Mendez v. Astrue
Filing
22
ORDER denying 14 Motion for Judgment on the Pleadings; granting 16 Motion to Remand: For the reasons discussed in the attached Memorandum and Order, the court denies defendant's motion for judgment on the pleadings and grants plaintiff 9;s motion to remand this case for further proceedings consistent with this opinion. The Clerk of the Court is respectfully requested to enter judgment in favor of plaintiff and close this case. Ordered by Judge Kiyo A. Matsumoto on 4/18/2013. (Beauchamp, Peter)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
OLIVIA MENDEZ O/B/O
E.V., a minor child,
NOT FOR PRINT OR
ELECTRONIC PUBLICATION
Plaintiff,
MEMORANDUM & ORDER
11-CV-4297(KAM)
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
-----------------------------------X
MATSUMOTO, United States District Judge:
Pursuant to 42 U.S.C. § 405(g) and 1383(c)(3),
plaintiff
Olivia Mendez (“plaintiff”), on behalf of her minor
daughter, E.V., seeks judicial review of the final decision of
defendant Commissioner of Social Security Michael Asrue
(“defendant” or the “Commissioner”), who denied plaintiff’s
application for Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act (“the Act”).
Plaintiff contends
that she is entitled to receive SSI benefits on behalf of E.V.
because the Commissioner’s decision did not include new and
material evidence indicating E.V.’s marked limitations in the
additional domains of “acquiring and using information” and
“interacting and relating with others.”
(See generally ECF No.
1, Complaint, dated 9/8/2011 (“Compl.”).)
Presently before the
court are plaintiff’s motion for a remand in light of new
evidence and defendant’s motion for judgment on the pleadings.
For the reasons set forth below, plaintiff’s motion for remand
is granted and defendant’s cross-motion for judgment on the
pleadings is denied.
BACKGROUND
I.
Social Security Disability Determination Process
Under the Act, “[e]very aged, blind, or disabled
individual who is determined . . . to be eligible on the basis
of his income and resources shall, in accordance with and
subject to the provisions of this subchapter, be paid benefits
by the Commissioner of Social Security.”
42 U.S.C. § 1381a.
An
individual under the age of eighteen is considered disabled
under the Act if she has “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.”
Id. § 1382c(a)(3)(C)(i);
Kittles ex rel. Lawton v. Barnhart, 245 F. Supp. 2d 479, 487
(E.D.N.Y. 2003).
Further, although not a relevant factor here,
an individual under the age of eighteen who “engages in
substantial gainful activity” is not eligible for SSI benefits.
42 U.S.C. § 1382c(a)(3)(C)(ii); Kittles, 245 F.Supp.2d at 488;
20 C.F.R. § 416.924(b).
2
In order for a claimant under the age of eighteen to
be found disabled, the Act requires an ALJ to conduct a threestep sequential analysis finding each of the following: (1) that
the claimant is not engaged in substantial gainful activity; (2)
that the claimant has a medically determinable impairment or a
combination of impairments that is “severe” (i.e., the
impairment or combination of impairments cause more than a
minimal functional limitation); and (3) that the impairment or
combination of impairments meet or equal a disabling condition
identified in the listing of impairments set forth in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (a “listed impairment”).
See
Jones ex rel. T.J. v. Astrue, No. 07-CV-4886, 2010 WL 1049283,
at *5 (E.D.N.Y. Mar. 17, 2010); Kittles, 245 F. Supp. 2d at 488;
20 C.F.R. § 416.924(b)-(d).
Equivalence to a listed impairment
may be medical or functional.
See Jones ex rel. T.J., 2010 WL
1049283, at *5; Kittles, 245 F.Supp.2d at 488; 20 C.F.R. §
416.924(d).
Analysis of functional equivalence requires the ALJ to
assess the claimant’s functional ability in six main areas
referred to as “domains.”
20 C.F.R. § 416.926a(b)(1).
The six
domains are “broad areas of functioning intended to capture all
of what a child can or cannot do,” id., and include: “(i)
[a]cquiring and using information; (ii) [a]ttending and
completing tasks; (iii) [i]nteracting and relating with others;
3
(iv) [m]oving about and manipulating objects; (v) [c]aring for
[oneself]; and (vi) health and physical well-being,” id.
Functional equivalence is established when the ALJ finds that
the claimant has a “marked limitation” in two domains or an
“extreme limitation” in one domain.
20 C.F.R. § 416.926a(a).
“Marked limitation” is described as an impairment that seriously
interferes with a claimant’s ability to “independently initiate,
sustain and complete activities.”
Id. § 416.926a(e)(2).
“more than moderate, but less than extreme.”
Id.
It is
In addition,
“marked limitation” is also described as what would be expected
with the equivalent of two standard deviations below the mean on
standardized testing.
Id. § 416.926a(e)(2)(iii).
“A marked
limitation may arise when several activities or functions are
impaired, or even when only one is impaired, as long as the
degree of limitation is such as to interfere seriously with the
ability to function (based upon age-appropriate expectations)
independently, appropriately, effectively, and on a sustained
basis.”
Jones, 2010 WL 1049283, at *6 (quoting 20 C.F.R. Pt.
404, Subpart P, App. 1, § 112.00(C)).
II. Procedural History
Plaintiff applied for SSI benefits on behalf of E.V.,
a minor child, on February 28, 2009, claiming that E.V. was
disabled since May 1, 2008.
(See ECF No. 19, Administrative
Record, filed 5/8/2012 (“Tr.”) at 19, 141-149.)
4
E.V.’s claim
was denied on April 15, 2009 and the plaintiff requested an
administrative hearing.
(Id. at 19, 70-76.)
Plaintiff and her
attorney, with the help of a Spanish Interpreter, appeared
before Administrative Law Judge David Nisnewitz (“the ALJ”) on
May 20, 2010.
(See id. at 13-31.)
On June 14, 2010, the ALJ
issued a decision concluding that E.V. was not disabled within
the definition of the Act because she does not have an
impairment or combination of impairments that meets or medically
equals the criteria of a listing, or that functionally equals
the listings.
(Tr. at 19-31); see also 20 C.F.R. § 416.924(d).
The ALJ found that E.V. showed no extreme limitations in any one
of the six functional equivalent domains, and that she had a
marked limitation in only one of the domains, namely, moving
about and manipulating objects.
(Tr. at 20-30).
On June 14, 2010, plaintiff sought review of the ALJ’s
decision by the Appeals Council.
(Id. at 1-3.)
On July 8,
2011, the Appeals Council denied the plaintiff’s request for
review and, as a result, the ALJ’s decision became the final
decision of the Commissioner (Id.)
This appeal followed.
On September 7, 2011, plaintiff commenced this action
against the Commissioner, claiming that the defendant erred in
failing to accept E.V.’s April 2010 test results as new and
material evidence and remand the ALJ decision.
(Compl. At 5.;
see also ECF No. 17, Plaintiff’s Brief, filed 5/8/2012 (“Pl.
5
Br.”) at 2.)
The Commissioner answered on December 7, 2011 and
moved for judgment on the pleadings on May 8, 2012.
(ECF No.
10, Answer; ECF No. 14, Mot. For J. on the Pleadings (“Def.
Mot.”).)
Plaintiff opposed the motion and filed a cross-motion
for remand to consider additional evidence from a November 2010
hospitalization of E.V.
In her cross-motion for remand,
plaintiff also added new evidence of a November 2010
hospitalization during which E.V.’s shunt was replaced.
(See
ECF No. 16, Cross Mot. for Remand to Consider New and Material
Evidence (“Pl. Motion”); Pl. Br. at 2-3, 9.)
III. Background and Medical History in the Administrative Record
E.V. was born on November 5, 2007 and was two years
old when the ALJ rendered his decision.
(Tr. 13, 126.)
She
lives in a three-bedroom apartment with her mother (plaintiff),
father, and brother in Queens, NY. (Tr. 136,140, 142.)
The
apartment is shared with other families, and E.V.’s family
shares one room.
Mexico.
(Tr. 194.)
(Tr. 194.)
Her family is originally from
E.V.’s father, Benjamin Vasquez, works at a
restaurant to support the family, and the family receives food
stamps to aid with expenses.
(Tr. 194, 196.)
E.V.’s mother
speaks Spanish, which is the only language spoken in the home,
although E.V.’s father speaks English.
(Tr. 175, 193, 196.)
E.V. has been disabled with Hydrocephaly since May 1,
2008, a congenital condition in which fluid builds up in the
6
skull, placing pressure on the brain and causing the skull to
grow at above-average rates. (Tr. 141, 156, 174, 193, 353.)
As
a result of E.V.’s condition, in July 2008 a shunt was placed in
her skull to drain the fluid from her head to her stomach.
at 174-75, 193, 353).
(Tr.
In September 2008, E.V. was hospitalized
for three days due to a blocked shunt.
(Tr. 175, 197.)
IV. Developmental History in the Administrative Record
In December 2008, when E.V. was thirteen months old,
she was referred to Early Intervention Services (EIS) by her
primary care physician, Dr. Caesar Preposi, because of her
history of hydrocephalus and concerns with her motor
development. (Tr. 192-93.)
The EIS services were provided by
TheraCare and an initial bilingual family assessment was
performed on December 26, 2008 by Ivelisse Hills, LMSW.
193-95.)
This initial assessment showed that E.V. rolled with
difficulty and was unable to bear weight on her legs.
194.)
(Tr.
(Tr.
The report also showed she was eating well, had different
cries for different needs that could be differentiated,
communicated her needs by pointing and saying “este,” could say
“mama” and “papa,” was alert and responsive, and was described
as a “good baby.”
(Id.)
The report also found that Ms. Mendez
was a “concerned mom” interested in ensuring that he daughter
developed properly.
recommended.
(Tr. 195.)
A physical evaluation was
(Tr. 195.)
7
On December 26, 2008, TheraCare conducted a bilingual
physical evaluation in the family’s home using the Peabody
Developmental Motor Scales to test her motor functions.
201-03.)
(Tr.
This assessment showed no issues with social-emotional
behavior or sensory processing.
(Tr. 201.)
E.V. did, however,
show severely low muscle tone in the pelvis and legs, severe
muscle weakness and hypermobility in the legs and lower trunk,
and inability to move to a sitting position, roll, crawl, or
pull to stand or bear weight on her legs.
(Tr. 202-03.)
The
evaluation determined E.V. functioned at the age-equivalent of
seven months for locomotive skills, nine months for stationary
skills, and twelve months for object manipulation skills.
202.)
(Tr.
Overall, this assessment placed E.V.’s functioning level
at 2.13 standard deviations below the mean and in the first
percentile.
(Tr. 202.)
Physical therapy was strongly
recommended to address these issues with E.V.’s motor
functioning.
(Tr. 203.)
On January 7, 2009, TheraCare performed a bilingual
development assessment in the family’s home.
(Tr. 196-200.)
Using the Hawaii Early Learning Profile (HELP) test, E.V.’s
cognitive and language skills were assessed as age appropriate.
(Tr. 198.)
Using the Developmental Assessment of Young Children
(DAYC) test, E.V’s social-emotional and adaptive skills were
also found to be average for her age. (Tr. 198.)
8
However,
E.V.’s motor skills, also evaluated with the DAYC test, were
described as “very poor” and 2.5 standard deviations below the
norm.
(Tr. 198.)
With the exception of her ability to sit and
crawl, E.V.’s developmental milestones were age-appropriate.
(Tr. 199-200.)
therapy.
The Educational Evaluator recommended physical
(Tr. 200.)
On January 8, 2009, TheraCare provided a
multidisciplinary evaluation that summarized the results of
their assessments.
(Tr. 231-36.)
In general, this evaluation
restated information from the previous assessments and
emphasized that E.V. had delays in motor development but age
appropriate skills in all other domains.
(Tr. 231.)
On
January 20, 2009, the New York City Early Intervention Program
developed an Individualized Family Service Plan for E.V. to
address issues with her motor skills development.
(Tr. 179-89.)
The plan authorized three different services to take place for
thirty minutes each week for a period of six months.
(Tr. 183.)
V. Medical Expert Hearing Testimony
At the ALJ hearing on May 20, 2010, Allan M.
Rothenberg, M.D. (“Dr. Rothenberg”) testified as a medical
expert that E.V. did not meet or equal the social security
disability listings.
(Tr. 19, 361.)
Dr. Rothenberg’s opinion
was based on plaintiff’s testimony as well as the medical
evidence submitted at the hearing.
9
(Tr. 361-64.)
Specifically,
Dr. Rothenberg stated that E.V. did not show severe limitations
in any of the six domains, and showed a marked limitation only
in the fourth domain, moving about.
(Tr. 361.)
Dr.
Rothenberg’s opinion that E.V. had a marked limitation in moving
about was based on E.V.’s delays in motor skills and failure to
reach certain developmental milestones.
(Tr. 363.)
Dr. Rothenberg testified that E.V. had a less than
marked limitation in domains one (acquiring and using
information) and six (health and physical well-being); and no
limitation in domains two (attending and completing tasks),
three (interacting with others), and five (caring for yourself).
(Id.)
Additionally, Dr. Rothenberg stated that in regards to
the sixth domain--health and physical well-being--although
E.V.’s condition requires the use of a shunt, it is common for a
shunt to get infected or obstructed, therefore E.V.’s
hospitalization was not an indication of E.V. needing shunt
revisions “extra frequently.”
(Tr. 361, 364.)
VI. The ALJ Opinion
On June 14, 2010 the ALJ issued an opinion finding
that E.V. was not disabled under the Act.
(Tr. 31.)
Performing
the three-step analysis set forth in the Social Security
Administration Regulations (the “Regulations”) at 20 C.F.R. §
416.924, the ALJ first found that E.V. “is an older infant and
has never engaged in substantial gainful activity” since
10
February 28, 2009, the date the application was filed.
22.)
(Tr.
Second, the ALJ found that E.V.’s hydrocephalus and motor
delays were severe impairments.
(Id.)
Third, however, the ALJ
determined that E.V. did not “have an impairment or combination
of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1” and
that E.V. did not “have an impairment or combination of
impairments that functionally equals the listings pursuant to 20
C.F.R. § 416.924(d) and 416.926a.”
(Tr. 22-23.)
In finding that E.V.’s impairments did not meet or
medically equal a listed impairment, the ALJ concluded that
there was no evidence of “persistent disorganization or deficit
motor function for age involving two extremities which (despite
prescribed therapy) interferes with age appropriate major daily
activities and results in disruption of in the instant case gait
and station, as established by medical expert testimony.”
22 (quotation
(Tr.
marks omitted).)
In finding that E.V.’s impairments did not
functionally equal the listings, the ALJ evaluated the degree of
limitation in the six functional equivalence domains as provided
for in 20 C.F.R. §§ 416.924a, 416.926a, and 416.929. (Tr. 2330.)
Specifically, the ALJ considered
“all
of
the
relevant
evidence”
includ[ing] objective medical evidence
and
other
relevant
evidence
from
11
medical sources; information from other
sources,
such
as
school
teachers,
family
members,
or
friends;
the
claimant’s
statements
(including
statements
from
the
claimant’s
parent(s) or other caregivers); and any
other relevant evidence in the case
record, including how the claimant
functions over time and in all settings
(i.e., at home, at school, and in the
community).
(Tr. 23.)
The ALJ also evaluated the “whole child” pursuant to
20 C.F.R. §§ 416.926a(b) and (c) and further explained in SSR
09-1p, 2009 WL 396031 (Feb. 17, 2009).
(Id.)
The ALJ stated
that he evaluated how E.V. functions “in all settings and at all
times, as compared to other children the same age who do not
have impairments.”
(Id.)
In the first domain, acquiring and using information,
the ALJ found that E.V. had a less than marked limitation.
25-26.)
(Tr.
The ALJ stated that this decision was based upon the
testimony of the medical expert, Dr. Rothenberg, as well as the
early intervention evaluation of December 2008, which
illustrated E.V.’s ability to look at pictures, follow a simple
request, and point.
(Tr. 26.)
In the second domain, attending and completing tasks,
the ALJ found that E.V. had no limitation.
(Tr. 26-27.)
The
decision was based upon the testimony of Dr. Rothenberg, who
reviewed the evaluations in the records, that there was no
evidence of delay in this area.
(Tr. 27.)
12
In the third domain, interacting and relating with
others, the ALJ found there was no limitation.
(Tr. 28.)
The
decision was based upon Dr. Rothenberg’s testimony, pursuant to
the December 2008 early intervention evaluation report, that
E.V. was following objects, saying single words, and even saying
one to three word phrases.
(Tr. 28.)
In the fourth domain, moving about and manipulating
objects, the ALJ found that E.V. had a marked limitation.
29.)
(Tr.
This decision was based upon Dr. Rothenberg’s testimony of
a delay in motor development noted E.V.’s medical screenings and
evaluations from December 2008 to January 2009.
320.)
(Tr. 29, 283-
Specifically, Dr. Rothenberg testified that these delays
included “rolling at 8 months, usually happens 4 or 5 months,
sitting up at 12 to 13 months, usually 9 months, standing up and
cruising around furniture usually 11 or 13 months , but the
claimant did not stand per her mother until age 2.”
(Tr. 29.)
The ALJ also noted that E.V. was found to have motor delays at
more than two standard deviations below the mean.
(Tr. 24.)
In the fifth domain, caring for oneself, the ALJ found
that there was no limitation.
(Tr. 29.)
This decision was
based upon Dr. Rothenberg’s testimony that there was no evidence
of any limitation in this area.
(Id.)
In the sixth domain, health and physical well-being,
the ALJ found a less than marked limitation.
13
(Tr. 30.)
This
finding was made despite Dr. Rothenberg’s testimony that “since
[E.V.] has a shunt in place . . . it is true that from time to
time the child may need what is called a shunt revision.”
30.)
(Tr.
The ALJ also noted that petitioner alleged that E.V. goes
to the hospital every six months, and that E.V will have the
shunt throughout her life.
(Tr. 24.)
At the hearing, there was some evidence of a
discrepancy between the testimony of Dr. Rothenberg and the
plaintiff (Tr. 362.), but the ALJ did not explain how he weighed
the evidence in the record.
The ALJ’s decision on each of the
six functional domains, however, is consistent with the opinion
of Dr. Rothenberg, based on hi review of the records, as to each
of these domains, and the ALJ’s decision that E.V.’s impairment
or combination of impairments did not functionally equal the
listings was “established by medical expert testimony,”
suggesting that Dr. Rothenberg’s testimony was given significant
weight in the decision.
(Tr. 23, 25.)
VII. Post-Administrative Hearing Evidence
A. April 2010 Assessments
In April 2010, E.V. had aged out of EIS and was reevaluated to determine her needs under the NYC Committee on
Preschool Special Education.
(Tr. 327, 331.)
This evidence was
submitted to the Appeals Council and was made part of the
record.
(Tr. 5.)
14
On April 22, 2010 Anabel Haley, Ph.D (“Dr. Haley”), a
licensed psychologist, performed a bilingual social history on
E.V.
(Tr. 331-34.)
Dr. Haley noted E.V.’s shunt placement,
subsequent hospitalization for complications due to the shunt,
and five ear infections.
(Tr. 332.)
Dr. Haley reported that
E.V. showed significant improvement following her physical
therapy for the previous six months.
(Tr. 332.)
Dr. Haley
recommended E.V. receive psychological, educational, and
speech/language evaluations, as well as a medical examination
and physical therapy evaluation.
(Tr. 333.)
On April 22, 2010, a bilingual psychological
evaluation was performed by Dr. Haley.
(Tr. 335-40.)
Using the
Bayley Scales of Infant and Toddler Development, E.V.’s
cognitive skills were described as average in the 25th
percentile, but her language skills were described as “extremely
low” in the second percentile and 2.1 standard deviations below
the mean.
(Tr. 336, 338-39.)
Using the Vineland-II Adaptive
Behavior Scales, Dr. Haley found that E.V.’s verbal
communication skills were 1.4 standard deviations below the mean
and her socialization skills were 1.2 standard deviations below
the mean.
(Tr. 337-39.)
This test also evaluated E.V.’s motor
skills as 1.5 standard deviations below the mean.
(Tr. 339.)
Dr. Hayley recommended evaluations by a physical therapist and
speech pathologist, as well as special instruction services, to
15
address E.V.’s delays in communicative and cognitive
development.
(Tr. 340.)
On April 26, 2010, Sharene Lewis, a bilingual speech
pathologist, performed a bilingual speech and language
evaluation on E.V.
(Tr. 321-26.)
Using the Preschool Language
Scale-4 Spanish Edition (PLS-4SE) test, E.V.’s receptive
language skills were “low average” at 1.2 standard deviations
below the mean (12th percentile); expressive language skills
were measured as age appropriate at 0.1 standard deviations
below the mean (47th percentile); and total language skills were
measured as age appropriate at 0.7 standard deviations below the
mean (25th percentile).
(Tr. 324-25.)
recommended at the time.
No speech therapy was
(Tr. 325.)
On April 28, 2010, a bilingual educational evaluation
was performed by Elizabeth Antezana, MS SpEd (“Ms. Antezana”),
using the DAYC test.
(Tr. 341-44.)
Ms. Antezana’s initial
observations described E.V. as “shy and quiet” with limited or
unintelligible speech.
(Tr. 341.)
E.V’s educational evaluation
had the following results: adaptive skills were measured at a
27-month level for a 29-month-old child (7% delay); cognitive
skills measured at a 25-month level (14% delay); behavior and
social skills measured at a 22-month level (24% delay);
communication skills measured at a 21-month level (27.5% delay);
and motor skills measured at a 20-month level (31% delay).
16
(Tr.
342-43.)
However, Ms. Antezana noted that these results should
be interpreted with caution because of the deviations from the
standard procedures for the tests in order to “accommodate
bilingual issues and bicultural issues.”
(Tr. 341.)
On April 30, 2010, E.V. was given a bilingual physical
therapy evaluation by physical therapist Martha Londono (“Ms.
Londono”).
(Tr. 345-48.)
Using the Peabody Developmental Motor
Scales, Second Edition (PDMS-2) test, E.V.’s gross motor skills
were determined to be in the second percentile, or two standard
deviations below the norm.
(Tr. 346.)
This test further showed
that E.V. could not jump in place, kick a ball, run, stand
without using her hands for support, or stand on the tip of her
toes.
(Tr. 347.)
This was in large part due to decreased
muscle tone that hindered E.V.’s ability to gain normal gross
motor skills for a child her age.
(Id.)
Londono suggested physical therapy.
As a result, Ms.
(Id.)
B. November 2010 Hospitalization
Following the Appeals Council decision, E.V. was
hospitalized again for shunt malfunction in November 2010.
generally Pl. Motion.)
(See
She was admitted to the hospital due to
lethargy and vomiting and was transferred for further treatment
to receive a shunt revision.
Id. Plaintiff submitted this
evidence to be included in the record as new and material
evidence.
(Pl. Br. at 11.)
17
DISCUSSION
I. Standard of Review
A. Standard for Remand Based On New and Material Evidence
A district court may remand a case under “sentence
six” to the Commissioner and order that additional evidence be
incorporated into the record “upon a showing that there is new
evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior
proceeding.”
42 U.S.C. § 405(g).
First, a claimant must show that the evidence is “new
and not merely cumulative of what is already in the record.”
Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (internal
quotations omitted) (citing Szubak v. Sec’y of Health & Human
Servs., 745 F.2d 831, 833 (3d Cir. 1984)).
Second, the claimant
must show that the new evidence is “material,” where it is “(1)
relevant to the claimant’s condition during the time period for
which benefits were denied and (2) probative.”
Pollard v.
Halter, 377 F.3d 183, 193 (2d Cir. 2004) (internal quotations
omitted).
Materiality also requires “a reasonable possibility
that the new evidence would have influenced the [Commissioner]
to decide a claimant’s application differently.”
Id.
Third,
the claimant must show good cause for failing to present the
evidence during earlier proceedings.
Tirado, 842 F.2d at 597
(citing Tolany v. Heckler, 756 F.2d 268, 272 (2d Cir. 1985)).
18
Generally, because claimants are only provided one opportunity
to present their case for eligibility of benefits, the showing
of good cause is designed to prevent claimants from appealing
decisions of the Commissioner as an “end-run method of appealing
an adverse ruling by the Secretary.”
Szubak, 745 F.2d at 834.
B. The ALJ’s Duty to Develop the Record
The duty of an ALJ to develop the administrative
record is a bedrock principle of Social Security law.
Rodriguez
ex rel. Silverio v. Barnhart, No. 02-CV-5728, 2003 WL 22709204,
at *3 (E.D.N.Y Nov. 7, 2003).
This duty exists when there is a
deficiency in the record, even where a claimant is represented
by counsel.
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999);
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996).
“The
obligation to develop the record includes assembling the
claimant’s complete medical history and recontacting the
claimant’s treating physician if the information received from
the treating physician or other medical source is inadequate to
determine whether the claimant is disabled.”
Rodriguez ex rel.
Silverio, 2003 WL 22709204, at *3; see also Rosa, 168 F.3d at 80
(finding that medical records consisting of sparse notes from
nine visits required the ALJ to request additional information
in order to have an exhaustive record on which to base a
conclusion).
19
C. The Substantial Evidence Standard
A district court reviews the Commissioner’s decision
to “determine whether the correct legal standards were applied
and whether substantial evidence supports the decision.”
Butts
v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004) (citing Machadio
v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)).
evidence is ‘more than a mere scintilla.
“Substantial
It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.’”
Halloran, 362 F.3d at 31 (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
After reviewing the Commissioner’s determination, the
district court may “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.”
(quoting 42 U.S.C. § 405(g)).
Butts, 388 F.3d at 384
“Remand is ‘appropriate where,
due to inconsistencies in the medical evidence and/or
significant gaps in the record, further findings would . . .
plainly help to assure the proper disposition of [a] claim.’”
Lackner v. Astrue, No. 09–CV–895, 2011 WL 2470496, at *7
(N.D.N.Y. May 26, 2011) (quoting Kirkland v. Astrue, No. 06-CV4861, 2008 WL 267429, at *8 (E.D.N.Y. Jan. 29, 2008)).
“The findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be
20
conclusive . . . .”
42 U.S.C. § 405(g).
“It is the function of
the Secretary, not [the reviewing courts], to resolve
evidentiary conflicts and to appraise the credibility of
witnesses.”
Aponte v. Sec’y of Health & Human Servs., 728 F.2d
588, 591 (2d Cir. 1984) (alteration in original) (quoting
Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d
Cir. 1983)).
A district court “may not substitute its own
judgment for that of the Secretary, 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) (quoting Valente v.
Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984)).
II. Application
A. The Additional Evidence is New
Plaintiff first contends that this evidence meets the
standard of “new” evidence because it indicates a worsening of
E.V.’s condition and is therefore not cumulative.
(Pl. Br. at
13-14 (citing Carballo ex rel Cortes v. Apfel, 34 F.Supp.2d 208,
223 (S.D.N.Y. 1999)).)
The April 2010 assessments provide
information about E.V.’s continued impairments in gross motor
skills.
(Tr. 345-48.)
Additionally, these assessments show a
worsening of E.V.’s condition in cognitive and language
functioning, and may support a finding of marked limitation that
could lead the ALJ to reach a different conclusion.
21
(Tr. 321-
26, 335-44.)
This information was not available at the time of
the ALJ proceedings, but was included in the decision by the
Appeals Council.
(Tr. 2, 4.) Accordingly, this information may
be reviewed by the ALJ on remand.
223.
Carballo, 34 F. Supp. 2d at
The November 2010 hospitalization is also new because it
relates to a worsening of E.V.’s condition, specifically in
regards to problems with shunt maintenance.
Although this
information was not submitted to the ALJ or the Appeals Council,
it may be considered by the ALJ on remand because it was not
available prior to the time the administrative record was
closed.
Id.
Furthermore, defendant does not dispute whether or not
this evidence can be considered “new” within the meaning of the
Act and specifically refers to the evidence as new.
(ECF No.
18, Memorandum of Law in Further Support of Defendant’s Motion
for Judgment on the Pleadings and in Opposition to Plaintiff’s
Cross-Motion for Remand, filed 5/8/2012 (“Def. Second Br.”) at
2-3.)
B. The Additional Evidence is Material
Plaintiff also contends that this evidence is
material because of its relation to E.V.’s condition in the
third domain of interacting and relating to others, and the
sixth domain of health and physical well-being.
19.)
The defendant opposes this contention, specifically in
22
(Pl. Br. at 14-
regards to the November 2010 hospitalization, stating that the
additional evidence is not material because it relates to a
change in E.V’s condition (as opposed to a worsening of her
condition) and it would not have influenced the Commissioner to
decide the application differently.
(Def. Second Br. at 2-4.)
The court first finds that the new evidence does not
indicate a change in E.V.’s condition and is relevant to the
time period for which benefits were denied in the ALJ’s
decision.
The relevant time period begins with plaintiff’s
application for SSI benefits on February 28, 2009 and ends on
the date the ALJ issued his decision, on June 14, 2010.
Although evidence may have been created after the ALJ’s
decision, it can still relate to the relevant period if it
supports earlier contentions regarding the claimant’s condition
and “disclose[s] the severity and continuity of impairments
existing before the . . . requirement date.”
at 194.
Pollard, 377 F.3d
Evidence developed after the ALJ’s decision can also be
material if it “shed[s] light on the seriousness of the
claimant’s condition at the time of the ALJ’s decision.”
Carballo, F.Supp.2d at 223.
That the April 2010 assessments relate to the relevant
time period is not disputed, and was in fact included in the
record by the Appeals Council.
(Tr. 2, 4.)
The November 2010
hospitalization is also relevant to the time period.
23
E.V. was
not hospitalized for a new condition; she required a revision on
the shunt that was implanted in July 2008, for which she already
had one previous hospitalization for revision in September 2008.
(Tr. 193, 197, 209-210, 214-216; see generally Pl. Motion.)
Second, the court finds that the new evidence is
probative and likely to have affected the ALJ’s decision on
E.V.’s claim.
Looking first at the November 2010
hospitalization, this evidence would contradict the ALJ’s
decision in regard to E.V.’s limitations in the sixth domain of
health and physical well-being.
During the May 2010 hearing,
the ALJ found that E.V. had a less than marked limitation in
this domain.
(Tr. 30.)
The basis for this decision was Dr.
Rothenberg’s testimony that E.V. did not require shunt revisions
“extra frequently” and “some children are very lucky and it very
rarely happens.”
(Tr. 364.)
The standard for determining a
marked impairment in this domain is frequent illness or
exacerbations in the impairment that occurs more often than 3
times a year.
20 C.F.R. § 416.926a(e)(2)(iv).
Therefore,
E.V.’s additional hospitalization, considered in conjunction
with the previous two hospitalizations, her frequent vomiting
and five ear infections (Tr. 332, 358), and plaintiff’s claims
that E.V. goes to the hospital every six months (Tr. 24), could
likely have altered the ALJ’s finding that E.V. had a less than
24
marked limitation in the sixth domain of health and physical
well-being.
Moreover, even without the additional evidence of the
November 2010 hospitalization, the Appeals Council erred in
finding that the April 2010 assessments would not impact the
decision of the ALJ.
The ALJ found that E.V. had no limitation
in the third domain of interacting and relating to others.
27-28.)
(Tr.
This decision was based on Dr. Rothenberg’s review of
the December 2008 evaluations showing that E.V.’s language
functioning was at an age-appropriate level.
(Tr. 28, 198.)
Yet, by the time of the ALJ hearing--about a year and a half
later--E.V.’s mother indicated delays in communication skills.
Dr. Rothenberg noted this discrepancy between the plaintiff’s
testimony and the December 2008 evaluations.
(Tr. 362.)
Where
an ALJ does not credit testimony because it is not corroborated
by medical evidence, new evidence supporting that testimony can
be probative.
Pollard, 377 F.3d at 193.
This new evidence
provides support for the plaintiff’s testimony that E.V. had
delays in language skills.
In particular, at least one of the
assessments, the Bayley-III test, showed language functioning
that was more than two standard deviations below the mean.
(Tr.
336.)
Defendant states that the results of Dr. Haley’s
evaluation showed E.V.’s verbal and socialization skills were
25
only 1.4 and 1.2 standard deviations below the mean,
respectively, and that these results were based on plaintiff’s
responses rather than standardized testing.
(ECF No. 15,
Memorandum of Law in Support of the Defendant’s Motion for
Judgment on the Pleadings, filed 5/8/2012 (“Def. Br.”) at 21;
Tr. 337-39.)
However, the test using the mother’s responses was
the Vineland-II test; the Bayley-III test, which actually showed
E.V.’s functioning more than 2 standard deviations below the
mean, was standardized.
(Tr. 336-39.)
Plaintiff also contends that the April 2010
assessments indicate that E.V. may have a marked functional
limitation in the first domain of acquiring and using
information.
(Pl. Br. at 18.)
The ALJ decision and SSR 09-3p
state that some examples of an extreme or marked limitation may
include the inability to refer to oneself and things around
oneself by pointing and naming, the inability to respond to
increasingly complex instructions and questions, and the
inability to produce grammatically correct simple sentences.
(Tr. 26.)
In the April 2010 assessments, Dr. Haley found that
E.V. could not express her emotions verbally, speak in complete
sentences, count ten objects, or state her name and age when
asked.
(Tr. 333, 335, 338.)
Further, Ms. Antezana’s evaluation
stated that E.V.’s speech was limited and sometimes
unintelligible, that she could not carry out two-step unrelated
26
commands, and that she did not respond when asked to point to
different body parts.
(Tr. 341-42.)
These same April 2010
assessments, however, also indicated that E.V. was extremely
social, could point to objects in a book, follow simple
instructions with two actions and two objects, had a vocabulary
of fifty words, and could use two-word sentences.
(Tr. 337-38.)
The evaluation also indicated that E.V. was very timid, which
could have contributed to some lack of response in the test.
(Tr. 342.)
This evidence is more subjective than the standard
deviation scores and should be evaluated in further detail by
the ALJ on remand.
Defendant contends that the results of the April 2010
evaluations are not probative and should be interpreted with
caution because of adjustments made to the standard testing
procedures to accommodate E.V.’s bilingual and bicultural
issues.
(Def. Br. at 21.)
It is true that the bilingual
educational evaluation administered by Ms. Antezana on April 28,
2010, as well as the bilingual psychological evaluation
administered by Dr. Haley on April 22, 2010, included such a
disclaimer.
(Tr. 337, 341.)
Nevertheless, this should be an
issue that is examined by the ALJ on remand and does not bar
review of the new evidence.
27
C. Plaintiff Had Good Cause for Not Presenting the
Additional Evidence Earlier
Finally, plaintiff had good cause for not presenting
the additional evidence during the earlier proceeding.
Good
cause exists where “the evidence surfaces after the Secretary’s
final decision and the claimant could not have obtained the
evidence during the pendency of that proceeding.”
Lisa v. Sec’y
of Dept. of Health and Human Servs. of the U.S., 940 F.2d 40, 43
(2d Cir. 1991).
In the instant case, the April 2010 assessments
were not given to the plaintiff until May 21, 2010, one day
after the ALJ hearing.
(Tr. 330.)
As a result, the reports
were provided to the Appeals Council.
(Tr. 2, 4.)
Furthermore,
the November 2010 hospitalization occurred after both the ALJ
hearing and the Appeals Council decision and could not have been
submitted earlier.
The defendant does not dispute these points.
CONCLUSION
For the reasons set forth above, the court denies
defendant’s motion for judgment on the pleadings and grants
plaintiff’s motion to remand this case for further proceedings
consistent with this opinion. Specifically, the ALJ should:
(1) admit and consider the evidence of E.V.’s April 2010
assessments and November 2010 hospitalization as new
and material evidence;
28
(2) determine whether claimant’s November 2010
hospitalization, in light of previous evidence and any
other newly obtained information, evinces a marked
limitation in the sixth domain of E.V.’s health and
physical well-being;
(3) determine whether claimant’s April 2010 assessments,
in light of previous evidence and any other newly
obtained information, indicate that E.V. has a marked
limitation in the third domain of interacting and
relating with others;
(4) determine whether claimant’s April 2010 assessments,
in light of previous evidence and any other newly
obtained information, indicate that E.V. has a marked
limitation in the first domain of acquiring and using
information; and
(5) explore the impact of deviations from procedure to
accommodate bilingual and bicultural issues in the
April 2010 assessments, particularly in reference to
the results of the Bayley-III test showing language
skills more than two standard deviations below the
mean.
Given the passage of time between the ALJ’s initial
determination and the instant disposition, the court also
recommends that the ALJ:
29
(1)
inquire upon the claimant’s current medical condition
as it relates to claimant’s initial SSI application;
and
(2)
reassess claimant’s functional limitations and
disability in light of this opinion, E.V.’s current
medical condition, and in light of any newly obtained
information relevant to plaintiff’s claims.
See Lisa,
940 F.2d at 44 (holding that assessments of
plaintiff’s medical condition, after the ALJ’s initial
disability determination, may reveal that plaintiff
has “an impairment substantially more severe than was
previously diagnosed”).
The Clerk of the Court is respectfully requested to
enter judgment in favor of plaintiff and close this case.
SO ORDERED.
Dated:
April 18, 2013
Brooklyn, New York
_________ /s/ ______________
Kiyo A. Matsumoto
United States District Judge
30
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