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United States District Court, Southern District of New York

January 13, 2003


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Plaintiff Rosa Duran brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her son's claim for supplemental security income ("SSI") benefits.*fn1 The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Duran opposes the motion and has cross-moved for judgment on the pleadings. Alternatively, Duran has requested that the matter be remanded for a new hearing. The parties have consented to this matter being determined by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's motion is denied; Duran's motion is granted in part and denied in part.


A. Duran's Claim for Benefits

Duran filed an application for SSI disability benefits on behalf of her son, Luis Duran, on October 3, 1994. R. 44-50.*fn2 She alleged that Luis was disabled due to attention deficit hyperactivity disorder ("ADHD"), speech and language delays, and frequent ear infections. R. 23-26, 51, 55, 61, 67. The application was denied initially and again on reconsideration. R. 52-60. Duran then requested a hearing before an administrative law judge ("ALJ"), R. 61-64, which was held on June 11, 1996. R. 18. Duran appeared at the hearing before ALJ Susan L. Biro without counsel and testified through an interpreter. R. 18-35. Dr. Robert Berk, a medical expert, also attended and testified at the hearing. R. 30-34. Luis was not present as he was in the hospital having his appendix removed. R. 20-21.

The June 11 hearing did not result in a decision, apparently due to changes in the law concerning the definition of disability for minors. R. 313. Thus, on May 1, 1997, Duran agreed to attend a supplemental hearing before ALJ Louis V. Zamora. R. 317. This hearing was held on June 18, 1997, where Duran again appeared without counsel and testified through an interpreter. R. 36-43. Luis was present and "active" at the hearing. R. 11, 41. On August 27, 1998, ALJ Zamora ruled that Luis was not disabled. R. 11-17. This decision became final on June 6, 2001, when the Appeals Council denied Duran's request for review. R. 4-5.

On September 5, 2001, Duran filed the instant complaint on behalf of Luis seeking review of the denial of his claim.

B. Evidence Presented at the First and Second Hearing

1. Testimony

Luis was born on November 24, 1991 and lives with his mother and three siblings. R. 23. At the time of the first hearing in June 1996, Luis was four years old and had been attending school for two years. R. 26. During the first year of school — when he was two years old — Luis received speech therapy and psychological counseling and his behavior was "better." R. 26-27. However, he did not receive professional help in the second year and became "rebellious." R. 27. Duran indicated during the hearing that Luis was scheduled to have an evaluation later in the week, the results of which were expected to call for regular therapy and medication. R. 24-25. When asked what she thought qualified Luis for benefits, Duran replied, "Problems in school. He doesn't participate like other students in school because he hits the teacher. He doesn't respect — and his mind is not right for that. It's not that he's crazy, but he can't function in a group." R. 23-24. Duran further testified that while Luis did not at that time take medication to "calm him down," he did take "[a] lot of antibiotics because he gets a lot of infections" and that, when taking antibiotics, "he hits everybody that's in front of him. He gets very rebellious . . . [and] cannot go to school during those days." R. 24-25. Indeed, Luis had been suspended during the previous month for punching the teacher in the stomach. R. 28-29.

Duran further testified that Luis's ability to read and write and communicate was good (although she could not understand everything he said); his relationship with her was good; he got along well with all but one of his siblings; he had friends in school but not in the neighborhood; he was toilet trained and able to feed, dress and bathe himself; and he enjoyed playing with dolls and could watch cartoons for up to two hours, after which he would run around and break things. R. 27-30.

Dr. Berk testified after Duran. He stated that the records provided to him indicated that Luis previously had a language problem but that — according to Duran's own statements — the problem "seems to have been cleared up" and that Luis appears "to enjoy talking and communicates without any difficulty." R. 31. Dr. Berk further noted that the psychiatric evaluation scheduled after the hearing may raise the possibility of an attention deficit disorder but that Luis's past history did not indicate any such problem. R. 31. In addition, Dr. Berk testified that he saw no medical condition resulting in a cognitive impairment; that there was no impairment in motor skills and a "less than mild" impairment in social skills; and that there was no impairment in personal behavioral skills, the violence against his teacher notwithstanding. R. 32-33.

At the second hearing, held in June 1997 when Luis was five years old, Duran indicated that Luis had begun taking "medication to calm him down." R. 40-41. Duran testified that Luis's enrollment in special education classes had improved his speech but that his reasoning and ability to "analyze what he hears" were still impaired. R. 41-42. When asked if Luis could dress himself Duran replied "[n]ot totally." R. 42. However, Duran noted that Luis cleans his room and "helps his brother." R. 42. Luis was present at the hearing but was asked few questions. R. 41.

2. Prior Medical History

The first medical evidence in the record is found in the March 17, 1994 "Pediatric Infant Initial Evaluation" report from Lincoln Medical & Mental Health Center ("Lincoln Medical"). R. 95-98. At two years and four months, Luis was found to be "an alert, active, cooperative boy with short attention span and easily distractible who is constantly jabbering." R. 98. Although "normal" in all other respects, Luis was said to have "[s]ignificant speech and language deficits." R. 97-98.

On March 30, 1994, Luis underwent a psychological evaluation at the request of Duran, who was concerned about his speech problems and hyperactivity. R. 266. Luis was cooperative and remained seated throughout the exam and no hyperactivity was noted. R. 266. Further, as in the March 17, 1994 evaluation, Luis was again found to function at age level or better in all non-verbal areas. R. 266-69. His expressive language skills, however, were delayed by more than thirty-three percent and he was "unable to pronounce even simple words in an intelligible manner and has learned to rely on gesture, pantomime, and the prosody of vocal pattern to convey his message." R. 266, 268. The doctor noted that the profile was suggestive of verbal apraxia, R. 269, "a speech disorder in which phonemic substitutions are constantly used for the desired syllable or word." Stedman's Medical Dictionary 117 (27th ed. 2000).

On April 8, 1994, Luis had an additional evaluation. R. 243-44. The "team diagnostic impression" was that Luis was age level in all respects except language skills, which were delayed and consisted of "virtually no intelligible speech." R. 244. Following a subsequent examination on April 15, 1994, Dr. Sandra Runes, Chief Psychologist at Lincoln Medical, similarly noted that his "[e]xpressive language is severely delayed with virtually no intelligible speech and an inability to initiate even simple sounds." R. 242. Dr. Runes further observed that while Luis had "[s]ome attentional problems," he also possessed "[g]ood social and adaptive skills." R. 242.

Luis underwent a psychosocial evaluation on May 10, 1994, when he was nearly two and one half years old. R. 109-14. On the Vineland Adaptive Behavior Scales, his socialization skills were approximately six months below age level, his daily living skills were age level, and his motor skills were nearly two years above age level. R. 111. However, Luis was approximately one year below age level with respect to his communication skills. R. 111. Also on May 10, 1994, Educational Evaluator Barbara Alexander examined Luis and noted that Luis was a "friendly child who was cooperative with all tasks given to him." R. 115. Although his attention span was "somewhat short," Luis was "able to complete tasks given to him." R. 115. Alexander noted that Luis had difficulty in communicating and that he became "easily frustrated" when he was unable to make himself understood. R. 115. His social/emotional development appeared to be close to age expectancy, as was his cognitive development in non-verbal areas. R. 115. However, his fine motor skills were delayed by approximately six months, "possibly due to a lack of experience with the materials presented," and his language development was delayed by twelve to fifteen months. R. 116. It was the evaluator's conclusion that "Luis be placed in a special education program with a language based curriculum." R. 116.

On May 20, 1994, Luis underwent a bilingual speech and language evaluation. R. 117. The evaluation was conducted in Spanish, the only language spoken in the Duran home. R. 117, 119. As the assessment materials used in the evaluation were not available in standardized form for Luis's bilingual/bicultural background, the results were only useful for "comparative purposes" and were to serve as "estimates of abilities." R. 119. It was noted that Luis "exhibited a moderate to severe expressive and receptive language delay" that was characterized by "restricted vocabulary, limited syntactical skills, reduced comprehension of age expected semantic/syntactic skills, lack of the age expected morphological markers and immature social use of language." R. 119. Further, his "limited attention span, concentration and play skills negatively affected his performance during [the] evaluation." R. 119. It was recommended that Luis be enrolled in a twice weekly speech and language therapy program. R. 120.

3. Medical and Other Evidence Relating to the Period at Issue

The earliest evidence relating to Luis's condition following the date Duran filed for benefits is found in a report completed by his pre-school teacher on October 21, 1994. R. 87-88. She noted that Luis — then nearly three years old — had a "severe speech delay" and that he was frustrated because he was unable to make his needs understood. R. 87. She further indicated that Luis was "highly distractible" and had a problem staying focused but that he was a "highly motivated child who interacts well with adults," although he had not yet begun to play in a group. R. 88.

On October 27, 1994, Dr. Fred Kho evaluated Luis as part of a pediatric examination at Lincoln Medical. R. 252. The results were generally unremarkable, except it was noted that Luis showed "significant delays in expressive language skills," would become frustrated if he was unable to put on his shirt, and was easily distracted. R. 252-54. Luis was at age level with respect to his personal, social, fine and gross motor skills. R. 254

A pre-school report dated November 2, 1994 indicated that Luis's personal-social developments, language and readiness skills were below age level; his motor development was age level. R. 104. Further, his ability to play with other children, share with classmates, take turns in an activity, speak clearly and filter out distractions was "poor." R. 105. Luis was found to be a "happy, outgoing child who constantly initiates conversation with adults" and was not inhibited by his severe articulation problem. R. 107.

A report signed by a social work supervisor on January 13, 1995 noted that Luis, who was then three years old, was receiving speech therapy but that his language in the classroom setting was "most of the time unintelligible." R. 124. The social worker further observed that Luis's lack of attention span affected his cognitive functioning and that he had not yet mastered age appropriate skill in the social/emotional area. R. 125. Further, his "sharing and peer interaction skills [were still] emerging." R. 125.

On June 6, 1995, Dr. Kho examined Luis once again. R. 248-51. The physical exam was unremarkable, except it was noted that Luis had experienced frequent ear infections since the last examination. R. 248. It was further noted that Luis had "significant expressive language deficits and misarticulations on his last examination" but that his mother was "very happy with his progress in school." R. 248. Luis was reportedly "very active" at home and frequently ran, jumped and climbed on furniture. R. 249. His personal, social, fine and gross motor skills were at age level. R. 250. Dr. Kho concluded that Luis was a three year and six and a half month old boy who showed improvement but was "still moderately delayed in expressive language skills" and continued to have frequent misarticulations. R. 250.

Luis had a follow-up visit with Dr. Kho on April 26, 1996 when he was four years old. R. 339-43. Despite further improvement since his last examination, Luis still showed deficits in expressive language skills and frequently misarticulated words. R. 339, 342. Dr. Kho noted that Luis was able to, inter alia, dress himself; tie his shoelaces; brush his teeth; prepare cereals; draw a person in three parts; copy a cross; speak in sentences in English and Spanish, with "occasional stammering;" identify two colors; and balance on each foot for five seconds. R. 342. It was further observed, however, that Luis had behavior problems at school and that he had "frequent tantrums where he screams [and] hits mother [and] family members when things are not done his way." R. 340-41. Dr. Kho recommended that Luis undergo a psychological reevaluation to determine proper placement for kindergarten. R. 343.

In May 1996, Luis was four and a half years old. A report by his preschool teacher, Ms. Booker, dated May 17, 1996, indicated that Luis "love[d] to give orders to the teachers" and that he enjoyed being "in charge." R. 187. The report further noted that Luis liked to "take off his shirts and expose his chest in the classroom" and identified other maladaptive behaviors that were causing problems in the classroom, including physical aggressiveness, excessive temper tantrums, inattentiveness and overactivity. R. 184, 187. Further, Ms. Booker indicated that Luis would "fall on the floor or let his body go limp" when called upon in class. R. 186.

On May 30, 1996, Luis was referred for a psychological evaluation. R. 183. He had attended a specialized preschool in 1994-1995, after which it was determined that he no longer needed special class. R. 209. In November 1995, he was enrolled in a daycare program. R. 209. Duran requested the psychological evaluation because she believed if Luis was placed on medication — and if his hyperactivity was under control — then he could attend a "regular class." R. 183.

Dr. Runes conducted the evaluation and noted that Luis's "primary problem is his activity and attention span." R. 183. She observed that Luis was "curious" and "very verbal" and that he "enthusiastically attempted most presented tasks but needed constant [reminders] to stay focused." R. 209-10. Further, standardized testing revealed Luis to be of "at least average intelligence with clear strengths in nonverbal abstract thinking, visual memory and part whole synthesis." R. 210. However, his comprehension skills — while "adequate" — continued to show relative weaknesses in vocabulary and auditory memory. R. 210. Luis was found to be friendly and sociable and was "reasonably well behaved at home," although it was reported that he sometimes fought with his sister. R. 211. Dr. Runes concluded that Luis functioned "in the average range of intelligence with strengths in nonverbal abstract reasoning and weakness in vocabulary and auditory memory." R. 211. His "activity level, distractibility and difficultly staying task focused" indicated that Luis required "external structure and cueing to keep him on task and this is not consistently successful." R. 211. She recommended that Luis undergo a psychiatric consultation to determine whether medication would be appropriate for him. R. 212.

Luis began psychiatric treatment with Dr. Miriam Coddou on July 12, 1996, where Luis was diagnosed with ADHD and a "specific language disorder." R. 218. Dr. Coddou noted that she would be treating Luis on a monthly basis. R. 218. His treatment began with 5 mg. of dextramphetamine. R. 218. Dr. Coddou indicated that Luis's cognitive and personal-behavioral abilities were age appropriate but that his increased motor activity and impulsive behavior interfered with his peer interactions and play activity. R. 218-19. Further, Dr. Coddou found that Luis's social functioning was not age appropriate, noting that his ADHD condition interfered with his "ability to be appropriately socialized." R. 220. Luis's concentration, persistence and pace was likewise affected by his ADHD and, therefore, not age appropriate. R. 220.

The Brigance Inventory of Early Development was given on July 17, 1996. R. 305. This evaluation revealed that Luis's speech and language were "near age level in both" Spanish and English; his fine motor skills were age appropriate; his general knowledge and comprehension were "slightly below" age level; his social and emotional development was below age level; his pre-academic development was "not developed yet;" and his pre-writing skills were "weak." R. 305.

In a letter dated October 1, 1996, school psychologist K. Krase reported that Luis's medication did not appear to be effective. R. 298. Specifically, it was reported that Luis "frequently grabs [and] bites other children" and that he was "unable to participate with the group as he cannot control his impulses." R. 298. Krase requested that Luis's dosage be reevaluated. R. 298.

On October 10, 1996, Luis was classified by the school as "emotionally disturbed" and it was decided that he needed Special Instructional Environment VII placement. R. 299. However, as no such placement was immediately available, Luis was assigned a paraprofessional in the interim to follow him around during the day and help him "maintain his behavior in a classroom situation . . . [and help him] remain focused on classroom activities." R. 300-01. It was noted that Luis had been taking Ritalin but that he nonetheless had "difficulty interacting with peers [and] adults [and] . . . has difficulty focusing on tasks." R. 301.

In late October 1996, Luis had a "severe tantrum" in Dr. Coddou's office such that the doctor thought Luis might have a seizure disorder. R. 337. The record indicates that Luis's medication was adjusted on October 23, 1996. R. 337, 349. Dr. Coddou's notes indicate that she increased Luis's dosage of Ritalin from 5 mg. to 25 mg. daily. R. 349. His mother reported that Luis's symptoms were improved as of November 15, 1996 and December 13, 1996. R. 336. Improvement continued and, on June 27, 1997, it was noted that Luis was doing "very well" in school and that he was able to learn. R. 334.

Dr. Coddou completed a report form — at the request of ALJ Zamora, see R. 40 — dated June 23, 1997. R. 327-31. According to Dr. Coddou, Luis's "distractibility, low attention span, hyperactive, [disruptive and impulsive] behavior" had been controlled with medication. R. 327. Once the symptoms were controlled, Luis was able to attend school. R. 328. Further, Dr. Coddou noted that Luis's motor, cognitive and social/emotional skills, as well as his sensory abilities, were all age appropriate. R. 328-29. However, his communication skills were "somewhat delayed" and Luis had "mild articulation difficulty." R. 329.

C. The ALJ's Determination

An individual under eighteen years of age is disabled if that individual 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 twelve months." 42 U.S.C. § 1382c(a)(3)(C)(i). The ALJ must follow a three-step analysis in determining whether a child meets this criteria. See 20 C.F.R. § 416.924(a)-(d). First, the ALJ must consider whether the child is engaged in "substantial gainful activity." 20 C.F.R. § 416.924(b). If so, the child is not disabled. Id. Next, the ALJ must determine whether the child has a "medically determinable impairment(s) that is severe." Id. § 416.924(c). If not, or if the impairment(s) is a "slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations," then the child is not disabled. Id. Third, if the impairment is severe, the ALJ must determine whether the impairment(s) meets or is medically equal to a disability in the Listing of Impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (the "listings"). Id. § 416.924(d).

Here, the ALJ followed the three-step process and, on August 27, 1998, issued his decision. R. 11-17. First, he noted that Luis was not engaged in substantial gainful activity. R. 14, 16. Then, he determined that Luis's ADHD and speech and language delays were "severe impairments." R. 14, 17. The ALJ concluded at the third stage, however, that the evidence did not support finding that the impairments met or equaled in severity to those in the listings as there was no evidence of extreme or marked limitation. R. 14-15, 17. He noted that the symptoms had been controlled by medication since November 1996 and that Luis's speech deficit had been "mild since at least May 1996." R. 14-15. The ALJ further found that Duran's allegation that Luis was disabled was not credible and unsupported by the record. R. 17. Thus, he denied the application for benefits. R. 17. Duran appealed but the Appeals Council denied the request for review thus rendering the ALJ's decision final. R. 4-5.


Review of the Commissioner's final decision by this Court is limited to determining whether there is "substantial evidence" to support the determination. See 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive"); accord Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); see Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999) (per curiam); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). However, in deciding whether the Commissioner's final decision is supported by substantial evidence, the Court must first be satisfied that "`the claimant has had a `full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act.'" Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (quoting Echevarria v. Secretary of Health & Human Serv., 685 F.2d 751, 755 (2d Cir. 1982)) (in turn quoting Gold v. Secretary of Health, Educ., & Welfare, 463 F.2d 38, 43 (2d Cir. 1972)). If the claimant has been deprived of a full and fair hearing, the reviewing court should remand the action — even if the determination would appear supported by substantial evidence. Jasmin v. Callahan, 1998 WL 74290, at *4 (S.D.N.Y. Feb. 20, 1998) (citing cases). When, as here, the claimant appears before the ALJ pro se and is unable to speak English well, reviewing courts have a heightened duty to "make a `searching investigation' of the record" to make certain the claimant's rights have been protected. Cruz, 912 F.2d at 11 (quoting Gold, 463 F.2d at 43).


A. Duran's Opportunity to Rebut Dr. Coddou's June 1997 Report and Progress Notes
Duran argues that ALJ Zamora entered post-hearing evidence in the record and "relied heavily" on the evidence to reach his decision. See Memorandum of Law in Support of Plaintiff's Cross Motion for Judgment on the Pleadings, dated September 23, 2002 ("Pl. Mem."), at 22-23. Specifically, Duran objects to the introduction and use of certain of Dr. Coddou's progress notes and her June 1997 report. R. 327-43, 349. Duran argues the ALJ's failure to advise her that she could "request the opportunity to rebut and/or clarify" the report and notes deprived her of the right to due process of law. See Pl. Mem. at 22-23.

As noted in Jasmin, the Second Circuit "has long held that the Commissioner cannot base a disability decision upon a report obtained after the hearing unless the claimant has been permitted to confront the new evidence." 1998 WL 74290, at *5; see, e.g., Townley v. Heckler, 748 F.2d 109, 114 (2d Cir. 1984) (due process violated when ALJ relied on post-hearing report); Gullo v. Califano, 609 F.2d 649, 649-50 (2d Cir. 1979) (per curiam) (same); see also Treadwell v. Schweiker, 698 F.2d 137, 143 (2d Cir. 1983) ("This circuit has repeatedly recognized [that] the `right to subpoena and cross examine [witnesses] submitting reports adverse to [disability] claims is important, particularly when there is `substantial reliance' on the report by the hearing examiner.'") (some brackets in original) (emphasis in original) (quoting Fernandez v. Schweiker, 650 F.2d 5, 8 (2d Cir. 1981)).

Here, the ALJ substantially relied on Dr. Coddou's June 1997 report and accompanying notes. For example, the ALJ referred to the medical progress notes in observing that Luis's ability to concentrate and stay focused had "significantly improved" by November 1996 and that Duran "was satisfied with [Luis's] behavior on medication" and believed he was doing "very well." R. 15-16. Further, the ALJ relied on the June 1997 report in concluding that Luis had age appropriate motor, sensory, cognitive and social/emotional skills and that his symptoms had been controlled with medication. R. 13-14. Thus, the report and progress notes were highly relevant to the ALJ's ultimate finding that Luis was not disabled.

The Commissioner does not contest the plaintiff's assertion that the ALJ "relied heavily" on these materials. Instead, she argues that "it is not clear that the ALJ failed to proffer [Dr. Coddou's report and progress notes] to plaintiff" as the record is "merely silent on this matter." Defendant's Reply Memorandum, dated October 7, 2002 ("Def. Reply Mem."), at 8. But the only reasonable inference from the record is that Duran was not given the opportunity to examine this evidence, let alone rebut its content or cross-examine the author, Dr. Coddou. Compare entry of July 1996 report, R. 217 (giving a form notice to Duran that ALJ intended to rely on Dr. Coddou's July 1996 report), with entry of June 1997 report, R. 327 (containing no such notice). Moreover, it is the Commissioner's duty to prepare a proper administrative record. See, e.g., Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999); Richardson v. Apfel, 44 F. Supp.2d 556, 562 (S.D.N.Y. 1999). Because it was the Commissioner's burden to provide a record to this Court that accurately reflects what occurred before the agency, the Court will not assume that the absence of information in the record regarding whether a particular action was taken by the ALJ necessarily means that the ALJ took that action.

The Commissioner also argues that the case should not be remanded because Duran was obligated, during the motion practice before this Court, to show that she is able to rebut Dr. Coddou's report. The Commissioner cites no authority for this proposition and the Court is aware of none. Furthermore, it is inconsistent with the doctrine that the appeal of a Social Security matter must be decided based on the administrative record and not based on a record made before the district court. See, e.g., Carnevale v. Gardner, 393 F.2d 889, 891 n. 1 (2d Cir. 1968) (court properly refused to consider materials not in the administrative record); Casiano v. Apfel, 39 F. Supp.2d 326, 330-31 (S.D.N.Y. 1999) ("Evidence not contained in the administrative record may not be considered when reviewing the findings of the Commissioner.") (citing cases).

B. Whether the Case Should Be Remanded With an Instruction to Award Benefits
Duran argues that the case should be remanded with an instruction that benefits be awarded on the ground that "`the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose.'" Pl. Mem. at 23 (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)). Duran also argues that the delay in this case should counsel this Court to direct an award of benefits. See, e.g., Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000). Duran makes the argument that, because Luis is a child, the delay should even more strongly suggest that the case be remanded solely for an award of benefits. However, "absent a finding that the claimant was actually disabled, delay alone is an insufficient basis on which to remand for benefits." See, e.g., Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996). Accordingly, the Court examines the evidence currently in the record to determine whether Luis is "actually disabled."

1. The Standard of Review by this Court

As noted in section II above, review by this Court is limited to determining whether there exists "substantial evidence" to support the Commissioner's final determination. The Supreme Court has observed that substantial evidence is "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, the role of the reviewing court is "quite limited and substantial deference is to be afforded the Commissioner's decision." Burris v. Chater, 1996 WL 148345, at *3 (S.D.N.Y. Apr. 2, 1996). If the court finds substantial evidence to support the final decision, the decision must be upheld — even where substantial evidence supporting the claimant's position also exists. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). While the reviewing court does not conduct a de novo review of the underlying claim, see Cruz, 912 F.2d at 11, it is required to "examine the entire record, including contradictory evidence" in order to "determine whether the findings are supported by substantial evidence." Brown, 174 F.3d at 62 (citations omitted). However, the court must be careful not to "`substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). The court must not defer to the Commissioner's decision, however, if the Commissioner failed to apply the correct legal standard in reaching a determination. Tejada, 167 F.3d at 773.

2. Determining Childhood Disability

In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and established a new definition of disability in children. See Pub.L. No. 104-193, codified at 42 U.S.C. § 1382c(a)(3)(C). As noted in section I.C above, this legislation provides that an individual under the age of eighteen "shall be considered disabled . . . if that individual 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." 42 U.S.C. § 1382c(a)(3)(C)(i). Regulations interpreting this statute were published on September 11, 2000, and became effective on January 2, 2001. See 65 Fed. Reg. 54,747 (Sept. 11, 2000). These regulations are applicable here as they became effective five months before the Commissioner's decision became final on June 6, 2001. See id. at 54,751 ("we expect that the court's review of the Commissioner's final decision would be made in accordance with the rules in effect at the time of the final decision").

The regulations define the statutory standard of "marked and severe" limitations in terms of an impairment that meets, medically equals, or functionally equals the severity of an impairment in the listings. 20 C.F.R. § 416.924(d). Functional limitations are evaluated in the following six domains: 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 oneself; and vi) health and physical well-being. Id. at § 416.926a(b)(1)(i)-(vi). An impairment will functionally equal a listed impairment if it results in a "marked" limitation in two of the domains or an "extreme" limitation in one domain. Id. at § 416.926a(d). Relevant factors that should be considered are (1) how well the child initiates and sustains activities, how much extra help he needs, and the effects of structured or supportive settings; (2) how the child functions in school; and (3) how the child is affected by his medications or other treatment. Id. at § 416.926a(a)(1)-(3).

3. Definition of "Marked" and "Severe" Limitations

Under the current regulations, an individual has a "marked" limitation when the impairment "interferes seriously with [the] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). "`Marked' limitation . . . means a limitation that is `more than moderate' but `less than extreme.'" Id. The regulations provide that "[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." Id. The percentage of a group that scores less than two standard deviations below the mean in normally distributed data (which is the sort of data we would expect on a standardized test) represents only 2.3% of the population. See generally D. Freedman et al., Statistics (1978) at A-70. In other words, in a group of 100 children evaluated in a domain, only the worst performing two children would be considered to have a "moderate" limitation under the definition. The remaining 98 children would not have a "moderate" limitation.

An "extreme" limitation exists when the impairment "interferes very seriously" with the ability to function. 20 C.F.R. § 416.926a(e)(3)(i). The regulations provide that an "extreme" limitation "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." Id. This definition of "extreme" thus dramatically narrows the scope of eligible persons. The percentage of a group that scores three standard deviations below the mean in normally distributed data represents only 0.14% of the population. See generally D. Freedman et al., Statistics (1978) at A-70. In other words, in a group of 1000 children evaluated in a domain, only the worst performing child would be considered to have an "extreme" limitation. The remaining 999 children would not, under this definition, be considered to have an "extreme" limitation.

4. Analysis of the Evidence Under the Social Security Administration Standards
In arguing the evidence supports a finding that Luis is disabled, Duran maintains that Luis suffers from "extreme" limitations in the "attending and completing tasks" domain and "marked" limitations in the "interacting and relating with others" domain. See Pl. Mem. at 17-22.

a. Extreme Limitation in the Attending and Completing Tasks Domain. In support of her argument that Luis has an "extreme" or "marked" limitation in this domain, Duran notes that i) at three years old, Luis's expressive vocabulary was limited to one word utterances and gestures and, consequently, he was frustrated and "highly distractible;" ii) during the 1994-1995 school year, Luis was able to function only in a structured setting with a ratio of no more than four children to one adult and showed a "poor" ability to play with other children and behave himself appropriately; iii) in 1996, Dr. Runes noted that Luis fared poorly in an unstructured setting and needed "constant reminders to stay focused;" and iv) Luis was eventually placed in a special class with a ratio of three children to one adult. Pl. Mem. at 18-20.

Notwithstanding these points, there is substantial evidence in the record to support a finding that Luis does not suffer from an extreme or marked limitation in attending and completing tasks. First, there is no evidence that Luis's limitations in attending and completing tasks were so severe as to be the equivalent of functioning "at least three standard deviations below the mean." See 20 C.F.R. § 416.926a(e)(3)(i). Further, Luis's limited expressive vocabulary and speech difficulties are not necessarily relevant to the issue of his abilities in this domain. To the extent that Duran is arguing that Luis's enrollment in a special education class in itself warrants a finding of extreme limitation, see Pl. Mem. at 20, the Court rejects that argument. Cf. 20 C.F.R. pt. 404, subpt. P, app. 1, § 112.00(C)(3) (the need for special education placement is not conclusive for there is "too much variability from school district to school district . . . in the criteria for special education placement to justify reliance solely on [this] factor[]").

Duran points to Dr. Runes, who observed in the May 30, 1996 psychological evaluation that Luis needed "constant reminders to stay focused" and that "[h]e requires external structure and cueing to keep him on task." Pl. Mem. at 19-20; R. 210-11. In addition, Duran notes that Luis was assigned a paraprofessional who followed him throughout the day in order to help Luis "maintain his behavior in a classroom situation . . . [and] remain focused on classroom activities." R. 301. These facts certainly demonstrate that Luis had some difficulty attending to and completing tasks.

But even if the argument could be made that these facts constitute substantial evidence that Luis suffered from an "extreme" limitation in this domain, there exists substantial evidence that Luis was not so limited at the time the ALJ made his decision. See Alston, 904 F.2d at 126 ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."). As noted, Duran reported that Luis showed considerable improvement when his medication was adjusted and that he was doing "very well" in school. R. 334, 336. Further, Dr. Coddou reported to the ALJ that Luis's "distractibility, low attention span, [and] hyperactive behavior" had all been controlled with medication. R. 327. This report should be accorded significant weight as Dr. Coddou was Luis's treating physician. See 20 C.F.R. § 404.1527(d)(2).

Duran concedes that she reported "some improvement" in Luis's function as a result of the medication. See Pl. Mem. at 20. However, she argues that "one should not confuse evidence of some improvement with a clean bill of health." Id. The Court does not read the ALJ's decision as suggesting that Luis merited such a "clean bill." Rather, based on Dr. Coddou's report — as well as Duran's own statements — the ALJ found Luis's symptoms were well under control with medication and that any limitation he retained failed to constitute a disability within the meaning of the regulations. Substantial evidence supports the conclusion that Luis's limitations in this area were neither extreme nor marked.

b. Marked Limitation in the Interacting and Relating with Others Domain.
Duran also argues that substantial evidence exists that Luis suffered marked impairment in his ability to interact and relate with others: namely, i) his difficulties with speech and expressive language, and ii) his inability to control his impulses, as evidenced by his being assigned a paraprofessional to assist him in the classroom setting. Pl. Mem. at 21-22. The Court rejects these arguments.

First, there is substantial evidence in the record which demonstrates that Luis was sociable and able to interact with others in spite of some early difficulties with language. See, e.g., R. 244 (at two years and five months of age, "[g]ood social and adaptive skills"); R. 254 (at two years and eleven months of age, "personal, social, fine and gross motor skills are at age level"); R. 107 (at three years of age, "[t]his is a happy outgoing child who constantly initiates conversation" and does not allow his "severe articulation problem . . . to inhibit him"); R. 248, 250 (at three years and six months of age, Duran "very happy" with Luis's progress and his "personal, social, fine and gross motor skills are at age level"); R. 211 (at four years and six months of age, "friendly and sociable" and "reasonably well behaved at home"). Further, Dr. Berk testified at the first hearing that, in his view, any impairment in Luis's social skills was "less than mild." R. 33. On July 25, 1996, Dr. Coddou indicated that Luis's social functioning was below age-level, noting that the ADHD interfered with his "ability to be appropriately socialized." R. 220. However, evidence in the record demonstrates that Luis had improved with medication. Thus, Dr. Coddou noted in her subsequent report to the ALJ that Luis's social-emotional skills were in fact age-appropriate once the medication controlled his symptoms. R. 329.

The Court further rejects Duran's argument that the paraprofessional hired to assist Luis during and in between class demonstrates a "marked" limitation in this domain. First, the paraprofessional was needed before Luis experienced the positive reaction to his medication. Moreover, the record reflects that the paraprofessional was provided only for a temporary period — until Luis was placed in a special education environment, thirteen days later at most, see R. 299-302, 337 — and for a limited purpose (i.e., to help keep Luis focused in the classroom setting). As noted, Luis was eventually placed in special education classes, where he showed much improvement. See R. 42, 334. Under the circumstances, therefore, the Court does not believe it significant that Luis required a paraprofessional for the brief period before he was enrolled in classes for which he was more suited.

5. Summary

Based on the above analysis, the current record contains substantial evidence to support the Commissioner's determination. Thus, this is certainly not a case where the record "provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose." Parker, 626 F.2d at 235. Nor is this a case where Duran has shown that Luis is "actually disabled." Bush, 94 F.3d at 46. Thus, the Court denies Duran's application that the Court remand with a direction to grant benefits.


For the foregoing reasons, the Commissioner's motion for judgment on the pleadings is denied. Duran's cross-motion for judgment on the pleadings is granted in part and denied in part. The Court remands this matter solely to afford Duran an opportunity to offer evidence rebutting Dr. Coddou's report and progress notes submitted after the June 1997 hearing. The Clerk is requested to enter judgment accordingly and to close the case.


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