Johnson v. Colvin
MEMORANDUM and ORDER granting in part Plaintiff's 14 Motion for Judgment on the Pleadings and denying the Commissioner's 18 Motion for Judgment on the Pleadings. The case is REMANDED under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. Ordered by Judge Sandra L. Townes on 12/20/2016. (Barrett, C)
IN CLERKS OFFICE
U.S. DISTRICT COURT ED.N.Y.
* DEC 21 2016
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LYNETTE JOHNSON on behalf of I.M., a minor
MEMORANDUM and ORDER
CAROLYN W. COLVIN,
Commissioner of Social Security,
TOWN ES, United States District Judge:
Lynette Johnson ("Plaintiff') seeks review of a final decision of the Commissioner of
Social Security (the "Commissioner"), denying Plaintiff's application for Supplemental Security
Income ("SSI") filed on behalf of her minor child, I.M. The parties have filed cross-motions for
judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons
set forth below, it is ORDERED that the Commissioner's motion (ECF No. 14) is DENIED,
Plaintiff's motion (ECF No. 18) is GRANTED in part, and the case is REMANDED for further
proceedings consistent with this opinion. The Clerk of Court is respectfully directed to enter
judgment and close the case.
A. Procedural History
On or about December 13, 2010, Plaintiff filed an SSI application on behalf of I.M., her
daughter, who was then nine years old. (Administrative Record ("A.R.") at 212-17). Plaintiff
indicated that her daughter had been disabled since May 1, 2009, due to attention deficit
hyperactivity disorder ("ADHD"), mood disorder, and eczema. (See A.R. at 212, 268). The
Commissioner denied the application on May 3, 2011 (A.R. at 129-35), and Plaintiff timely
sought an administrative hearing (A.R. at 137-39). The hearing was held before an
Administrative Law Judge ("ALJ") on March 28, 2013. Plaintiff was represented by her current
counsel and both she and her daughter testified. (A.R. at 104-28). The ALJ denied the
application on April 5, 2013, finding that I.M.'s ADHD was her only "severe impairment" and the
limitations it imposed on her relevant capacities were not the functional equivalent of
impairments under 20 C.F.R. sections 416.924 and 926a. (A.R. at 104-28). Plaintiff's counsel
then timely requested Appeals Council review of that decision and later submitted to that body
additional records stemming from l.M.'s subsequent six-month inpatient treatment at a
psychiatric ward. (A.R. at 80-81, 299-302, 304). The Appeals Council denied review on
September 10, 2014, refusing to consider the new records on the grounds that they "were about
a later time" subsequent to the AL's decision and therefore "d[id] not affect the decision about
whether [l.M. was] disabled beginning on or before April 5, 2013." (A.R. at 1-5). Plaintiff then
initiated this suit on November 5, 2014, seeking judicial review of the Commissioner's decision
"and judgment for such relief as may be proper, including costs." (ECF. No. I at 3).
B. Factual and Medical Background Before the AU
The earliest records concerning l.M.'s condition stem from her March 2010
Individualized Education Program ("IEP") evaluation performed by the New York City Board of
Education. (A.R. 229-54). She was then eight years old and in the third grade at P.S. 69 and
had not previously received special services at school. (A.R. at 229, 231). The IEP indicated
that I.M. then received "at risk counseling" and a "teacher report" indicated that she did not
complete her work or follow classroom rules, that she "calls out and gets out of her seat
throughout the day," that "she gets angry easily if she does not want to do what the teacher
asks her to do . . . [and] is never prepared for school and is very disorganized." (AR. at 23133). It is also stated that "[l.M.] distracts the other students by singing and making silly noises
out loud during a lesson." (A.R. at 231). l.M.'s language skills, "informally assessed," were
deemed adequate. (A.R. 231). Through "previous testing" she had been found to function "in
the average range of intelligence," deemed capable of performing well in school but hampered
by "significant emotional factors" that appeared to interfere with her "level of attention and her
ability to reach her academic potential in the classroom." (A.R. at 231). An accompanying
Psycho-Educational Report ("PER"), completed by a certified school psychologist, stated that
I.M. had a Full Scale 10 falling in the average range of intellectual functioning. (A.R. at 247). In
specific areas involving reading, writing, and math she scored in ranges at or below her grade
level, often in the tower percentiles. (A.R. at 246-48; 251-53).
In an evaluation of her social/emotional performance, the IEP documentation and PER
cited her ADHD diagnosis, her "great. . . difficulty [in] controlling her impulses," and her limited
concentration and ability to relate to others." (A.R. at 233, 248-49). Her "impulsive
characteristics and moods swings [sic] tend to result in inappropriate behavior in the classroom."
(A.R. at 233). Interviews revealed:
a youngster with significant emotional concerns. [l.M.] appears to
be experiencing an enormous amount of underlying anger and
aggression. She feels picked upon and victimized. . . and defends
against these perceived threats with, at times, physical retaliation
[l.M.] required a significant amount of redirection and refocusing
during the evaluation. She shuts down and refuses to complete
tasks she perceives as difficult [and tacks] the appropriate coping
mechanisms and skills to control her impulses and develop positive
relationships with her peers.
(A.R. at 233). The IEP further described her "significant emotional issues which interfere with
her ability to. . . attend and cooperate." (A.R. at 243). "She is easily distracted and unable to
focus. . . for more than a few minutes at a time," can be "rude and disrespectful to adults," and
has been known to throw herself on the floor, or throw objects in the Classroom." (A.R. at 243).
At that point in time, she was "not producing any work in class and refuse[d] to work with any of
the other children" in her class. (A.R. at 243).
The IEP concluded with a "Classification of Disability: Emotional Disturbance" (A.R. at
229), espoused the view that with special programs she could eventually perform well in school,
(AR. at 246-47), and outlined several goals concerning her interpersonal skills, tolerance, selfcontrol, and academic performance, (A.R. at 236-38). It prescribed a 12:1:1 staffing ratio in light
of her "significant social/emotional issues" (A.R. at 241-42). I.M. would be permitted to
participate in "all school activities" but would receive counseling one-on-one once a week and
within a group of three once a week. (A.R. at 240).
As discussed in testimony before the AU, and as detailed by documentation in the
record both before and after the hearing before the ALJ, l.M was placed in foster care shortly
after her March 2010 IEP evaluation and remained therefor approximately five months. (A.R at
52 1 124-25, 362). The placement took place after I.M. had told her teacher that her mother hit
her and after Plaintiff missed an appointment with l.M.'s neurologist and urologist. (A.R. at 52,
322, 356, 362). While I.M. was removed from Plaintiff's home, her two siblings were not. (A.R.
at 52). Her father was offered custody upon her discharge, but refrained in light of his work
schedule requiring travel away from home. (A.R. at 52). According to various documents in the
record, the New York State Office of Children and Family Services (NY-OCFS) eventually
returned her to Plaintiff's care after determining l.M.'s claim of abuse was "unfounded." (A.R. at
67). According to records from the Jewish Board of Family and Children's Services, where I.M.
would later be treated, the NY-OCFS had previously been "involved 4-5 other times for
allegations of physical abuse and neglected [sic]. Mother reports that allegations were
unfounded." (A.R. at 348).
While in foster care throughout 2010 7 1. M. received psychiatric treatment from the
Seaman's Society for Children. (A.R. at 309-11). Although the treating physician records from
that treatment are not available, an NY-OCFS form summarizes diagnoses made at the
Seaman's Society for ADHD, "Mood Disorder, not otherwise specified," and "Night Tremors."
(A.R. at 308-11). The form also notes an initial assessment of "Adjustment Disorder [w]ith
Anxiety" and "Oppositional Defiant Disorder." (AR. at 311). Her last visit with the Seaman's
society was on November 20, for a routine checkup, before her discharge. (A.R. at 309).
Shortly afterwards, a neurologist of unknown affiliation changed her ADHD medication to
Adderall and scheduled a reevaluation for the following month. (A.R. at 319). There does not
appear to be any record concerning that reevaluation or further treatment by that neurologist.
Plaintiff applied for SSI benefits on behalf of I.M. shortly after her return from foster care
in December 2010. In a questionnaire she completed around that time, Plaintiff indicated that
I.M. had behavioral issues that prohibited her from socializing, handling her own physical
hygiene, and was otherwise limited in her ability to "pay attention and stick with a task." (A.R. at
261-63). She listed "D Amphetamine" as medication prescribed for ADHD, along with
medications for allergies and Eczema not at issue here. (A.R. at 269). In answering "yes/no"
questions in the "Function Report" form required in the SSI application, Plaintiff indicated that
l.M.'s physical abilities were not limited but that she was limited in reading, writing, and
understanding money. (A.R.at 259). She also indicated that I.M. was not limited in her ability to
identify letters, read simple words, write elementary sentences, basic addition, or telling time
and date. (A.R. at 259). She also responded to questions indicating that I.M.'s impairment
limited her behavior with other people and prevented her from having friends her own age, from
making friends, from getting along with adults or teachers, and from playing team sports. (A.R.
With regard to helping herself and cooperating with others in taking care of personal
needs, Plaintiff indicated that I.M. could not use zippers, bathe or shower without help, brush
her teeth, comb her hair, dress herself, clean up after herself, obey safety rules, get to school on
time, or accept criticism or correction. (A.R. at 262). Other responses nevertheless indicated
that I.M. was able to button her clothes, use a fork and knife, and "help around the house" in a
general manner. (A.R. at 262). Regarding I.M.'s ability to "pay attention and stick to a task,"
she indicated her daughter could not keep busy on her own or finish tasks, chores, or
homework. (A.R. at 263). Plaintiff's application ends with notes summarizing that:
MOTHER ALLEGES THAT CHILD HAS A BEHAVIOR PROBLEM.
WHEN SHE DOES NOT GET HER WAY SHE THROWS THINGS
AND SCREAMS. . . MOTHER ALLEGES THAT SHE SCREAMS
ALL NIGHT... IT IS VERY DIFFICULT GETTING CHILD UP
(A.R. at 263).
By February of 2011 1 I.M. attended P.S. 18. A teacher from that school provided an
unsigned New York State Office of Temporary and Disability Assistance "Teacher
Questionnaire" form dated March 3, 2011. (A.R. at 274-84). Based on approximately one
month with l.M., her teacher rated her grade level as 4.0 in reading, 2.0 in math, and 3.5 in
written language. (A.R. at 274). The teacher also noted that an "unusual degree of
absenteeism" ("about 2 times per week") (A.R. at 274, 280), rated as "slight problem[s]"
numerous academic and acquisitive capacities (A.R. at 275), noted "obvious problem[s]" relating
to focus (A.R. at 276), noted "serious problem[s]" with completing assignments and distracting
others (A.R. at 276), and reported that I.M. "needs to be refocused constantly [and] reminded to
stop humming." (A.R. at 276). In the domain concerning "attending and completing tasks," the
teacher noted slight problems with carrying out simple and multi-step instructions and waiting to
take turns; "obvious" problems with paying attention, sustaining attention during play/sports,
focusing enough to finish assigned activity or task, refocusing to task, organizing her own things
or school materials, and completing work accurately without careless mistakes; and "serious"
problems completing class/homework assignments, working without distracting herself or
others, and working at a reasonable pace/finishing on time.(A.R. at 276). Regarding self-care,
the teacher indicated slight problems with personal hygiene, caring for physical needs, and
identifying and appropriately asserting emotional needs; and obvious problems with frustration,
patience, responding to changes in mood, use of coping skills, and knowing when to ask for
help. (A.R. at 279).
I.M. has also received psychiatric treatment through the Jewish Board of Family and
Children's Services ("JBFCS") for roughly a year and a half (A.R. at 362-414). The record
regarding her treatment there is sparse, and mostly consists of an initial intake assessment
dated March 14, 2011, an initial psychiatric evaluation, and a discharge report from December
2012. The intake assessment was completed by a social worker and summarized Plaintiff's
explanation that I. M. threw frequent "temper tantrums, [was] not listening," was "physically
aggressive," had "difficulties sitting still," did not listen to her at home," "often screams and
yells," "refuses to do homework," and could not concentrate. (A.R. at 362). It also noted that
l.M.'s school had complained that she "often distracts and fights with other students and needs
to be suspended from classrooms and buses" and that I.M. had been assigned to special
education classes. (A.R. at 362, 373). The assessment also noted that Plaintiff had to leave for
work at 4:45 a.m., placing responsibility to get I.M. to school on her 17-year-old sister, which
resulted in both children's tardiness. (A.R. at 362). Finally, the assessment recorded l.M.'s
statements that she "does not like herself, that she loses interest in activities, [and] has no
friends." (A.R. at 362). Other descriptions, mostly sourced to Plaintiff's answers during the
intake interview, include easy distractibility, rapid shifting from one activity to another, "starts
fights," "temper tantrums," "active refusal to comply," "doesn't seem to listen," and "acts without
listening." (A.R. at 367-78). The social worker concluded that alleviation of "ADHD symptoms"
was the rationale for treatment and recommended outpatient treatment at JBFCS and a
psychiatric evaluation. (A.R. at 381). The report listed ADHD medication as Concerta, although
there is no indication which doctor prescribed it or when medication had changed from Adderall
(A.R. at 374).
In a report summarizing the ensuing psychiatric evaluation dated May 9, 2011, an M.D.
at JBFCS noted the same reported behavior and affects and made numerous other
observations. Most notably, he noted that I.M. "did not have [as] much affect as mother
described in her tantrums" (A.R. at 401), that he advised her to take I.M. to the emergency room
or to call 911 when she grows violent (A.R. at 405), and that 1. M. had reported auditory
hallucinations involving a man's voice "telling to do her bad things for the past two years, usually
at night." (A.R. at 401-02, 407). The report concludes that I.M. had "very limited functioning"
and diagnosed her with "ADHD, combined type; O[ppositional] D[efiant] D[isorder]; L[earning]
D[isability] NOS; [and a rule out diagnosis of] Psychotic Disorder, NOS." (A.R. at 407). It also
discloses that the evaluating doctor prescribed her Vyvanse, yet another ADHD medication, and
referred her to therapy. (A.R. at 405-07). Over a year later the same doctor signed a New York
City Department of Education medical accommodation request form stating that she would
"benefit from a bus monitor on school-bus" in light of "failure to observe rules," need for frequent
and assistance," restlessness, impulsiveness, and aggressiveness. (A. R. at 361).
In a "Disability Report" filed in July of 2011 (after the Commissioner denied her initial
application), Plaintiff indicated that the JBFCS had changed l.M.'s Vyvanse dosages, had
additionally prescribed Clonidine as nightly sleep medication, and that I.M. had begun "mental
therapy" at JBFCS. (A.R. at 288-92).
No other details of treatment through JBFCS appear in the record except her discharge
summary prepared by a social worker in December of 2012. (A.R. at 410-14). The report noted
"very minimal progress. . . due to mother not being consistent with bringing Client to therapy
and [appointments] with Dr. Change as well as not giving Client her medication." (A.R. at 410).
It further explained that I.M. infrequently received the prescribed Vyvanse and a subsequently
prescribed Risperdal (an anti-psychotic used to treat schizophrenia) as a result of:
mother stating she leaves too early in the morning to give Client her
medications. However mother has not followed through and complains
that Client behavior is out of control and overwhelming. [The authoring
social worker] has strongly encouraged that Client not being on
medication is a factor that contributes to Client's behavior issues and lack
of focus in school and in the home."
(A.R. at 410). The discharge report summarized the "presenting problem" as "CLIENT
THROWS TEMPER TANTRUMS, DOES NOT LISTEN TO DIRECTIVES, FIGHTS WI
SIBLINGS; IS PHYSICALLY AGGRESSIVE W/ OTHERS" (A.R. at 410 (capitals in original)), but
its "risk summary" nevertheless marked the risk of aggression as "minimal." (A.R. at 411). The
report also noted a Global Assessment Function ("GAF") score of 50 (A.R. at 413), which
indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) [or] any serious impairment in social, occupational, or school functioning (e.g., no
friends)." American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 4th ed. ("DSM-IV") at 32. The reason listed for I.M.'s discharge was that she would
"be seeking treatment at Staten Island Mental Health (SIMH), closer to home in order to attend
weekly counseling and be more consistent for therapy to be effective." (A.R. at 410).
In April 2011, just prior to l.M.'s "discharge" from treatment at the JBFCS, Dana Jackson,
Psy.D, conducted the consultative psychiatric evaluation for the New York State Office of
Temporary and Disability Assistance (the "NYS-TDA"). (A.R. at 321-25). Although Dr.
Jackson's report mentioned past ADHD diagnoses, l.M.'s history of medications, and Plaintiff's
complaints that I.M. was non-responsive to her medication, (A.R. at 322), her assessment was
far milder than other evaluations. She described I. M. as "cooperative[,] answer[ing] questions
willingly and openly." (A.R. at 322). She described l.M.'s tone and intensity of voice as "within
normal limits." (A.R. at 322). l.M.'s thoughts were "unremarkable for psychotic processes," her
mood and affect appeared to be within normal ranges, her intellectual skills deemed "average to
high average," and her "attention and concentration were within normal limits" at this time. (A.R.
at 323). Dr. Jackson concluded with only a rule out diagnosis for ADHD (combined type) and
various learning disorders. (A.R. at 324).
Roughly one month later Dr. Belsky, M.D., another state agency psychological
consultant, reviewed I.M.'s file and completed a Child Disability Evaluation Form and concluded
that l.M.'s ADHD did not meet, medically equal, or functional equal the listing of impairments in
Regulations, 20 C.F.R. pt. 404, subpt. P, app. 1. (A.R. at 226-32). In explaining his conclusion
that I.M. was not limited in the domain of caring for oneself, Dr. Belsky noted a "mood disorder
was alleged but she had full affect and congruent mood at the C[onsultative] E[valuation]."
(A.R. at 330). In explaining his conclusion that I.M. was not limited in the domain of attending
and completing tasks, Dr. Belsky briefly summarized answers from the February 2011 NYSTDA teacher questionnaire form and added only: "At psych C[onsultative] E[valuation] she was
attentive and cooperative." (A.R. at 339).
In January of 2013, I.M.'s medication was again changed to Risperdal at the Richmond
University Medical Center in Staten Island. (A.R. at 360). She was directed to a follow up
appointment at the Staten Island Mental Health site. (A.R. at 360).
Several months later I.M. received another IEP through the NYC DOE. (A.R. at 415-30).
She was then twelve years old and in the sixth grade. The record relating to that IEP reflects
that Sabrina Gordon, a school psychologist, advised that I.M. still needed a 12:1:1 OT class and
counseling. (A.R. at 421-22). A teacher questionnaire form indicated that her reading, math,
and written language levels were far below grade-appropriate levels. (A.R. at 423-31). It also
stated that I.M. frequently missed class, "was late quite often," needs a "great amount of
assistance" organizing thoughts, never completed homework assignments, had difficulty staying
in her "space," and got frustrated easily and "shut down" when facing difficult work. (A.R. at
423-39). It also indicated that I.M. had a "very serious problem" comprehending oral
instructions, focusing long enough to finish a task, refocusing, organizing things, completing
assignments, and using good judgment regarding personal safety and dangerous
circumstances. (A.R. at 425-29). She had "serious problem[s]" paying attention when spoken
to directly, handling frustration, caring for physical needs, and being disruptive. (A.R. at 42529). She also received marks for "slight" and "obvious" problems in numerous other areas.
(See A.R. at 425-29).
C. The March 28, 2013 Hearing
The ALJ held a hearing on March 28, 2013 with Plaintiff's counsel present. (A.R. at
106). In opening the hearing, the ALJ advised that he would hear testimony and then "make my
decision based on that" testimony. (A.R. at 106). The ALJ briefly questioned both I.M. and
Plaintiff. (A.R. at 108-112; 113-118). Counsel then questioned Plaintiff at slightly greater
length. (A.R. at 118-27). Counsel did not question I.M.
In response to the AU's questions, I.M. said for fun she watched television or played Wii
or other games with her friend, Heather. (A.R. at 109). She answered that she had more than
one friend but did not elaborate or describe social interactions beyond visiting Heather's house.
(A.R. at 109-10). She also mentioned a "summer job" at which she helped her father deliver
phone books. (A.R. at 110). She claimed to complete her homework assignments and to either
walk or take the bus to school. (A. R. at 110-11). She mentioned taking medication at night and
referenced a change in her medication made within the past several months. (A.R. at 111-1 2).
Plaintiff's testimony painted a bleaker picture. Plaintiff described difficulties spanning the
previous five years and beginning around the "first or second grade," when the "problems really
started." (A.R. at 114). She outlined difficulties getting I.M. to school in the morning and
constant calls from school regarding truancy complaints, calls from frequent and gratuitous visits
to the school nurse's office, l.M.'s obstinate refusal to take her medication, and her "chaotic.
rages" that "destroy[ed]" her house. (A.R. at 114-17). Plaintiff stated that she had taken I.M. to
the emergency room in the midst of three of these "rages," but that she was not admitted
because "they didn't have any beds." (A.R. at 115-16). She stated that her older daughter and
a "girl" she had hired attempted to assist I.M. with morning preparations and getting to school on
time, but that both refused to assist after persistent abuse and insult from 1. M. (A. R. at 115).
She further described that I. M. on occasion wandered off or took the bus home without
permission or assistance and sometimes threw family belongings out the window or in the
bathtub. (A.R. at 118-20; 122-24). Plaintiff also stated that 1. M. had only one friend and that the
friendship began several weeks prior. (A.R. at 120). She also described that I.M. was having
social difficulty and faced bullying at school. (A.R. at 120-21). For example, she claimed that
students took and "spit all over" her coat and "threw all her books out." (A.R. at 121).
Separately, she said that I.M. "doesn't sleep at night. She gets up screaming, crying. This has
been an ongoing thing." (A.R. at 124). Nevertheless, Plaintiff stated that, despite these
troubles, she did not believe I.M. was a danger to herself. (A.R. at 122).
Regarding medical and psychiatric treatment, Plaintiff stated that I.M. was currently
prescribed Risperdal and Vyvanse. (A.R. at 114). When the AU asked how frequently I.M.
failed/refused to take her medicine, Plaintiff described ongoing difficulties and inconsistent
medication. She responded "it's.. . on and off. One day she'll take it the next minute, 'I'm not
taking it.'" (A.R. at 115). Plaintiff asserted that the medication was "not working because she's
not taking it constantly." (A.R. at 115). In response, the AU asked whether l.M.'s medication
was effective when taken:
Q. And when she takes the medication is it effective?"
A. Yes. It calms her down.
Q. And how long has she been giving a problem with taking the
medicine in the morning.
A. Years. This has been going on for years.
(A.R. at 115). Plaintiff's counsel made a brief closing statement acknowledging the "problem
with the mechanics of the family. . . in terms of getting [l.M.] up, getting dressed, getting to
school, [and] taking her medication." (A.R. at 127). In light of those problems, counsel argued,
I.M. must be viewed as functionally limited in the domain of attending and completing tasks,
acquiring and using information, and caring for oneself. (A.R. at 127-28).
D. The AL's Decision
The AU disagreed and on April 5, 2013, issued his decision denying Plaintiff's
application for SSI on behalf of I.M. (A.R. at 83-99). The AU ruled that while Plaintiff's ADHD
was a severe impairment under 20 CFR 416.909, it did not meet or functionally equal the
impairments listed in 20 CFR Part 404. (A.R. at 88-89). As explained below, this determination
rested entirely on a finding that statements regarding "the intensity, persistence and limiting
effects of [l.M.'s] symptoms [were] not entirely credible." (A.R. at 93). Regarding l.M.'s
functional equivalence in the domain of "attending and completing tasks," the AU found a less
than marked limitation. Regarding her functional ability to care for herself, the AU found a less
than marked limitation after characterizing her school records as indicating only "some
difficulties in handling frustration appropriately, using appropriate coping skills, and using good
judgment regarding personal safely [sic] and danger" (A.R. at 98). The ALJ summarized all
other "statements" in the record as regarding only "moderate, intermittent difficulties" in this
domain. (A.R. at 98).
New Evidence and Appeals Council Decision
In November of 2013, roughly seven months after the AU's decision and while Plaintiff's
appeal to the Appeals Council remained pending, I.M. told her school counselor that she
intended to kill herself by jumping in front of a car and was promptly committed to South Beach
Psychiatric Center. (A.R. at 26). She remained there and received inpatient care for over six
months. On June 25, 2014, Plaintiff sent the Appeals Council the psychiatric records from l.M.'s
inpatient treatment as additional evidence in support of her claim. (A.R. at 2, 8-74, 304).
Those records included a discharge summary, screening reports, treatment reports, and other
detailed assessments not previously in the record. (A.R. at 7-74).
On September 10, 2014, the Appeals Council denied Plaintiff's request for review. (A.R.
at 1-7). Regarding the psychiatric records submitted in June, the council stated that it had
"looked at records from South Beach Psychiatric Center from November 2013 to May 2014. The
Administrative Law Judge decided your case through April 5, 2013. This new information is
about a later time. Therefore it does not affect the decision about whether you were disabled
beginning on or before April 4, 2013." (A.R. at 1-2). Plaintiff then initiated this suit on November
5, 2014 seeking judicial review of the Commissioner's decision "and judgment for such relief as
may be proper." (ECF. No. I at 3).
II. LEGAL STANDARDS
A. Standard of Review
Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), permits
"[a]ny individual, after any final decision of the Commissioner of Social Security made after a
hearing to which he was a party, . . . [to] obtain a review of such decision by a civil action
commenced within sixty days after the mailing to him of notice of such decision. . . in the district
court of the United States for the judicial district in which the plaintiff resides." Under the fourth
sentence of section 405(g), the reviewing district court has the "power to enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision
of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42
U.S.C. § 405(g). Under the sixth sentence, "The court may ... remand the case to the
Commissioner for further action by the Commissioner and it may at any time order additional
evidence to be taken before the Commissioner. .
A court's review under 42 U.S.C. § 405(g) of a final decision by the Commissioner is
limited to two levels of inquiry. A court "must first decide whether [the Commissioner] applied
the correct legal principles in making the determination" and secondarily "whether the
determination is supported by 'substantial evidence.'"
Johnson v. Bowen, 817 F.2d 983, 985
(2d Cir. 1987). When reviewing the factual record, it is not this Court's role "to resolve
evidentiary conflicts.. . [nor] to appraise the credibility of witnesses, including the claimant;"
instead, those are judgments for the Commissioner to make. Carroll v. Sec'y of Health & Human
Servs., 705 F.2d 638, 642 (2d Cir.1983) (citations omitted). Courts give great deference to an
AL's credibility determination because the ALJ had the opportunity to observe the plaintiff's
demeanor while testifying. Ruiz v. Barnhart, 2006 WL 1273832, at *7 (S.D.N.Y. May 10, 2006);
Gemavage v. Shalala, 882 F.Supp. 1413, 1419 n. 6 (S.D.N.Y. Apr. 24, 1995). However, the
"substantial evidence" test applies only to the Commissioner's factual determinations; similar
deference is not accorded to the Commissioner's legal conclusions or to the agency's
compliance with applicable procedures mandated by statute or regulation. See Townley V.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984). Accordingly, an AL's failure to apply correct legal
standards is grounds for reversal. Id. (citing Wiggins v. Schweiker, 679 F.2d 1387, 1389 n.3
(11th Cir. 1982).
"Where there is a reasonable basis for doubt whether the AU applied correct legal
principles, application of the substantial evidence standard to uphold a finding of no disability
creates an unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to the correct legal principles." Johnson, 817 F.2d at 986. On the
other hand, where application of the correct legal principles to the record could lead only to the
same conclusion reached by the Commissioner, there is no need to remand for agency
reconsideration. Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010).
B. SSA Childhood Disability Determinations
The Social Security Act provides benefits for disabled children as well adults.
Encarnacion v. Astrue, 568 F.3d 72, 74 (2d Cir.2009). Children from low-income families may
receive SSI benefits under Title XVI of the Social Security Act if the child's income and assets
do not exceed a certain amount and if the child is "disabled" under the Act. 42 U.S.C. §
1382(a)(1). A child is disabled if he or 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." § 1382c(a)(3)(C)(i).
To determine a child's eligibility for SSI benefits, the SSA applies a three-step sequential
analysis set forth in the Commissioner's regulations at 20 C.F.R. §§ 416.924 to 416.926a.
Pollard v. Halter, 377 F.3d 183, 189 (2d Cir.2004). First, the SSA determines whether the child
is engaged in "substantial gainful employment." § 416.924(b). If the child is not engaged in such
employment, the SSA then decides whether the child has a "medically determinable
impairment[ ] that is severe." § 416.924(c). Lastly, if the child has a severe impairment, the
SSA evaluates whether the impairment meets, medically equals, or functionally equals an
impairment listed in the Regulations, 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings"). 20
C.F.R. § 416.924(d). If the child's impairment does not meet an impairment found in the Listings
or the medical equivalent thereof, then the SSA considers the effect of the child's impairment in
six broad "domains" of functioning. § 416.926a. These domains include (1) acquiring and using
information, (2) attending and completing tasks, (3) interacting and relating with others, (4)
moving about and manipulating objects, (5) caring for yourself, and (6) health and physical wellbeing. § 416.926a(b)(I). A child's impairment is considered functionally equivalent to the
Listings if the SSA finds that the child has an extreme limitation in one of these domains or a
marked limitation in two of these domains. § 41 6.926a(a). A marked limitation is one which
seriously interferes with the child's ability to independently initiate, sustain, or complete
activities. § 416.926a(e). It is "more than moderate but "less than extreme." Id. An extreme
limitation is one which very seriously interferes with the child's ability. Id.
C. The Required Procedure
Before an ALJ can perform the above analysis, however, the ALJ must sufficiently
develop the record. Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008). Thus, before deciding
if the Commissioner's determination is supported by substantial evidence, courts must first be
satisfied that the claimant received "a full hearing under the [Commissioner's] regulations and in
accordance with the beneficent purposes of the Act." Echevarria v. Sec'y of Health & Human
Servs., 685 F.2d 751 1 755 (2d Cir.1982) (quoting Gold v. Sec'y of Health, Educ. & Welfare, 463
F.2d 38 7 43 (2d Cir.1972)). Indeed, an "ALJ has an obligation to develop the record in light of the
non-adversarial nature of the benefits proceedings, regardless of whether the claimant is
represented by counsel." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Echevarria, 685
F.2d at 755. Relatedly, an "AL's finding that a witness lacks credibility must be 'set forth with
sufficient specificity to permit intelligible plenary review of the record.'" Morrison v. Astrue, 08-cv2048, 2010 U.S. Dist. LEXIS 115190, at *12 (E.D.N.Y. Oct. 27, 2010) (quoting Williams on Behalf
of Williams v. Bowen, 859 F.2d 255, 261 (2d Cir. 1988)). Thus, "[t]he failure to make credibility
findings regarding . . . critical testimony fatally undermines the [Commissioner's] argument that
there is substantial evidence adequate to support his conclusion that claimant is not under a
disability." Williams, 859 F.2d at 260-61 (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d
To this end, "the reviewing court must make a 'searching investigation' of the record to
ensure that" the AU protected the claimant's rights. Robinson v. Sec'y of Health & Human
Se,vs., 733 F.2d 255, 258 (2d Cir.1984) (citation omitted). "If the reviewing court determines
that a claimant did not receive a 'fair and adequate hearing' before the AL ... it must remand
the case to the Commissioner even if the Commissioner's decision was supported by
substantial evidence." Watson v. Astrue, 2009 WL 6371622, at * 5 (S.D.N.Y Feb. 4, 2009)
(citations and quotation marks omitted).
Plaintiff moves for judgment on the pleadings, contending that I.M. is "unquestionably
disabled" because her various diagnoses and the surrounding evidence unequivocally
demonstrate that she meets the functional equivalence standard in "at least two domains,"
namely "attending and completing tasks" and "caring for yourself." 1 (ECF 15 at 16-17). She
argues that the Appeals Council erroneously refused to consider records from the South Beach
Psychiatric Center, and that the administrative record—with or without those documents—
compels a finding that she is disabled. (Id.) She also argues that the AU legally erred by
denying her SSI application based on failure to follow prescribed treatment in violation of 20
C.F.R. § 416.930 and Social Security Ruling ("SSR") 82-59. (ECF No. 15 at 21-23). On these
grounds Plaintiff urges the Court to reverse the AU and award benefits without remanding for
'Plaintiff also summarily asserts without discussion that I.M. meets the listing for ADHD in Listing 112.11. (ECF
No. 15 at 16-17). She likewise states in passing that "I.M. very likely has marked limitations in other domains as
well, i.e., 'acquiring and using information' and 'interacting and relating with others.'" (Id.). Nevertheless, the
only domains substantively addressed in her briefs are "attending and completing tasks" and "caring for yourself."
Because the court finds several grounds for reversal in light of issues relating to those two domains, (ECF. No. 15 at
17), and in light of Plaintiffs assertion that analysis under Listing 112.11 are the same as that under for determining
functional equivalence, the court does not address these passing assertions.
further agency proceedings to further the general purpose of the SSI children's program and to
prevent further delay. (ECF. No. 15 at 24-25).
The Commissioner cross moves, contending that the AL's decision was supported by
substantial evidence. (ECF No. 19). Regarding the records from l.M.'s 2013 inpatient stay at
the South Beach Psychiatric Center, the Commissioner argues that the Appeals Council
properly disregarded those records because they concerned events and diagnoses that postdate the relevant time period. (ECF. No. 20 at 3-4). Regarding Plaintiff's argument that the AU
impermissibly considered l.M.'s failure to follow prescribed treatment, the Commissioner
responds that 20 C.F.R. § 416.930 is inapplicable in the absence of a finding of disability and
that the ALJ properly considered l.M.'s failure to follow prescribed treatment under 20 C.F.R §
41 6.91 3(b)(5), 416.924a(b)(9), and 416.926(l)(2). (ECF No. 20 at 6-7).
After careful review of the record and the parties' submissions, the Court concludes that AU
committed two legal errors requiring remand. First, he premised his determination of l.M.'s
functional equivalence on a conclusory credibility finding. Second, he considering l.M.'s failure
to follow prescribed treatment in violation of SSA regulations and rulings. Additionally, as the
reasoning in Pollard v. Halter, 377 F.3d 183 (2d Cir. 2004) clearly demonstrates, the Appeals
Council erred when refusing to consider evidence of l.M.'s committal several months after the
AL's decision. For each of these reasons the court concludes that the case must be remanded
for further proceedings.
A. The AU's Functional Equivalence Determinations Were Premised on an Insufficient
In addressing whether l.M.'s ADHD functionally equaled the Listings, the AU found that
the evidence established that I.M. had a severe impairment but it did not show a "marked" or
"extreme" limitation in any of the six domains of activities enumerated in § 41 6.926a(b)(l).
(A.R. at 93). He premised this ruling, in toto and without qualification, on his determination
the statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible for the reasons
explained below. Specifically, there is no evidence in the record
that [l.M.'s] ADHD is causing serious limitations in her physical
activities, her ability to interact with her friends, or ability to care
(A.R. at 93). Although the ALJ thereby expressly premised his finding concerning l.M.'s
limitations on a credibility determination and purported to offer "reasons explained below," the
remainder of his decision made no reference to a lack of credibility, bases for such a finding or
an explanation of whose credibility he deemed lacking.
Rather, the only credibility determinations addressed in the remainder of the decision
involved "opinion evidence" provided by (i) Dr. Jackson, the consultative examiner, whom the
AU afforded "great weight;" (ii) Dr. Belsky, the state agency psychological consultant also
afforded "great weight;" (iii) l.M.'s teachers and IEPs, which were afforded "some weight;" (iv)
and Ms. Tiboni, whom the AU also afforded "some weight." (A.R. at 93). There is no mention
of the credibility of Plaintiff's hearing testimony or her accounts of l.M.'s behavior as they
appeared in her SSI application (A.R. at 261-73) or the JBFCS intake report and evaluations
(A.R. at 362-414).
With respect to the two domains at issue on this appeal, "attending and completing
tasks" and "caring for yourself," the AU's analyses each constitute only a single paragraph.
(See A.R. at 95, 97). Regarding the former, the AL's analysis states only that:
[l.M.'s] teachers reported that she needed frequent refocusing,
never completed homework or classwork, was frequently
unprepared and unorganized, and distracted other students by
singing and making noises. [Plaintiff] has also reported that she
had trouble sitting still, and could not concentrate or follow her
teachers during class. Additionally, during a re-evaluation at the
[JBFCS], the claimant was noted to be inattentive during the
interview with impaired concentration. However, during the April
2011 consultative examination the claimant's recent and remote
memory skills were good and her attention and concentration
were within normal limits. The consultative examiner also opined
that the claimant was able to maintain a regular schedule and
perform complex tasks independently. In the claimant's disrchage
[sic] summary, the [JBFCS] social worker indicated that treatment
had not been effective due to a failure to attend regular therapy
and medication management appointment [sic], and failure to
administer prescribed medication on a consistent basis. The
social worker attempted to work around scheduling problems and
have the claimant's medication administered in school to ensure
regular compliance, however, her mother failed to follow through
with this option. The social worker informed the claimant's mother
that inconsistent medication was a factor that contributed to
[l.M.'s] behavior issues and lack of focus at school and at home.
The claimant's mother testified that when she takes it, the
medication helps to keep the claimant calm and improves her
behavior. Based on this information regarding [l.M.'s] difficulties
and the lack of compliance with prescribed treatment, I find that
[l.M.] has less than marked limitations in this domain."
(A.R. at 95). Regarding the domain of "caring for yourself," the AL's analysis, in its entirety,
[I. M.'s] former teachers reported that she has some difficulties
handling frustration appropriately, using appropriate coping skills,
and using good judgment regarding personal safely [sic] and
danger. [I. M.'s] mother testified that she frequently wonders [sic]
off on her own when they leave the house and sometimes fails to
shower or brush her teeth prior to leaving for school. [l.M.]
reported that she has some trouble falling asleep at night, though
she also indicated that her medication has helped her sleep
better. Based on these statements regarding her moderate,
intermittent difficulties in these areas, I find that the claimant has
less than marked limitations in this domain.
(A.R. at 98). Again, neither of these cursory analyses disclose the credibility determination on
which the AU categorically premised his ruling, let alone which witness's credibility the AU
found lacking. Nor does the remainder of the AL's opinion, which makes no further mention of
The complete absence of findings regarding the "credibility" on which the severity of
l.M.'s symptoms depended constitutes legal error. Credibility determinations must "be set forth
with sufficient specificity to permit intelligible plenary review of the record." Williams, 859 F.2d at
260-61 (citing Carroll v. Secretary of Health and Human Serv's., 705 F.2d 638, 643 (2d Cir.1983).
Here, the credibility determination on which the AL's entire ruling depends remains conclusory
and anonymous as to source. No meaningful review of this crucial credibility determination is
possible on this record.
B. The ALJ Impermissibly Considered LM.'s Failure to Follow Treatment in Determining Her
Limitations in the Domain of "Attending and Completing Tasks"
The ALJ also erred in basing his finding that l.M. had no marked or extreme limitations in
the domain of "attending and completing tasks" on her failure to follow prescribed medical
treatment. (A.R. at 95). As noted above, he analyzed I.M.'s limitations in that domain in a
single, short paragraph. It briefly mentions (i) evidence that I.M. never completed homework
and had problems with concentration, organization, and attentiveness, (ii) the consultative
examiner's opinion that she had good memory skills and was able to maintain a regular
schedule and perform complex tasks, (iii) the JBFCS discharge summary's statements that
l.M.'s treatment was ineffective "due to a failure to attend regular therapy and medication
management appointment[s], and failure to administer prescribed medication on a consistent
basis," and (iv) Plaintiff's testimony that when I.M. takes her medication, "it helps to keep the
claimant calm and improves her behavior." (A.R. at 95). "Based on this information regarding
[l.M.'s] difficulties and the lack of compliance with prescribed treatment, [the ALJ found] that
[l.M.] has less than marked limitations in this domain." (A.R. at 95).
Under SSA regulations, the Commissioner may deny SSI benefits for failure to follow
medically prescribed treatment only after following appropriate procedures and making requisite
findings as set forth in 20 C.F.R. section 416.930 and further enunciated in SSR 82-59.
Specifically, the Commissioner "may make a determination that an individual has failed to follow
prescribed treatment only where all of the following conditions exist:"
1. The evidence establishes that the individual's impairment
[meets the relevant standard for determining disability] 2
'As the parties agree, the relevant standard here is whether I.M.'s impairment prevents her from functioning in an
age appropriate manner as set forth in 20 C.F.R. sections 416.924 and 416.924a. (See ECF Nos. 15 at 18, 20 at 21);
2. The impairment has lasted or is expected to last for 12
continuous months from onset of disability or is expected to result
in death; and
3. Treatment which is clearly expected to restore capacity
[function at an age appropriate level] has been prescribed by a
treating source; and
4. The evidence of record discloses that there has been refusal to
follow prescribed treatment. Where SSA makes a determination of
"failure," a determination must also be made as to whether or not
failure to follow prescribed treatment is iustifiable.
(SSR 82-59, 1982 WL 31384 at *1) (emphasis added); see also 20 C.F.R. § 404.1530 (stating
that claimants may refuse treatment for a "good reason."). Thus, where failure to follow
treatment is a basis for finding that a claimant is not disabled, "appropriate development [of the
record] must be made to resolve whether the claimant or beneficiary is justifiably failing to
undergo the treatment prescribed." Id. at *2; see also Taylor v. Callahan, 969 F. Supp. 664, 671
(D. Kan. 1997) (where SSA "makes a determination of 'failure,' a determination must also be
made as to whether or not failure to follow prescribed treatment is justifiable."). Moreover,
"before a determination [of failure] is made, the individual, or. . . the person acting on their
behalf, will be informed of this fact and of its effect on eligibility for benefits." 1982 WL 31384 at
*5 To that end, an AU has a duty to make claimants "aware that the information supplied will
be used in deciding the disability claim and that, because of the requirements of the law,
continued failure to follow prescribed treatment without good reason can result in denial or
termination of benefits." Id. at *2 .
Here, several of these procedural requirements were not met. Most notably, there is no
indication that the AU advised Plaintiff that "continued failure to follow prescribed treatment
see also Robinson v. Chater, No. 94 CIV. 8430 (DLC), 1996 WL 345899, at *5 (S.D.N.Y. June 21, 1996) )("In the
case of children, for whom functionality in an age-appropriate manner is the touchstone, [C.F.R. section 416.930]
would apply to children who are unable to function in an age-appropriate manner, but who would be able to so
function if properly medicated.")
without good reason [could] result in denial. . . of benefits." Id.; see also Grubb v. Apfel, No. 98
CIV. 9032 (RPP), 2003 WL 23009266, at 5 (S.D.N.Y. Dec. 22, 2003) ("As a procedural matter,
if the commissioner fails to provide the claimant with an opportunity to address the issue, he
loses the ability to assert it as a reason for denying disability benefits.") Nor did he discuss or
make findings regarding whether I.M. justifiably or with good reason refused treatment. For
both reasons the case must be remanded for further proceedings.
In arguing the contrary, the Commissioner contends that the ALJ properly "employed a
full analysis for child's [sic] disability claims [as] set forth in 20 C.F.R. §§ 416.924 through
416.926a" and that consideration of l.M.'s failure to follow treatment was properly considered
under sections 416.913(b)(5), 416.924a 3 , 416.926a. (Reply Br., ECF No. 20, at 7). She also
asserts that procedural protections set forth in SSR 82-59 are "irrelevant" because they only
apply "to an individual who would otherwise be found to be under disability." (Id.)
This argument misconstrues both the AL's decision and the reach of SSR 82-59.
While, as some courts have noted, "SSR 82-59 normally applies to a claimant's eligibility for
benefits after a finding of disability has been made," if a finding of non-disability is clearly
premised on a failure to follow treatment then the procedural safeguards of section 416.930 and
SSR 82-59 must be followed. Grubb v. Apfel, No. 98 CIV. 9032 (RPP), 2003 WL 23009266, at
*5 (S.D.N.Y. Dec. 22, 2003). Those procedural safeguards apply even where failure to follow
prescribed treatment was not an explicit grounds for denying benefits. Indeed, "where an AU
did not expressly deny claimant benefits on the grounds that she failed to follow prescribed
treatment," courts have nevertheless "inferred from the AL's reasoning that the ALJ based a
finding of disability on the lack of compliance" and remanded for further proceedings consistent
with SSR 82-59. See Id. at *6 (collecting cases); accord McFadden v. Barnhart, No. 94 CIV.
In an apparent typographical error, the Commissioner cites to section 416.926 for the proposition that "medications
are to be considered in evaluating the domain of health and physical well-being." (Reply Br. at 7).
8734(RPP), 2003 WL 1483444, at *8 (S.D.N.Y. Mar. 21, 2003) (remanding where the AU
"committed legal error by not following the mandates of SSR 82-59.")
Here, the AL's determination that I.M. was not functionally limited in this domain (and
therefore not "disabled) was explicitly "[b]ased on . . . information regarding [l.M.'s]... lack of
compliance with prescribed treatment." (A.R. at 95). The procedUral requirements set forth in
SSR 82-59 therefore must apply. The Commissioner's appeal to sections 41 6.91 3(b)(5),
416.924a, 416.926a are unavailing. Section 416.913 merely sets forth in general terms what
sources of evidence are properly considered when evaluating impairments and, at subsection
(b)(5), lists "[t]reatment prescribed with response" as a proper component of "medical reports."
Likewise, section 416.924a states in general terms only that the Commissioner will "evaluate"
the "effects of treatment" to determine functional equivalence, and says nothing concerning the
procedure for such evaluations. Section 416.926a(l)(2) merely states that "the medications you
take (e.g., for asthma or depression) or the treatments you receive (e.g., chemotherapy or
multiple surgeries) may have physical effects that also limit your" functioning in the domain of
"health and physical well-being." None of these regulations contradict, alter, or even reference
the procedures required under section 416.930 and SSR 82-59.
In sum, the AU erred by basing his determination that l.M.'s ADHD had no marked
limitations on her ability to attend and complete tasks on her failure to follow medical treatment
without adhering to section 416.930 and SSR 82-59.
' Otherwise, courts have only considered failure to follow prescribed treatment as a credibility issue for reasons
irrelevant here. See, e.g., Lasalle v. Colvin, No. 14-CV-872-JTC, 2016 WL 420589, at *6 (W.D.N.Y. Feb. 4, 2016)
("However, the AU was permitted to consider plaintiffs noncompliance with treatment as a factor weighing against
her credibility"); Palmer v. Astrue, No. 1:10-CV-151-JGM, 2011 WL 3881024, at *5 (D. Vt. Sept. 2, 2011)
(claimant's failure to seek treatment for anxiety or insomnia undermined her credibility regarding intensity and
limitations.); Jackson v. Barnhart, 2008 WL 1848624, *11 (W.D.N.Y. April 23, 2008) (failure to follow a
recommended course of treatment weighs against a claimant's credibility). As explained above in section IV.A, any
credibility determination here that could be based on failure to follow treatment lacked any explanation or
C. The Appeals Council Erred In Refusing to Consider Records from the SBPC.
Under 42 U.S.C. section 405(g), the Court "may at any time" remand and "order
additional evidence to be taken before the [Commissioner], but only 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) (emphasis added);
see also 20 C.F.R. §§ 404.970, 416.1570(b); Perez v. Chater, 77 F. 3d 41, 44-46 (2d Cir.1996).
New and material evidence submitted after an AL's decision "shall" be considered "only where
it relates to the period on or before the date of the administrative law judge hearing decision."
20 C.F.R. § 404.970(b); Bailey v. Astrue, 815 F. Supp. 2d 590, 600 (E.D.N.Y. 2011) (citing
Sullivan v. Finkelstein, 496 U.S. 617, 626, (1990).
Three requirements must be met for a Court to remand a case and order consideration
of additional evidence: (1) the evidence must be new, (2) it must be material, and (3) there must
be good cause for failure to present the evidence in earlier proceedings. See Pollard v. Halter,
377 F.3d 183, 193 (2d Cir. 2004); Tirado v. Bowen, 842 F.2d 595 1 597 (2d Cir.1988); Houston v.
Co/yin, No. 12-CV-03842 NGG, 2014 WL 4416679, at *8 (E.D.N.Y. Sept. 8, 2014). Evidence is
"new" when it is "not merely cumulative of what is already in the record." Tirado, 842 F.2d at
597 (2d Cir. 1988). To be material, evidence "must be both (1) relevant to the claimant's
condition during the time period for which benefits were denied" and (2) "probative. The concept
of materiality requires, in addition, a reasonable possibility that the new evidence would have
influenced the Commissioner to decide claimant's application differently." Pollard, 377 F.3d at
193 (citations and quotation marks omitted).
Here, the evidence submitted to and rejected by the Appeals Council involves l.M.'s
inpatient hospitalization at the South Beach Psychiatric Center (the "SBPC") in Staten Island,
where she was committed for over six months to an inpatient stay after disclosing her plans to
commit suicide to her school counselor. It is comprised of a discharge summary, screening
reports, treatment reports, and other detailed assessments. (A.R. at 7-74). It discloses that I.M.
weighed 186 pounds when admitted on July 23, 2013, and weighed 227 pounds when
discharged on May 15, 2014. (A.R. at 21). By that time she was suspected to suffer from onset
type II diabetes, but refused to take glucose tolerance tests needed to confirm a diagnosis.
(A.R. at 21). Upon admission, she complained about her own "anger and coping skills." (A.R. at
26). An intake report noted her complaints of "being [the] target of physical bullying," of
"incidents of her belongings be[ing] thrown in [a] garbage can and of being spit on at school.
(A.R. at 26). It also noted Plaintiff's concern that l.M.'s rages had recently escalated to
"physically hurting her maternal grandmother," (A.R. at 26), and I.M.'s admission that "she has
cut herself with a knife and scratched her arms with her fingernails," (A.R. at 50, 67). As part of
a "trauma assessment," the SPBC records indicate that I.M. "hurt [her] sister in response to
phys[ical] aggression." (A.R. at 65). The intake report also noted that I.M. had been depressed
for the prior 9 months. (A.R. at 36).
A December 20, 2013 SBPC Psychological Assessment report noted that while I.M. was
at times "cheerful, talkative, and engaged," she swung to "agitated, oppositional and refus[ing]
to talk." (A.R. at 67). It described her "low frustration tolerance" and how, after a few minutes of
cognitive testing, she "refused to continue and stopped talking with the examiner" and began
communicating only by "a series of hand signals and by writing on the table with her finger."
(A.R. at 67-68). She exhibited the same behavior during later tests and also "scratched at the
desk and laid on the floor" instead of completing requested tasks. (A.R. at 68, 71). When she
cooperated, she demonstrated that she can at times "sustain attention, concentrate, perform
mental operations in her head, and keep information in her working memory," but "in
overwhelming or complex situations her thoughts might become illogical or incoherent and she
might have difficulties with reality testing." (A.R. at 72-73).
These records are undoubtedly new and not merely cumulative of evidence in the
record. They include detailed third-party assessments not previously available to the ALJ that
corroborate Plaintiff's accounts of l.M.'s behavior (which the ALJ implicitly rejected) and offer a
detailed progression of l.M.'s condition. Moreover, good cause exists for Plaintiff's failure to
submit the SBPC records to the AU because they did not exist on the date of the hearing.
Pollard, 377 F.3d at 193. ("Because the [psychiatric reports] submitted by [plaintiff] did not exist
at the time of the AL's hearing, there is no question that the evidence is 'new' and that 'good
cause' existed for her failure to submit this evidence to the AU.")
These records are also material. As the Second Circuit explained in Pollard, a case with
unusually similar facts, new evidence is material if it is "(1) relevant to the claimant's condition
during the time period for which benefits were denied" and (2) shows "a reasonable possibility
that the new evidence would have influenced the Commissioner to decide claimant's application
differently." Id. There, as here, the court considered records from a child's psychiatric
hospitalization that occurred after the AU denied SSI benefits but before district court review.
Id. at 187-88. The Second Circuit held that the new records were relevant to the time period at
issue even though they were generated after the AL's decision. That is, because those
records directly supported the claimant's mother's contentions and "strongly suggest[ed] that,
during the relevant time period, [the claimant's] condition was far more serious than previously
thought and that additional impairments existed when [he] was younger. 115 Id. at 193. The court
also considered the same evidence probative and likely to affect the AL's consideration
because it weighed towards a finding of marked and extreme limitations in several domains,
including "caring for oneself." Id. at 193-94.
For much the same reasons, the SBPC records are relevant and probative here. They
are relevant to the time period considered by the AU because, as in Pollard, they support
Plaintiff's descriptions of I.M. raging when frustrated or displeased. Indeed, I.M. herself
complained during her admission to SBPC of her "anger and coping skills." Moreover, the new
The relevant time period runs from the date of the alleged disability to the date of the AL's decision. Evans v.
Colvin, No. 15-2569-CV, 2016 WL 2909358, at* 1 (2d Cir. May 19,2016); Mitchell v. Colvin, No. 14 CV 04154,
2015 WL 5306208, at *9 (S.D.N.Y. Sept. 10, 2015).
records also suggest that her rages grew worse and resulted in harm to her grandmother,
herself, and her sister. They also detail a continuation of the same issues addressed in
Plaintiff's testimony and in IEPs, including a severe lack of focus, disruptive classroom behavior,
and problems with impulse. These records are also probative and create at least a "reasonable
possibility that the new evidence would have influenced the Commissioner to decide claimant's
application differently" with respect to numerous domains. Pollard, 377 F.3d at 193. Among
other things, they suggest that I.M. had an extreme limitation in the domains of "caring for
yourself" and "attending and completing tasks." The Commissioner must determine limitations
in the former by considering how well a child can "maintain a healthy emotional and physical
state, including how [one] cope[s] with stress and changes in. . . environment." 20 C.F.R. §
416.926a(k). The latter must be determined with reference to a child's ability "to focus and
maintain . . . attention" and "begin, carry through, and finish activities." Id.at § 416.926a(h).
Here, the AU considered ample evidence suggestive of marked and severe limitations in both
. The teacher report in l.M.'s 2010 PEP stated that she "calls out and gets out of
her seat through the day," that "she gets angry easily if she does not want to do
what the teacher asks her to do . . . [and] is never prepared for school and is
very disorganized." (A.R. at 231).
• The PEP also documented "great.. . difficulty controlling her impulses,"(A.R. at
233), "an enormous amount of underlying anger and aggression"
• Plaintiff's statements summarized in the JBFCS intake assessment indicated that
I.M. threw frequent "temper tantrums," was "physically aggressive," had
"difficulties sitting still," did not listen to her at home," "often screams and yells,"
"refuses to do homework," and could not concentrate. (A.R. at 362).
• The same report recorded I.M.'s statements that she "does not like herself, that
she loses interest in activities, [and] has no friends."
• A JBFCS doctor later requested that she receive a bus monitor in light of her
need for frequent "re-direction and assistance," restlessness, impulsiveness, and
• l.M.'s 2013 IEP stated that I.M. needed "great amount of assistance" organizing
thoughts, never completed homework assignments, had difficulty staying in her
"space," and got frustrated easily and "shut down" when facing difficult work.
at 423-39). It also indicated that I.M. had "a very serious problem[s]"
comprehending oral instructions, focusing long enough to finish
refocusing, organizing things, completing assignments, and using good judgment
regarding personal safety and dangerous circumstances.
• While testifying before the AU Plaintiff claimed l.M.'s rages "destroyed" her
house and she exhibited other destructive behavior that at times led to
emergency room visits.
noted above in section V.A, in addressing whether I.M. had limitations in either
AU found that this evidence "lacked credibility" when evaluated as proof of the
"limiting effects" of l.M.'s impairment. (AR. at 93). Considering that the SBPC records
corroborate and expand on the same issues, it is a reasonable possibility—indeed, it is likely—
AU will reevaluate that finding when these new records are considered.
The Commissioner summarily asserts that these records "do not contain any new
information about I.M.'s condition during" the same period and emphasizes that they reflect
l.M.'s first psychiatric admission, suicidal ideation, and major depressive disorder diagnosis.
(Reply Br. at 3-4). However, as explained above, the SBPC records need not contain "new
information" to be probative, since the
determination was premised on "credibility." That
I.M. had not previously expressed suicidal ideation or received a diagnosis of major depressive
disorder is for the same reason beside the point. The present facts are not meaningfully
distinguishable from those in Pollard, which is perhaps why the Commissioner makes no
mention of the case in responding to Plaintiff's arguments.
In sum, and as in Pollard, the AU premised his findings on credibility determinations.
The new evidence submitted to the Appeals Council directly relates to each domain at issue on
this appeal and, if "analyzed in conjunction with the administrative record, creates at minimum a
reasonable possibility" the AU will reevaluate those determinations on remand. Pollard, 377
F.3d at 194.
Plaintiff invites the Court to award benefits without remanding for further proceedings,
contending that "the record provides persuasive proof of disability and a remand for further
evidentiary proceedings would serve no purpose" and in fact defeat the purpose of the
"children's SSI program, which is to enable low-income families to afford special education,
medical treatment, physical rehabilitation, early intervention services, and personal needs
assistance for the child." (ECF No. 15 at 24) (citations omitted). However, as the
Commissioner points out, the record is devoid of findings regarding other requirements for SSI
benefits including the resource and income limits. Moreover, where the Appeals Council fails to
properly consider new and material evidence, as is the case here, the appropriate "course for
the reviewing court is to remand the case for reconsideration in light of the new evidence."
Shields v. Astrue, No. 1 1 -CV-2088 FB, 2012 WL 1865505, at *2 (E.D.N.Y. May 22, 2012);
also Ingram v. Comm'r of Social Sec., 496 F. 3d 1253, 1269 (11th Cir.2007) ("Because evidence
properly presented to the Appeals Council has been considered by the Commissioner and is
part of the administrative record, that evidence can be the basis for only a sentence four
remand, not a sentence six remand."); see generally Perez v. Chater,
77 F.3d 41, 45 (2d
Cir. 1996) (holding that "new evidence submitted to the Appeals Council following the AL's
decision becomes part of the administrative record for judicial review when the Appeals Council
denies review of the AL's decision") Additionally, "[r]emand is particularly appropriate where,
as here, we are 'unable to fathom the AL's rationale in relation to the evidence in the record'
without 'further findings or clearer explanation for the decision.' " Pratts v. Chater, 94 F.3d 34,
39 (2d Cir.1996) (quoting Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir.1982)).
For the reasons set forth above, the Commissioner's motion for judgment on the
pleadings is DENIED, and Plaintiffs motion is GRANTED in PART. The case is REMANDED
under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.
The Clerk of Court is directed to enter judgment and close the case.
Sandra L. Townes
United States District Judge
Brooklyn, New York
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