and memory skills were intact. Id. H.P.’s mother
reported that H.P. could dress, bathe, and groom himself in an age-appropriate manner. (A.R. at
271.) H.P. had difficulty maintaining appropriate social behavior at home, but this was not
present at school. Id. Dr. Dubro diagnosed H.P. with disruptive behavior disorder not otherwise
specified and borderline cognitive functioning. Id. H.P.’s prognosis was fair. Id.
State agency psychiatrist Dr. Hou and speech language pathology specialist M. Lieberman
reviewed the record and completed a Childhood Disability Evaluation Form based on a “cold
read” of the file on March 11, 2008. (A.R. at 280-85.) They indicated that H.P.’s impairments
were disruptive behavior disorder, learning disability, mild mental retardation, and speechlanguage delay. (A.R. at 280.) They also indicated that these impairments were severe but did
not meet, medically equal, or functionally equal the listings. Id. They found that H.P. had
marked limitation in the domain of acquiring and using information, less than marked limitations
in the domains of attending and completing tasks, interacting and relating with others, caring for
yourself, and health and physical well-being, and no limitation in the domain of moving about and
manipulating objects. (A.R. at 282-83.)
H.P. was again prescribed medication in 2009 by the National Pediatric Center, this time
Focalin and Risperdal. (A.R. at 299, 303.) On July 28, 2009, Dr. Fermin Gonzalez of the
National Pediatric Center completed a child’s mental and physical impairment evaluation. (A.R.
at 302-05.) Dr. Gonzalez indicated that H.P. displayed marked limitations in personal/behavioral
function; limitation of concentration, persistence, or pace; limitations of fine motor functions; and
limitations of gross motor function. (A.R. 304-05.) H.P. displayed moderate limitations of
7
cognitive/communicative functioning and social functioning. Id. Dr. Gonzalez’ conclusions in
this report were not supported by additional documentation, though the ALJ had requested it prior
to the hearing. (A.R. 195-97.)
On July 25, 2009, Carmen Jimenez of Counseling Consultation Services prepared a letter
summarizing H.P.’s counseling treatment at their center. (A.R. 306-07.) After being referred by
a school counselor in April 2008, H.P. was diagnosed with separation anxiety disorder and
attention deficit hyperactivity disorder. (A.R. at 307.) As a result, H.P. received interactive
therapy and cognitive behavioral therapy. Id.
At the hearing before the ALJ on July 29, 2009, Dr. Alvin P. Goldstein, a pediatrician,
testified as the medical expert.
(A.R. at 66-91, 129-30.)
After reviewing the record, Dr.
Goldstein diagnosed H.P. with attention deficit disorder, mild mental retardation, learning
disability, and possibly oppositional defiance disorder. (A.R. at 69.) Dr. Goldstein concluded
that H.P. did not meet or medically equal the listing impairments. Id. Dr. Goldstein’s reasoning
included the fact that H.P. had never been hospitalized and that medication, when taken,
improved his behavior and relationships. (A.R. at 70.) H.P. was assessed to have less than
marked limitations in the domains acquiring and using information, attending and completing
tasks, caring for yourself, and health and physical wellbeing. (A.R. at 76-77.) H.P. had marked
limitations in the domain of interacting and relating with others and no limitation in the domain of
moving about and manipulating objects. (A.R. at 76.) When asked about the conflicting evidence
in the examinations from Dr. Cochrane and Dr. Dubro, Dr. Goldstein stated that “you don’t know
whether they’re talking about the same child.”
8
DISCUSSION
A.
Standard of Review
This Court has the “power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). In reviewing the
Commissioner's decision, the Court need not determine de novo whether a claimant is disabled.
See Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996). Rather, the Court’s inquiry is limited to the
question of whether the Commissioner applied the correct legal standard in making the
determination and, if so, whether such determination is supported by substantial evidence in the
record. See 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (“Substantial
evidence ‘is more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’”); Lamay v. Astrue, 562 F.3d 503, 507 (2d Cir.
2009) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “[T]o determine whether the
findings are supported by substantial evidence, the reviewing court is required to examine the
entire record, including contradictory evidence and evidence from which conflicting inferences
can be drawn.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983)). Moreover, “[e]ven when a claimant is represented by counsel, it
is the well-established rule in our circuit that the social security ALJ, unlike a judge in a trial,
must on behalf of all claimants . . . affirmatively develop the record in light of the essentially nonadversarial nature of a benefits proceeding.’” Moran v. Astrue, 569 F.3d 108, 112-13 (2d Cir.
2009) (quoting Lamay, 562 F.3d at 508-09). Therefore, the court must be satisfied “that the
claimant has had a full hearing under the . . . regulations and in accordance with the beneficent
purposes of the [Social Security] Act.’” Id. at 112 (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d
9
Cir. 1990)). “The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Remand for calculation of
benefits is “appropriate when the existing record compels the conclusion that the plaintiff is
disabled.” Ali v. Astrue, No. 09-CV-2123, 2010 WL 889550 at *4 (E.D.N.Y. Mar. 8, 2010).
B.
SSA Regulations Defining Childhood Disability
To qualify for SSI benefits, a child under the age of eighteen 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 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i); see also
Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004).
The SSA has provided a three-step
sequential analysis to determine whether a child is eligible for SSI benefits on the basis of
disability. 20 C.F.R. § 416.924(a); see also Pollard, 377 F.3d at 189. First, the ALJ must
consider whether the child is engaged in “substantial gainful activity.” 20 C.F.R. § 416.924(b).
“Second, the ALJ considers whether the child has a medically determinable impairment that is
severe, ‘which is defined as an impairment that causes more than minimal functional
limitations.’” Pollard, 377 F.3d at 189 (quoting 20 C.F.R. § 416.924(c)). Third, “if the ALJ finds
a severe impairment, he or she must then consider whether the impairment medically equals’ or ...
functionally equals ‘a disability listed in the regulatory Listing of Impairments.’” Id. (quoting 20
C.F.R. § 416.924(c), (d)).
Under the third step, a claimant can demonstrate functional equivalence to a Listing
impairment by exhibiting “marked” limitations in two of six domains, or an “extreme” limitation
in one domain. 20 C.F.R. § 416.926a(a). These six domains consider a child’s: (1) ability to
acquire and use information; (2) ability to attend and complete tasks; (3) ability to interact and
10
relate with others; (4) ability to move about and manipulate objects; (5) ability to care for oneself;
and (6) health and physical well-being. 20 C.F.R. §§ 416.926a(a)-(b). A “marked” limitation
“interferes seriously with [the child’s] ability to independently initiate, sustain, or complete
activities.” Johnson v. Astrue, 563 F. Supp. 2d 444, 454 (S.D.N.Y. 2008) (quoting 20 C.F.R. §
416.926a(e)(2)(i)).
In addition, the regulations provide that a limitation is “marked” when
standardized testing shows functioning two standard deviations below mean levels. Id.; see also
Pacheco v. Barnhart, 2004 WL 1345030, at *4 (E.D.N.Y. Jun. 14, 2004).
An “extreme”
limitation exists when the impairment “interferes very seriously with [the child’s] ability to
independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(i).
An
“extreme” limitation would be found in a domain where the child scores at least three standard
deviations below average. Id.
C.
ALJ’s Decision
The ALJ applied the three-step analysis set forth in 20 C.F.R. § 416.924(a) to evaluate
H.P.’s claim. The ALJ resolved step one in plaintiff’s favor, since H.P. had not engaged in
substantial gainful activity. (A.R. at 16.) At step two, the ALJ found that H.P. had severe
impairments of “learning disability, speech delay, attention deficit hyperactivity disorder
(ADHD), borderline intellectual functioning and behavior problems.” Id. The ALJ resolved step
three against the plaintiff, finding that the claimant did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R. § 404,
Subpart P, Appendix 1, and consequently, that H.P. was not disabled.
D.
Application
The Commissioner seeks remand, contending that the ALJ failed to consider the validity
of the IQ test performed by Dr. Cochrane, and that the gaps in the record prevented the ALJ from
11
reaching a valid conclusion. Plaintiff opposes the motion and moves for remand solely for
calculation of benefits, contending that the record compels a finding of disability and that remand
for further development of the record is unnecessary.
1. The ALJ Erred by Not Considering the Validity of the IQ Test
At step three, the ALJ first applied the record to the Listing of Impairments §112.05(E) for
mental retardation. 20 C.F.R. § 404 Subpart P Appendix 1 112.05(E). Section 112.05(E) requires
a valid verbal, performance, or full scale IQ of 60 through 70, resulting in impairments listed in at
least one of paragraphs B2b (marked impairment in age-appropriate social functioning), B2c
(marked impairment in age-appropriate personal functioning), or B2d (marked difficulties in
maintaining concentration, persistence, or pace), of §112.02. When evaluating the factors of
§112.05(E), the ALJ’s decision considered whether Dr. Cochrane’s findings were consistent with
the rest of the record, but did not directly consider whether the IQ score of 70 was valid. (A.R. at
29.) The relevant standards for assessing an IQ score are found in 20 C.F.R. § 404 Subpart P
Appendix 1, 112.00(D)(8):
8. The salient characteristics of a good test are: (1) Validity, i.e., the test measures
what it is supposed to measure; (2) reliability, i.e., the consistency of results
obtained over time with the same test and the same individual; (3) appropriate
normative data, i.e., individual test scores can be compared to test data from other
individuals or groups of a similar nature, representative of that population; and (4)
wide scope of measurement, i.e., the test should measure a broad range of
facets/aspects of the domain being assessed. In considering the validity of a test
result, we should note and resolve any discrepancies between formal test results
and the child's customary behavior and daily activities.
A proper evaluation of an IQ score follows the requirements found in § 112.00(D)(8) and
“compare[s] the testing scores available, resolve[s] conflicts in the evidence, and examine[s] the
scores in connection with other relevant information in the record.” Doyle v. Astrue, 2011 WL
1706956, at *10 (D.S.C. May 5, 2011). The standards in 112.00(D)(8) specifically require an
12
ALJ to “note and resolve any discrepancies between formal test results and the child’s customary
behavior and daily activities.” 20 C.F.R. § 404 Subpart P Appendix 1, 112.00(D)(8). In the case
at bar, the ALJ met none of these requirements. By not considering whether the IQ score was
valid, the ALJ committed legal error and remand is proper.
Plaintiff seeks remand solely for the calculation of benefits, and claims that an evaluation
by the ALJ of the IQ test upon remand is unnecessary since the IQ score is valid “when the clear
regulations on assessing validity of IQ scores are applied.” (Pl.’s Mem. at 23.) Remand for
calculation of benefits is “appropriate when the existing record compels the conclusion that the
plaintiff is disabled.” Ali v. Astrue, 2010 WL 889550, at *4 (E.D.N.Y. Mar. 8, 2010). The
Commissioner presents a compelling argument for the existence of discrepancies between H.P.’s
customary behavior and the test results, as well as questioning the validity of the test results based
on H.P.’s behavior during the test. (Def.’s Mem. at 19-22.) In short, there is evidence in the
record that casts doubt on the IQ score’s validity, and thus the existing record does not “compel”
a conclusion of disability. See Pereira v. Astrue, 2010 WL 2091716, at *9 (E.D.N.Y. May 25,
2010) (“On this record . . . . the facts could support a conclusion of either disabled or not disabled.
Accordingly, the case is remanded to allow the ALJ to reweigh the evidence, developing the
record as needed.”).
Additionally, plaintiff argues that H.P. is mentally retarded under § 112.05(D) of the
Listing of Impairments, which requires that claimant show an IQ score of 60 through 70 and a
physical or other mental impairment imposing an additional and significant limitation of function.
Plaintiff cites H.P.’s ADHD as the mental impairment that meets this requirement. (Pl.’s Mem. at
20 n. 1). In response, the Commissioner again notes correctly that neither the requirements of §
112.05(D) nor § 112.05(E) can be met without a valid IQ score, which the ALJ failed to evaluate
13
below. (Def.’s Reply Mem. at 2). Accordingly, the case must still be remanded to determine the
validity of the IQ score.
2. The Record Does Not Compel a Finding of Disability Based on Marked Limitations
in Two of the Six Domains
The ALJ also considered the six domains found in 20 C.F.R. § 416.924(d) and 416.926(a)
to determine whether H.P. had an impairment or combination of impairments that functionally
equaled the listings. H.P. was found to have a marked limitation in the domain of interacting and
relating with others. (A.R. at 36). The ALJ also determined that H.P. had less than marked
limitations in the domains of acquiring and using information, attending and completing tasks,
caring for yourself, health and physical well-being, and no limitations in the domain of moving
and manipulating objects. (A.R. 30-43).
As a result, H.P. did not have an impairment or
combination of impairments that functionally equaled the listings. (A.R. at 43).
Plaintiff argues that H.P. has marked limitations in at least three functional domains – the
domain of interacting and relating with others (found by the ALJ and conceded by the defendant),
as well as the domain of acquiring and using information, and the domain of attending and
completing tasks, which functionally equal a listed impairment. (Pl.’s Mem. at 20.) Regarding
acquiring and using information, the Commissioner persuasively notes that the incomplete
education record 2 prevents a decisive finding of a marked limitation (or lack thereof) in this
domain. Moreover, some of the evidence in the record supports the finding of a less than marked
2
On remand, the ALJ should complete the record, which has gaps from 2007 to 2009,
notably lacking updated IEPs, report cards, teacher comments, and Dr. Gonzalez’ treatment notes.
See Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996) (thirteen-month gap and missing treating notes
from doctor were enough for remand). This court notes that Dr. Gonzalez’ treating notes, when
added to the record, could affect the weight given to Dr. Gonzalez’ opinion as a treating
physician. If Dr. Gonzalez’ opinion is given greater weight, Dr. Cochrane (and the IQ score) may
no longer be the outlier in the record.
14
limitation in the domain of acquiring and using information, including a report from H.P.’s
teacher that he had few problems completing tasks, and H.P.’s score on an English-as-a-secondlanguage exam that no longer requires him to receive bilingual education. (A.R. at 31-33, 167,
288). In short, the record does not “compel” a finding for or against a marked limitation in this
domain, and remand is appropriate.
Nor is a finding of marked limitations compelled in the domain of attending and
completing tasks. (A.R. at 34-35.) Plaintiff notes that both Dr. Cochrane and Dr. Bernstein found
that H.P. was highly distracted and had a short attention span. (Pl.’s Mem. at 23, n. 1). However,
less than a month after these examinations, Dr. Dubro found that H.P. was able to follow and
understand age-appropriate directions, and could complete age-appropriate tasks. (A.R. at 271).
The Commissioner also notes that H.P.’s teacher, Ms. Almonte, assessed that H.P. had no serious
problems in this domain. (Def.’s Mem. at 23). Thus, the record does not “compel” a finding for
or against a marked limitation in this domain.
CONCLUSION
For the reasons set forth above, the Commissioner’s motion is granted, the plaintiff’s
motion is denied, and the case is remanded, pursuant to the fourth sentence of 42 U.S.C. § 405(g),
to the Commissioner to consider the validity of the IQ test administered by Dr. Cochrane, and
complete the record, which has gaps from 2007 to 2009.
SO ORDERED
DATED: Brooklyn, New York
July 7, 2011
________________/s/________________
DORA L. IRIZARRY
United States District Judge
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