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January 8, 2003


The opinion of the court was delivered by: Harold Baer, Jr., United States District Judge


Sandra Adams ("plaintiff"), suing on behalf of her daughter, Josephine Williams ("Josephine"), moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). The Commissioner of Social Security ("Commissioner" or "defendant") cross-moves pursuant to sentence four of 42 U.S.C. § 405(g)*fn1 for an order remanding the case for further administrative proceedings on the ground that the decision of the Administrative Law Judge ("ALJ") denying plaintiffs Social Security application ("application") for Supplemental Security Income ("SSI") benefits for Josephine failed to take into account key documents that were part of the record and that should have been an integral part of his decision. In addition, plaintiff also requests that the Court consider the ALJ's reference to two prior applications that were denied as constructively reopening those applications. For the reasons set forth below, plaintiffs motion for judgment on the pleadings with respect to her application dated July 2, 2000 is granted and her request that the Court find that the ALJ constructively reopened her two prior applications is denied. Defendant's cross-motion for remand pursuant to sentence four of 42 U.S.C. § 405(g) is denied. The Commissioner's denial of benefits is reversed and the case is remanded to the Commissioner solely for the calculation of benefits running from the date of plaintiffs most recent application, July 2, 2000.


A. Procedural Background

Josephine, born on October 29, 1989, suffers from speech and language disorders, and has exhibited certain physical and sexual behaviors that plaintiff maintains are grossly inappropriate. For this reason, plaintiff applied for SSI disability benefits in August 1996 and March 1999; the Commissioner denied each application. On July 2, 2000, plaintiff filed a third application for SSI benefits on the ground that Josephine had been disabled since August 13, 1996. (Tr. 49-52). Specifically, plaintiff claimed that her daughter had a learning disability that manifested itself in an inability to express herself and to pay attention, as well as a behavioral disability that manifested itself in inappropriate sexual behavior, fighting, biting herself, and tantrums. (Tr. 91).

Plaintiffs application was denied initially on July 28, 2000. However, she appealed and a hearing was scheduled for April 17, 2001. By decision dated April 27, 2001, the ALJ denied Josephine's claim for benefits on the ground that she did not exhibit a disability as that term has been defined, pursuant to 20 C.F.R. § 416.926a et seq., to apply to a child under age 18. (Tr. 7-14). While noting that there had been a March 1999 application, the ALJ failed to state whether he would reopen that application. (Tr. 7-10). In denying Josephine's July 2000 application, the ALJ relied on the following documents: a 1996 psychological report by Dr. Yang Ja Kim; a 1996 educational report by Shelia Zukowsky; a September 1999 psychological report by Kim Rodman, M.A.; the November 2000 consultative speech and language test administered by Lynn Sider; and records from North General Hospital. (Tr. 12-13). Although the ALJ had received relevant records from the Northside Center for Child Development ("Northside Center"), he made no such mention of these records in his decision. Plaintiffs appeal to the Commissioner's Appeals Council (Tr. 5) was denied by notice dated August 31, 2001, (Tr. 3-4), thereby rendering the ALJ's decision the final decision of the Commissioner.*fn2

B. Factual Background

Plaintiff attended the April 17, 2001 hearing pro se. and testified that Josephine was in special education classes, that she was not doing well in school because of behavioral and learning disabilities, and that she received counseling at the Northside Center as well as in school. Prior to the hearing, Josephine's psychiatrist from the Northside Center sent thirteen pages of records with respect to Josephine's care, which revealed that Josephine was not only on Ritalin but was also taking Risperdal, 0.5 mg twice a day, since January 2001. (Tr. 327-32). At that time, Josephine's Global Assessment Functioning ("GAF") was 35. Plaintiff explains that the GAF is used to approximate a patient's overall level of functioning, and that a GAF of 55 reflects "`moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with peers and co-workers).'" (Pl.'s memorandum of law at 8 n. 3 (quoting Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, at 30-33, "DSM-IV")). However, the DSM — IV explains that a child with an even lower GAF of 35 is experiencing "a major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school." DSM — IV at 32. Further, plaintiff testified at the hearing that neither the Ritalin nor the Risperdal were effective treatments of Josephine's disorders. (Tr. 19). In addition, plaintiff also informed the ALJ that Josephine was "too aggressive sexually" and that she even once offered to have sex with her stepfather in exchange for cookies and candy. (Tr. 20). Dr. Brust, a medical expert, testified at the hearing that Josephine exhibited a "language delay severe enough to earn Josephine a `marked' limitation in acquiring and using information." (Tr. 22-23). However, Brust also downplayed the alleged severity of Josephine's attention deficit disorder, stating that it "really isn't severe" and that Josephine was able to "concentrate on a one to one basis, when she isn't distracted." (Tr. 22). Plaintiff points out, and defendant agrees, that Brust discussed neither plaintiffs complaints with respect to the inefficacy of Josephine's medications nor the GAF score of 35 as determined in January 2001. Further, the parties also both point out that neither the ALJ nor Brust explained the basis for their conclusion that Josephine's speech and language deficit constituted a "marked" rather than an "extreme" impairment as those terms have been defined by the Commissioner. Finally, the parties both advert to the fact that the ALJ neglected to take account of the Northside Center records that were received into evidence. The Commissioner maintains that it is impossible to determine from the record alone whether the ALJ was even aware that the Northside Center records existed, and that for this reason the case should be remanded in light of this important evidence that was apparently overlooked. (Def.'s memorandum at 8).

The following evidence was also before the ALJ at the April 2001 hearing.

• A record collected by the SSA in 1996 from the Renaissance Health Care Network that reveals that Josephine began psychotherapy in August 1996, when she was six years old. (Tr. 164);
• A June 1996 psychological evaluation that revealed a verbal IQ of 80. (Tr. 167);
• A July 1996 individualized education plan that was organized for Josephine after her school at that time acknowledged that she exhibited a learning disability in reading and in math. (Tr. 172);
• June — July 1996 school records that the SSA requested in March 1999, which records reveal that Josephine was absent for 28% of her kindergarten year (1994-95) and for 32% of her first grade because of family emergencies. These records also reveal that at that time Josephine was within age-appropriate functioning in all areas and that she was 5-6 months behind her chronological age. The school's evaluator, Shelia Zukowsky, concluded by noting that Josephine exhibited about a 1-year delay in academic ability. (Tr. 189; 192-93; 198);
• A November 19, 1998 psychosocial evaluation administered by psychiatrists Drs. Canizares ("Canizares") and Saringer ("Saringer"), who noted that Josephine's intelligence was estimated to be in the low average range and that Josephine was easily irritable, impulsive, and angry. They diagnosed her with Attention Deficit Hyperactive Disorder ("ADHD"), and noted that her Axis V Global Scale of Functioning — her "GAF" — at that time was 52, which indicates "moderate" symptoms according to the American Psychiatric Association's Diagnostic and Statistical Manual. (Tr. 211-17). As plaintiff points out in her memorandum of law, a GAF of 55 reflects moderate difficulty in social, occupational, or school functioning. (Pl.'s memorandum of law at 8);
• An April 1999 psychiatric report that was completed by Saringer on the request of the SSA. Saringer noted that Josephine's cognitive skills were not age appropriate, and that Josephine was left back in the first grade because of slow learning. (Tr. 133). Saringer also reported that Josephine's social abilities were age appropriate. (Tr. 134);
• An April 28, 1999 statement by Josephine's treating physician that her communication skills were at an age-appropriate level. (Tr. 137);
• An April 1999 statement by a school counselor that Josephine's speech and language were good except when she was upset. (Tr. 143);
• A May 1999 statement by her teacher that her speech and language were good. (Tr. 149);
• A May 1999 statement by an evaluator that Josephine's overall reading was within the average range. (Tr. 249-50);
• A September 14, 1999 psychological evaluation indicating that Josephine scored a verbal IQ of 83 and a non-verbal IQ of 98 on the Weschler Intelligence Scale for Children — III ("WISC — III"). (Tr. 244). On the Bender-Gestalt test, Josephine performed at an age appropriate level. (Tr. 244-45);
• March 2000 statewide English language arts performance results, which indicated that Josephine demonstrated "minimal understanding of written and oral text." (Tr. 238);
• A May 2000 individualized education plan that indicated that Josephine, then in the third grade, "gets along with peers and adults," that her "behavior does not seriously interfere with instruction," and that she reportedly had made progress in interpersonal relationships and had made progress in dealing with anger — resulting in "much less defiance and acting out." (Tr. 261-62). In addition, Josephine's teacher estimated that as of January 2000, the appropriate instructional level for Josephine was the 2.5 grade level in reading, writing, and arithmetic. (Tr. 260);
• A June 2000 report card in which Josephine's third grade teacher reported that she needed improvement in reading, oral language, and written language, and that Josephine needed improvement in getting along with others. (Tr. 237);
• A July 13, 2000 letter from Josephine's principal, Corine Pettey ("Pettey"), which states that "[t]hroughout her school career [Josephine] has had considerable learning and behavior problems," that "[t]his year she scored Level I (the lowest score) on the citywide reading test," and that "[d]ue to Josephine's lack of progress and continued emotional problems, she is currently being reevaluated, at this time, for a more restrictive classroom environment." (Tr. 219, 336);
• A July 2000 statement by plaintiff— Josephine's mother — denying that she had noticed that Josephine had any speech problems. (Tr. 151);
• An October 24, 2000 individualized education plan reporting that Josephine remained below average in reading with deficits in comprehension, writing abilities "far below average," and "severe" deficits in writing mechanics. (Tr. 295, 296);
• A November 22, 2000 speech and language examination that was administered by Lynn A. Sider ("Sider"), a state licensed speech and language pathologist, on request of the SSA; Josephine was 11 years old at the time. Two standardized tests were conducted, the Clinical Evaluation of Language Fundamentals ("CELF") and the Goldman-Fristoe Test of articulation. (Tr. 308). Josephine's receptive language score was between one and two standard deviations from the mean and her expressive language score was 50, between three and four standard deviations below the mean, (Tr. 310-11) — in other words, an "extreme" limitation under the Commissioner's regulations. Josephine's total language score was 60, reflecting a percentile rank of 1%, which Sider characterized as a "severe deficit." (Tr. 312-13). Although Sider recommended additional speech therapy to "increase lexicon and ability to effectively communicate basic wants and needs," (Tr. 312-13), she also reported that Josephine demonstrated a "functional ability to communicate her basic wants and desires." (Tr. 312);
• A January 19, 2001 report from the Northside Center indicating that Josephine was taking Ritalin 10 mg twice a day coupled with Risperdal .5 mg once a day, (Tr. 322), and that her GAF at that time was 35. Her psychiatrists also verified that as of January 2001, Josephine remained aggressive with her peers and still exhibited inappropriate sexual activity, e.g., touching her brother's genitals. (Tr. 331);
• The April 2001 testimony from Dr. Brust, who neglected to include in her. notes or in her testimony that Josephine's score of 50 on the expressive language test represented functioning between three and four standard deviations below the mean — an "extreme" limitation. Brust also testified that Josephine's attention deficit problems were not severe or extreme based on her ability to concentrate on a one-to-one basis. (Tr. 22). As plaintiff points out, the Commissioner's regulations explicitly state that "[SSA] will not draw references about your functioning in other situations based only on how you function in a one-to-one, new, or unusual situation." 20 C.F.R. § 416.924a(b)(6) (effective Jan. 1, 2001).
Relying on Brust's assessment, the ALJ found that Josephine had a "marked" impairment in one area — acquiring and using information — and either no limitation or a less-than-marked limitation in all other areas. (Tr. 13). Both parties agree that neither the ALJ nor Brust explained the basis for their conclusion that Josephine's speech and language deficit constituted a marked rather than an extreme impairment; nor did they refer to the records of her evaluation and treatment at the Northside Center. The Commissioner admits that the ALJ's errors could very well have impacted his decision on Josephine's claim, and that for this reason a remand of the case is necessary in order to correct the errors. The Commissioner suggests that, on remand, the ALJ will be directed to advise plaintiff of her right to be represented by counsel and will give her an opportunity for a supplemental hearing on Josephine's claim. In addition, he will also be directed to obtain updated records from Josephine's school including any further psychological testing or speech and language evaluations. (Def.'s memorandum at 8-9).

Although the parties agree that the Commissioner's decision cannot stand, they disagree as to whether this Court should reverse the decision outright and authorize the payment of benefits to plaintiff, or remand the case to the Social Security Administration for further proceedings. Plaintiff moves for a judgment on the pleadings and defendant cross-moves for remand pursuant to sentence four of 42 U.S.C. § 405(g). In addition, plaintiff requests that, regardless of whether the Court enters judgment for plaintiff or remands the case for further proceedings, the Court find that the ALJ constructively reopened two prior applications that plaintiff made in August 1996 and March 1999, and that were subsequently denied. Plaintiff contends that by referring to evidence in his decision from as far back as 1996, the ALJ constructively reopened those applications. Specifically, plaintiff claims that the ALJ included within his review school records from 1996, 1998, 1999, and 2000, and that he relied on psychological evidence from 1996 and 1998 — in other words, information that was before the SSA on plaintiffs earlier applications. As discussed in greater detail infra, the ALJ's sporadic reference to evidence that was before the Commissioner on plaintiffs August 1996 and March 1999 applications is insufficient as a matter of law to constitute a constructive reopening of those applications. However, that said, and for reasons detailed infra, plaintiffs motion for judgment on the pleadings is granted and defendant's cross-motion denied, and the matter is remanded solely for the calculation of benefits starting from the date of plaintiffs most recent application, July 2, 2000.


A. Standard of Review

A district court may reverse the Commissioner's denial of supplemental benefits only if the determination "`is based upon legal error or is not supported by substantial evidence.'" Luna v. Apfel, 2000 WL 964937, at *3 (S.D.N.Y. July 12, 2000) (quoting Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)). Substantial evidence has been defined as "more than a mere scintilla," that is, "such evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotations and citations omitted); see also Morales v. Barnhardt [sic], 2002 WL 31729526 (S.D.N.Y. Dec. 5, 2002). In light of this standard, a district court may ...

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