Margal v. Commissioner of Social Security

Filing 23

ORDER granting in part and denying in part 16 Motion for Judgment on the Pleadings; denying 19 Motion for Judgment on the Pleadings. For the reasons set forth in the enclosed order, the court denies defendant's motion for judgment on the pleadings, denies in part plaintiff's motion to the extent it seeks remand solely for the calculation of benefits, and grants plaintiff's motion to remand this case for further proceedings consistent with this opinion. The Clerk of the Court is respectfully requested to close this case.Ordered by Judge Kiyo A. Matsumoto on 7/29/2015. (Alagesan, Deepa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------- X
CAVEL MARAGL o/b/o D.S.P.,
MEMORANDUM & ORDER
Plaintiff,
13-CV-2435(KAM)
-againstCAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
--------------------------------------- X
MATSUMOTO, United States District Judge:
Pursuant to 42 U.S.C §§ 405(g) and 1383(c)(3),
plaintiff Cavel Maragl (“plaintiff”), on behalf of her minor
daughter, D.S.P. (“claimant”), appeals the final decision of
defendant Acting Commissioner of Social Security Carolyn W.
Colvin (“defendant” or the “Commissioner”) denying claimant’s
application for Supplemental Security Income (“SSI”) benefits
pursuant to Title XVI of the Social Security Act (the “Act”.)
Plaintiff, who is represented by counsel, 1 argues that she is
entitled to receive SSI benefits on behalf of her daughter due
to her daughter’s severe medically determinable impairments,
including asthma and learning disabilities, that render her
disabled.

(See generally Compl.)

Presently before the court

1
Plaintiff filed her complaint pro se but has since obtained counsel. (See
ECF No. 1, Complaint (“Compl.”) dated 4/19/13; Notice of Appearance dated
9/9/13.)

1

are the parties’ cross-motions for judgment on the pleadings. 2
In the alternative, plaintiff seeks remand for further
administrative proceedings.

(See ECF No. 19, Defendant’s Motion

for Judgment on the Pleadings (“Def. Mem.”) dated 9/16/13; ECF
No. 16, Plaintiff’s Motion for Judgment on the Administrative
Record and Pleadings (“Pl. Mem.”) dated 11/8/13.) For the
reasons set forth below, the defendant’s motion is denied, the
plaintiff’s motion is granted in part and denied in part, and
the case is remanded for further proceedings consistent with
this opinion.
BACKGROUND
I.

Claimant’s Personal History
Claimant was born on January 31, 1999 and was twelve

years old and in the sixth grade at the time of the ALJ hearing.
(Tr. 31.) 3

She lives with her mother, 21 year-old brother, and 7

year-old sister. (Tr. 38-39.)

Claimant had previously repeated

the fourth grade before being promoted to sixth grade (Tr. 161,
271.)

She started sixth grade at a new school and had not yet

received a report card from the new school at the time of the
hearing.

(Tr. 32.)

Claimant received speech therapy at school,

starting in approximately 2009, to address a stutter as part of
2

As discussed infra, plaintiff and defendant each submitted a motion for
judgment on the pleadings but did not file memoranda to oppose each other’s
motions.
3

Citations to the administrative record (1-523) are indicated by the
abbreviation “Tr.”

2

her Individualized Education Program (“IEP”).

(Tr. 32-35.)

Claimant testified that the speech therapy was helpful to her.
(Tr. 48.)

Claimant had been in a Special Education class in her

old school, but was not in Special Education classes at her new
junior high school at the time of the hearing. (Tr. 42.)
Plaintiff was not aware of claimant having any
behavioral problems at school, but noted that she would
frequently fight at home with her siblings, both verbally and
physically. (Tr. 38-39, 40-41.) Claimant testified that she
enjoyed playing with her friends, riding bikes, and playing on
the computer. (Tr. 44-45.) She also reported getting into “play
fights” and physical fights with her friends. (Tr. 46-47.)
However, claimant testified that she did not ever get in trouble
at school other than for talking during class. (Id.)
Plaintiff reported that claimant was attending therapy
starting in June or July of 2011, approximately four months
prior to the hearing, for unspecified behavioral problems.
37.)

(Tr.

Plaintiff also reported that claimant had problems with

her blood pressure, for which she was under medical care.

(Tr.

38.)
At the hearing, the ALJ noted that claimant’s eyes
were puffy.

(Tr. 49.)

Plaintiff reported that claimant was

being tested for kidney problems, and that doctors had mentioned
that the puffiness may be related to claimant’s high blood

3

pressure.

(Tr. 49-50.)

Claimant takes medication for her blood

pressure twice a day, as well as medication for bed wetting. 4
(Tr. 50-53.)

Plaintiff reported that claimant suffered from

sleep apnea, and that she was in a coma when she was born, which
doctors mentioned might cause developmental delays.
54.)

(Tr. 53-

Plaintiff also testified that claimant is slow to respond

when asked questions by other people.

(Tr. 54-55.)

On the Function Report submitted with claimant’s
application for benefits, plaintiff indicated that claimant had
problems talking clearly, and that her speech could only be
understood by others “some of the time.”

(Tr. 148.)

Plaintiff

also reported that claimant’s ability to communicate was not
limited (Tr. 149), but that her ability to progress in learning
was limited because she attends a special speech class.

(Tr.

150.) In the section of the form for supplemental remarks,
plaintiff stated that “sometimes when [claimant] is asked a
question, she can’t answer it for a while, or can’t explain
herself.”

(Tr. 155.)
On a questionnaire completed by plaintiff on November

4, 2010, plaintiff wrote that claimant sometimes stuttered and
was unable to explain herself, and that she was left back in the

4

Undated documentation submitted by plaintiff indicates that claimant takes
enalapril for high blood pressure, desmopressin for bedwetting, and a
Proventil inhaler and Singulair for asthma. (Tr. 174-77.)

4

fourth grade and pulled out from her regular classroom three
times a week. 5

(See Tr. 161.)

In an undated Disability Report submitted on appeal,
plaintiff reported that claimant’s condition had worsened since
her initial application for benefits in October 2010, and that
she was suffering from constant bedwetting, nervous disposition,
and an inability to respond to verbal commands or take part in
conversations.

(Tr. 162.)

The report indicated that claimant

was generally withdrawn and easily frightened after having been
sexually molested by a family friend at the age of five. 6 (Id.)
Claimant was prescribed treatment for asthma at the time and
needed assistance and reminders to take care of her personal
needs.
II.

(Tr. 164-65.)

Claimant’s Medical History
A. Kings County Hospital Center Records
Records from the Kings Country Hospital Center (KCHC)

pediatric clinic indicate that claimant remained hospitalized
for three months after her birth for complications arising from
meconium aspiration, a condition in which a fetus or newborn
breathes meconium (feces) into her lungs.

(Tr. 201; see also

5

Although plaintiff did not specify the reasons for D.S.P.’s regular removal
from her classroom, other documents in the record indicate that D.S.P. was
pulled out of her general education classroom to receive small group speech
therapy services. (See, e.g., Tr. 249.)
6

Letters from Safe Horizon’s office at the Brooklyn District Attorney’s
office indicate that the perpetrator was charged with the crime on July 24,
2004, and that there was a seven-year order of protection for claimant
against the perpetrator. (Tr. 170-71.)

5

http://www.nlm.nih.gov/medlineplus/ency/article/001596.htm (last
visited Jul. 29, 2015).)

At a March 14, 2008 checkup, claimant

was diagnosed as obese but was otherwise normal.

(Tr. 201-203.)

In May 2008, claimant was hospitalized with pneumonia
for 17 days after experiencing difficulty breathing, fever, and
loss of appetite for several days.
Tr. 228-31.)

(See Tr. 190-200; see also

She was treated with antibiotics and developed

high blood pressure, which later abated, over the course of her
hospital stay.

(Id.) Claimant had a follow up appointment on

June 25, 2008, at which plaintiff reported that claimant had
been well and had not suffered from fevers, headaches, cough,
shortness of breath, difficulty breathing, vomiting or diarrhea
since her discharge. (Tr. 204-205; see also Tr. 232-34.)

Dr.

Michel noted that D.S.P. was clinically improved, would continue
her course of antibiotics, and come in for a follow-up
appointment with pediatric nephrology.
pressure was recorded as 128/84.

(Id.)

(Id.)

Her blood

Claimant returned to

the pediatric chest clinic on July 23, 2008, at which time
plaintiff reported no other issues, and that claimant was
“herself again.”

(Tr. 210.)

Notes from an October 2008 checkup

indicated that claimant was asymptomatic for pneumonia.

(Tr.

211-213.)
On June 27, 2008, claimant visited the KCHC pediatric
renal clinic for hypertension/intermittent high blood pressure.

6

(Tr. 206.)

At the time, claimant did not complain of headaches,

blurry vision, palpitations, diaphoresis, edema, or urinary
symptoms.

(Id.)

Plaintiff told Dr. Ngai that claimant ate a

lot of junk food, and that plaintiff cooked with corn oil and
salt most of the time.
that day was normal.

(Id.)

A renal ultrasound administered

(Tr. 234-36.)

benign essential hypertension.

Claimant was diagnosed with

(Tr. 208.)

In April 2009, claimant returned to the KCHC pediatric
clinic after experiencing a cough for one week.

(Tr. 217.)

She

was diagnosed with asthma and nocturnal enuresis (bedwetting).
(Tr. 218-21.)

Plaintiff was advised to discontinue fluids prior

to claimant going to bed, and claimant was referred for a
urology evaluation.

(Id.)

The visit notes indicated that

albuterol, Proventil, and Singulair would be prescribed for
claimant’s asthma.

(See Tr. 221.)

Claimant returned to the

clinic in May 2008 for a follow-up visit, during which she
reported a persistent cough after non-compliance with her
treatment plan.

(Tr. 223.)

Dr. Browne advised plaintiff about

the importance of compliance with claimant’s asthma treatment.
(Id.)

A June 2009 chest x-ray showed signs suggesting possible

reactive airway disease.

(Tr. 237-38.)

At claimant’s September 2009 follow-up visit, Dr.
Browne diagnosed her with unspecified rhinitis (allergies) and

7

re-advised her to decrease her intake of high-calorie and fatty
foods.

(Tr. 225.)
On April 1, 2011, Dr. Browne referred claimant to the

pediatric behavioral health center for an evaluation after
noting that claimant was “failing,” 7 had an increased fright
response, and was pulling her sister’s hair.

(Tr. 315.)

On July 1, 2011, Dr. Swati Mehta referred claimant for
a renal consultation and echocardiogram after diagnosing
claimant with benign essential hypertension. (Tr. 316-17.)
After visiting the renal clinic on August 26, 2011, claimant was
admitted to the Pediatric Intensive Care Unit due to high blood
pressure. 8

(Tr. 348-53; see also 355-485.)

The discharge

summary indicated that claimant was not in distress and was
otherwise asymptomatic (e.g., no headaches, vision problems,
vomiting, or nosebleeds) at the time she was admitted.

(Id.)

During her admission, she was administered 5 milligrams of
enlapril and one dose of hydralazine, and her blood pressure
stabilized.

(Tr. 350.)

The renal, endocrine, and ophthalmology

departments were consulted in order to determine the source of
claimant’s hypertension.

(See Tr. 350-51.)

Claimant’s

ophthalmology consultation reported no findings of hypertensive
7

The visit report does not specify whether was failing in school or some
other realm of functioning.
8

Pages 359 to 485 of the administrative record are additional reports, notes,
and records from claimant’s August 26-31, 2011 hospitalization for
hypertension.

8

retinopathy and recommended strict blood pressure control and a
follow up slit lamp examination.

(Tr. 350-51.)

The pediatric

renal and endocrine consultations also recommended follow up
testing to rule out various pathologies.

(Id.)

On August 31,

2011, claimant was discharged in stable condition with no
restrictions on her activity.

(Tr. 353.)

Numerous follow-up

appointments and a sleep study were scheduled for the following
month.

(Tr. 351, 353.)
Claimant had a follow-up appointment with Dr. Browne

on September 2, 2011, at which Dr. Browne re-advised plaintiff
that she needed to strictly adhere to restricting claimant’s
salt intake and keeping all future appointments. (Tr. 517-19.)
On September 16, 2011, claimant was seen by Dr. David Rand in
the ophthalmology department, during which no evidence of
intraocular pathology was observed.

(Tr. 513-14.)

She was also

seen by Dr. Amrit Bhangoo in the endocrinology department that
day.

(Tr. 515-16.)

Although it was noted that claimant had

gained weight and was presently overweight, Dr. Bhangoo ruled
out Cushing’s syndrome and reported normal adrenocorticotropic
hormone and cortisol levels.

(Tr. 516.)

On September 23, 2011, claimant visited the pediatric
renal department and was referred for a sonogram.

(Tr. 509-12.)

Dr. Sophia Morriseau noted that claimant’s bedwetting medication
could be contributing to her hypertension, but noted that the

9

hypertensive symptoms went back to 2008 and a renal sonogram at
that time was within normal limits.

(Tr. 510.)

On September

30, 2011, claimant returned to the renal clinic for an
ultrasound to rule out any renal diseases that might be causing
her hypertension.

(See Tr. 502.)

The ultrasound revealed

normal echogenicity and no renal stones, soft tissue masses, or
renal cysts.

(Tr. 502-503.)

That same day, claimant visited

Dr. Browne for a follow-up examination.

(See Tr. 504-507.)

Dr.

Browne reported that claimant was forgetting to take her
medication and continuing to eat chips and Chinese food.
506.)

(Tr.

Dr. Browne re-advised claimant and plaintiff to comply

with claimant’s medication regimen and to decrease her intake of
high calorie, fat, and salt foods.

(Id.)

B. Child’s General Asthma Report
Dr. Browne completed a Child’s General Asthma report
dated July 6, 2011, in which she noted that claimant was first
diagnosed with asthma in 2009 and was currently diagnosed with
moderate asthma. (Tr. 328.)

She reported that claimant suffered

from episodic wheezing, triggered by changes in weather, smoke,
and dust, and that allergens, temperature, stress, and
respiratory infections all triggered her asthmatic symptoms.
(Tr. 329.)

Dr. Browne described claimant’s asthma attacks as

intermittent and lasting one to two days, if treated.
330.)

(Tr.

Dr. Browne noted that claimant only required emergency

10

treatment for her asthma on one occasion in July 2009.

(Id.)

She wrote that claimant was compliant with her treatment regimen
of albuterol and singulair, and that the medications controlled
claimant’s symptoms, although the albuterol caused increased
heart rate.

(Tr. 330-31.)

Finally, Dr. Browne observed that

claimant’s asthma did not restrict her activity or limit her
ability to function in an age-appropriate manner.

(Tr. 333.)

III. Claimant’s Psychological and Educational History
A. NYC Department of Education Psycho-Educational Evaluation
At plaintiff’s request, Elisheva S. Gantz, M.S.,
completed a psycho-educational evaluation of D.S.P. from
September 21-23, 2009.

(Tr. 271-76.)

In general, Ms. Gantz

noted that D.S.P. was a sweet and engaging child with whom Ms.
Gantz easily established and maintained a rapport.

(Tr. 271.)

With respect to speech and language skills, however, D.S.P.
expressed disorganized thoughts, mumbled when speaking, and
needed repeated prompting in order to communicate important
information.

(Id.)

Ms. Gantz conducted interviews with D.S.P.

and her teacher and administered several intelligence and
language assessments.
i.

(Tr. 272-76.)

Cognitive Functioning

The Cognitive Functioning part of the evaluation
included an analysis of D.S.P’s verbal comprehension, perceptual
reasoning, working memory, and processing speed.

11

(Tr. 272.)

She scored a Full Scale IQ score of 76, which placed her in the
borderline range of functioning or fifth percentile.

In the

area of verbal comprehension, D.S.P. demonstrated limitations
organizing thoughts and ideas, and did not appear to know or
understand the definitions of many words or the words’ concepts.
(Tr. 272.)

In the area of perceptual reasoning, D.S.P. took

considerable time to match familiar objects and pictures.
273.)

(Tr.

She was also asked to replicate designs using patterned

blocks; although she tried, she often did not recognize the
details and had trouble integrating information.

(Id.)

D.S.P’s

strongest skills were displayed in the working memory area,
which were at the low average range of functioning.

(Id.)

When

asked to repeat numbers and information, D.S.P. had trouble
recalling more than four digits and reciting numbers in
backwards order.

(Id.)

Overall, D.S.P. had a hard time

recalling a large amount of information at a given time.

(Id.)

D.S.P. demonstrated her weakest skills in the processing speed
area, with performance in the borderline range.

(Id.)

She had

difficulty using a key to match symbols and numbers, as well as
comparing and contrasting shapes and symbols.

(Id.)

Ms. Gantz

observed that the more quickly claimant attempted to work, the
more errors she made.

(Id.)

Overall, D.S.P.’s cognitive

ability measured in the low average range, indicating delays in
her intellectual and cognitive potential.

12

(Id.)

She also scored in the low average range (18th
percentile) on the Bender Gestalt-II, in which she was asked to
copy twelve designs onto paper.

(Tr. 274.)

She struggled in

organizing the information and integrating details from the
model drawings into her own drawings.

(Id.)

Upon recall, she

was able to draw five of the twelve shapes and scored in the
average range, demonstrating better organization and
integration.

(Id.)
ii.

Academic Functioning

Claimant completed the WIAT-II assessment, which
included reading, math, and writing components.

(Tr. 274.)

D.S.P. demonstrated reading performance at the low end of the
“Low Average” range.

(Id.)

Although she could easily read

simple words, she started confusing 9 words as the words became
more difficult.

(Id.)

When asked to read fake words, D.S.P.,

no longer able to rely on familiarity, demonstrated even greater
difficulty with vowel sounds.

(Id.)

She struggled to answer

comprehension questions after reading sentences and passages.
(Id.)

Although she could sound out the words correctly, she had

difficulty organizing the information and drawing conclusions.
(Id.)

9

For example, D.S.P read “cleanse” as “cleans” and “dozing” as “dozen.” (Tr.
274.)

13

D.S.P. performed lower, in the borderline range, on
the mathematics section of the assessment.

(Tr. 275.) Although

D.S.P. correctly solved basic addition and subtraction problems,
she had trouble applying math concepts to word problems and was
unable to solve multi-digit addition and subtraction problems.
(Id.)

Written language was D.S.P.’s strongest skill area, in

which she scored in the average range.

(Id.)

She was able to

write a few words on a specific topic and spell many individual
words correctly.

(Id.)

Nonetheless, D.S.P exhibited mild

delays in elaborating on her ideas in writing and had many runon sentences and grammatical errors in her paragraphs, while
only including minimal information. (Id.)
iii. Social/Emotional Functioning
Ms. Gantz indicated that D.S.P. was a friendly girl
who interacted well with peers.

(Tr. 275-76.)

Although she was

generally cooperative in class, she sometimes engaged in
arguments with other students.

(Id.)

Ms. Gantz noted that

claimant’s academic skills, while low to average for her age,
are generally stronger when compared to other fourth graders
because she had been held back one grade.

(Tr. 274.)

Ms. Gantz

also reported that D.S.P. had difficulty accepting
responsibility for her actions, evaluating her decisions, and
accepting consequences, often thinking that others were at fault
instead.

(Tr. 276.)

14

B. Department of Education Speech and Language Evaluation
On October 9, 2009, D.S.P. completed a speech and
language evaluation for her Individualized Education Program
(IEP), discussed below, administered by Nicki J. Newman, M.S.,
T.S.H.H. 10

(Tr. 268-70; 282-84.)

Ms. Newman observed that

claimant’s activity level was within normal limits, but she
appeared lethargic.

(Tr. 268.)

Claimant made eye contact but

did not use spontaneous language or engage in turn-taking
conversation.

(Id.)

Although she did not ask questions or make

comments, she did respond to questions when asked.
one point, she told her mother that she was hungry.

(Id.)

At

(Id.)

Ms. Newman gave claimant four core subtests of the
Clinical Evaluation of Language Fundamentals-Fourth Edition
(CELF-4), from which a Core Language score was calculated.
269-70.)

(Tr.

The Core Language Score, considered to be the most

representative measure of the subject’s language skills, has a
mean of 100, representing the performance of a typical student
of the subject’s age, and a standard deviation of 15.
269.)

(Tr.

Claimant scored a 78, which placed her in the seventh

percentile and the borderline range of functioning.

(Id.)

10
T.S.H.H., or Teacher of Speech and Hearing Handicapped, is a voluntary
certification for teachers who have completed a minimum level of credit hours
in speech and language disorders and/or supervised clinic experience. New
York State Speech-Language-Hearing Association, Inc., Speech-Language
Pathology Credential Comparison, http://www.nysslha.org/i4a/pages/index.cfm?
pageid=3492 (last visited Jul. 29, 2015).

15

D.S.P. scored in the second percentile on the Concepts
and Following Directions subtest, which evaluates a student’s
ability to interpret, recall, and execute oral commands.

(Id.)

On the Recalling Sentences subtest, which tests a student’s
ability to recall and reproduce sentences of varying length and
complexity, claimant scored in the 16th percentile.

(Id.)

On

the Formulated Sentences subtest, which tests the student’s
ability to formulate compound and complex sentences within
grammatical constraints, claimant scored in the ninth
percentile.

(Id.)

On the Word Classes 2 subtest, which

evaluates the student’s ability to understand relationships
between words, claimant scored in the 25th percentile.

(Id.)

Ms. Newman concluded that claimant’s poor language
memory skills were directly affecting her ability to follow oral
commands, formulate sentences, and recall sentences, which in
turn were having a negative impact on her ability to function at
school.

(Tr. 270.)

Ms. Newman recommended small-group speech

and language therapy twice a week.

(Id.)

C. Claimant’s Individualized Education Program
D.S.P.’s IEP dated November 20, 2009 indicated that
her cognitive and intellectual abilities were in the borderline
range.

(Tr. 241.)

She was classified as having a speech or

language impairment and recommended for a general education
classroom with special education teacher support and pull-out

16

speech therapy.

(Tr. 239, 247.)

Based on D.S.P.’s performance

on the WISC-IV assessment, her strongest skills were in the area
of working memory, in the low average range, though she
sometimes struggled to retain information.

(Tr. 241.)

Her

skills in the areas of verbal comprehension and perceptual
reasoning were at the low end of the low average range, as she
had difficulty expressing ideas and attending to details.

(Id.)

Her skills in the area of processing speed were the weakest, in
the borderline range.

(Id.)

Claimant’s strongest academic

skills were in writing (average), while her skills in reading
(low average) and math (borderline) were lower.

(Id.)

Her

comprehension of information, including her ability to evaluate
material and express herself, was poor.

(Id.)

The IEP noted claimant’s borderline to low level
language skills, and specified that her poor language memory
skills affected her ability to follow oral commands, formulate
sentences within a specific contextual constraint, and recall
sentences of increasing length and complexity.

(Tr. 242.)

She

also suffered from reduced intelligibility, the combined result
of her low vocal intensity, rapid rate of speech, and mild
frontal lisp.

(Id.)

Socially, the IEP described claimant as interacting
well with adults and peers, but sometimes struggling to take
responsibility for her actions, blaming others instead.

17

(Tr.

243.)

Claimant reported feeling badly about having been left

back a grade, but did not appear to recognize her learning
difficulties and did not ask for help when needed.

(Id.)

The

IEP also noted that claimant’s last asthmatic episode was in
July 2009, and that she continued to wet the bed, although she
was still treated for both conditions.

(Tr. 244.)

D.S.P.’s 2010 IEP indicated improvement in all subject
areas, although she still demonstrated difficulties in reading,
writing and math.

(Tr. 254.)

The IEP reported that she was

eager to learn and “demonstrate[d] the need to try very hard.”
(Id.)

She was found to require a multi-modal approach to

instruction with replication and simplification of information,
as well as extra time to process information and complete tasks.
(Id.)

Continued support and encouragement was recommended,

along with prompting and redirection.

(Tr. 255.)

no mobility limitations or new medical conditions.

She reported
(Id.)

D.S.P. was again recommended for placement in a general
education class with special education teacher support and pullout speech therapy twice a week.

(Tr. 254, 260-61.)

D. New York State Office of Temporary and Disability
Assistance, Division of Disability Determinations Speech
and Language Questionnaire
Claimant’s speech therapist Leah Reznitsky completed a
speech and language evaluation, dated November 30, 2010, for the
Disability Determinations Division of the New York State Office

18

of Temporary and Disability Assistance.

(See Tr. 277-84.)

Ms. Reznitsky noted that D.S.P.’s speech required frequent
repetition to be understood by people familiar with her, and
that D.S.P. could be understood by unfamiliar listeners less
frequently.

(Tr. 278.)

She also reported that D.S.P.’s

intelligibility improved with repetition.

(Id.)

Ms. Richard

indicated that D.S.P.’s oral motor skills, voice quality, and
voice intensity were “within normal limits.”

(Id.)

She

commented that claimant verbalized phrases, simple sentences,
and compound sentences, engaged in conversation freely, and
demonstrated moderate delays.

(Tr. 280.)

She reported that

D.S.P.’s pragmatic skills were age appropriate, and that she had
responded positively to speech therapy.

(Id.)

Ms. Reznitsky noted that D.S.P. was able to comprehend
nouns, verbs, special relations, one-, two-, and three-step
directions, yes/no questions, either/or statements, if/then
statements, figurative language, stories, and conversations.
(Tr. 281.)

She also repeatedly referred to an annexed copy of

the October 2009 speech and language evaluation conducted by Ms.
Newman, discussed in detail above.

(See Tr. 281-84.)

E. KCHC Behavioral Health Department Therapy Records
On August 1, 2011, claimant was evaluated by the KCHC
Behavioral Health Department.

(See Tr. 486, 496.)

The

psychologist in training, Katharine Thomson, M.A., noted that

19

D.S.P. had difficulty controlling her emotions and had the
tendency to react impulsively when sad or angry.

(Tr. 486.)

D.S.P. also had trouble expressing herself, which frustrated her
further and subjected her to bullying from others.

(Id.) Ms.

Thomson also identified a difficulty with speech and language;
specifically, claimant’s speech was difficult to comprehend at
times, due to low volume and poor articulation, and her response
time was delayed.

(Id.)

Ms. Thomson also noted that claimant

had a dental malformation for which she was likely stigmatized.
(Tr. 500.)
Claimant was admitted for psychotherapy the same day,
on August 1, 2011, with Ms. Thomson and the supervising
psychologist, Rachel Maldonado, Psy.D.
500-501.)

(Tr. 496; see also Tr.

Although claimant appeared “calm, smiley, and

cooperative” during her first session, she was reluctant to
answer questions and pointed to plaintiff to answer on her
behalf.

(Id.)

After considerable encouragement, D.S.P. began

to respond to some questions.
and sad” at times.

(Id.)

(Id.)

She reported feeling “mad

D.S.P. denied any suicidal or

homicidal ideations or audiovisual hallucinations.

(Tr. 500.)

Ms. Thomson described claimant’s speech as logical but with
evidence of receptive or expressive delays.

(Id.)

She

estimated claimant’s cognitive functioning to be in the below
average range.

(Id.)

When claimant was asked what she would do

20

with a wallet she found on the ground, she stated, “Ask if it
was the person’s walking by, if not, just leave it.”

(Id.)

Ms.

Thomson described claimant’s insight as fair, but her judgment
and impulse control as poor.

(Id.)

During the session,

claimant listed her goals as “stop trying to hit people, stop
cursing at people when I’m mad, be a singer, be brave and have
more self confidence.”

(Id.)

Ms. Thomson and Ms. Maldanado

diagnosed claimant with mixed communication disorder and noted
to rule out mixed receptive-expressive language disorder,
depressive disorder (not otherwise specified), and mild mental
retardation.

(See id.)

Claimant and plaintiff had another therapy session on
August 8, 2011, the focus of which was rapport building and goal
identification for claimant’s treatment plan.

(Tr. 495.)

Claimant was much more verbal than at her initial session and
explained that she can take “a long time to figure out [her]
words.”

(Id.)

She was advised that she should not rush and

should take time to think about her answers.

(Id.)

Claimant

listed several triggers for her feelings of anger and
frustration, including annoyance at her sister and mother, as
well as students at school calling her “stupid” and “retarded”
when she was unable to answer questions quickly.

(Id.)

Plaintiff expressed frustration at clamant throughout the
session, leading claimant to become increasingly silent and non-

21

responsive. (Id.)

Plaintiff expressed a concern that claimant

did not tell her anything anymore.

(Id.)

Ms. Thomson provided

plaintiff with psychoeducation pertaining to claimant’s
functioning and adolescent development. (Id.)
At her August 22, 2011 therapy session, claimant was
highly verbal and eager to share stories of her recent
whereabouts with Ms. Thomson.

(Tr. 494.)

Ms. Thomson observed

that claimant’s speech remained delayed with respect to
articulation, but that the volume and rate of speech were within
normal limits.

Although claimant was initially engaged and

talkative, she became considerably more reluctant to speak after
plaintiff joined the session.

(Id.)

Ms. Thomson encouraged

plaintiff to allow claimant adequate time and encouragement to
share her thoughts and provide positive feedback to claimant.
(Id.)

Ms. Thomson outlined a comprehensive treatment plan that

provided for weekly individual and family psychotherapy in order
to improve claimant’s emotional regulation and self-confidence
to the point where her daily functioning is no longer
significantly impacted.

(Tr. 498.)

On the treatment plan, she

reported D.S.P’s GAF 11 score of 55. 12 (Tr. 498.)

She also

11
The GAF (Global Assessment of Functioning) is an assessment indicating an
individual’s overall functioning level. Access Behavioral Health, Global
Assessment of Functioning, https://www.omh.ny.gov/omhweb/childservice/mrt/
global_assessment_functioning.pdf (last visited Jul. 29, 2015).
12

A score of 55 indicates that an individual has “moderate symptoms” in
social functioning. (Id.)

22

conducted a nutritional screening in which she recorded that
claimant eats a lot and was on a diet after having gained ten
pounds in two months.

(Tr. 499.)

On August 30, 2011, Ms. Thomson spoke to claimant
briefly while she was admitted to the PICU for high blood
pressure, and claimant did not report any discomfort, sadness,
or anxiety.

(Tr. 493.)

On September 12, 2011, claimant

appeared quieter, sullen, and irritable, avoided eye contact,
and responded to most questions with “I don’t know.”

(Tr. 492.)

She was unable to identify any positive or negative emotions or
answer questions relating to her hospital stay or current
treatment. (Id.)

She was more responsive in writing.

(Id.)

When plaintiff joined the session, claimant remained quiet and
reluctant to speak. (Id.)

Plaintiff reported feeling exhausted

due to her busy schedule as a result of school starting and
claimant’s medical treatment.

(Id.)

Plaintiff was encouraged

to refrain from making critical comments to claimant. (Id.)
On October 3, 2011, claimant again appeared quiet,
sullen, and irritable.

(Tr. 490.)

Ms. Thomson engaged claimant

in silent play, but claimant remained listless and exhibited
significant psychomotor retardation. (Id.)

Responding to

claimant’s reluctance to speak, plaintiff repeatedly asked
claimant what was wrong with her and why she was behaving
strangely “all of a sudden.”

(Id.)

23

After conversation with Ms.

Thomson, plaintiff disclosed that she had called claimant
“retarded” on their way to the therapy session.

(Id.)

When

asked how this made her feel, claimant began to cry and
explained that she thought plaintiff thought she was stupid.
(Id.)

Ms. Thomson prompted plaintiff to provide positive

feedback to claimant and urged her to refrain from calling
claimant “retarded.”

(Id.)

On October 17, 2011, both plaintiff and claimant
attended the entire therapy session with Ms. Thomson.
488.)

(Tr.

Claimant appeared more positive and cooperative than in

prior sessions.

(Id.)

After reviewing claimant’s IEP as a

group, Ms. Thomson advised plaintiff to meet with claimant’s new
school to review her IEP and learn what was happening with
claimant’s education.

(Id.)

Because the tests in claimant’s

IEP were two years old, Ms. Thomson discussed with plaintiff the
possibility of referring claimant to KCHC’s Developmental
Evaluation Clinic for testing and, with plaintiff’s consent,
scheduled an intake appointment. (Id.)

Claimant’s independence

in her morning routine was discussed, and plaintiff and claimant
agreed that claimant would brush her teeth, brush her hair, and
apply deodorant daily.

(Id.)

F. Consultative Child Intelligence Evaluation
Angela Fairweather, Ph.D., of Industrial Medicine
Associates, P.C., conducted a consultative psychological

24

evaluation of claimant at the direction of the Disability
Determinations Division of the New York State Office of
Temporary and Disability Assistance on January 13, 2011.
285-91.)

(Tr.

Dr. Fairweather noted that claimant was in the fifth

grade at the time of her evaluation, with poor to fair academic
performance.

(Id.)

She also noted that claimant was in special

education classes due to a speech/language impairment and
received additional speech support services.

(Id.)

Plaintiff reported an increase in claimant’s appetite,
but denied any sleep problems.

(Id.)

Dr. Fairweather noted

that claimant displayed nocturnal enuresis.

(Id.)

She also

reported claimant’s current functioning as failing to pay
attention to detail, making careless mistakes, and having
difficulty maintaining attention in tasks and play.

(Id.)

Claimant also endorsed excessive apprehension and hypervigilance
but denied having psychotic symptoms.

(Id.)

Plaintiff told Dr.

Fairweather that claimant had been sexually molested at age 5 by
a neighbor.

(Tr. 288.)

During her evaluation, Dr. Fairweather observed that
claimant’s posture and motor behavior were normal, her eye
contact was fair, and her speech and language skills were ageappropriate.

(Id.)

She characterized claimant as cooperative

and friendly, though she appeared nervous initially.

(Id.)

Fairweather reported that claimant was able to recall and

25

Dr.

understand instructions, and that her style of responding was
deliberate and orderly.

(Id.)

She stated that D.S.P.’s

attention and concentration levels were good.

(Id.)

Dr. Fairweather gave D.S.P. the Wide Range Achievement
Test (WRAT-III), a reading/decoding assessment, on which she
scored an 85, or at a fourth-grade level.

(Id.)

On the

Wechsler Intelligence Scale for Children (WISC-IV), a
standardized intelligence measure, D.S.P.’s Full Scale IQ was
measured at a 74 or 75, falling within the borderline range.
(Tr. 289.)

Dr. Fairweather noted that D.S.P.’s attention skills

(low average), non-verbal/visual reasoning (low average), and
ability to perform clerical-type tasks (average) were better
than her acquired knowledge and verbal expression skills, which
were in the extremely low range.

(Id.)

Due to claimant’s

extremely low to average performance on several skill
assessments, Dr. Fairweather concluded that the Full Scale IQ
score was “not the best measure of claimant’s overall
intellectual abilities.”

(Id.)

Dr. Fairweather further reported that claimant:
exhibits mild difficulty asking questions and
requesting assistance in an age appropriate manner,
attending to, following, and understanding age
appropriate directions, responding adequately to
changes in the environment, and interacting adequately
with peers and adults; and mild to moderate difficulty
learning in accordance with cognitive functioning.

26

(Tr. 289-90.)

She concluded that her evaluation results were

consistent with psychiatric and cognitive problems that “may
cause moderate impairment in the claimant’s ability to function
on a daily basis.”

(Tr. 290.)

Dr. Fairweather diagnosed

claimant with a learning disorder (NOS, or not otherwise
specified), nocturnal enuresis, borderline to below-average
intellectual functioning, and asthma. (Id.)

She ruled out post-

traumatic stress disorder and recommended individual
psychotherapy, as well as continued placement in special
education classes with additional speech therapy.

(See id.)

G. Social Security Administration Consultative Childhood
Disability Evaluation
On December 30, 2010 and January 26, 2011
respectively, upon request by the Social Security
Administration, M. Lieberman, a speech language pathologist, and
Dr. G. Shukla, a pediatrician, reviewed D.S.P.’s claims file and
completed a Childhood Disability Evaluation Form.
12.)

(See Tr. 307-

The consultants found that D.S.P. had a severe impairment

or combination of impairments 13 that, nevertheless, did not meet,
medically equal, or functionally equal the listings.

(Tr. 307.)

In the domains of attending and completing tasks, moving about
and manipulating objects, and caring for herself, the

13

The impairments identified were not-otherwise-specified learning disorder,
borderline intellectual functioning, and asthma. (Tr. 307.)

27

consultants found that D.S.P. did not suffer from any
limitation. (Tr. 309-10.)
In the acquiring and using information domain, the
consultants found a marked limitation and noted that D.S.P. had
moderate delays in receiving and expressing language and
decreased verbal and comprehension skills.

(Id.)

They also

referred to an examining source who had determined that D.S.P.
had mild to moderate difficulty learning in accordance with
cognitive functioning.

(Id.)

In the interacting and relating

with others domain, the consultants found a less than marked
limitation, pointing to records of claimant’s decreased speech
intelligibility.

(Id.)

In the health and physical well-being

domain, the physicians found a less than marked limitation due
to her mild but persistent asthma. (Id.)

Although the

consultants indicated their ultimate disposition on the form
(see Tr. 307), they did not check off any of the options in the
conclusions section of the form.

(See Tr. 311.)

H. Social Security Administration Teacher Questionnaire
On March 7, 2012, D.S.P.’s 6th grade Social Studies
teacher Ms. Bailey completed a teacher questionnaire evaluation
of D.S.P.’s functioning in school at the request of the Social
Security Administration. (See Tr. 179, 181-88.) The scope of the
evaluation covered the child’s day-to-day functioning in school,
including the six domains of “Acquiring and Using Information,”

28

“Attending and Completing Tasks,” “Interacting and Relating with
Others,” “Moving about and Manipulating Objects,” “Caring for
Himself or Herself,” and “Medical Conditions and
Medications/Health and Physical Well-Being.” (Tr. 179.) At the
time of the evaluation, Ms. Bailey had known claimant for seven
months, during which time she saw claimant four times per week.
(Tr. 181.)
services.

Ms. Bailey also noted that claimant received speech
(Id.)

Regarding acquiring and using information, Ms. Bailey
checked the box indicating that claimant had no problems, but
proceeded to complete the rating for each activity listed. 14
(Tr. 182.)

Ms. Bailey indicated that D.S.P. had an obvious

problem with comprehending and doing math problems, learning new
material, and recalling and applying previously learned
material; a serious problem with comprehending oral
instructions, understanding school and content vocabulary,
reading and comprehending written material, understanding and
participating in class discussions, and expressing ideas in
written form; and a very serious problem with providing
organized oral explanations and adequate descriptions and
applying problem-solving skills in class discussions.

(Id.)

Elaborating, Ms. Bailey wrote:

14

A number of the initial checkmark responses to the questionnaire were
crossed out and changed to a different rating. (Tr. 182-84.) Neither the
reasons for nor the person making the changes were identified.

29

At times [claimant] needs help with completing
activities – writing. Difficult to understand new
concepts. She also has a lot of difficulty with
verbal expression. She attempts to participate when
she can, but answers with great difficulty.
(Tr. 182.)
Regarding attending and completing tasks, Ms. Bailey
indicated that D.S.P. had problems functioning on a weekly
basis.

(Tr. 183.)

Specifically, she indicated that claimant

had a slight problem paying attention when spoken to directly,
refocusing to task when necessary, organizing her belongings or
school materials, and completing assignments; and an obvious
problem carrying out multi-step instructions, completing work
accurately without careless mistakes, and working at a
reasonable pace/finishing on time.

(Id.)

Claimant had no

problem focusing long enough to finish the task at hand,
carrying out single-step instructions, waiting to take turns,
changing from one activity to another without being distruptive,
or working without distracting herself or others.

(Id.)

Ms.

Bailey explained that:
[D.S.P.] attempts to complete class activities
independently, and likes to show that she can work on
her own. If her work is incorrect, she is not
resistant to receiving help. At times she attempts to
come across as she understands, but many times does
not. She requires structuring and timed activities to
boost productivity.
(Id.)

30

Regarding interacting and relating with others, Ms.
Bailey checked the box indicating that claimant had no problems
and exhibited age-appropriate functioning in this domain; she
also reported that it had not been necessary to implement
behavior modification strategies for claimant. (Tr. 184.)

She

also completed the rating checklist provided, in which she
indicated that claimant had a slight problem following rules and
interpreting facial expressions, body language, hints, and
sarcasm; an obvious problem relating experiences and telling
stories; and a serious problem using situationally-appropriate
language, introducing and maintaining appropriate topics of
conversation, and using adequate grammar and vocabulary to
express herself.

(Id.)

Each of these problems were reported as

occurring daily.

(Id.)

Finally, Ms. Bailey reported that,

although she could understand D.S.P.’s speech almost all of the
time as a familiar listener after repetition/rephrasing, she
could only understand half of D.S.P.’s speech on the first
attempt when the topic was unknown, and half to one-third when
the topic was known.

(Id.)

Ms. Bailey wrote that claimant did not demonstrate any
difficulty in the domain of moving about and manipulating
objects.

Regarding claimant’s ability to care for herself, Ms.

Bailey noted slight problems with handling frustration
appropriate, being patient, and knowing when to ask for help;

31

and an obvious problem with cooperating in taking needed
medications, each of which occurred with daily frequency. (Tr.
186.)

As to claimant’s medical and physical well-being, Ms.

Bailey noted that D.S.P had asthma, high blood pressure, and
incontinence, each of which were medicated, and that she
frequently missed school in order to see the doctor.

(Tr. 187.)

As additional comments, Ms. Bailey wrote that D.S.P “has
language comprehension and processing delays that affect her
academics. Her medical needs also affect academics and
attendance at school.”
IV.

(Tr. 188.)

Procedural History
Plaintiff filed an application for SSI benefits on

behalf of D.S.P. on October 22, 2010, alleging that D.S.P. had
been disabled since the day she was born, January 31, 1999.
(Tr. 130.)
26, 2011.

The Commissioner denied D.S.P.’s claim on January
(Tr. 57-61.)

Plaintiff then requested a hearing,

which was held before Administrative Law Judge Valorie
Stefanelli (the “ALJ”) on October 6, 2011. (Tr. 8, 63.)

At the

hearing, plaintiff appeared without the assistance of counsel
and testified on behalf of claimant. (Tr. 8, 113.)
heard limited testimony from claimant.

The ALJ also

(Tr. 42-48.)

On April 13, 2012, the ALJ issued a decision in which
she concluded that D.S.P. was not disabled within the definition
of the Act.

(Tr. 5-7, 9 (citing 20 C.F.R. § 416.924(a)).)

32

Performing the three-step evaluation process for determining
whether an individual under the age of 18 is disabled, 20 C.F.R.
§ 416.924, discussed further below, the ALJ first found that
D.S.P. had not engaged in substantial gainful activity since the
date of her application.

(Tr. 11.)

Second, the ALJ found that

D.S.P.’s asthma, learning disorder, and speech delay were
severe, medically-determinable impairments that caused more than
minimal functional limitations. 15

(Id.)

At the third step,

however, the ALJ determined that D.S.P.’s impairments did not
meet, medically equal, or functionally equal the severity of one
of the listed impairments set forth in Appendix I to Subpart P
of Part 404 of the Regulations.

(Tr. 12.)

In determining that D.S.P.’s impairments did not
functionally equal any listed impairment, the ALJ evaluated
D.S.P.’s degree of limitation in the six domains set forth in 20
C.F.R. § 416.926a(b) after considering all of the relevant
evidence in the case record.

(Id.)

After considering

claimant’s symptoms, the ALJ determined that claimant and
plaintiff’s statements regarding the intensity, persistence, and
limiting effects of the symptoms were not credible to the extent
they were inconsistent with the ALJ’s finding that claimant’s
impairments did not functionally equal a listing.

15

(Id.)

The ALJ also noted that D.S.P. had a non-severe impairment, hypertension.
(Id.)

33

The ALJ found that D.S.P. had a marked limitation in
the domain of acquiring and using information.

(Tr. 14.)

She

wrote that her finding was supported by “Exhibit 11E, page 4;
Exhibit 19F, pages 10, 13; Exhibit 18F, pages 7, 38, 132;
Exhibit 10F, page 3; Exhibit 6F, pages 3-4; [and] Exhibit 3F,
pages 22-23.”

(Id.)

The decision did not explain how the cited

documents supported the ALJ’s determination or mention
conflicting evidence in the record.
In the domain of attending and completing tasks, the
ALJ found a less than marked limitation.

(Tr. 15.)

She

indicated that the finding was supported by Exhibit 19F, page
13, because Ms. Thomson, claimant’s therapist, had noted that
claimant’s “attention and concentration appear[ed] within normal
limits”; Exhibit 6F, page 3, because Dr. Fairweather, the state
consultant, had found that claimant could “complete age
appropriate tasks”; Exhibit 11E, page 5, because Ms. Bailey had
indicated that claimant’s limitation in this area was less than
marked; and Exhibit 10F, 16 page 3.

(Id.)

The ALJ found a less than marked limitation in the
domain of interacting and relating with others.

(Tr. 16.)

She

indicated that the finding was supported by Exhibit 19F, page
11, because Ms. Thomson had noted that claimant “enjoys singing

16

The Childhood Disability Evaluation Form completed by the medical
consultants after review of claimant’s file.

34

and music.

She is eager to learn, enjoys spending time with her

friends. . .”; Exhibit 6F, page 3, because Dr. Fairweather had
written that claimant’s interests included “playing with
friends, surfing the Internet and singing”; Exhibit 11E, page 5,
because Ms. Bailey had reported no problems in this domain;
Exhibit 10F, page 3; Exhibit 3F, 17 pages 4 and 20; and Exhibit
2F, 18 page 5.

(Id.)

In finding no limitation in the domain of moving about
and manipulating objects, the ALJ cited Exhibit 19F, page 13,
because Ms. Thomson had noted that claimant enjoyed basketball;
Exhibit 11E, page 7, because Ms. Bailey had reported no
limitations in this domain; and Exhibit 10F, page 4.

(Tr. 18.)

Neither did the ALJ find a limitation in the area of D.S.P.’s
ability to care for herself, citing Exhibit 11E, page 8 and
Exhibit 10F, page 4.

(Tr. 19.)

Finally, the ALJ found a less than marked limitation
in the area of health and physical well-being, which she
concluded from Exhibit 14F, pages 1, 3, and 6, in which D.S.P.’s
treating physician, Dr. Browne, characterized D.S.P.’s asthma as
moderate and not limiting her ability to function; Exhibit 4F,
in which an examining speech therapist found that claimant’s
speech delay was moderate; Exhibit 10F, page 4; and Exhibit 3F,
17

Claimant’s 2010 IEP, including Speech Evaluation by Ms. Newman and PsychoEducational Evaluation by Ms. Gantz.
18

Claimant’s 2009 IEP.

35

page 5.

(Tr. 19-20.)

Because the ALJ did not find either a

“marked” limitation in two domains of functioning or an
“extreme” limitation in one domain of functioning, the ALJ
determined that D.S.P was not disabled as defined under the Act.
(Tr. 20.)
On April 13, 2012, plaintiff sought review of the
ALJ’s decision by the Appeals Council.

(Tr. 1.)

On February

25, 2013, the ALJ’s decision became the final decision of the
Commissioner when the Appeals Council denied plaintiff’s request
for review. (See Tr. 1-3.)

Plaintiff, appearing pro se, filed

this complaint on April 19, 2013.

Plaintiff later retained

counsel, who entered a notice of appearance on September 9,
2013.
On September 16, 2013, defendant served plaintiff with
its motion for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c).

(See Def. Mem.) Plaintiff’s

counsel subsequently served defendant with plaintiff’s motion
for judgment on the pleadings on November 8, 2013.
Mem.)

(See Pl.

Plaintiff argues that the ALJ’s decision was erroneous

because the ALJ (1) failed to state the weight accorded to the
evidence, (2) failed to make a proper credibility determination
regarding plaintiff’s testimony, and (3) failed to support her
determination that claimant was not disabled with substantial
evidence. (Pl. Mem. at 1.)

Defendant argues that the ALJ

36

correctly applied the legal standards and that the
Commissioner’s decision is supported by substantial evidence.
(Def. Mem. at 1.)
DISCUSSION
I.

Standard of Review
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)).

“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.’”

Halloran v. Barnhart, 362 F.3d 28, 31

(2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)).

“A district court may set aside the [ALJ’s]

determination that a claimant is not disabled only if the
factual findings are not supported by substantial evidence or if
the decision is based on legal error.” Burgess v. Astrue, 537
F.3d 117, 127 (2d Cir. 2008) (internal citations and quotation
marks omitted).
In order to assess the legal standards and evidentiary
support used by the ALJ in his disability finding, the reviewing
court must be certain that the ALJ considered all the evidence.
Sutherland v. Barnhart, 322 F. Supp. 2d 282, 289 (E.D.N.Y.

37

2004); see Carnevale v. Gardner, 393 F.2d 889, 891 (2d Cir.
1968) (“We cannot fulfill the duty entrusted to us, that of
determining whether the Hearing Examiner’s decision is in
accordance with the Act, if we cannot be sure that he considered
some of the more important evidence presented[.]”). An
evaluation of the “substantiality of evidence must also include
that which detracts from its weight.” Williams ex rel. Williams
v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988.)
After reviewing the Commissioner’s determination, a
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 particularly

appropriate where further findings or explanation will clarify
the rationale for the ALJ’s decision.”

Grace v. Astrue, No.

11-cv-9162, 2013 WL 4010271, at *14 (S.D.N.Y. July 31, 2013)
(citing Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)).
II.

Requirements for SSI Eligibility
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

38

for a continuous period of not less than 12 months.”

42 U.S.C.

§ 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 in

dispute in this case, 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).

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 meets or equals 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

39

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—(i) acquiring and using information, (ii) attending and
completing tasks, (iii) interacting and relating with others,
(iv) moving about and manipulating objects, (v) caring for
oneself, (vi) health and physical well-being--are “broad areas
of functioning intended to capture all of what a child can or
cannot do.”

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).
A “marked limitation” is one that “seriously
interferes” with a claimant’s ability to initiate, sustain, and
complete activities.

20 C.F.R. § 416.926a(e)(2).

than moderate, but less than extreme.”

Id.

It is “more

In addition, the

rgulations further describe a “marked limitation” as what would
be expected with the equivalent of two standard deviations below
the mean on standardized testing.
(iii).

20 C.F.R. § 416.926a(e)(2)

“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 ageappropriate expectations) independently, appropriately,
effectively, and on a sustained basis.”

40

Jones, 2010 WL 1049283,

at *6 (quoting 20 C.F.R. Pt. 404, Subpart P, App. 1, §
112.00(C)).
An “extreme limitation” is one that “very seriously
interferes” with a claimant’s ability to independently initiate,
sustain, and complete activities.

20 C.F.R. § 416.926a(e)(3).

It is designated for the “worst limitations...but does not
necessarily mean a total lack or loss of ability to function.”
Id.

The regulations describe an “extreme limitation” as what

would be expected with the equivalent of three standard
deviations below the mean on standardized testing.

20 C.F.R. §

416.926a(e)(3)(i), (iii).
III. Application
A. Failure to Adequately Consider the Record
Plaintiff argues that the ALJ did not explain the
weight given to any of the limited evidence she cited to support
her functional equivalence determination, particularly in the
case of claimant’s teacher Ms. Bailey, from whose report the ALJ
arbitrarily cited statements in support of her determination
without explanation of why they were more probative than other
findings in Ms. Bailey’s report.

(Pl. Mem. at 13-18.)

Remand

is appropriate because the court finds that the ALJ did not
adequately explain her reasoning.
The ALJ may not “pick and choose” from the transcript
only such evidence that supports her decision.

41

Sutherland, 322

F. Supp. 2d at 289.

In her decision as to whether claimant’s

impairments functionally equaled a listed impairment, the ALJ
merely cited several exhibits that supported her determination
with little to no explanation of their content or how those
documents would support or detract from her conclusion.
In the domain of acquiring and using information, the
ALJ noted that her finding of a marked limitation was supported
by Exhibits 11E, 19F, 18F, 10F, 6F, and 3F without explaining
the link between those exhibits and her determination.

In

Exhibit 11E, the questionnaire completed by Ms. Bailey,
claimant’s sixth grade Social Studies teacher, Ms. Bailey
indicated that claimant had a “very serious problem” with
providing organized oral explanations and adequate descriptions
and applying problem-solving skills in class discussions, and a
“serious problem” with comprehending oral instructions,
understanding school and content vocabulary, reading and
comprehending written material, understanding and participating
in class discussions, and expressing ideas in written form.
Without any reasoning provided in the ALJ’s decision, it is
unclear why this document would support a finding of a marked
limitation (or, a “serious problem”) in this domain rather than
an extreme limitation (or, a “very serious problem). 19

19

The Commissioner notes in her memorandum of law that certain responses on
the checklist were crossed out and replaced with new responses. (See Def.
Mem. at 19 (“it that [sic] appears that someone changed the responses that

42

Similarly, the ALJ cites to the admission note and treatment
plan completed by Katharine Thomson, the psychologist-intraining at the KCHC Behavioral Health Department without
reference to the facts that support the ALJ’s finding and why
those facts were the most probative of the fourteen pages of
therapy session notes.
The ALJ’s reasoning for her findings in the domains of
attending and completing tasks and interacting and relating to
others is similarly deficient.

As to attending and completing

tasks, the ALJ cites a finding in the state consultant, Dr.
Fairweather’s, report that claimant “is able to complete age
appropriate tasks. . .” but does not address statements from
plaintiff that claimant fails to pay attention to detail, makes
careless mistakes, and has difficulty sustaining attention in
tasks and play.

Although the ALJ may choose to credit a

consultative examiner’s finding over other evidence, this court
is unable to decipher her reasons for doing so from the
decision.
In finding claimant to have a less than marked
limitation in the domain of interacting and relating to others,
the ALJ cited Ms. Bailey’s finding that D.S.P. had no problems

were checked off”).) The ALJ does not explain in her decision, however,
whether she refused to consider the responses to the questionnaire where one
answer had been crossed out and replaced with another. Without any
explanation, the court is unable to determine which, if any, responses the
ALJ credited and considered in her decision.

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in regard to social interaction.

Although Ms. Bailey checked

off the box indicating that claimant had no problems in this
domain, she completed the checklist for rating claimant’s
problems and found her to have a “serious problem” using
language appropriate to the situation and listener, introducing
and maintaining relevant and appropriate topics of conversation,
and using adequate vocabulary and grammar to express thoughts in
everyday conversation.

She also indicated that she, as a

familiar listener, could understand no more than half of
claimant’s speech when the conversation topic was unknown and
one-half to one-third when the topic was known.

Thus, the ALJ’s

citation to the record is not wholly accurate and, without
further analysis of the evidence supporting her finding, does
not adequately explain her conclusion.
By highlighting these issues, the court does not
intend to supplant its analysis of the record for the ALJ’s.
Although the district court should not engage in weighing the
credibility of evidence in the record or review de novo the
ALJ’s disability determination, however, the district court must
ensure that the ALJ has satisfied her legal duty.
322 F. Supp. 2d at 289.

Sutherland,

There is ample evidence from the record

as to D.S.P.’s learning disability, speech impairment, and
asthma, including test scores, reports from treatment providers,
and statements from D.S.P. and her mother.

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Although the ALJ

explained in detail the applicable statutory and regulatory
standards, she failed to apply these standards to evidence of
D.S.P.’s impairments with any specificity.

See Rivera v.

Astrue, No. 10-cv-4324, 2012 WL 3614323, at *11-12 (E.D.N.Y.
Aug. 21, 2012).

Accordingly, on remand, the ALJ must justify

her determination that claimant’s impairments do not entitle her
to benefits with sufficient specificity to permit a reviewing
court to review such justification.
B. Failure to Adequately Analyze Credibility of Plaintiff’s
Statements Regarding D.S.P.’s Symptoms
Social Security regulations require an ALJ to consider
a claimant’s subjective testimony regarding her symptoms in
determining whether she is disabled.
404.1529(a).

See 20 C.F.R. §

In evaluating this testimony, the ALJ must follow

a two-step process.

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.

2010) (citing 20 C.F.R. § 404.1529(a)).

First, the ALJ must

determine whether the claimant suffers from a medically
determinable impairment that could reasonably be expected to
cause the symptoms alleged.

Id.

Second, the ALJ must determine

“the extent to which [the claimant’s] symptoms can reasonably be
accepted as consistent with the objective medical evidence and
other evidence.”

Id.

If, at step two, a claimant’s subjective evidence of
her symptoms is supported by objective medical evidence, it is

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entitled to “great weight.”

Simmons v. United States R.R. Ret.

Bd., 982 F.2d 49, 56 (2d Cir. 1992) (internal quotation marks
omitted).

If a claimant’s symptoms suggest a greater severity

of impairment than can be demonstrated by the objective medical
evidence, however, “the ALJ must engage in a credibility
inquiry.”

Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir.

2010) (summary order) (citing 20 C.F.R. § 404.1529(c)(3)). The
ALJ specifically must consider additional factors including
daily activities, the location, duration, frequency and
intensity of symptoms, the type, effectiveness and side effects
of medication, and other treatment or measures to relieve those
symptoms.

20 C.F.R. § 404.1529(c)(3).
The ALJ may accept or reject testimony of a claimant’s

parent. 20

Williams, 859 F.2d at 260.

Nevertheless, a finding

that a witness is not credible must be set forth with sufficient
specificity to permit intelligible review of the record.

Id.

(citing Carroll v. Sec’y of Health and Human Servs., 705 F.2d
638, 643 (2d Cir. 1983)).

Where a parent testifies as to the

child claimant’s symptoms, the ALJ must make specific findings
concerning the credibility of the parent’s testimony, just as if
the child were testifying.

Williams, 859 F.2d at 260 (internal

citation omitted).

20

If the claimant is under 18 and unable to describe adequately her symptoms,
the ALJ must accept the description provided by the person most familiar with
the child’s condition, such as a parent or guardian. 20 C.F.R. § 928(a).

46

Here, after considering the record, the ALJ concluded
that “the claimant’s medically determinable impairment could
reasonably be expected to cause the alleged symptoms,” but that
“the statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the
extent they are inconsistent with finding that the claimant does
not have an impairment or combination of impairments that
functionally equals the listings for the reasons explained
below.”

(Tr. 13.)
Although the ALJ’s use of boilerplate language need

not invalidate the credibility assessment, her failure to make
any reference to or explain her analysis of particular evidence
in the record, refer to the credibility analysis factors, or
give clear and specific reasons for her credibility findings
necessitate further proceedings.

An ALJ’s finding that a

claimant, or here, her representative, is not credible must
refer to facts in the record and “be sufficiently specific to
make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and
the reasons for that weight.”

Escalante v. Astrue, No. 11-cv-

375, 2012 WL 13936, at *8 (S.D.N.Y. Jan. 4, 2012) (citing Soc.
Sec. Ruling 96–7p, 61 Fed. Reg. 34,483, 34,484 (Jul. 2, 1996)).
At the hearing, plaintiff provided testimony as to
D.S.P.’s problems with articulating words, answering questions,

47

engaging in conversation and fighting with classmates and
siblings.

Without any reference to that testimony or

potentially contradictory evidence in the record, the court is
precluded from understanding the basis for the ALJ’s credibility
finding, and remand is appropriate for further findings or a
clearer explanation of the ALJ’s decision.
39.

Pratts, 94 F.3d at

On remand, the ALJ shall assess plaintiff’s credibility in

light of all evidence in the record and provide clear, specific
reasons for the credibility assigned to plaintiff’s statements
regarding the intensity, persistence, and limiting effects of
claimant’s symptoms.
C. Substantial Evidence Review
As noted above, the Commissioner argues only that her
decision is supported by substantial evidence and therefore
should be upheld.

(See generally Def. Mem.)

Consideration of

whether the Commissioner’s disability determination is supported
by substantial evidence is improper where remand is warranted
due to the ALJ’s failure to consider certain evidence or apply
the law properly in assessing the evidence.

See, e.g., Lebron

v. Colvin, No. 13-CV-9140, 2015 WL 1223868, at *23 (S.D.N.Y.
Mar. 16, 2015).

Accordingly, the court does not reach the issue

of whether the ALJ’s decision was supported by substantial
evidence here.

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CONCLUSION
For the reasons set forth above, the court denies the
defendant’s motion for judgment on the pleadings, denies in part
plaintiff’s motion to the extent it seeks remand solely for the
calculation of benefits, and grants plaintiff’s motion to remand
this case for further proceedings consistent with this opinion.
On remand, the ALJ shall:
(1)

Explain in specific detail the basis for a
determination, if warranted, that claimant’s
impairments are insufficient to entitle her to
benefits at the third step of the disability
determination;

(2)

Specifically address plaintiff’s testimony
regarding D.S.P.’s functioning in each of the six
domains and assess that testimony pursuant to 20
C.F.R. §§ 416.928(a) and 416.929(c).

The Clerk of the Court is respectfully requested to close this
case.
SO ORDERED.
Dated:

July 29, 2015
Brooklyn, New York
___________/s/__________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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