Walsh v. Astrue
Filing
14
DECISION AND ORDER reversing and remanding the Commissioner's determination for further administrative proceedings. Signed by Judge William G. Young on 3/25/14. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
TRISHAUNA WALSH on behalf of S.J.W.,
Plaintiff,
12-cv-00933
(WGY)
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.1
__________________________________________
WILLIAM G. YOUNG, United States District Judge2
DECISION and ORDER
I.
INTRODUCTION
Trishauna Walsh (“Walsh”) brings this action on behalf of
S.J.W.,3 her minor son, pursuant to 42 U.S.C. § 405(g).
Walsh
seeks judicial review of the final decision of the Commissioner
of Social Security (the “Commissioner”) to deny S.J.W.’s
1
Michael J. Astrue, the former Commissioner of the Social
Security Administration, was the original named defendant in
this matter. Compl., ECF No. 1. On February 14, 2013, Carolyn
W. Colvin became the Acting Commissioner of Social Security.
Clerk’s Notes, May 21, 2013. Pursuant to Federal Rule of Civil
Procedure 25(d), she has been substituted as the named
defendant. Fed. R. Civ. P. 25(d).
2
Of the District of Massachusetts, sitting by designation.
ECF No. 13.
3
Because S.J.W. is a minor, the parties and the Court refer
to him by his initials. See Fed. R. Civ. P. 5.2(a).
1
application for Supplemental Security Income benefits (“SSI”).
Compl. ¶¶ 1, 7, ECF No. 1.
Walsh challenges the decision of an
Administrative Law Judge (the “hearing officer”) that S.J.W. was
not disabled within the meaning of 42 U.S.C. § 1382c(a)(3)(C).
Admin. R. 55, ECF No. 8.
A.
Procedural Posture
On December 10, 2009, Walsh applied for SSI on S.J.W.’s
behalf.
Admin. R. 122.
Walsh indicated that S.J.W.’s
disability began on November 25, 2009.
Id.
On March 8, 2010,
the Regional Commissioner determined that S.J.W. did not qualify
for SSI because he was not disabled.
Id. at 85-87.
Walsh filed
a request for a hearing before a hearing officer on or about
March 12, 2010.
Id. at 91.
On January 25, 2011, Walsh and
S.J.W. appeared before the hearing officer.
Id. at 61-66.
After the hearing officer asked Walsh if she would like a
postponement to obtain counsel, Walsh requested a postponement.
Id. at 64.
Walsh, now represented by counsel, appeared before
the hearing officer a second time on March 30, 2011.
Id. at 68.
Walsh was examined by the hearing officer on this date, id. at
72-77, and the hearing officer left the record open for ten days
to receive additional documentation from S.J.W.’s pediatrician,
id. at 72, 82.
On April 25, 2011, the hearing officer issued a
decision finding that S.J.W. was not disabled.
Id. at 55.
Walsh appealed the hearing officer’s decision to the Social
2
Security Administration’s Appeals Council (“Appeals Council”) in
June 2011, id. at 35-36, and on April 3, 2012, the Appeals
Council denied Walsh’s request for review, id. at 1.
Walsh
filed this action for review of the Commissioner’s decision in
this Court on June 8, 2012.4
B.
Compl.
Factual Background5
S.J.W. is currently a nine-year old boy who lives with his
mother, Walsh, and two older brothers.
Admin. R. 43, 72-73.
When Walsh applied for SSI on her son’s behalf, he was fiveyears old.
Id. at 122.
At birth, S.J.W. failed his initial
hearing screening and later evaluations of his hearing confirmed
that he had hearing loss.
Id. at 332.
S.J.W.’s hearing loss is
variously described in the record as “mild to moderate,” id.,
4
An individual requesting review of the Commissioner’s
final decision must commence a civil action “within sixty days
after the mailing to him of notice of such decision or within
such further time as the Commissioner of Social Security may
allow.” 42 U.S.C. § 405(g). Regulations, however, provide that
the sixty day period for filing an action begins when the
individual receives notice of the Appeals Council’s action. 20
C.F.R. § 422.210(c). With her complaint, Walsh has attached a
copy of the Appeals Council’s notice that was mailed to her; the
copy of the notice has a date stamp indicating that her
attorney’s office received it on April 10, 2012. Compl. at 32.
Walsh filed this action on June 8, 2012. Compl. Therefore,
Walsh timely commenced this action fifty-nine days after she
received notice of the Commissioner’s final decision. The
Commissioner does not contest the timeliness of Walsh’s filing.
See Answer ¶¶ 6, 10, ECF No. 7.
5
Additional evidence of S.J.W.’s limitations is found in
the administrative record. For the sake of readability, the
Court highlights only the most salient pieces of evidence.
3
“[m]oderately severe,” id. at 286, and “profound,” id. at 299.
Because of his hearing loss, S.J.W. wears hearing aids in both
ears.
Id. at 207.
hearing.
His teachers use an FM system to assist his
Id.
1.
Early Intervention Program
S.J.W. was referred to the Saratoga County Early
Intervention Program (“EIP”) because of Walsh’s concerns about
his speech development.
Id. at 332.
On July 11, 2006, when he
was twenty months old, he was evaluated by a three-member team
from “Early Start,” an organization which provides speech
language therapy services.
Id. at 332-36.
The team reported
that S.J.W. was not yet using verbalizations to meet his needs
and wants, and that he was unable to follow simple directions
without visual cues.
See id. at 335.
They also assessed
S.J.W.’s communication skills through two tests, the Preschool
Language Scale-3 (“PLS-3”) and the communication DAYC sub-test.
Id.
S.J.W.’s score on the PLS-3 indicated his language age was
equivalent to a fourteen month old, and his score on the DAYC
communication sub-test indicated that his performance was
equivalent to a twelve month old.
Id.
The Early Start team
concluded that he had a thirty-three percent delay in his
communication skills.
Id. at 336.
As a result of their evaluation, the Early Start team
concluded that S.J.W. was eligible for EIP services.
4
Id.
He
received a variety of services through the EIP, including speech
therapy twice a week and teaching for the hearing impaired.
id. at 314.
See
At some point prior to S.J.W.’s hearing on March
30, 2011, he stopped receiving EIP services, although he appears
to have received other support services from the school through
other programs.
2.
Id. at 77-78.
Treating Sources or Potential Treating Sources
a.
Dr. Merecki
Since just after birth, S.J.W.’s pediatrician has been Dr.
Eugene Merecki (“Dr. Merecki”).
Id. at 76, 260.
The
Commissioner received two submissions from Dr. Merecki.
The
first was an evaluation form Dr. Merecki completed on January 6,
2010, at the request of the New York State Office of Temporary
and Disability Assistance (“NYOTDA”).
Id. at 275-79.
On this
form, Dr. Merecki indicated that S.J.W. has had moderate
bilateral hearing loss since birth and a delayed speech pattern.
Id. at 275.
Dr. Merecki also wrote that S.J.W. has temper
tantrums “out of frustration with not being able to hear
(understand).”
Id. at 277.
Likewise, Dr. Merecki described
S.J.W.’s emotional, communication, and sensory skills as
“delayed.”
Id. at 278.
He opined, however, that S.J.W.’s
cognitive and motor skills were “age appropriate.”
78.
Dr. Merecki also completed a second form to evaluate
S.J.W.’s areas of functioning on March 29, 2010.
5
Id. at 277-
Id. at 299.
On this form, Dr. Merecki indicated that S.J.W. had a “mild”
cognitive limitation and “marked” limitations in both his social
skills, i.e. in his ability to “interact[] and relat[e] with
others” and in his overall health and physical well-being.
Id.
Dr. Merecki explained that S.J.W.’s social limitations and poor
physical well-being stemmed from a “[d]elay in communication due
to profound hearing loss.”6
b.
Id.
Ms. Guerin, M.S. CCC-SLP
At the time the hearing officer heard the relevant
evidence, S.J.W. was receiving speech and language therapy three
times a week at his elementary school.
Id. at 215, 253.
He was
also recieving services from a teacher for the deaf and hard of
hearing.
Id. at 221.
At the time, his speech pathologist was
Alison Guerin, M.S. CCC-SLP (“Ms. Guerin”).
Id. at 214-15.
Ms.
Guerin conducted a speech and language evaluation of S.J.W. on
October 7, 2010.
Id. at 214.
In her evaluative report, Ms.
Guerin described S.J.W. as “friendly” and “cooperative,” and
6
Walsh was examined by the hearing officer on March 30,
2011. Admin. R. 70. After Walsh’s examination, the hearing
officer left the record open for ten days to receive additional
records from Dr. Merecki. Id. at 72. The second evaluation
form appears to have been such additional document. It is
unclear precisely when the second evaluation form was received
by the Commissioner, although there is a fax header on the
document dated April 4, 2011. Id. at 299. The Commissioner
does not dispute that this document was a part of the record
available to the hearing officer when the agency issued its
decision. See Mem. Law Supp. Comm’r’s Mot. J. Pleadings 10, ECF
No. 12.
6
stated that although his speech articulation skills are “below
average” for his age and gender, he had made some improvement in
his sound production.
Id. at 215-17.
Ms. Guerin conducted a
number of tests to assess S.J.W.’s vocabulary and language
ability.
Id. at 216-18.
On some of the tests, S.J.W. scored at
the “low average,” “average,” or even “above average”
performance level.
Id. at 216-17.
S.J.W.’s performance,
however, was worse on the majority of the tests Ms. Guerin
conducted, which usually placed him at the “below average”
level.
Id.
For instance, on an evaluation of general language
ability, the Clinical Evaluation of Language Fundamentals-4
(“CLEF-4”), S.J.W. scored in the second percentile on three
subtests, namely “Concepts and Following Directions,” “Recalling
Sentences,” and “Expressive Vocabulary.”
Id.
Likewise, he
scored in the fifth percentile on the Peabody Picture Vocabulary
Test-4 (“PPVT-4”) and in the eighth percentile on the Goldman
Fristoe Test of Articulation-2 (“GFTA-2”).
Id.
In her evaluation, Ms. Guerin noted that while S.J.W. was
“able to identify common nouns and verbs,” he had difficulty
identifying uncommon and more abstract nouns.
Id. at 216.
He
also “missed special and temporal concepts” such as “between,”
“before,” and “after.”
Id. at 217.
Although S.J.W. had little
difficulty identifying the relationships between pictures which
Ms. Guerin showed to him, “[h]e demonstrated difficulty” in
7
explaining the relationship.
Id.
By way of example, Ms. Guerin
noted that while S.J.W. was able to determine that there was a
relationship between a letter and a stamp, when she asked him
what the relationship was, he said “notes.”
Id.
Ms. Guerin
explained that S.J.W.’s “receptive language skills (what he
understands) [were] considerably higher than his expressive
language skills (what he says).”
Id.
Nevertheless, she
concluded that, overall, both his expressive and receptive
language skills were “below average for his age.”
Id. at 218.
S.J.W.’s test results also led Ms. Guerin to the conclusion
that he “demonstrated significant difficulty following
directions,” id. at 217, and at times “needed to be redirected
and reminded to maintain his attention to the task at hand,” id.
at 218.
Ms. Guerin did relate, however, that S.J.W. was “easily
redirected” when off track and was hard working and cooperative.
Id.
3.
Other Evidence in the Record
a.
Grasso-Megyeri’s Assessment
NYOTDA also referred S.J.W. to Dawn Grasso-Megyeri, M.S.
CCC-SLP (“Ms. Grasso-Megyeri”), for a speech and language
assessment, which was completed on February 9, 2010.
282.
Id. at
Ms. Grasso-Megyeri stated in her evaluation that the
parameters of S.J.W.’s voice, i.e., “pitch, quality, intensity,
and rate,” were appropriate and observed that “[i]n a quiet
8
setting, with his hearing aids on, [S.J.W.] was able to respond
appropriately through audition only.”
Id. at 283.
She
administered the Preschool Language Scale-4 (“PLS-4”) test and
the GFTA-2.
Id. at 283-84.
S.J.W.’s total language score on
the PLS-4 placed him in the twenty-first percentile, which
indicated that his “expressive and receptive language skills
[were] developing within normal limits.”
Id. at 283-84.
On the
GFTA-2, S.J.W.’s score was in the twenty-sixth percentile, id.
at 284, which was higher than the score obtained in Ms. Guerin’s
subsequent administration of the test, id. at 217.
Ms. Grasso-
Megyeri also reported that S.J.W.’s pragmatic language skills
were age appropriate and that “[b]oth in and out of context,
[S.J.W.’s] speech intelligibility was considered very good at
[ninety-five] percent of the time.”
Id. at 284.
S.J.W. with a “[m]ild articulation delay.”
She diagnosed
Id. at 285.
Ms.
Grasso-Megyeri concluded that S.J.W. “was able to communicate
effectively” and that his test results indicated that his
“expressive and receptive language skills . . . are developing
within normal limits.”
Id. at 284-85.
She judged his prognosis
to be “good” and recommended that he stop receiving speech and
language therapy, although she “strongly recommended” that he
continue to receive audiological care.
Id. at 285.
Ms. Grasso-
Megyeri indicated that S.J.W. was “cooperative and attentive”
during the test she administered.
9
Id. at 284.
b.
Dr. Cevera’s Evaluation
On February 23, 2010, at NYOTDA’s request, Dr. John Cevera
(“Dr. Cevera”) evaluated S.J.W.
Id. at 286-87.
Dr. Cevera
submitted a brief report, in which he stated that S.J.W. was “a
pleasant young boy who communicates well in no distress.”
at 286.
Id.
Dr. Cevera reviewed an audiogram of S.J.W.’s hearing
and concluded that he suffered from “[m]oderately severe
symmetric [hearing] loss.”
Id.
Dr. Cevera noted that S.J.W.
experienced some improvement in his hearing because of his
hearing aids.
Id.
An audiogram of the tests conducted by an
audiologist in Dr. Cevera’s office was added to the
administrative record.
c.
Id. at 288-89.
Dr. Fuhrman’s Evaluation
On March 4, 2010, Dr. Fuhrman evaluated evidence in
S.J.W.’s case at the request of the NYOTDA.7
Id. at 290-97.
Dr.
Fuhrman marked a box on an evaluation form to indicate that in
his opinion, S.J.W. had a “severe” impairment, but that S.J.W.’s
impairment did not meet or medically or functionally equal the
listed impairments in 20 C.F.R. § 416.924.
Id. at 292.
Dr.
Fuhrman also indicated that S.J.W.’s limitation in the domain of
“acquiring and using information” was “less than marked.”
at 294.
Id.
Likewise, he concluded that despite the fact that
S.J.W. at times needed directions to be repeated to him, his
7
Dr. Fuhrman’s first name does not appear in the record.
10
limitation in the domain of “attending and completing tasks” was
also less than marked.
Id.
Dr. Fuhrman opined that S.J.W. had
no limitations in the domain of “interacting and relating with
others,” id., and that S.J.W. suffered from limitations that
were less than marked in the domain of “health and physical
well-being” because of his hearing loss, speech delay, and
history of asthma, id. at 295.
d.
Kernan’s Evaluation
On October 4, 2010, Renee Kernan, M.S. (“Ms. Kernan”) gave
a number of additional tests to S.J.W. as part of the
reevaluation process of his elementary school’s Committee on
Special Education.
Id. at 207-11.
school psychologist.
Id. at 211.
Ms. Kernan is a certified
Ms. Kernan described S.J.W.’s
personality as “outgoing and happy,” although she noted that
“[h]e has some moments of frustration due to his disability.”
Id. at 207.
S.J.W. “required prompts to stay on task and to
listen to directions” and was observed to “jump[] from subject
to subject” in conversation.
Id.
S.J.W. took an intelligence
quotient (“IQ”) test, the Wechsler Preschool and Primary Scale
of Intelligence - Third Edition (“WPPSI-III”).
Id. at 208.
S.J.W.’s verbal intelligence quotient score (“VIQ”) placed him
within the borderline range, which “indicat[ed] significant
difficulty with retrieving/using background knowledge to solve
problems as well as difficulties in his ability to understand .
11
. . and express himself through oral language.”
Id. at 209.
Ms. Kernan wrote that S.J.W.’s low verbal IQ may have been
influenced by his overall impulsivity and difficulty hearing.
Id. at 208.
His performance intelligence quotient (“PIQ”) was
somewhat higher, “within the low average range.”
Id. at 209.
S.J.W.’s processing speed index (“PSI”), however, was within the
average range, and thus, as Ms. Kernan noted, an area of
relative strength for him.
Id.
His full scale intelligence
quotient, derived from a combination of his VIQ, PIQ, and PSI,
was calculated as in the upper end of the borderline range.
Id.
at 212.
Ms. Kernan also gave S.J.W. the Adaptive Behavior
Assessment System - Second Edition (“ABAS-II”), which evaluated
his “ability to perform self-help skills and function
independently within the school environment.”
Id. at 210.
This
evaluation revealed that S.J.W. has significant weakness in his
“conceptual skills” area, and that he would likely “require[]
substantially more support than other students his age.”
Id.
It also indicated, however, that he had “adequate skills” in the
areas of “community use, school living, health and safety, selfcare, and social skills.”
e.
Id.
Audiologist Winderl
S.J.W.’s audiologist is Erin Winderl, Au.D., CCC-A (“Dr.
Winderl”).
Id. at 76, 362.
She has regularly evaluated
12
S.J.W.’s hearing to outfit him for hearing aids.
Id. at 357-62.
On November 23, 2010, Dr. Winderl reevaluated S.J.W.’s hearing
and observed that he suffered from “mild to moderately severe”
bilateral hearing loss.
Id. at 362.
An audiogram of this test
was added to the administrative record.
f.
Id. at 362-63.
School Records and Teacher Questionnaire
The academic year at S.J.W.’s elementary school is divided
into three grading periods.
See id. at 234.
When the hearing
officer made his decision on the application for SSI, the record
contained a copy of S.J.W.’s first grade report card which
showed his progress for the first two grading periods of the
academic year.
Id. at 233-37.
The marks on S.J.W.’s report
card indicated that his progress was generally “below teacher
expectations” in areas involving, inter alia, reading, writing,
listening, and speaking, id. at 234, although his progress in
other areas, including handwriting, music, and social skills,
“me[t] teacher expectations,” id. at 234-36.
For the second
grading period, S.J.W.’s classroom teacher commented that S.J.W.
found first grade challenging, but that he had “a positive
attitude and works hard.”
Id. at 237.
According to the
teacher, he had made friends in his class, but “had difficulty
in completing independent tasks.”
Id.
S.J.W.’s Academic
Intervention Services teacher, Holly Rummel-Jackson (“Ms.
Rummel-Jackson”), indicated that in the second grading period he
13
was meeting expectations in various reading activities.
238.
Id. at
In S.J.W.’s evaluation for that same grading period,
another teacher wrote that S.J.W. would benefit from using sign
language more to help with his communication difficulties,
noting that he was very responsive to sign language in a one-onone setting.
Id. at 232.
In a related vein, Kathy Hyndman,
S.J.W.’s teacher for the deaf and hard of hearing, recommended
increasing the amount of deaf and hard of hearing services he
received.8
Id. at 253.
On January 8, 2010, at NYOTDA’s request, S.J.W.’s
kindergarten teacher, Kristin Scott (“Ms. Scott”) completed a
questionnaire about S.J.W.
Id. at 160-69.
Ms. Scott’s
evaluation of S.J.W.’s abilities was generally more positive
than those of his treating sources.
Ms. Scott wrote that S.J.W.
was a “very sweet little boy” who “work[ed] very hard in
school.”
Id. at 167.
She described his reading level as “low
average” and his written language and math level as “average.”
Id. at 160.
Ms. Scott observed that S.J.W. had problems in the
domain of acquiring and using information.
Id. at 161.
On the
questionnaire, for this domain, she rated him as having an
8
S.J.W. completed first grade after the hearing officer
issued his decision. While his case was pending before the
Appeals Council, his attorney added a copy of his complete first
grade report card to the record. See Admin. R. 15-19. S.J.W.’s
marks for the third grading period were generally consistent
with his marks in the second period. See id.
14
“obvious problem” in comprehending oral instructions and as
having a “slight problem” in “understanding school and content
vocabulary, reading and comprehending written material,
understanding and participating in class discussions, expressing
ideas in written form, and recalling and applying previously
learned material.”
Id.
In all other activities in this domain,
Ms. Scott observed that he had no problems.
Id.
Ms. Scott also
opined that S.J.W. had problems in the domain of attending and
completing tasks.
Id. at 162.
She viewed S.J.W. as only having
a “slight problem” in two activities falling within this domain,
specifically those of “refocusing on task when necessary” and
“carrying out multi-step instructions.”
Id.
For all other
activities involving attending and completing tasks, Ms. Scott
noted that S.J.W. had no issues.
Id.
Further, Ms. Scott opined
that S.J.W. had no problems interacting and relating with
others.
Id. at 163-64.
She also wrote that she could
understand almost all of S.J.W.’s speech on both known and
unknown topics of conversation.
g.
Id. at 164.
Walsh’s Testimony
Walsh testified about S.J.W.’s difficulties at the March
30, 2011, hearing.9
Id. at 68-82.
She explained that because of
S.J.W.’s hearing loss and speech delays he “struggles in
9
The hearing officer attempted to question S.J.W. as well,
but S.J.W. was unresponsive. Admin. R. 82.
15
school.”
Id. at 73.
Walsh stated that S.J.W. had the most
difficulty in math and that he was “struggling” in spelling, but
noted that he was “finally doing better” in reading at school.
Id. at 78.
Walsh was somewhat uncertain about S.J.W.’s academic
program during her testimony.
She referred to S.J.W. as being
in “special ed.,” id. at 72; see also id. at 77, yet
simultaneously described him as attending a “[r]egular school
with a lot of services,” id. at 72.
Walsh later explained,
however, that S.J.W. is frequently pulled out of his classroom
for services like occupational and speech therapy.
76.
Id. at 75-
She admitted that she herself was unclear about exactly
what educational services S.J.W. received at school, explaining
that “I don’t understand all of [S.J.W.’s IEP],10 it’s kind of
new to me.”
Id. at 76.
Walsh acknowledged that S.J.W. was able to hear when he
wears his hearing aids.
Id. at 74.
She also indicated that she
could usually understand S.J.W.’s speech, but that “he says a
10
An “IEP” is an “Individualized Education Program.” 20
U.S.C. § 1414(d)(1)(A). IEP’s are created for students
considered to be “disabled” under the Individuals with
Disabilities Education Act. See id. §§ 1401(3)(A),
1414(d)(1)(A). IEP’s are comprehensive documents containing,
inter alia, “a statement of the child's present levels of
academic achievement and functional performance,” “a statement
of the special education and related services and supplementary
aids and services . . . to be provided to the child,” and “a
statement of any individual appropriate accommodations that are
necessary to measure the academic achievement and functional
performance of the child on State and districtwide assessments.”
Id. § 1414(d)(1)(A).
16
lot of words wrong because he hears them wrong.”
Id. at 75.
Additionally, Walsh testified to S.J.W.’s difficulty in paying
attention and completing tasks without prompting.
Id. at 78-79.
Walsh emphasized S.J.W.’s social challenges in her
testimony.
According to her, S.J.W. experiences “a lot of
frustrations interacting with other children because either he
can’t understand them or they can’t understand him.”
Id. at 74.
Specifically, Walsh claimed that S.J.W.’s communication
difficulties led to hostility between him and his brothers, see
id. at 76, and friction with other children on the school bus,
id. at 73-74.
Although Walsh acknowledged that S.J.W. had
friends at his school, she testified that he had no friends in
his neighborhood.
II.
Id. at 79.
LEGAL STANDARDS
A.
Standard of Review
A district court reviewing a decision of the Commissioner
to deny social security disability benefits must make two
inquiries.
The court must first determine whether the
Commissioner applied the correct legal standards to an
application for benefits and then must decide whether the
Commissioner’s findings of fact are supported by substantial
evidence.
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)
(citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)).
“Substantial evidence” is defined as “such relevant evidence as
17
a reasonable mind might accept as adequate to support a
conclusion.”
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)
(quoting Richardson v. Perales, 401 U.S. 389, 401 (1971)).
Substantial evidence is “more than a mere scintilla” of
evidence.
Brault v. Social Sec. Comm’r., 683 F.3d 443, 447 (2d
Cir. 2012) (quoting Moran, 569 F.3d at 112).
When reviewing a
hearing officer’s decision, a district court must “consider[]
the whole record,” because “an analysis of the substantiality of
the evidence must also include that which detracts from its
weight.”
Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258
(2d Cir. 1988) (citing Universal Camera Corp. v. National Labor
Relations Bd., 340 U.S. 474, 488 (1951)).
For the Court to be able to determine whether substantial
evidence supports the Commissioner’s decision, the hearing
officer “must set forth the crucial factors justifying his
findings with sufficient specificity” to allow for review.
Gravel v. Barnhart, 360 F. Supp. 2d 442, 444-45 (N.D.N.Y. 2005)
(Sharpe, J.) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d
Cir. 1984)).
Although a district court’s review of a hearing
officer’s factfinding is highly deferential, Brault, 683 F.3d at
448, “where there is a reasonable basis for doubting whether the
Commissioner applied the appropriate legal standards, even if
the ultimate decision may be arguabl[y] supported by substantial
evidence, the Commissioner's decision may not be affirmed,”
18
Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (Hurd,
J.) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
B.
Social Security Disability Standard
An individual less than eighteen years old is considered to
be disabled if he “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).
42 U.S.C. §
No individual less than eighteen-years old,
however, who “engages in substantial gainful activity . . . may
be considered disabled.”
Id. § 1382c(a)(3)(C)(ii).
The Commissioner has established a three-step process for
determining whether a child less than eighteen years old is
disabled.
See 20 C.F.R. § 416.924(a).
First, the Commissioner
must determine whether a child claimant is engaged in
substantial gainful activity.
Id.
If the child is engaged in
substantial gainful activity, he is not disabled.
Id.
Second,
the Commissioner must determine whether the child has a severe
impairment or a combination of impairments considered severe.
Id.
If the child does not have an impairment or a combination
of impairments considered severe, he is not disabled.
Id.
Third, the Commissioner must determine whether the child’s
impairment or combination of impairments “meets, medically
19
equals, or functionally equals” a listed impairment.
Id.
If
the child’s impairment or combination of impairments does not
meet or medically or functionally equal a listed impairment, he
is not disabled.11
Id.; see also id. § 416.925(a)-(c) (laying
out criteria for how impairment listings are organized and
used).
The Commissioner will find a child to be disabled when
he has met the requirements at each of the three steps described
above.
See id. § 416.924(a)-(d).
There are three separate ways by which a claimant may
establish that his impairment is medically equivalent to a
listed impairment.
20 C.F.R. § 416.926(b).
First, a claimant
who has an impairment described in the listed impairments, but
“do[es] not exhibit one or more findings specified in the
particular listing, or . . . [does] exhibit all of the findings,
but one or more of the findings is not as severe as specified in
the particular listing,” may establish medical equivalence by
demonstrating other findings related to his impairment “that are
at least of equal medical significance to the required criteria”
of the listed impairment.
Id. § 416.926(b)(1).
Second, a
claimant who has an impairment not described in the listed
impairments may establish medical equivalence by demonstrating
findings related to his impairment that “are at least of equal
11
The listed impairments are described in Part 404, Subpart
P, Appendix 1 of the regulations. See 20 C.F.R. § 416.925(a).
20
medical significance” to those of a “closely analogous listed
impairment[].”
Id. § 416.926(b)(2).
Third, a claimant who has
a combination of impairments, none of which are described in the
listed impairments, may establish medical equivalence by
demonstrating findings related to his combination of impairments
that “are at least of equal medical significance to those of
a[n] [analogous] listed impairment.
Id. § 416.926(b)(3).
The Commissioner determines whether a child claimant’s
impairment is functionally equivalent to a listed impairment by
assessing the child’s functioning in six domains.
416.926a(b)(1).
Id. §
The six domains assessed by the Commissioner
are: “(1) acquiring and using information; (2) attending and
completing tasks; (3) interacting and relating with others; (4)
moving about and manipulating objects; (5) caring for yourself;
and (6) health and physical well-being.”
Id.
The Commissioner
assesses the child’s functioning by comparing his performance in
activities within a domain with the performance of other
children of the same age without impairments.
416.926a(b).
See id. §
A child’s impairment or impairments functionally
equals a listing if he has “marked limitations” in two domains
or an “extreme limitation” in one domain.
Id. § 416.926a(d).
A
marked limitation exists when a child’s impairments “interfere[]
seriously with [his] ability to independently initiate, sustain,
or complete activities.”
Id. § 416.926a(e)(2)(i).
21
A “marked
limitation” is defined as “a limitation that is ‘more than
moderate’ but ‘less than extreme.’”
Id.
An “extreme
limitation” exists when a child’s impairment “interferes very
seriously with [his] ability to independently initiate, sustain,
or complete activities.”
Id. § 416.926a(e)(3)(i).
“Extreme
limitations” are more serious than marked limitations; only the
worst limitations are considered extreme.
Id.
III. THE HEARING OFFICER’S DECISION
The hearing officer issued a sixteen-page decision on April
25, 2011, to support his finding that S.J.W. was not disabled.
Admin. R. 40-55.
The hearing officer first determined that
S.J.W. had not engaged in substantial gainful activity since his
application was filed.
Id. at 43.
Next, he concluded that
S.J.W. suffered from a severe impairment, which he described as
“moderately severe bilateral neural hearing loss.”
Id.
Then,
without any analysis or citations to the record, he cursorily
stated that S.J.W. did not have an impairment or combination of
impairments which met or medically equaled Listed Impairment
102.10, which covers hearing loss not treated with cochlear
implanatation.
Id.
The hearing officer then proceeded to analyze whether
S.J.W. had an impairment which functionally equaled the
listings, id. at 43-55, concluding that S.J.W.’s impairment did
not so equal, id. at 43.
In the hearing officer’s analysis of
22
the six domains, he determined that S.J.W. had “less than a
marked limitation” in the domains of “acquiring and using
information,” “attending and completing tasks,” “caring for
yourself,” and “health and physical well-being.”
Id. at 46-55.
The hearing officer concluded that S.J.W. had no limitations in
the remaining two domains, “interacting and relating to others”
and “moving about and manipulating objects.”
Id. at 50-53.
The hearing officer devoted several pages to analyzing
S.J.W.’s limitations in the domain of “acquiring and using
information.”
Id. at 46-49.
It is, however, difficult to
determine the basis for his conclusion that S.J.W. had a less
than marked limitation in this domain, as this section of the
decision contains little analysis and consists mostly of a
disjointed recitation of evidence in the record.
See id.
In
this section, the hearing officer highlighted, inter alia, the
fact that Ms. Grasso-Megyeri, the speech/language pathologist
who had evaluated S.J.W. in February 2010, had written in one of
S.J.W.’s evaluations that he was “making very good progress” and
was “reading more fluently.”
Id. at 47, 282.
The hearing
officer also discussed how S.J.W. was going to receive more
services from a deaf and hard of hearing teacher, writing that
it “appear[ed]” that S.J.W. would “likely make continued
improvement with these increased services.”
Id.
He summarized
some of Ms. Scott’s teacher questionnaire responses, which
23
indicated that S.J.W. had few significant problems in this area.
See id. at 48.
The hearing officer also summarized some of
S.J.W.’s test scores, id. at 47-48, and attached a large degree
of significance to Ms. Grasso-Megyeri’s overall positive
assessment of S.J.W.’s language skills, id. at 47.
He attached
“significant weight” to Ms. Grasso-Megyeri’s opinion because he
viewed it as consistent with some submissions from S.J.W.’s
teachers.
Id. at 46.
The hearing officer spent some time
summarizing Ms. Guerin and Ms. Kernan’s evaluations of S.J.W.,
although the weight he accorded this evidence is not entirely
clear from the decision.
See id. at 48-49.
It does appear that
the hearing officer attached less significance to Ms. Guerin’s
report relative to other indicators because Ms. Guerin observed
that S.J.W.’s low speech volume may have negatively affected his
intelligibility during part of her evaluation.
See id. at 46,
48-49.
The hearing officer’s determination that S.J.W. had less
than marked limitations in the domain of “attending and
completing tasks” was influenced by Ms. Scott’s teacher
questionnaire.
See id. at 50.
On her questionnaire, Ms. Scott
indicated S.J.W. either had no problem or only a slight problem
with activities in this domain.
Id.
The hearing officer also
credited an assessment by S.J.W.’s first grade reading teacher
that while S.J.W. was “unfocused and silly” when he removed his
24
hearing aids, he was “very engaged” when he wore his hearing
aids.
Id.
The hearing officer acknowledged that the school
psychologist, Ms. Kernan’s, evaluation of S.J.W. indicated that
he was distractible and “required repeated directions and
examples to facilitate his problem solving.”
Id.
The hearing
officer further acknowledged that scores received during this
session “should be reviewed cautiously,” because his
“impulsivity and/or language/auditory processing difficulties
impaired his ability to answer language-based questions
correctly.”
Id.
For his analysis of the domain of “interacting and relating
with others,” the hearing officer again focused on Ms. Scott’s
questionnaire, which indicated that S.J.W. had no problem in
this domain.
Id. at 51.
The hearing officer also considered
other material from S.J.W.’s school which suggested that he was
outgoing and got along with his peers.
Id. at 51-52.
From this
evidence, the hearing officer concluded that S.J.W. had no
limitation in this domain.
Id. at 51.
To support his determination that S.J.W. had no limitation
in the domain of “moving about and manipulating objects,” the
hearing officer observed that S.J.W.’s motor development
milestones had been within normal limits and referenced Ms.
Scott’s opinion that S.J.W. had no problems in this domain.
at 52-53.
25
Id.
In his analysis of S.J.W.’s ability in the domain of
“caring for yourself,” the hearing officer referenced the
results of the ABAS-II test administered by Ms. Kernan, which
indicated that S.J.W. had adequate skills in “school living,
health and safety, [and] self-care. . . .”
Id. at 53.
He also
pointed to Ms. Scott’s questionnaire, which indicated that
S.J.W. had no difficulties in this area, and Ms. GrassoMegyeri’s report that his pragmatic language skills were ageappropriate.
Id. at 54.
The hearing officer closed his opinion
with the observation that while Dr. Cevera diagnosed S.J.W. as
suffering from moderately severe symmetric hearing loss,
nevertheless S.J.W. had less than a marked limitation in the
domain of his health and physical well-being.
IV.
Id.
ANALYSIS
Walsh draws the Court’s attention to three issues for
review.
First, she contends that the hearing officer committed
legal error in failing to find that S.J.W.’s hearing loss met or
medically equaled the listed impairment for hearing loss.
Br. 12-16, ECF No. 10.
Pl.’s
Second, she argues that the hearing
officer legally erred in failing to find that S.J.W. had a
marked impairment in the domains of “acquiring and using
information,” “attending and completing tasks,” and “interacting
and relating with others.”
Id. at 17-22.
Finally, Walsh
alleges that the hearing officer’s decision is not supported by
26
the substantial weight of the evidence and is therefore
incorrect as matter of law.
Id. at 22-25.
Although Walsh’s
brief is somewhat opaque, the Court concludes that she contends
that the decision was only against the substantial weight of the
evidence in the three domains in which she also alleges the
hearing officer’s decision was legally erroneous.
22-24; see also Compl. ¶¶ 21-22.
See id. at
The Court reads Walsh’s brief
as conceding that the hearing officer’s determination that
S.J.W. has either no limitation or less than a marked limitation
in the domains of “moving about and manipulating objects,”
“caring for yourself,” and “health and physical well-being” was
not against the substantial weight of the evidence.
A.
The Treating Source Rule
1.
The Legal Background to the Treating Source Rule
When determining a claimant’s eligibility for disability
benefits, a hearing officer must apply what is often called the
“treating physician” rule.
See, e.g., Burgess v. Astrue, 537
F.3d 117, 128 (2d Cir. 2008).
According to this rule, “the
opinion of a claimant's treating physician as to the nature and
severity of the impairment is given ‘controlling weight’ so long
as it ‘is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in [the] case record.’”
Id.
(alteration in original) (quoting 20 C.F.R. § 404.1527(c)(2)).
27
Moreover, even when a treating physician’s opinion is not given
“controlling weight,” it typically receives more weight from
hearing officers than the opinion of a non-treating source.
Smith ex rel. J.H. v. Colvin, 935 F. Supp. 2d 496, 504 (N.D.N.Y.
2013); see also 20 C.F.R. § 416.927(c)(2) (“Generally, we give
more weight to opinions from your treating sources, since these
sources are likely to be . . . able to provide a detailed,
longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be
obtained from . . . consultative examinations . . . .”); Policy
Interpretation Ruling Titles II & XVI: Giving Controlling Weight
to Treating Source Medical Opinions, Social Security Ruling
(“SSR”) 96-2p, 1996 WL 374188, at *4 (S.S.A. July 2, 1996) (“In
many cases, a treating source's medical opinion will be entitled
to the greatest weight and should be adopted, even if it does
not meet the test for controlling weight.”).
Under the treating physician rule, if a treating
physician’s opinion cannot be given controlling weight,
the proper weight accorded [to it] depends upon
several factors, including: ‘(i) the frequency of
examination and the length, nature, and extent of the
treatment relationship; (ii) the evidence in support
of the opinion; (iii) the opinion's consistency with
the record as a whole; and (iv) whether the opinion is
from a specialist.’ 12
12
When assigning weight to a treating physician’s opinion,
a hearing officer will consider “[o]ther factors” in addition to
those listed above. 20 C.F.R. § 416.927(c)(6).
28
Anderson v. Astrue, No. 07-CV-4969, 2009 WL 2824584, at *9
(E.D.N.Y. Aug. 28, 2009) (quoting Clark v. Commissioner of Soc.
Sec., 143 F.3d 115, 118 (2d Cir. 1998)).
A hearing officer must
always “give good reasons in [his] notice of determination or
decision for the weight [he] give[s] [the claimant’s] treating
source's opinion.” 20 C.F.R. § 416.927(c)(2); see also Disarno v.
Astrue, No. 06-CV-0461-JTC, 2008 WL 1995123, at *4 (W.D.N.Y. May
6, 2008) (“[T]he notice of the determination or decision must
contain specific reasons for the weight given to the treating
source's medical opinion . . . and must be sufficiently specific
to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source's medical opinion and
the reasons for that weight.” (quoting SSR 96-2p, 1996 WL
1898704, at *5).
Remand may be necessary when the hearing
officer fails to provide “good reasons” for his discounting of a
treating physician’s opinion.
Burgess, 537 F.3d at 129-30
(citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)).
If a
hearing officer does not give controlling weight to a claimant’s
treating physician, he must “explain the weight given to the
opinions of state agency medical consultants.”
Stytzer v.
Asture, No. 1:07-CV-811 (NAM/DEP), 2010 WL 3907771, at *7
(N.D.N.Y. Sept. 30, 2010) (Mordue, C.J.); see also 20 C.F.R. §
416.927(e)(2)(ii).
29
The term “treating physician rule” is something of a
misnomer.
The rule applies to all medical opinions obtained
from “treating sources.”
See Anderson, 2009 WL 2824584, at *9.
“Treating sources” are limited to the “acceptable medical
sources” defined in 20 C.F.R. § 416.913(a).
C.F.R. § 416.913(a)).
See id. (citing 20
“Treating sources” include:
(1) Licensed physicians (medical or osteopathic
doctors);
(2) Licensed or certified psychologists. Included are
school psychologists, or other licensed or certified
individuals with other titles who perform the same
function as a school psychologist in a school setting,
for purposes of establishing intellectual disability,
learning disabilities, and borderline intellectual
functioning only;
(3) Licensed optometrists . . . ;
(4) Licensed podiatrists . . . ; and
(5) Qualified speech-language pathologists, for
purposes of establishing speech or language
impairments only. For this source, “qualified” means
that the speech-language pathologist must be licensed
by the State professional licensing agency, or be
fully certified by the State education agency in the
State in which he or she practices, or hold a
Certificate of Clinical Competence from the American–
Speech–Language–Hearing Association.
20 C.F.R. § 416.913(a).
Dr. Merecki has been S.J.W.’s pediatrician since just after
birth, Admin. R. 260, and therefore he is a “treating source”
within the meaning of the regulation.
The hearing officer
acknowledges that Dr. Merecki was S.J.W.’s primary care
physician in his decision, though he does not term him a
treating source.
Id. at 43.
Ms. Guerin also appears to be a
30
treating source.
The regulations explain that “treating
sources” include “[q]ualified speech-language pathologists” when
the pathologist’s opinion is used to establish a claimant’s
“speech or language impairment[].”
20 C.F.R. § 416.913(a)(5).
Ms. Guerin’s qualifications are described as “CCC-SLP” at
several locations within the record, see e.g., Admin. R. 214,
218, and the hearing officer indicated her credential in his
decision, id. at 48.
Qualified speech pathologists include,
inter alia, those who “hold a Certificate of Clinical Competence
from the American–Speech–Language–Hearing Association.”
C.F.R. § 416.913(a)(5).
20
Ms. Guerin’s qualifications indicate
that she holds a Certificate of Clinical Competence in SpeechLanguage-Pathology from the American-Speech-Language-Hearing
Association.13
See How to Apply for Certification in Speech-
13
The hearing officer did not analyze Ms. Guerin’s
qualifications and did not evaluate her opinion in light of the
treating source rule. On the surface, however, the record
certainly appears to indicate that Ms. Guerin is a treating
source. Since failure to properly to apply the treating source
rule is legal error, remand for proper application of the rule
is appropriate. See Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998). As the hearing officer, not this Court, is the primary
factfinder, see Brault, 683 F.3d at 447-48, on remand the
hearing officer may make further evaluation of whether Ms.
Guerin holds a certificate from the American–Speech–Language–
Hearing Association or if her qualifications otherwise meet the
requirements of 20 C.F.R. § 416.913(a)(5), see Baldwin v.
Astrue, No. 07 Civ. 6958(RJH)(MHD), 2009 WL 4931363, at *23
(S.D.N.Y. Dec. 21, 2009) (observing a hearing officer’s duty to
resolve uncertainty regarding whether an individual was a
licensed or certified speech pathologist).
31
Language Pathology, Am. Speech-Language-Hearing-Ass’n,
http://www.asha.org/certification/SLPCertification.htm (last
visited Mar. 18, 2014).
Moreover, while the record is not
entirely clear, it does appear that S.J.W. has been attending
speech therapy with Ms. Guerin for some time, and at the time of
the hearing he was receiving thrice weekly speech therapy
sessions.14
See Admin R. 215.
2. The Hearing Officer’s Failure Properly to Apply the
Treating Source Rule Necessitates Remand
The hearing officer failed to “give good reasons” for the
weight he accorded to S.J.W’s treating sources.
416.927(c)(2).
20 C.F.R. §
He appears entirely to have ignored the treating
source rule, although it is also possible that he considered it
but misapplied it.
Accordingly, this Court determines that the
14
The controlling regulation states that speech-language
pathologists only qualify as treating sources when a claimant
has a speech or language impairment. 20 C.F.R. § 416.913(a)(5).
The hearing officer’s decision only expressly refers to S.J.W.
as suffering from “moderately severe bilateral neural hearing
loss,” Admin R. at 43, and did not state that he suffered from a
“speech or language impairment” per se. In the section of his
decision where he described S.J.W.’s impairment, however, the
hearing officer referenced S.J.W.’s “delayed speech pattern” and
inability “to speak clearly.” Id. He also referenced S.J.W.’s
receipt of speech and language therapy. Id. In view of the
hearing officer’s emphasis of S.J.W.’s speech difficulties when
he described the nature of his impairment, it is appropriate to
view Ms. Guerin as a treating source. See, e.g., McIntosh ex
rel. TLA v. Commissioner of Soc. Sec., No. 12-cv-10361, 2012 WL
6966654, at *2 (E.D. Mich. Nov. 6, 2012) (treating speechlanguage pathologist who tested child claimant’s expressive and
receptive language abilities as an acceptable medical source for
the purpose of determining hearing and language limitations).
32
hearing officer’s decision was based on legal error.
See Schaal
v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (“We hold that the
Commissioner's failure to provide ‘good reasons’ for apparently
affording no weight to the opinion of plaintiff's treating
physician constituted legal error.”)”.
Remand is necessary so
that the treating source rule may properly be applied to the
analysis of three of S.J.W.’s functional domains.
See id.
(explaining that when the treating source rule is misapplied,
“the proper course is to direct that th[e] case be remanded . .
. to allow the [hearing officer] to reweigh the evidence”).15
a.
Dr. Merecki
While the hearing officer did not apply the treating source
rule to Dr. Merecki’s submissions, reweighing this evidence in
light of the treating source rule might establish a marked
limitation in the domain of “interacting and relating with
others.”
Two submissions from Dr. Merecki, S.J.W.’s
15
The Court notes in passing that Ms. Kernan, the school
psychologist, is not a treating source. The regulations state
that in some circumstances, school psychologists may be
considered treating sources. 20 C.F.R. § 416.913(a)(2). School
psychologists, however, are treating sources “for purposes of
establishing intellectual disability, learning disabilities, and
borderline intellectual functioning only.” Id. Although Walsh
has submitted evidence of S.J.W.’s poor performance on tests of
cognitive abilities, this was introduced for the purposes of
establishing his functional limitations. She has acknowledged
that S.J.W. has never been diagnosed with a learning disability,
Admin. R. 77, and has not pursued benefits either before the
Commissioner or this Court under the theory that he suffers from
a learning or intellectual disability.
33
pediatrician, are found in the record.
Both documents are
consistent with S.J.W. having a marked limitation in this
domain.
The first submission from Dr. Merecki, an evaluation he
completed for NYOTDA on January 6, 2010, states that S.J.W. has
“temper tantrums out of frustration with not being able to
hear,” Admin R. 277, and describes S.J.W.’s sensory abilities,
communication skills, and social/emotional skills as “delayed,”
id. 275-79.
The second submission from Dr. Merecki, an
evaluation of S.J.W.’s functional abilities completed on March
29, 2010, assesses S.J.W. as having a marked limitation in his
social abilities stemming from his difficulties in communicating
with others.
Id. at 299.
It appears from the decision that the hearing officer
failed to give proper consideration to Dr. Merecki’s
submissions.
While the hearing officer referenced the January
2010 report in the introductory section discussing hearing loss,
he did not reference Dr. Merecki’s second submission in his
decision.
See id. at 43.
Notably, in his assessment of
S.J.W.’s abilities in the domain of “interacting and relating
with others,” the hearing officer did not mention or discuss
either submission from Dr. Merecki, id. at 50-52, and concluded
that S.J.W. had no limitations in this domain, id. at 51.
Although in this section of his opinion he referenced other
parts of the record which were consistent with his findings, see
34
id., his failure even to acknowledge that S.J.W.’s
pediatrician’s opinion was in sharp conflict with his finding
suggests that he did not consider Dr. Merecki’s submissions at
all when assessing S.J.W.’s limitations in this domain.
See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (holding that
lack of “even [an] oblique reference to the treating physician
rule” indicates that the hearing officer may have ignored the
opinion of claimant’s treating physician) (citation omitted).
In the alternative, if the hearing officer considered Dr.
Merecki’s submissions, but then chose to discount them and
credited other evidence in the record instead, he failed to
comply with the treating physician rule because he did not
“comprehensively set forth [his] reasons for the weight assigned
to a treating physician's opinion.”16
Burgess, 537 F.3d at 129
(alteration in original) (quoting Halloran v. Barnhart, 362 F.3d
28, 33 (2d Cir. 2004)); see Johnson, 817 F.2d at 986.
b.
Ms. Guerin
On October 7, 2010, Ms. Guerin, S.J.W.’s school speechlanguage pathologist evaluated S.J.W.’s speech and language
abilities.
Admin. R. 214-18.
Her report provided evidence that
16
In passing, the Court notes that while the hearing
officer was, of course, required to apply the treating source
rule when considering Dr. Merecki’s opinion, he did not need to
accord Dr. Merecki’s opinion any special weight in the ultimate
determination of whether S.J.W. was legally disabled. 20 C.F.R.
§ 416.927(d)(3).
35
indicated that S.J.W. has significant limitations in the domains
of “acquiring and using information” and “attending and
completing tasks.”
See id.
Evaluating Ms. Guerin’s submissions
after proper application of the treating source rule might have
resulted in a different finding regarding S.J.W.’s abilities in
these domains.
Regarding the domain of “acquiring and using information,”
Ms. Guerin administered a number of tests to S.J.W., including
the PPVT-4, the CELF-4, and the GFTA-2.
Id. at 216-218.
On the
PPVT-4, which measures comprehension of the spoken word and
vocabulary acquisition, S.J.W. scored in the fifth percentile.
Id. at 216.
On the GFTA-2, which evaluates speech articulation,
S.J.W. scored in the eighth percentile.
Id. at 217.
The CELF-4
tests general language ability, on four of the five CELF-4
subtests,17 S.J.W. scored below average, and on three of the five
subtests S.J.W.’s scores placed him in the second percentile.
See id. at 216-17.
In addition to describing his test scores,
Ms. Guerin’s report contained written observations indicative of
limitations in the domain of “acquiring and using information.”
Although she did make some positive observations about S.J.W.’s
abilities in this domain, for instance noting that S.J.W.
17
The “word classes” subcategory of the CELF-4 is divided
into the “receptive” and “expressive” subclasses, which are both
given individual scores. Admin R. 216. For the purposes of
this discussion, the Court does not consider the total word
classes category as a separate subclass.
36
currently articulates the “f” sound correctly ninety-four
percent of the time in his speech therapy, and that he has
“started to make progress” towards understanding grammatical
structures, id. at 215, she described his receptive language
skills as below average for children his age and related that he
has difficulty with spatial and temporal concepts, id. at 21617.
Ms. Guerin wrote that when asked to recall sentences,
S.J.W. “often substituted and omitted words from the sentence
that changed the meaning of the sentence.”
Id. at 217.
S.J.W.
also struggled to explain simple relationships between objects
in pictures shown to him.
By way of example, Ms. Guerin
observed that he described the relationship between a letter and
a stamp as “notes.”18
Id.
18
In passing, the Court acknowledges that there is a line
of cases holding that at least some psychological test scores
are not “medical opinions,” and therefore a hearing officer does
not formally need to assign them weight or consider them under
the treating source rule. See, e.g., Reid v. Astrue, No. 1:07CV-0577(LEK), 2010 WL 2594611, at *6 (N.D.N.Y. June 23, 2010)
(Kahn, J.) (noting IQ scores are not deemed to be opinion
evidence); Miller v. Astrue, No. 3:07-CV-1093(LEK/VEB), 2009 WL
2568571, at *6 (N.D.N.Y. Aug. 19, 2009) (same). This circuit,
however, has precedent treating the conclusions that a speech
pathologist derives from a CELF-4 examination as a medical
opinion. See Baldwin v. Astrue, No. 07 Civ. 6958(RJH)(MHD),
2009 WL 4931363, at *8, *25 (S.D.N.Y. Dec. 21, 2009). Moreover,
even assuming that the conclusions Ms. Guerin drew from S.J.W.’s
CELF-4 scores were not medical opinions and thus need not have
been accorded weight, in her report Ms. Guerin made specific
observations about the difficulties S.J.W. faces in language and
following directions. These observations would fall within the
treating source rule. See 20 C.F.R. § 404.1527(a)(2).
37
Ms. Guerin also indicated that S.J.W. had limitations in
the domain of “attending and completing tasks,” although she
suggested that such limitations might be less severe than within
the “acquiring and using information” domain.
She explained
that, on occasion, S.J.W. “needed to be redirected and reminded
to maintain his attention to the task at hand” and that he has
“difficulty following multistep directions.”
Id. at 128.
On
the other hand, at times her report minimized S.J.W.’s
limitations in this domain; for instance she stated that S.J.W.
was “easily redirected” when necessary, id. at 218, and that he
was able to complete at least some of the tests she administered
with “little prompting,” id. at 217.
She also wrote that S.J.W.
was “very cooperative throughout all assessment tasks” and
suggested that his ability to follow directions was a relative
strength.
Id. at 218.
Nothing in the hearing officer’s decision indicates that he
accorded Ms. Guerin’s opinion the special consideration required
of a treating source.
When referencing Ms. Guerin’s evaluation
in his decision, the hearing officer did note that her
credentials were “CCC-SLP,” id. at 48, and referred to her
report as a “reevaluation,” id., but the decision does not
indicate that the hearing officer was aware of the potential
38
ongoing relationship that Ms. Guerin had with S.J.W.,19 id. at
215.
In his discussion of S.J.W.’s limitations in the domain of
“acquiring and using information,” the hearing officer
summarized Ms. Guerin’s October 9, 2010, evaluation, id. at 4849, but decided to give more weight to the report of Ms. GrassoMegyeri, a consulting speech pathologist, id. at 45-46.
The
hearing officer’s explanation, described below, for the weight
that he gave to Ms. Guerin’s report was cursory, id. at 48-49,
and was not the “comprehensive[]” analysis that it deserved as a
treating source.
See Burgess, 537 F.3d at 129 (quoting
Halloran, 362 F.3d at 33).
The hearing officer did not even
refer to Ms. Guerin’s evaluation in his analysis of S.J.W.’s
limitations in the domain of “attending and completing tasks.”
Admin. R. 50.
Moreover, even if Ms. Guerin was not a treating source, the
hearing officer’s reasoning for crediting Ms. Grasso-Megyeri’s
report over Ms. Guerin’s report constitutes legal error.
Apparently, the hearing officer had two reasons for crediting
Ms. Grasso-Megyeri over Ms. Guerin.
First, the hearing officer
19
The record does not directly state that Ms. Guerin
conducted ongoing therapy with S.J.W., but it suggests as much.
Ms. Guerin’s report indicates that S.J.W. was receiving therapy
three times a week, and then indicates that “he has warned up to
this clinician,” and that he “seems to enjoy coming to speech
therapy and is always an active participant in each session.”
Admin R. 215. Such language indicates that Ms. Guerin has an
ongoing relationship with S.J.W
39
accorded “significant weight” to Ms. Grasso-Megyeri’s evaluation
because Ms. Grasso-Megyeri’s report was “consistent with
reports” from some of S.W.J.’s teachers.
Id. at 46.
Second,
the hearing officer apparently discounted Ms. Guerin’s opinion
because in her report, Ms. Guerin wrote that at one point,
S.J.W. “spoke very low, which contributed to his decreased
intelligibility.”
Id.
It is correct that the weight accorded to a medical opinion
depends in part on its consistency with the record as a whole.
20 C.F.R. § 416.927(c)(4).
The evidence from the two teachers,
however, is not consistent with Ms. Grasso-Megyeri’s largely
positive evaluation of S.J.W.’s speech and language abilities.
One of the statements from S.J.W.’s teachers that the hearing
officer cited in support of Ms. Grasso-Megyeri’s opinion was a
brief progress report stating that S.J.W. was “very responsive”
to receiving one-on-one instruction in sign language and that
the teacher “hop[ed] to see him utilize” sign language more
often.
Admin. R. 46; see also id. at 232.
The hearing officer,
moreover, alluded to another teacher’s statement which merely
observed that S.J.W. would begin receiving more services from a
teacher for the death and hard of hearing.
id. at 253.
Id. at 46; see also
The Court fails to understand how these remarks
from S.J.W.’s teachers are consistent with Ms. Grasso-Megyeri’s
opinion.
The fact that S.J.W. might make more use of sign
40
language and will receive more services for the hard of hearing
is immaterial to the degree of his underlying limitation in the
domain of “acquiring and using information.”
See Archer ex rel.
J.J.P. v. Astrue, 910 F. Supp. 2d 411, 426-47 (N.D.N.Y. 2012)
(“[E]ven if [a] child can function normally while within the
confines of the structured or supportive setting, the hearing
officer must assess whether the child would be able to function
adequately absent such assistance.”).
The same may be said
about S.J.W.’s reported receptiveness to special services in a
one-on-one setting.
The hearing officer also appears to have discounted the
weight of Ms. Guerin’s opinion because Ms. Guerin wrote in her
report that S.J.W.’s “low speech volume[] negatively impacted
his speech intelligibility.”
Admin. R. 217; see also id. at 46.
Ms. Guerin’s evaluation indicates, however, that S.J.W.’s low
speech may have affected his performance on only one of the
several tests she administered, the GFTA-2.
Id. at 217.
Nothing in the record indicates that her observations about
S.J.W.’s difficulties would have been different had his volume
of speech been higher, and Ms. Guerin stated that the results of
her evaluation were a “reliable estimate of [S.J.W.’s]
expressive and receptive language skills.”
Id. at 215.
Therefore, Ms. Guerin’s comment on S.J.W.’s speech volume cannot
be a reason for discounting all of her opinion.
41
If the hearing
officer believed that S.J.W.’s low speech volume during Ms.
Guerin’s evaluation was somehow indicative of broader problems
with her opinion, he should have explained his reasoning.
Thus,
even if the treating source rule did not apply, the hearing
officer’s decision to credit Ms. Grasso-Megyeri’s opinion over
Ms. Guerin’s was error, as his explanation for the weight he
accorded to the two opinions was not supported by substantial
evidence.
c.
The Commissioner’s Argument that the Holding
of Halloran v. Barnhart Negates the Need for
Remand is Incorrect
The Commissioner argues that the Court does not need to
remand this case for the hearing officer to reconsider S.J.W.’s
limitations in the domain of “interacting and relating with
others” by applying the treating physician rule to Dr. Merecki’s
submissions.
Mem. Law Supp. Comm’r’s Mot. J. Pleadings (“Comm’r
Br.”) 14-16, ECF No. 12.
The Commissioner relies on Halloran v.
Barnhart, 362 F.3d 28 (2d Cir. 2004) (per curiam), as support
for his contention that because the hearing officer acknowledged
other evidence in the record which was in conflict with Dr.
Merecki’s opinion, the hearing officer’s decision as a whole
“applied the substance of the treating physician rule.”
Comm’r
Br. 15 (citing Halloran, 362 F.3d at 32).
In Halloran, the Second Circuit reviewed a hearing
officer’s decision denying an application for social security
42
benefits.
Halloran, 362 F.3d at 30.
The claimant in that case
argued that remand was necessary because the hearing officer had
not expressly acknowledged the treating physician rule when
rejecting the opinion of her treating physician.
Id. at 31.
Although the Second Circuit conceded that it was “unclear on the
face of the [hearing officer’s] opinion whether the [hearing
officer] considered (or even was aware of) the applicability of
the treating physician rule,” it upheld the hearing officer’s
decision to deny benefits.
Id. at 32.
The Second Circuit held
that remand was unnecessary because its examination of the
record allowed it to conclude that “the substance of the
treating physician rule was not traversed” and that the claimant
had “received the rule's procedural advantages.”
Id.
The Commissioner’s reliance on Halloran fails for two
reasons.
First, he overstates the degree to which the evidence
in the record is inconsistent with Dr. Merecki’s opinion.
Although the Commissioner correctly observes that much of the
record conflicted with Dr. Merecki’s opinion that S.J.W.
suffered from a “marked” limitation in the domain of
“interacting and relating with others,” Comm’r Br. 15, one key
piece of evidence which the hearing officer discounted suggests
that S.J.W. faces significant social difficulties.
When she
appeared before the hearing officer, Walsh highlighted S.J.W.’s
interpersonal problems, relating that S.J.W. had serious
43
conflicts with other children on his school bus, Admin. R. 7374, and got along “terribl[y]” with his brothers because of his
difficulty communicating with them, id. at 76.
Second, in Halloran, the Second Circuit could not determine
from the “face of [the hearing officer’s] opinion” whether the
treating physician rule had been applied.
362 F.3d at 32.
In
that case, the hearing officer’s decision at least contained
some analysis from which the Second Circuit could infer the
reason for discounting the treating physician’s opinion.
Id.
The Halloran hearing officer specifically had written that the
treating physician’s opinion was uninformative and did not
address a key question significant to the outcome of the case.
Id.
This fact was critical to the Second Circuit’s ruling that
the hearing officer had “applied the substance of the treating
physician rule.”
Id.
In contrast, the opinion of the hearing officer in
S.J.W.’s case completely ignored Dr. Merecki’s second
submission.
In that report, Dr. Merecki opined that S.J.W.
suffered from a “marked” limitation in his social abilities.
Admin. R. 299.
Given that the hearing officer found that S.J.W.
had no limitations at all in the domain of “interacting and
relating to others,” the Court considers it highly improbable
that the hearing officer would have neglected to mention the
second submission if he were aware of it.
44
Likewise, the hearing officer only discussed Dr. Merecki’s
first submission in the context of providing background on
S.J.W.’s impairment.
Id. at 43.
When the hearing officer did
refer to Dr. Merecki’s first submission in his opinion, he wrote
nothing indicating that he discounted its weight or
probativeness.
See id.
In view of these considerations, the
Court cannot conclude from this record that the hearing officer
applied the “substance” of the treating physician rule to Dr.
Merecki’s submissions.
The Court observes that at the beginning of his decision,
in the context of outlining the background law, the hearing
officer wrote that he “ha[d] considered the opinion evidence in
accordance with 20 CFR 416.927 and SSRs 96-2p, 96-5p, 96-6p, and
06-3p.”
Id. at 44.
Section 416.927 is the regulation outlining
the treating source rule, and SSR 96-2p is a Social Security
Ruling instructing hearing officers on the application of the
treating source rule.
These passing references appear to be
decisional boilerplate and therefore are of no significance to
this Court’s review.
See Ocasio v. Colvin, No. 12-CV-6002, 2013
WL 1395846, at *8 n.22 (E.D.N.Y. Apr. 5, 2013) (criticizing the
use of boilerplate language in hearing officers’ decisions).
In
view of the above analysis in this section, the Court concludes
that the hearing officer did not apply the treating source rule
45
properly, despite his references to 20 C.F.R. § 416.927 and SSR
96-2p.
On remand, the hearing officer must reexamine the
submissions of Dr. Merecki and Ms. Guerin in light of the
treating source rule.
After reevaluating these submissions, the
hearing officer must reconsider S.J.W.’s limitations in the
three functional domains of “acquiring and using information,”
“attending and completing tasks,” and “interacting and relating
with others.”20
B.
The Hearing Officer’s Determination that Walsh’s
Testimony Was Not Credible Was Not Supported by
Substantial Evidence
20
The Court notes that the opinions of S.J.W.’s two
treating sources, Dr. Merecki and Ms. Guerin, are somewhat
inconsistent with each other. For instance, Dr. Merecki opined
that S.J.W. had a “marked” limitation in the domain of
interacting and relating with others, Admin. R. 299, whereas Ms.
Guerin’s report suggests that S.J.W. has few, if any,
limitations in this domain, id. at 215-18. Ms. Guerin refers to
S.J.W. as “a silly, friendly, and cooperative little boy,” and
writes that he has “warmed up” to her. Id. at 215. Conversely,
as discussed earlier, Ms. Guerin’s submission evidences
limitations in the domain of “acquiring and using information,”
id. at 216-17, whereas in Dr. Merecki’s first submission, he
indicated that S.J.W.’s cognitive skills were “age appropriate,”
id. at 278. These inconsistencies between the two treating
sources are potentially a reason for according them less weight
than they would otherwise receive. See Michels v. Astrue, 297
F. App’x 74, 75-76 (2d Cir. 2008) (holding that a hearing
officer was free to discount claimant’s treating physicians’
opinions when those opinions were inconsistent with each other).
Remand is still necessary, however, because “it is up to the
agency, and not [a] court, to weigh the conflicting evidence in
the record.” Clark v. Commissioner of Soc. Sec., 143 F.3d 115,
118 (2d Cir. 1998).
46
Walsh contends that the hearing officer’s determination
that her hearing testimony was not credible was not supported by
substantial evidence.
Pl.’s Br. 22-25.
Because the hearing
officer’s rejection of Walsh’s testimony resulted from his
failure to apply the treating source rule, Walsh’s contention is
correct.
On remand, the hearing officer should reevaluate the
credibility of her testimony after applying the treating source
rule to the opinions of Dr. Merecki and Ms. Guerin.
The hearing officer is responsible for determining a
witness’s credibility.
Carroll v. Secretary of Health & Human
Servs., 705 F.2d 638, 642 (2d Cir. 1983) (“It is the function of
the Secretary, not ourselves, to resolve evidentiary conflicts
and to appraise the credibility of witnesses, including the
claimant.”), abrogated on other grounds, Sullivan v.
Finkelstein, 496 U.S. 617, 626 (1990).
When reviewing the
Commissioner’s decision to deny disability benefits, “[a] court
must uphold the [hearing officer’s] decision to discount a
claimant's . . . subjective complaints if the finding is
supported by substantial evidence.”
Frye ex rel. A.O. v.
Commissioner of Soc. Sec., No. 5:10-CV-98 (GTS/ATB), 2010 WL
6426346, at *15 (N.D.N.Y. Nov. 12, 2010) (Baxter, M.J.) (citing
42 U.S.C. § 405(g) and Aponte v. Secretary, Dep’t of Health &
Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)).
A hearing
officer’s determination of a witness’s credibility “must be
47
consistent with the medical and other evidence.”
Williams ex
rel. Williams v. Bowen, 859 F.2d 255, 261 (2d Cir. 1988).
If a
hearing officer rejects the testimony of a witness, he must
explain his reasoning for rejecting the testimony “with
sufficient specificity to permit intelligible plenary review of
the record.”
Id. at 261 (citing Carroll, 705 F.2d at 643).
In
cases like this one, where the claimant is a young child unable
to testify to his own symptoms, the hearing officer “must accept
the” testimony of his parent.
Hamedallah ex rel. E.B. v.
Astrue, 876 F. Supp. 2d 133, 151-52 (N.D.N.Y. 2012) (D’Agostino,
J.).
Walsh’s testimony described S.J.W. as having limitations in
the domains of “acquiring and using information,” “attending and
completing tasks,” and “interacting and relating with others.”
She testified to S.J.W.’s academic difficulties in school, which
she attributed to his hearing loss and speech delays.
73, 78.
Admin. R.
She related how during group activities at school,
S.J.W. “goes off into his own world” and will not stay on the
topic being discussed.
Id. at 79.
Walsh also described
S.J.W.’s difficulty completing work and staying on task without
supervision.
Id. at 78-79.
Although she acknowledged that
S.J.W. had friends, id. at 78-79, she stressed the problems he
faced when interacting with other children, which she claimed
48
stemmed from being unable to understand or communicate with
members of his age group, id. at 79.
In his decision, the hearing officer observed several
inconsistencies between Walsh’s testimony and other evidence in
the record.
Id. at 45.
Although the hearing officer’s
treatment of Walsh’s testimony is not entirely clear, and he
never used the word “credibility” or expressly assigned any
weight to her testimony, id., the Court assumes that by
mentioning parts of the record inconsistent with her testimony
he was making an adverse finding of credibility.
See F.S. v.
Astrue, No. 1:10-CV-444 (MAD), 2012 WL 514944, at *19 (N.D.N.Y.
Feb. 15, 2012) (D’Agostino, J.) (“One strong indication of
credibility of an individual's statements is their consistency,
both internally and with other information in the case
record.”).
The hearing officer mentioned three inconsistencies between
Walsh’s testimony and other evidence.
First, he noted that
Walsh, apparently relating what she had heard from S.J.W.’s
audiologist, testified that S.J.W.’s “hearing isn’t going to get
better [and] we’re just hoping it doesn’t get any worse.”
Admin. R. 45, 81.
He contrasted this with the opinion of Dr.
Cevera, who described S.J.W.’s hearing loss as “moderately
severe” and observed that he “get[s] some improvement with
amplification.”
Id. at 45, 286.
49
The hearing officer also found
her testimony to be inconsistent with Ms. Grasso-Megyeri’s
generally positive assessment of S.J.W.’s abilities.
282-85.
Id. at 45,
Second, the hearing officer explained that Walsh’s
statements about S.J.W. having difficulty interacting with other
children conflicted with his school records and the reports of
his teachers.
Id. at 45.
Third, the hearing officer suggested
that Walsh had embellished the extent of the services S.J.W.
received in school, writing that “[t]he claimant’s mother
alleged that he was classified as special education, but the
record shows that in kindergarten he was in regular classes and
he continues to be in regular classes with assistance in reading
and speech therapy.”
Id.
The hearing officer’s third reason for discounting Walsh’s
testimony, her reference to him being in “special education,” is
simply an inadequate reason for discounting her credibility in
view of the entire record.
It is true that Walsh twice referred
to S.J.W. as being in “special ed.”
Id. at 72, 77.
There is no
indication at all, however, that she was attempting to embellish
the extent of the services S.J.W. received or otherwise mislead
the hearing officer when her testimony is considered in context.
According to the hearing officer, Walsh’s “allegation” that
S.J.W. was “classified” as special education was inconsistent
with the fact that he was in regular classes and received
assistance in reading and speech therapy.
50
Id. at 45.
The first
time Walsh mentioned “special ed.” was in response to the
hearing officer’s question as to what kind of school S.J.W.
attended.
Walsh answered “[r]egular school with a lot of
services; he’s in special ed.”
Id. at 72.
The hearing officer
did not as a follow up question for more clarification.
Id.
The second time Walsh mentioned special education was in
response to her attorney’s question “[d]o you know what
[S.J.W.’s] classification is [at school]?”
Id. at 77.
Walsh
responded that S.J.W. was in “special ed. at the school,” but
then immediately followed that statement with “I’m not sure what
you mean.”
Id.
Neither her attorney nor the hearing officer
explained the meaning of this question to her; instead her
attorney proceeded with questions about the types of therapy
S.J.W. received and whether he had been diagnosed with a
learning disability.
Id. at 77-78.
Shortly before her attorney
asked her about S.J.W.’s “classification,” Walsh had described
S.J.W.’s educational program, explaining how S.J.W. is sometimes
in a regular classroom, but is pulled out to receive lessons in
certain subjects or therapy.
Id. at 75-76.
Walsh had
acknowledged that she was uncertain herself about the services
S.J.W. received, stating, “I don’t understand all of it, it’s
kind of new to me.”
Id. at 76.
The Court observes that Walsh was accurate in her
description of S.J.W.’s educational schedule.
51
S.J.W.’s
Individualized Education Program (“IEP”) for the 2010-2011
school year indicates that S.J.W. is pulled out of his regular
classroom several times a week to receive speech therapy and for
lessons with a teacher for the deaf and hard of hearing.
220-21.
Id. at
S.J.W. also has English and math lessons with
consultant teachers in his regular classroom.
Id. at 221.
This
is consistent with Walsh’s testimony that S.J.W. receives speech
and occupational therapy, is “pulled out the classroom a lot
throughout the day,” and at one time received some type of
special reading services.
Id. at 75-76.
The hearing officer faulted Walsh for referring to S.J.W.
as being “in” special education.
The record, however, contains
numerous school documents which reference S.J.W.’s need for
special education.
On the teacher questionnaire completed by
S.J.W.’s kindergarten teacher, Ms. Scott, she indicated that
S.J.W. received “special ed. services,” id. at 160, although on
another page of the questionnaire, Ms. Scott checked a box which
indicated that he was not receiving special education
instruction, id. at 168.
In a letter dated March 18, 2010, the
Supervisor of Special Education at S.J.W.’s kindergarten wrote
to Walsh and related to her that the Subcommittee on Special
Education had “recommended that [S.J.W.] be classified as a
student with a disability and receive special education
services.”
Id. at 173.
Ms. Kernan’s evaluation of S.J.W. was
52
for the Committee on Special Education’s reevaluation purposes.
Id. at 207.
S.J.W.’s IEP for 2010-2011 describes S.J.W.’s
speech therapy and meetings with the teacher for the deaf and
hard of hearing under a heading entitled “Recommended Special
Education Programs and Services” and refers to S.J.W. being
evaluated by the Subcommittee on Special Education.
21.
Id. at 220-
This document refers to S.J.W.’s time with consultant
teachers as a “special education program[], and his speech
therapy as a “related service.”
Id. at 220.
Notably, the
hearing officer referenced this last document in the same
paragraph he found Walsh to lack credibility because she
referred to S.J.W. as being classified as special education.
Id. at 45.
Based upon this evidence, the Court determines that Walsh
accurately described S.J.W.’s academic program to the hearing
officer.
S.J.W.’s educational records contain references to him
participating in special education programs and being
“classified” as “a student with a disability” who will “receive
special education services.”
Id. at 173, 220-21.
Thus Walsh’s
references to special education in her testimony and her other
descriptions of S.J.W.’s education program do not make her a
less than credible witness.
The hearing officer’s contrary
finding is inexplicable in view of the fact that Walsh
acknowledged that she did not completely understand S.J.W.’s
53
educational program, id. at 76, and that she told her attorney
that she did not understand the question about “classification,”
id. at 77.
It also appears that the supposed inconsistencies of
Walsh’s testimony noted by the hearing officer were, in fact,
largely consistent with the reports from S.J.W.’s treating
sources.
For instance, the hearing officer found an
inconsistency between Walsh’s statement that S.J.W.’s hearing
loss may only worsen and Dr. Cevera’s report that S.J.W.
received “some improvement” from his hearing aids.
286.
The supposed inconsistency is unclear.
Id. at 45,
It is possible for
S.J.W. to receive a benefit from using his hearing aids and for
his hearing to be incapable of further improvement.
Moreover,
the hearing officer also found Walsh’s testimony on the extent
of S.J.W.’s impairment to be inconsistent with Dr. Cevera’s
statement that S.J.W.’s hearing loss was “moderate.”
Id. at 45.
Dr. Cevera’s finding, however, is in conflict with the second
submission from S.J.W.’s pediatrician, Dr. Merecki, who
indicated that his hearing loss was “profound.”
Id. at 299.
The hearing officer apparently also gave less weight to
Walsh’s testimony because it was inconsistent with Ms. GrassoMegyeri’s assessment.
Id. at 45.
As discussed earlier, Ms.
Grasso-Megyeri’s assessment conflicts with the report of Ms.
Guerin, a treating source.
Further, the hearing officer
54
questioned Walsh’s credibility because her testimony regarding
S.J.W.’s social difficulties contrasted with teacher’s reports.
Id. at 45.
In contrast to the reports of S.J.W.’s teachers,
however, Dr. Merecki viewed the claimant as suffering from
“marked” limitations in interacting with others.
Id. at 299.
The hearing officer’s reasons for finding Walsh to be an
non-credible witness are not supported by the record.
Because
of the way the treating source rule was misapplied in this case,
the Court cannot determine whether the hearing officer had “good
reason” for the weight he accorded to the treating sources.
C.F.R. § 416.927(c)(2).
20
Since the hearing officer’s failure to
apply the treating source rule was legal error, his finding that
Walsh lacked credibility -- because her testimony was
inconsistent with parts of the record which were themselves
inconsistent with S.J.W.’s treating sources -- was an extension
of that same legal error.
Cf. Williams, 859 F.2d at 258 (“To
determine on appeal whether [a hearing officer’s] findings are
supported by substantial evidence, a reviewing court considers
the whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence must
also include that which detracts from its weight.”).
The Court
concludes that the hearing officer’s stated reasons for finding
Walsh not credible either rested on legal error or were not
supported by substantial evidence.
55
On remand, after the hearing
officer correctly applies the treating source rule, he must
revaluate the credibility of Walsh’s testimony in light of the
weight he accords to S.J.W.’s treating sources.
C.
The Hearing Officer’s Failure to Consider Whether
S.J.W.’s Impairment Meets or Was Medically Equivalent
to a Listed Impairment Was Legal Error
Walsh contends that the hearing officer committed
reversible error when he failed to find that S.J.W.’s impairment
met or was medically equivalent to a listed impairment.
Br. 12.
Pl.’s
She argues that the evidence in the record establishes
that S.J.W. meets or medically equals the listed impairment for
hearing loss not treated with cochlear implantation, described
at section 102.10(B)(3) of 20 C.F.R. Part 404, Subpart P,
Appendix 1.
See id.
When adjudicating an application for SSI, a hearing officer
must consider whether the claimant’s impairment meets a listed
impairment.
See Hickman ex rel. M.A.H. v. Astrue, 728 F. Supp.
2d 168, 173 (N.D.N.Y. 2010) (Mordue, C.J.).
Moreover, if “the
claimant's symptoms . . . appear to match those described in the
Listings, the ALJ must provide an explanation as to why the
claimant failed to meet or equal the Listings.”
Id.
Remand may
be necessary when a hearing officer’s decision contains no
discussion about whether a claimant’s impairment meets the
specifications of a similar listed impairment.
See Aponte, 728
F.2d at 592-93; Hickman, 728 F. Supp. 2d at 175.
56
The Court agrees with Walsh that the hearing officer’s lack
of analysis of a relevant listed impairment was legal error.
On
remand, the hearing officer must reconsider whether S.J.W.’s
symptoms are medically equivalent to Listing 102.10(B)(3).
Listing 102.10(B) defines when a child between five and eighteen
years of age will be found to be disabled because of hearing
loss which is not treated with a cochlear implant.
It explains
that a child is disabled when he has, “[a]n average air
conduction hearing threshold of 50 decibels or greater in the
better ear and a marked limitation in speech or language.”
C.F.R. pt. 404, subpt. P, app. 1, § 102.10(B).
20
For a child five
years of age or older, the Commissioner determines the
claimant’s average air conduction hearing threshold by averaging
his hearing thresholds at 500, 1000, 2000, and 4000 Hz.
102.00(B)(2)(f).
Id. §
The regulations describe a child as having a
“marked limitation” in speech if:
(i) Entire phrases or sentences in [his] conversation
are intelligible to unfamiliar listeners at least 50
percent (half) of the time but no more than 67 percent
(two-thirds) of the time on [his] first attempt; and
(ii) [His] sound production or phonological patterns
(the ways in which [he] combine[s] speech sounds) are
atypical for [his] age.
Id. § 102.00(B)(5)(a).
Likewise, a child will be considered to
have a “marked limitation” in language if his “current and valid
test score on an appropriate comprehensive, standardized test of
57
overall language functioning is at least two standard deviations
below the mean” and the evidence in the record indicates that
his daily communication functioning is consistent with his test
score.
Id. § 102.00(B)(5)(b).
The record contains two audiograms of S.J.W.’s hearing.
The first was created by Lauren Marino, M.A., CCC-A (“Ms.
Marino”), on February 23, 2010, for review by Dr. Cevera in his
examination.
Admin. R. 286-88.
The second was created by
Id. at
S.J.W.’s audiologist, Dr. Winderl, on November 23, 2010.
362.
Both audiograms suggest that S.J.W.’s average air
conduction hearing threshold is sufficiently close to the 50decibel cut-off necessary to satisfy section 102.10(B).
288, 362.
Id. at
On the first audiogram, S.J.W.’s hearing in his right
ear tested slightly better than his hearing in his left ear, id.
at 288, and in the second audiogram, his hearing in his left ear
appears to be slightly stronger than in his right ear, id. at
362.
Both audiograms, however, indicate very similar results.
In the first audiogram, created by Ms. Marino, in which
S.J.W.’s hearing was stronger in his right ear, S.J.W.’s air
conduction hearing threshold for this ear was somewhat less than
50 decibels at 500 Hz, perhaps approximately 45 decibels.
at 288.
Id.
At 1000, 2000, and 4000 Hz, his hearing threshold was
exactly 50 decibels.
Id.
Therefore, the average of S.J.W.’s
hearing thresholds at 500, 1000, 2000, and 4000 Hz must have
58
been close to, but less than, the 50 decibel cut-off for Listing
102.10(B)(3) on the date of this test.
See id.
On the second audiogram, created by Dr. Winderl, in which
S.J.W.’s hearing was stronger in his left ear, the claimant’s
air conduction hearing threshold was 40 decibels at 500 Hz, 50
decibels at 1000 and 2000 Hz, and somewhat less than 50 decibels
at 4000 Hz, perhaps about 45 decibels.
Id. at 362.
Like on the
first audiogram, the second audiogram indicates that S.J.W.’s
average air conduction hearing threshold in his better ear, his
left, approaches, but is less than, the 50-decibel cut-off.
See
id.
Although S.J.W.’s average air conduction hearing threshold
approaches the section 102.10(B) cut-off, the hearing officer
dismissed the possibility that S.J.W.’s hearing loss might meet
or medically equal the listing in a single, conclusory sentence
in his decision.
Id. at 43.
analysis was legal error.
The hearing officer’s lack of
See Aponte, 728 F.2d at 592-93;
Hickman, 728 F. Supp. 2d at 175 (“The [hearing officer] should
have provided some explanation as to why claimant's impairments
do not meet the criteria of the specified listings . . . .
The
[hearing officer]'s failure to explain her conclusion is plain
error.”).
The Court observes, however, that the evidence in the
record does not support Walsh’s claim that S.J.W.’s impairment
59
meets Listing 102.10(B)(3).
For a child’s audiogram to
establish hearing loss which meets section 102.10(B), the
child’s hearing must be measured without hearing aids.
C.F.R. pt. 404, subpt. P, app. 1, § 102.00(B)(2)(b).
20
In her
brief, Walsh states that S.J.W. was wearing hearing aids when
the audiograms in the record were created.
Pl.’s Br. 14.
Therefore, she argues that his average unaided hearing threshold
must be greater than the results reported on the audiograms,
exceeding the 50-decibel threshold under section 102.10(B).
Walsh’s contention is incorrect.
Id.
The audiograms in the record
are of tests of S.J.W.’s hearing when he was not wearing his
hearing aids.
When Ms. Marino tested S.J.W.’s hearing to create
the first audiogram, she also recorded S.J.W.’s aided hearing on
the same graph.
Admin. R. 288.
As would be expected, the graph
shows the hearing threshold for S.J.W.’s aided air conduction to
be lower at all frequencies than his unaided hearing threshold.
Id.
Ms. Winderl did not expressly state that she had evaluated
S.J.W.’s hearing without hearing aids.
Id. at 362.
The
audiogram she produced, however, was very similar to the first
audiogram.
See id. at 288, 362.
In view of the large degree of
similarity between the two audiograms, it is apparent that Ms.
Winderl also conducted her test when S.J.W. was not wearing his
hearing aids.
As the audiograms measure S.J.W.’s hearing
unaided, they demonstrate that S.J.W.’s average air conduction
60
hearing threshold is less than 50 decibels.
Walsh, in fact,
admits that the audiograms indicate that the claimant’s hearing
threshold is “approximately 48 to 49 decibels.”
Pl.’s Br. 14.
Therefore, S.J.W.’s hearing loss is close to, but falls short
of, the requirements of Listing 102.10(B)(3).
See Sullivan v.
Zebley, 493 U.S. 521, 530 (1990) (“For a claimant to show that
his impairment matches a listing, it must meet all of the
specified medical criteria.
An impairment that manifests only
some of those criteria, no matter how severely, does not
qualify.”) (emphasis omitted), superseded by statute on other
grounds, 42 U.S.C. § 1382c(a)(3)(C); Johnson, 817 F.2d at 986
(“[W]here application of the correct legal principles to the
record could lead to only one conclusion, there is no need to
require agency reconsideration.”).
The Commissioner invokes the authority of Berry v.
Schweiker, 675 F.2d 464 (2d Cir. 1982).
See Comm’r Br. 9.
In
Berry, the Second Circuit upheld a hearing officer’s
determination that the claimant’s impairment did not meet or
medically equal a listed complaint, despite the hearing
officer’s failure to provide any analysis to support his
findings, because the court was “able to look to other portions
of the [hearing officer’s] decision and to clearly credible
evidence in finding that his determination was supported by
substantial evidence.”
675 F.2d at 468-69.
61
This holding allows
a reviewing court to uphold a hearing officer’s rejection of
listed impairments if the court is convinced that the hearing
officer’s conclusion was supported by substantial evidence.
See Lusher ex rel. Justice v. Commissioner of Soc. Sec., No.
7:05-CV-1110, 2008 WL 2242652, at *6 (N.D.N.Y. May, 29, 2008)
(Hurd, J.) (holding that even though the hearing officer failed
to provide more than a cursory explanation of the listed
impairments, “[t]his failure, while unfortunate, does not
preclude the court from upholding the ALJ's decision provided it
is convinced that the ultimate conclusion is supported by
substantial evidence in the record.”); Brown ex rel. S.W. v.
Astrue, No. 1:05-CV-0985 (NAM/RTF), 2008 WL 3200246, at *12
(N.D.N.Y. Aug. 5, 2008) (Mordue, C.J.) (“Although it is
preferable that the [hearing officer] address a specific
Listing, failure to do so is not reversible error if the record
supports the overall conclusion.”).
Here, the Commissioner makes a strong argument that S.J.W.
cannot meet any of the requirements of section 102.10(B).
Comm’r Br. 8-9.
See
The hearing officer’s total lack of analysis is
problematic here, however, in light of the fact that there is
evidence in the record suggesting that S.J.W. may meet the
second prong of the listing.
The second prong of section
102.10(B) is met when a child claimant has “a marked limitation
in speech or language.”
20 C.F.R. pt. 404, subpt. P, app. 1, §
62
102.10(B)(3).
A child will be found to have a “marked”
limitation in language when he has a “current and valid test
score on an appropriate comprehensive, standardized test of
overall language functioning at least two standard deviations
below the mean” and his “daily communication functioning [is]
consistent with [the] test score.”
Id. § 102.00(B)(5)(b).
When
Ms. Guerin administered the CELF-4 to S.J.W. on October 7, 2010,
he scored in the second percentile on three of the five CELF-4
subtests.21
Admin. R. 216-17.
As remand is necessary in this case for other reasons, on
remand the hearing officer should also reevaluate whether
S.J.W.’s impairment medically equals Listing 102.10(B)(3).
Cf.
Turner v. Barnhart, No. 05-3509, 2006 WL 2460876, at *3 (E.D.
Pa. Aug. 21, 2006).
V.
CONCLUSION
Walsh contends that the hearing officer’s findings that
S.J.W. had a less than marked limitation in the functional
domains of “acquiring and using information,” “attending and
completing tasks,” and “interacting and relating with others,”
were not supported by substantial evidence.
Pl.’s Br. 22-24.
As this matter is remanded for proper application of the
21
The CELF-4 is described in the record as a test of “a
student’s general language ability.” Admin. R. 216. S.J.W. did
better on two of the CELF-4 subtests, scoring well above average
on one subtest. Id. at 217. The record does not indicate his
overall score on the CELF-4.
63
treating source rule, for reevaluation of Ms. Walsh’s testimony
in light of that rule, and to determine if S.J.W.’s impairment
medically equals section 102.10(B)(3), the Court will not
preemptively analyze the substantiality of the evidence the
hearing officer relied upon in his decision.
The Court notes in passing, however, that while the hearing
officer’s decision is lengthy and cites many pieces of the
record, it contains minimal analysis.
After an outline of
relevant law, most of the decision consists of a recitation of
evidence in the record, both supporting and contrary to the
hearing officer’s findings, with no explanation of the weight he
gave to particular pieces of evidence.
This style of decision-
writing makes it difficult for a court to determine whether
substantial evidence supports a hearing officer’s conclusions.
See, e.g., Rivera v. Astrue, No. 10 CV 4324(RJD), 2012 WL
3614323, at *12 (E.D.N.Y. Aug. 21, 2012).
On remand, the hearing officer must consider the opinions
of Dr. Merecki and Ms. Guerin in light of the treating source
rule.
The hearing officer must also reevaluate the credibility
of Ms. Walsh and reevaluate whether S.J.W.’s impairment
medically equals section 102.10(B)(3).
The hearing officer may,
if he chooses to, examine Ms. Guerin’s credentials to determine
whether she qualifies as a treating source.
64
For the foregoing reasons, it is hereby ordered that the
Commissioner’s determination is REVERSED and REMANDED for
further administrative proceedings consistent with this
opinion.22
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
22
Compare this case with Veiga v. Colvin, Civil Action No.
13-10013-WGY (D. Mass. Mar. 25, 2014), issued this same day by
this judge, but sitting in the District of Massachusetts within
the First Circuit. Both this decision and that are “right” in
light of the controlling precedent in the respective courts of
appeal. Yet any fair-minded observer would conclude that review
is far more lenient to the Social Security Administration in the
First Circuit and far more rigorous in the Second. Such
disparate intercircuit jurisprudence is something of a reproach
to courts charged with interpreting a national statute of such
broad administrative and judicial importance.
65
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