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ADAMS v. BARNHART

United States District Court, Southern District of New York


January 8, 2003

SANDRA ADAMS OF O/B/O JOSEPHINE WILLIAMS, PLAINTIFF
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

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

OPINION & ORDER

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.

I. BACKGROUND

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.

II. ANALYSIS

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 review the record only if "a remand for further evidentiary hearings would serve no purpose." Id. (quotation and citation omitted). Indeed, it is well-settled that

it is not the function of a reviewing court to determine de novo whether the claimant is disabled. Assuming the Secretary [Commissioner] has applied proper legal principles judicial review is limited to an assessment of whether the findings of fact are supported by substantial evidence; if they are supported by such evidence, they are conclusive.
Lepak v. Barnhart, 206 F. Supp.2d 389, 392 (W.D.N.Y. 2002) (quoting Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980)). While remand is appropriate if there are gaps in the administrative record or if the Commissioner has applied the wrong legal standard see See Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982), the court may reverse and remand solely for calculation and payment of benefits if the record provides persuasive proof of a disability and remand would provide no useful evidentiary purpose. See Parker, 626 F.2d at 235 (stating that "we have reversed and ordered that benefits be paid when the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose"); Smith v. Apfel, 69 F. Supp.2d 370, 373 (N.D.N.Y. 1999) (same).

An application for Social Security benefits may be remanded pursuant to either sentence four or sentence six of 42 U.S.C. § 405(g). See Melkoyan v. Sullivan, 501 U.S. 89, 99-100 (1991). Sentence four permits "remand in conjunction with a judgment affirming, modifying, or reversing the Commissioner's decision," whereas sentence six permits the district court to "remand in light of additional evidence without making any substantive ruling as to the correctness of the Secretary's decision, but only if the claimant shows good cause for failing to present the evidence earlier." Melkonyan, 501 U.S. at 101. "Good cause" may be satisfied if the Commissioner proffers new and material evidence that was not before the ALJ during the initial proceedings. See Zorilla v. Chater, 915 F. Supp. 662, 670 (S.D.N.Y. 1996). However, the decision of the ALJ may also be reversed and the case remanded to the Commissioner solely for the purpose of calculating benefits if the Commissioner fails to demonstrate good cause for a remand. See. e.g., Draegert v. Barnhart, 2002 WL 31520637 (2d Cir. Nov. 14, 2002) (reversing district court's dismissal of plaintiffs claim for social security disability benefits and remanding the matter to the Commissioner for the calculation of benefits); Zorilla, 915 F. Supp. at 671 (same); Gray v. Chater, 903 F. Supp. 293, 303 (N.D.N.Y. 1995) (reversing ALJ's decision and remanding solely for the calculation of benefits on the ground that the Commissioner "has not sought a remand for the submission of new and material evidence or attempted to show good cause why that evidence was not proffered before the initial determination").

Here, I do not find that the ALJ's final determination denying benefits is based on substantial evidence. Further, because I do not find that remand would serve and useful evidentiary purpose, and because the Commissioner has failed to demonstrate good cause for a remand, I reverse and remand solely for the calculation of benefits from July 2, 2000.

B. The Commissioner's Standards for Determining the Existence of a Disability

The Commissioner considers a child under age 18 disabled if she has "a medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 416.906. The Commissioner has promulgated regulations setting forth a three-step analysis for determining childhood disability based upon all the relevant evidence in the record. First, the evidence must establish that the child is not engaged in substantial gainful activity. See 20 C.F.R. § 416.924(b). Second, the child must suffer from one or more severe impairments. See 20 C.F.R. § 416.924(c). A severe impairment is one that is more than just a slight abnormality. See id. Third, the impairment must be medically equal or functionally equal in severity to an impairment listed in the regulations at Appendix 1. See 20 C.F.R. § 416.925.

If an individual has a severe impairment or combination of impairments that do not meet any medical listing, then the Commissioner will decide whether that impairment results in limitations that "functionally equal" the listings. To support a finding of functional equivalence, the Commissioner uses four methods, and the ALJ must consider all four methods before determining whether a child's impairment is functionally equivalent to a disability in the Appendix. See Morales, 2002 WL 31729526, at *7. Specifically, the evidence must demonstrate that the child's impairment either (i) results in an extreme limitation of one specific function, such as walking or talking; (ii) produces extreme limitations in one area or marked limitations in two or more broad areas of development or functioning; (iii) exhibits episodic criteria, such as frequent illnesses or attacks; or else (iv) requires treatment that itself causes marked and severe functional limitations. 20 C.F.R. § 416.926a(b)(1)-(4).

In making these determinations, the ALJ must consider all of the relevant evidence in the record, including:

(1) the objective medical facts; (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant's symptoms submitted by the claimant, his family and others; and (4) the claimant's educational background, age, and work experience.
Luna, 2000 WL 964937, at *4 (quotation and citations omitted); see also Morales, 2002 WL 31729526, at *9 In addition, because plaintiff appeared pro se before the ALJ, the ALJ was under a heightened duty "to inquire scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Id. (quotation and citations omitted).

The Commissioner has set forth six broad areas or "domains" of development or functioning that may be taken into consideration when determining a child's eligibility for supplemental benefits: (i) acquiring and using information; (ii) attending and completing tasks; (iii) interacting and relating with others; (iv) moving about and manipulating objects; (v) caring for yourself; and (vi) health and physical well-being. Here, plaintiff maintains that the ALJ erred by failing to find either that Josephine's language disability (subcategory i) was extreme or, at the very least, that her language disability as well as her behavior dysfunction (subcategory in) were both "marked." While the ALJ, in agreement with Brust, found that Josephine's language disability was marked, he did not find that her behavior dysfunction was marked and for this reason found that Josephine did not qualify for supplemental benefits.

The Commissioner has defined "acquiring and using information" (subcategory i) for children aged 6 through age 12 as the ability

[t]o learn to read, write, and do math, and discuss history and science. You will need to use these skills in academic situations to demonstrate what you have learned, e.g., by reading about various subjects and producing oral and written projects, [. . . . . You should be able to use increasingly complex language (vocabulary and grammar) to share information and, ideas with individuals or groups, by asking questions and expressing your own ideas, and by understanding and responding to the opinions of others. 20 C.F.R. § 416.926a(g)(2)(iv).
The Commissioner has defined an ability "to interact and relate's to others (subcategory iii) as `how well you initiate and sustain emotional connections with others, develop and use the language of your community, cooperate with others, comply with rules, respond to criticism, and respect and take care of the possessions of others." 20 C.F.R. § 416.926a(i)(1)(iv). The ability to interact and relate to others has been further defined as the ability to take part in

[a]ctivites at home or school or in your community [which] may involve playing, learning, and working cooperatively with other children, one-at-a-time or in groups; joining voluntarily in activities with the other children in your school or community; and responding to persons in authority (e.g., your parent, teacher, bus driver, coach, or employer). 20 C.F.R. § 416.926a(i)(1)(iv).
Finally, with respect to this category as it would apply to children age 6 to attainment of age 12 — Josephine's age range at the time that she applied for benefits on July 2, 2000 — the Commissioner has stated that

[w]hen you enter school, you should be able to develop more lasting friendships with children who are your age. You should begin to understand how to work in groups to create projects and solve problems. You should have an increasing ability to understand another's point of view and to tolerate differences. You should be well able to talk to people of all ages, to share ideas, tell stories, and to speak in a manner that both familiar and unfamiliar listeners readily understand. 20 C.F.R. § 416.926a(i)(2)(iv).
Although the Commissioner makes clear that it will "consider all of the relevant information in your case record when we decide whether your medically determinable impairment(s) results in a `marked' or `extreme' limitation in this domain," it provides some of the following as examples of limitations in this domain (none of which are labeled as either "marked" or "extreme"):

(iii) You avoid or withdraw from people you know, or you are overly anxious or fearful of meeting new people or trying new experiences.
(iv) You have difficulty playing games or sports with rules.
(v) You have difficulty communicating with others; e.g., in using verbal and nonverbal skills to express yourself, carrying on a conversation, or in asking others for assistance. 20 C.F.R. § 416.926a(i)(3)(iii-v).
The Commissioner has defined an "extreme" limitation with respect to any of the six domains as one in which the impairment

interferes very seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day functioning may be very seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. "Extreme" limitation also means a limitation that is "more than marked." "Extreme" limitation is the rating we give to the worst limitations. However, "extreme limitation" does not necessarily mean a total lack or loss of ability to function. It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean. 20 C.F.R. § 416.926a(e)(2)(i).
The Commissioner has defined a "marked" limitation with respect to any of the six domains as one in which the impairment

interferes seriously with your ability to independeptly initiate, sustain, or complete activities. Your day-to-day functioning may be seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. "Marked" limitation also means a limitation that is "more than moderate" but "less than extreme." It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean. 20 C.F.R. § 416.926a(e)(2)(i).
Although test scores are factored into a consideration of a child's impairment, a single score is not sufficient to establish either an "extreme" or a "marked" limitation. Rather, the Commissioner states that "[a]s indicated in § 416.924a(a)(1)(ii), we will not rely on any test score alone. No single piece of information taken in isolation can establish whether you have a `marked' or an `extreme' limitation in a domain." Rather, "[w]e will consider your test scores together with the other information we have about your functioning, including reports of classroom performance and the observations of school personnel and others." 20 C.F.R. § 416.926a(e)(4)(i & ii).

Here, plaintiff maintains that she has satisfied the Commissioner's definition of a functionally equivalent medical impairment insofar as her language deficiencies are "extreme" — or, at the very least, insofar as both her language and her behavioral problems are "marked" — and for this reason has moved for a judgment on the pleadings reversing the ALJ's decision. The Commissioner contends that a judgment on the pleadings is not warranted here because plaintiff cannot conclusively demonstrate that her language problem is extreme or marked, or that her behavior problem is marked. However, that said, the Commissioner fully acknowledges that the ALJ's adjudication of Josephine's case involved "several legal errors," (Def.'s memorandum at 7), and for this reason requests that the ALJ's decision be remanded for further administrative proceedings in light of the evidence that the ALJ apparently overlooked.

1. Constructive Reopening of Plaintiff's Two Prior SSA Applications

As a preliminary matter, I address whether the ALJ constructively reopened plaintiffs two prior applications by considering "parts" of those applications when ruling on plaintiffs most recent application, submitted on July 2, 2000.

Claimants who have applied for benefits and have been denied may request reopening of their application or applications for "good cause" shown. "Good cause" is found where (1) there is new and material evidence, (2) a clerical error has been shown, or (3) there was a clear error on the face of the evidence in the original determination. See 20 C.F.R. § 416.1489. Once the Commissioner reopens the case, the earlier determination may be revised. See 20 C.F.R. § 416.1487(a). However, courts have found that prior cases may be reopened in the absence of explicit authority from the Commissioner to do so. More specifically, "[i]f the Secretary reviews the entire record and renders a decision on the merits, the earlier decisions will be deemed to have been reopened, and any claim of administrative res judicata to have been waived by the Secretary." Malave v. Sullivan, 777 F. Supp. 247, 251 (S.D.N.Y. 1991). In Malave, the plaintiff had applied for benefits in 1983 or 1984, and was denied; in 1986 he reapplied for benefits and was once again denied in 1987. See id. at 250. That same year, plaintiff requested a hearing before an ALJ to review the 1986 determination denying him benefits. Upon review, the Commissioner determined that plaintiff was in fact disabled, but only as of 1987, not 1983 or 1984. See id. In appealing that part of the ALJ's decision to the district court, plaintiff claimed that he was disabled as of 1983 and therefore entitled to benefits from that date forward. See id. The court agreed, finding that the ALJ had "constructively reopened" the prior application (from 1983 or 1984) by considering "the entire record in the case, including medical evidence as far back as 1984 and testimony about periods before then." Id. at 252. The court reasoned that the Commissioner had waived the preclusive effect of those applications, and that the claimant was consequently eligible to receive disability benefits for periods that had already been adjudicated in the prior applications. See id. see also Guy v. Sullivan, 736 F. Supp. 1255, 1259 (W.D.N.Y. 1990) (stating that "[a]dministrative res judicata is waived where a new proceeding `reviews the entire record . . . and reaches a decision on the merits'") (quoting Kane v. Heckler, 776 F.2d 1130, 1132 (3d Cir. 1985) (emphasis added)).

Here, plaintiff filed SSI applications in August 1996 and in March 1999, and was denied each time. Plaintiff did not request that these applications be reopened. She again filed an application for benefits on July 2, 2000, choosing August 13, 1996 as the onset date with respect to Josephine's disabilities. In determining that Josephine was not disabled under the statute, the ALJ included in his review school records from 1996, 1998, 1999, and 2000 as well as psychological evidence from 1996 and 1998 — even though he did not explicitly mention whether or not he was reopening the earlier claims. Plaintiff maintains that she need not demonstrate "good cause" because the ALJ constructively reopened her prior applications by relying on evidence in the record from as early as 1996. Defendant counters that plaintiffs argument with respect to the ALJ "constructively" reopening her two prior Social Security applications is without merit because there is no evidence that the ALJ was even aware that these applications existed and because she fails to point to any authority that would require the Commissioner to treat a subsequent application as a request to reopen an earlier application.

I disagree with the Commissioner's argument that the case law in this Circuit does not support plaintiffs theory with respect to a de facto reopening of the earlier applications. Indeed, the courts in both Malave and Guy held that a constructive reopening of a prior Social Security benefit application takes place when the ALJ considers the entire record before her in reaching a decision with respect to the most recent application. However, such is not the situation here. The courts in both those cases declared that the preclusive effect of a prior administrative decision is waived only if the ALJ considers the "entire record." Here, by contrast, plaintiff herself admits that the ALJ relied only on "bits and pieces, albeit substantial ones" of the earlier applications. (Pl.'s memorandum at 24). Because the ALJ in this case did not have Josephine's entire record before him, I cannot find that he constructively reopened her two earlier applications, made in 1996 and 1999 respectively.

2. Josephine's Ability to Acquire and Use Information

Plaintiff maintains that the ALJ's finding that Josephine exhibited a "marked limitation" in acquiring and using information "shortchanged" her because Josephine's expressive language score on the speech and language examination administered by Sider on November 22, 2000 was 50, that is, "more than three standard deviations below the mean, and [therefore] supportive of an extreme limitation" as that term has been defined by the Commissioner. In addition, plaintiff also catalogues the following evidence of Josephine's "extremely limited" functioning on a day-to-day basis: (1) Josephine repeated first grade. (Tr. 76); (2) by September 1999, when Josephine was almost ten years old, she did not know the days of the week, could not print her own name, did not know how to print certain letters, and could not spell most' 3-4 letter words; (3) in July 2000, when Josephine was in the fourth grade, she scored in the lowest level on the citywide reading test. (Tr. 336). At that time (July 2000), Josephine's school principal noted that Josephine's impairment was beyond special help and that plaintiff exhibited no improvement in academic performance despite two years of resource room assistance. (Tr. 219, 336). Plaintiff maintains that all of this evidence reveals that Josephine's language disorder constitutes an "extreme limitation" that severely interferes with her ability to learn and think. (Pl.'s memorandum at 21).

As noted supra, defendant fully admits that the ALJ erred with respect to Josephine's "extreme limitation" in the area of language and communication by failing to account for Josephine's score of 50 in the area of receptive language, that is, a score more than three standard deviations below the mean. In addition, defendant suggests that the ALJ could very well have been unaware of the records of Josephine's evaluation and treatment from the Northside Center, even though they were apparently before him at the April 17, 2001 hearing. However, defendant disagrees that the record conclusively establishes a disability — either an extreme impairment, or two marked impairments — on the grounds that a single score, such as Josephine's expressive language score that was three to four standard deviations below the mean or Josephine's GAF score of 35 reported by her psychiatrist at Northside Center, is never sufficient to establish the existence of an extreme impairment. More precisely, defendant cites to 20 C.F.R. § 416.926a(e)(4)(i), which states, as noted, that "we will not rely on any test score alone. No single piece of information taken in isolation can establish whether you have a `marked' or `extreme' limitation in a domain." Finally, defendant contends that plaintiff has not only identified carefully selected items of evidence relating to widely disparate periods of time — for instance, Josephine's repetition of the first grade in 1996 — but has also overlooked other evidence in the record that would suggest that her disability was not as significant as she perceives, including the April 1999 statement by a school counselor that Josephine's speech and language were good except when she was upset. (Tr. 143).

Even if I were to agree with defendant that the record does not conclusively establish that Josephine exhibits an "extreme" limitation in the area of acquiring and using information, which I do not, it does not matter because I find that Josephine exhibits a "marked" limitation with respect to her ability to relate and interact with others, and because the ALJ has already established that Josephine exhibits a "marked" limitation with respect to using language. Accordingly, I find that she is eligible for supplemental benefits. See 20 C.F.R. § 416.926a(b)(ii) (a child will be eligible for benefits if she exhibits marked limitations in two or more broad areas of development or functioning).

3. Josephine's Ability to Interact and Relate with Others

In addition to an "extreme limitation" with respect to using language, plaintiff also alleges that Josephine exhibits a "marked limitation" with respect to her anxiety and inability to relate and interact with others. I agree. More precisely, plaintiff maintains that the ALJ overlooked evidence showing that Josephine fights with her peers and exhibits "odd sexual behavior towards her peers and stepfathers," and that such behavior at the very least warrants a finding of a "marked" limitation. Indeed, plaintiff maintains that "[t]here is abundant evidence that Josephine's interaction with others is inappropriate." (Pl.'s memorandum at 22). As with the ALJ's failure to address key documents that would undoubtedly bear on an examination of Josephine's ability to acquire and use information, so, too, does the Commissioner admit that it was error for the ALJ to fail to make any reference in his decision to the Northside Center psychiatric records, which reported that Josephine's GAF as of January 2001 was 35 and that Josephine at that time was taking both Ritalin and Risperdal — both of which undoubtedly bear on an examination of Josephine's interactions with others. (Def.'s reply memorandum at 3). As noted previously, the GAF is used to approximate a patient's overall level of functioning, and a GAF of 35 is indicative of a child with "a major impairment in several areas, such as work or school, family relations, judgment, thinking or mood. . . . child frequently beats up younger children, is defiant at home, and is failing at school." DSM — IV at 32. While defendant agrees that the case should be remanded in light of these errors, it nevertheless maintains that such evidence alone is insufficient to establish a marked limitation in this domain — that is, a limitation "more than moderate" but "less than extreme" pursuant to 20 C.F.R. § 416.926a(e)(2)(i) — and that for this reason reversal of the ALJ's decision with respect to this domain is not warranted. I disagree.

Josephine's score of 35 on the GAF indicates at the very least a "marked" limitation in her ability to interact and relate with others. Further, not only did Josephine's psychiatrists indicate in January 2001 that she was continuing to exhibit aggressive behavior toward her peers, and not only was her GAF a 35 at that time, but she was also taking Ritalin 10 mg twice a day and Risperdal .5 mg once a day — all of which constitute highly persuasive evidence of a "marked" limitation with respect to her ability to interact and relate to others. Just six months earlier, in July 2000, Josephine's principal wrote in a letter that Josephine exhibited "considerable learning and behavior problems" throughout her schooling 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). Finally, Josephine's expressive language score on the CELF was 50, between three and four standard deviations below the mean and her total language score on the CELF was 60, reflecting a percentile rank of 1% — which Sider, the state licensed speech and language pathologist who administered the test on November 22, 2000, characterized as a "severe deficit." (Tr. 312-13). While this last detail alone might not rise to the level of "extreme," it surely constitutes a "marked" limitation in that area. As noted infra, the Commissioner considers linguistic development when determining whether a child exhibits an impairment in the area of interacting and reacting with others. More precisely, one of the examples cited by the Commissioner of limited functioning in interacting and relating with others is a child who has "difficulty communicating with others; e.g., in using verbal and nonverbal skills to express yourself. . . ." 20 C.F.R. § 416.926a(i)(3)(v). The Commissioner has defined a "marked" impairment in any domain as one that is "more than moderate" but "less than extreme." I find that such is the case here. Indeed, the overwhelming evidence of Josephine's inability to interact and react with others, coupled with her already "marked" limitation in the area of acquiring and using information, compel me to find that Josephine exhibits a "marked" limitation in this domain as well and consequently that she exhibits a disability as that term has been defined by the Commissioner. In short, the record simply does not contain substantial evidence to support the ALJ's determination that the claimant did not exhibit a "marked" limitation in the domain of interacting and reacting with others, and, by extension, that she was ineligible for supplemental benefits.

While the ALJ's oversights are themselves worthy of note, it is even more difficult for me to grasp how Josephine's disability could have escaped the watchful eyes of the Appeals Council — which, on August 31, 2001, more than four months after the ALJ's decision, summarily denied her appeal. One cannot help but wonder whether the Council plays an essential role or only extends the process, sometimes at the expense of the claimant.

III. CONCLUSION

For the foregoing reasons, plaintiffs motion for judgment on the pleadings with respect to her application dated July 28, 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, and the clerk of the court is instructed to remove this case and any open motions from my docket.

IT IS SO ORDERED.


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