activities, vocational settings, peer relationships, or family life... ." 20 C.F.R. § 416.924(a)(2); see also 20 C.F.R. § 416.924b(b)(3).
The Commissioner must follow a four-step evaluation process to determine whether a child has an impairment of "comparable severity" such that he or she is entitled to SSI disability benefits. See 20 C.F.R. § 416.924(b). First, it must be determined whether the child is engaging in "substantial gainful activity." Id. at subpart (c). If so, there can be no finding of disability. If not, then it must be determined whether or not the child has a severe impairment, or combination of impairments. Id. at subpart (d). If not, there is no disability. If so, however, then it must be determined whether or not the impairment(s) meets or equals certain impairments set forth in the Listing of Impairments, 20 C.F.R. § 404, subpart P, Appendix 1. Id. at subpart (e). If so, then the child is disabled. If not, then the evaluation proceeds to its fourth and final step -- an "individualized functional assessment" ("IFA"). Id. at subpart (f).
The IFA, through separate analysis of six distinct categories of child development, measures "the impact of [the child's] impairment(s) on [his] overall ability to function independently, appropriately, and effectively in an age-appropriate manner." Id. The results of this analysis will determine whether the child has an impairment of comparable severity to an impairment that would disable an adult. Id.
In this case, the ALJ determined that Joshua was not engaged in substantial activity. Although not explicitly stated, the ALJ apparently determined that Joshua was "severely impaired" because he proceeded directly to an assessment of whether Joshua's impairment met or equaled the impairments listed at Appendix 1 of 20 CFR § 404, subpart P. The ALJ determined that it did not. Thus, he proceeded to perform the fourth step of the process: the IFA. Through his IFA analysis, the ALJ determined that Joshua did not suffer an impairment of comparable severity to that of a disabled adult, and he denied plaintiff's application.
C. The Parties' Arguments and My Findings
The Commissioner asserts that the ALJ's findings are supported by substantial evidence and must be upheld. Plaintiff does not dispute the ALJ's determination but asserts that new and material evidence now exists to support plaintiff's application and that this matter should be remanded for further consideration.
I find that new and material evidence exists that should be considered by the ALJ. Additionally, although plaintiff only seeks a remand because of the new evidence, I find sua sponte that the ALJ failed to provide any explanation whatsoever for his rejection of considerable relevant evidence that appears to support a finding of an impairment justifying the payment of benefits. Accordingly, I reverse the Commissioner's determination and remand this matter for further proceedings consistent with this decision.
D. New and Material Evidence
Plaintiff asserts that new, material evidence exists which should be considered by the ALJ. Specifically, plaintiff presents two reports prepared by psychiatrists at the Elmira Psychiatric Center on September 6, 1994 and on September 14, 1994. Joshua was admitted to the Elmira Psychiatric Center on September 2, 1994, following a series of fire-starting incidents and oppositional behavior at home. He remained there until January 1995.
The first report is the "Screening/Admission Note and Psychiatric Evaluation" done soon after Joshua's admission to the facility. That report contains a history of Joshua's present illness, which notes a pattern of firesetting behaviors throughout the prior year. The report notes that Joshua sets fires when he is angry at people. It also notes a history of violent behavior toward animals, "i.e., " has killed a cat by strangulation with string" and violent behavior toward family members. It is noted that Joshua threatens suicide when his demands are not met. The report concludes with a finding of "extensive firesetting behavior; history of violent behavior towards family and animals; attention-deficit disorder with hyperactivity." Ex. A to Plaintiff's Memorandum of Law.
The second report, a Psychological Evaluation performed several days later, contains similar information about Joshua's behavior throughout the preceding year and beyond. This report finds a "long history of attention deficit... history of dangerous fire setting behavior as well as ... oppositional tendencies...." Ex. B to Plaintiff's Memorandum of Law.
The Social Security Act provides that a court may remand a case to the Commissioner to consider additional evidence, "only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). The Second Circuit has further refined this standard with the following guidelines. The applicant must show that the proffered evidence is: (1) "new" and not merely cumulative of what is already in the record; (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative; and (3) he must demonstrate good cause for the failure to present the evidence earlier. See Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (citations omitted).
I find that the proffered additional evidence meets all these criteria. The two psychiatric reports provide evidence of additional maladaptive behaviors that were not reported earlier; many of the reported behaviors had occurred throughout the prior year or so; and there was good cause for not presenting the evidence earlier -- the reports were not created until September 6th and 14th, respectively, within days of (and, in the case of the latter report, the same day as) the Appeals Council's final denial. Accordingly, I find that good cause has been shown why these reports were not submitted earlier. The ALJ is directed to consider these additional reports when re-evaluating Joshua's claim on remand.
E. The ALJ's Determination is Not Adequately Explained
I remand this matter for an additional reason. My independent review of the record suggests to me that the ALJ failed to adequately apply the facts in the record to the regulations concerning childhood disabilities. Specifically, the ALJ failed to adequately explain the basis for his determination that Joshua's impairment does not meet or equal the impairments listed in App. 1 of 20 C.F.R. § 404, subpart P. Because I find substantial evidence in the record suggesting that Joshua's impairments do meet or equal at least one of listed impairments, and because the ALJ has ignored this evidence without explanation, his determination cannot stand. The matter must be remanded for this reason as well.
A court "cannot. . . conduct a review that is both limited and meaningful if the ALJ does not state with sufficient clarity the legal rules being applied and the weight accorded the evidence considered." Ryan v. Heckler, 762 F.2d 939, 941 (11th Cir. 1985). It is clear that a determination by the ALJ must contain "a sufficient explanation of his reasoning to permit the reviewing court to judge the adequacy of his conclusions." Rivera v. Sullivan, 771 F. Supp. 1339, 1354 (S.D.N.Y. 1991). "Although the ALJ is not required to 'reconcile explicitly every conflicting shred of medical testimony' ... he cannot 'pick and choose' evidence in the record that supports his conclusions." Id. (citations omitted).
With respect to Joshua's impairment, the ALJ found as follows:
Part B of the Listing of Impairments contained in Appendix 1, Subpart P, Regulations No. 4 addresses the evaluation of impairments for children ... The findings in this case fail to meet or equal in severity the requirements of the Listings.
This is all the ALJ stated with regard to the failure to meet or equal the Listing requirements. There is no discussion as to why he made this determination, what evidence he relied upon, and what evidence he rejected in making such a finding. This one-sentence denial is insufficient to support the determination, especially in light of the considerable evidence to the contrary. "An ALJ's failure to acknowledge relevant evidence or explain its implicit rejection is plain error." Id. at 1354 (citations omitted).
i. Attention Deficit Hyperactivity Disorder
Although the ALJ failed to set forth the basis for his decision, the Commissioner, in her brief, now attempts to justify the result. The Commissioner asserts that Joshua's impairment does not meet or equal the criteria for Attention Deficit Hyperactivity Disorder set forth in § 112.11 of Part B of the Listing of Impairments (20 C.F.R. § 404, Subpart P, App. 1). The criteria for Attention Deficit Hyperactivity Disorder ("ADHD") are as follows:
Manifested by developmentally inappropriate degrees of inattention, impulsiveness, and hyperactivity.