United States District Court, Southern District of New York
May 6, 2003
ENID M. RAMOS O/B/O MICHELLE E. SOTO, PLAINTIFF,
JO ANNE B. BARNHART, COMMISSIONER OF UNITED STATES DISTRICT JUDGE SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Loretta A. Preska
Plaintiff Enid Ramos brings this action on behalf of her daughter pursuant to section 205(g) of the Social Security 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 claim for supplemental security income ("SSI") benefits. The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Ramos opposes the motion and has cross-moved for judgment on the pleadings. In the alternative, Ramos requests the matter be remanded to the Commissioner for a new hearing and decision. For the reasons below, the Commissioner's motion should be denied. Ramos' motion should be granted in part and denied in part.
A. Insulin-Dependent Diabetes Mellitus and Hyper/Hypoglycemia
Diabetes is a medical condition that affects the manner in which the body handles glucose — a sugar derived from food that appears in the bloodstream. In the typical case of juvenile or "Type I" diabetes, the pancreas fails to produce sufficient insulin, which is the hormone necessary to allow the cells of the body to use the glucose in the bloodstream. In the absence of insulin, and particularly after eating, glucose remains in the blood in abnormally high concentrations, resulting in the condition known as "hyperglycemia." See Stedman's Medical Dictionary 489-91, 849 (27th ed. 2000). If the patient requires insulin injections to control his or her blood glucose levels, the condition is known as insulin-dependent diabetes mellitus ("IDDM").
Diabetics using insulin may at times also experience "hypoglycemia," which occurs where the glucose level is abnormally low. See id. at 861. Although medical authorities apparently do not agree what constitutes a normal glucose level, Ramos has alleged — and the Commissioner does not dispute — that hypoglycemia in children occurs where their glucose level falls below 50 — 80 mg/dL. See Plaintiff's Memorandum of Law in Opposition to the Commissioner's Rule 12(c) Motion for Judgment on the Pleadings and in Support of Plaintiff's Rule 12(c) Motion for Judgment on the Pleadings, dated January 7, 200 ("Pl. Mem."), at 7-9 (citing authorities).
B. Ramos' Claim for Benefits and Procedural History
Ramos filed for SSI disability benefits on behalf of her daughter, Michelle Soto-Ramos, on February 22, 2000. R. 67-69.*fn1 Ramos alleged that Michelle was disabled due to IDDM. R. 67-69, 84-94. The application was denied initially and again on reconsideration. R. 39-44, 47-50. Ramos thereafter requested a hearing before an administrative law judge ("ALJ"), R. 51, which was held on March 12, 2001. R. 18-38. Ramos and Michelle appeared at the hearing before ALJ Mark Sochaczewsky and were represented by counsel. R. 18-38. Dr. Sree Devi T.N. Chandrasekhar, a medical expert, also attended and testified at the hearing. R. 29-36.*fn2
On August 22, 2001, ALJ Sochaczewsky ruled that Michelle was not disabled. R. 11-17. This decision became final on February 7, 2002, when the Appeals Council denied Ramos' request for review. R. 3-4. On April 23, 2002, Ramos filed the instant complaint on behalf of Michelle seeking review of the denial of her claim.
C. Evidence Presented at the Hearing before the ALJ
Michelle testified at the hearing. At that time, she was fifteen years old and in the tenth grade in school. R. 21-22. Michelle was diagnosed with diabetes when she was six years old and living in Puerto Rico. See R. 22. As a consequence of her condition, she was required to take daily medication, including administering insulin injections three times each day, and to follow a "very careful diet." R. 22, 24. However, when asked if her blood sugar level was under control even when she adhered to her diet and took her medication Michelle replied "[s]ometimes it's kind of good and sometimes it doesn't." R. 23. When questioned further, she testified to having hyperglycemic attacks approximately two or three times per week during which her sugar level would get as high as 250 or 300 mg/dL, despite following her regimen. R. 23-24. She explained that when her sugar level was high she would take an "extra dose" of insulin. R. 24.
Michelle testified further that her diabetes prevented her from participating in certain activities. R. 25-28. She testified that she also suffered hypoglycemic attacks two or three times per week and that it took 20 to 25 minutes to stabilize her blood sugar level on each occasion. R. 25-26. Because of these attacks, she was unable to ride a bicycle or participate in "any kind of running activities" and had limited ability to play basketball. R. 25-28. However, she was able to take part in at least some activities in gym class and testified that she had friends in school, would sometimes go to the park with her family, and would often study at night and on weekends. R. 26-27.
When asked if she ever "cheat[ed]" on her diet, Michelle replied "maybe sometimes." R. 28. However, she stated that she still had two or three hypoglycemic attacks per week even when she adhered to her diet and did "what [she was] supposed to do." R. 28.
Dr. Chandrasekhar, an independent medical expert, was also present at the hearing. After Michelle's initial testimony, the ALJ asked Dr. Chandrasekhar if Michelle should be asked further questions. R. 28-30. Dr. Chandrasekhar requested that Michelle describe the hypoglycemic attacks and asked whether and to what extent she was having problems with abdominal pain and bloating. R. 30. Michelle stated that she "[s]ometimes" experienced abdominal pain and that she had headaches "[e]very time" her blood sugar level "is too low" and "when it's high." R. 30. When her sugar level is low, she testified that she gets "dizzy," "don't know what [she is] doing," and "cannot do nothing." R. 31. When her sugar level is high, she stated that "I get a lot of headaches and my mind wants to explode. I have a lot of pain." R. 31. Michelle further testified that when she is in school and feels a hypoglycemic attack coming, she has to leave the classroom in order to get something to eat. R. 32. She acknowledged, however, that the teacher allowed her to eat at her desk. R. 32-33.
Dr. Chandrasekhar then asked more specific questions about the hypoglycemic attacks. He asked whether Michelle checked her sugar level with each attack, to which she replied "[s]ometimes I check the sugar, sometimes I just eat." R. 33. When asked if her sugar level was low on the occasions she checked her blood, Michelle answered "yes." R. 33. Michelle then testified that she had told her doctors the previous month about the attacks and accompanying "dizziness" and that they had changed her regimen, R. 33-34, after which the following exchange took place:
Q. Do you still have incidences where it's too high or
Q. But not as frequently?
Q. How often has it happened in the last month?
A. Maybe twice or maybe once.
R. 34. A subsequent question phrased as "[o]nce or twice a week" went unanswered. R. 34. Michelle also testified that she had not been hospitalized for her diabetes since coming to the United States three years earlier. R. 22, 34.
After this additional questioning, Dr. Chandrasekhar testified. Based on his expert analysis, he concluded that Michelle had insulin-dependent diabetes but that her condition did not meet, medically equal or functionally equal any listed impairment. R. 34-35. Michelle's attorney then asked Dr. Chandrasekhar about the recent hypoglycemic attacks, and the following exchange took place:
A. It is not clear that she has had recent episodes of
hypoglycemia as such. We haven't had any records of
blood glucose when she's had those symptoms. And with
the correct management with snacks she appears to be
doing fairly well. And according to her statement
also, after she spoke to her doctor, her management
has — seems to have improved.
Q. Isn't it true though that in her statement that
even after they changed her Insulin that she still has
two times a week episodes of hypoglycemia?
A. She has had symptoms, but we don't know the exact
level of sugar that she's went down to.
R. 36. The attorney then asked Michelle about the last time she had a hypoglycemic attack and recorded her blood sugar level. R. 36. Michelle testified that during an attack approximately ten days earlier — while she was in school — she tested her blood and found it to be 48-49 mg/dL. R. 36-37.
2. Medical Reports, Progress Notes and Other Evidence
The written medical evidence in the record shows the following: Michelle was treated at Columbia-Presbyterian Medical Center ("Columbia Medical") during the period from July 1997 through October 2000. R. 201-19, 224-52, 269-75. On February 26, 1999, Michelle (then thirteen years old) visited the Pediatric Diabetes Clinic at Columbia Medical. R. 203. She reported "occasional" low blood glucose levels in the afternoon and night, but it was noted that she "still plays basketball." R. 203. It was further noted that Michelle would sometimes argue with her mother over not eating and that she was told to eat three meals and three snacks a day but would "often" skip breakfast and lunch. R. 203. The doctor spent approximately one hour with Michelle and Ramos reviewing the need for better monitoring and improved glucose control given that Michelle's target range was "80-180" mg/dL but that she was "out of range 50% daily." R. 203. The doctor recommended that Michelle increase her daily insulin injections to three times a day (from two injections a day) and that she monitor her blood glucose levels four times a day. R. 203.
On April 14, 1999, Michelle returned to Columbia Medical for an "education visit" and evaluation. Because she was still administering two insulin shots a day — and was checking her glucose levels only twice a day — it was again recommended that Michelle increase the injections to three times a day and test her glucose levels four times daily. The doctor reviewed "basic diabetes information" with Michelle and discussed, inter alia, the causes of hyper/hypoglycemia. R. 214.
Michelle made another education visit to Columbia Medical on May 19, 1999. As the doctor was concerned that Michelle was "miss[ing] meals" and "skipp[ing] snacks" in an effort to lose ten pounds, the doctor discussed with Michelle the "importance of consistency in meals [and] snacks" and noted that a change in diet would help control her glucose levels. In addition, the physician notes indicate that Michelle had increased her daily insulin injections and blood glucose testing; that her blood sugar levels had "improved;" and that she exercised three to four times per week with, inter alia, karate, baseball, and basketball. R. 212.
On June 28, 1999, Ramos reported that Michelle had been "noncomplian[t]" with her treatment and that she had "reverted back" to twice daily insulin injections and blood sugar testing. Michelle reported having "lots of friends" and doing well in school. However, the doctor noted that although her diabetes was in "good control," Michelle had "poor behavior" and poor approach to control and emphasized the need for Michelle to cooperate with her mother. R. 211.
Michelle returned to Columbia Medical on September 27, 1999. The treating physician noted that her diabetes was in "fair control" but that her blood glucose levels ranged from "57-163" mg/dL in the morning and from "62-240" mg/dL in the afternoon. Although Michelle had been injecting insulin three times a day and checking her sugar levels four times daily over the summer, she reverted back to twice daily injections and blood testing in late August and "note[d]" a change in her blood glucose as a result. The physical examination was normal. R. 210.
On October 20, 2000, Dr. Ileana Vargas, a pediatric endocrinologist at Columbia Medical, completed a medical report for Michelle. In the report Dr. Vargas noted that Michelle visited the clinic on a monthly basis, alternating between a doctor, nutritionist and nurse educator. She further noted that Michelle's prognosis was "guarded." R. 269. In addition, Dr. Vargas identified Michelle's symptoms as the following: episodic vision blurriness, frequency of urination, difficulty thinking/concentrating, abdominal pain, hyper/hypoglycemic attacks, and nausea/vomiting. R. 269. The doctor further noted that "Michelle has been trying to take better care of herself but now has abdominal pain, nausea [and] bloating sensation post eating." R. 269. Dr. Vargas stated that Michelle was not a "malingerer" and that she was compliant with treatment. R. 270, 275. "[E]motional factors" reportedly contributed to the severity of her symptoms and functional limitations and were "severe enough" to interfere with her attention and concentration "frequently." R. 270. According to Dr. Vargas, Michelle's impairments were "likely to produce `good days' and bad days" such that she could be expected to be "absent from work" on average more than four times per month. R. 274.
3. Consultative Examinations
On March 13, 2000, Dr. Tomasito Virey examined Michelle. The doctor noted that Michelle had a history of juvenile onset IDDM first diagnosed when she was six years old and "presented with polyuria, polydipsia, weight loss and a blood sugar of 585." R. 253. Dr. Virey further noted that although Michelle had been hospitalized "about six times for diabetic ketoacidosis," all admissions were in Puerto Rico and the last one occurred approximately four years earlier. R. 253. The doctor reported that Michelle "[u]sually" had a fair appetite; was on an "insulin regimen sliding scale;" performed well in school; enjoyed exercising, watching television, playing basketball, baseball and volleyball; had no history of learning disability; and was not in special education. R. 253. The physical examination was unremarkable. R. 254. Dr. Virey concluded that Michelle was "moderately affected" in her ability to do age-related activities and that her prognosis was "[f]air to guarded." R. 254.
On April 13 and September 18, 2000, state agency physicians, Drs. G. Shukla and D. Santos, evaluated the record evidence. R. 264-67. The doctors concluded, in relevant part, that although Michelle's IDDM was a severe impairment, it did not "meet, medically equal, or functionally equal the severity of a listing." R. 264-67. On May 5, 2000, another state agency physician, Dr. Steve Goldstein, reviewed the record evidence and appears to have examined Michelle. R. 256-57. He noted that Michelle was a juvenile with IDDM and further opined that "[a]lthough she does have occasional low blood sugars, these usually occur when she skips meals or exercises [sic] without taking appropriate food beforehand." R. 257. Dr. Goldstein found Michelle's physical examination to be "normal" and concluded that her impairment "does not meet or equal listings 109.08." R. 257.
Dr. Virey re-evaluated Michelle on August 28, 2000. The findings and conclusions reached after this re-evaluation were largely the same as those in the first examination, except it was noted that Michelle's appetite was "usually  bad" as opposed to "fair." R. 259-61.
The record also indicates that Michelle continued to perform well in school despite her IDDM. A letter from her teacher dated March 7, 2001 described Michelle as an "excellent student." However, the teacher noted that Michelle's IDDM "got critical a couple of times," requires "constant monitori[ng]," and had at times adversely affected her performance and attendance. R. 268.
The Commissioner argues that the determination that Michelle was not disabled is supported by substantial evidence. See Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings, dated November 4, 2002 ("Def. Mem."), at 15-20; see also Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Further Support of Defendant's Motion for Judgment on the Pleadings, dated January 31, 2003 ("Def. Reply Mem."), at 1-4. Ramos argues in response that judgment on the pleadings should be granted in her favor because the record shows that Michelle is in fact disabled. See Pl. Mem. at 24-28; see also Memorandum of Law in Further Opposition to Defendant's Motion for Judgment in [sic] the Pleading [sic] and in Further Support of Plaintiff's Motion for Judgment on the Pleadings, dated February 13, 2003 ("Pl. Reply Mem."), at 4-8. In the alternative, Ramos seeks a remand for a new hearing and decision, arguing that the ALJ's decision was inadequate and that the ALJ failed to develop the record adequately. See Pl. Mem. at 18-24; Pl. Reply Mem. at 1-3.
A. Legal Standards for Actions Brought Pursuant to
42 U.S.C. § 405(g)
1. Scope of Judicial Review
Review of the Commissioner's final decision 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"); see, e.g., Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999) (per curiam). 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)). The reviewing 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)); accord Rosa, 168 F.3d at 77. Even if the administrative record supports disparate findings, the ALJ's factual determinations must be accepted as conclusive. Quinones v. Chater, 117 F.3d 29, 36 (2d Cir. 1997); see also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). Thus, the role of this 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) (citation omitted).
Notwithstanding this deferential standard, however, it is well settled that the ALJ has an affirmative duty to develop the administrative record in a disability benefits case and that remand is appropriate where this duty is not discharged. See, e.g., Rosa, 168 F.3d at 79-83; Clark v. Comm'r of Social Security, 143 F.3d 115, 118-19 (2d Cir. 1998). The non-adversarial nature of a Social Security hearing requires the ALJ "to investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 111 (2000) (citing Perales, 402 U.S. at 400-01); accord Ceballos v. Bowen, 649 F. Supp. 693, 698 (S.D.N. Y. 1986). This duty applies even in cases where, as here, the claimant is represented by counsel. See, e.g., Rosa, 168 F.3d at 79 (citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)); Ceballos, 649 F. Supp. at 698. The ALJ's duty to develop the administrative record encompasses not only the duty to obtain a claimant's medical records and reports but also the duty to question the claimant adequately about any subjective complaints and the impact of the claimant's impairments on the claimant's functional capacity. See, e.g., Cruz v. Sullivan, 912 F.2d 8, 11-12 (2d Cir. 1990); Echevarria v. Secretary of Health & Human Servs., 685 F.2d 751, 755-56 (2d Cir. 1982).
Further, while the ALJ need not "reconcile every conflicting shred of medical testimony," Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981), he or she must discuss the relevant evidence and factors "crucial" to the overall determination with "sufficient specificity to enable [reviewing courts] to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (citing Treadwill v. Schweiker, 698 F.2d 137, 142 (2d Cir. 1983)); accord Polidoro v. Apfel, 1999 WL 203350, at *7 (S.D.N.Y. Apr. 12, 1999) ("The ALJ's failure to mention [certain relevant] evidence and set for the reasons for his conclusions with sufficient specificity hinders the ability of a reviewing court to decide whether his determination is supported by substantial evidence.") (citation omitted). Thus,
[t]here are limits . . . upon the extent to which a
reviewing court may permit an ALJ's conclusion to be
based upon an unarticulated finding of fact or
analysis, for it is the function of the Commissioner,
and not a reviewing court, to pass upon the
credibility of witnesses, and to set forth clearly its
findings which form the basis for its decision.
Stupakevich v. Chater, 907 F. Supp. 632, 637 (E.D.N.Y. 1995) (citations omitted).
2. Standard Governing Evaluation of Disability Claims by the ALJ
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). 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 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i). Regulations interpreting this statute 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 Listing of Impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (the "listings"). See 20 C.F.R. § 416.924(d). The ALJ must follow a three-step analysis in determining whether a child meets this criteria. See id. § 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 that is severe." Id. § 416.924(c). If not, or if the impairment 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 meets or is medically or functionally equal to a disability in the listings. Id. § 416.924(d). "An impairment meets the severity of a listing if it matches the precise definition in the listings," while an impairment is "medically equivalent to a listed impairment if it is `at least equal in severity and duration to the listed findings.'" McCaskill v. Massanari, 152 F. Supp.2d 270, 273 (E.D.N.Y. 2001) (quoting 20 C.F.R. § 416.926(a)).
Functional limitations are evaluated in 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. 20 C.F.R. § 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. § 416.926a(d). A "marked" limitation is found where the impairment "interferes seriously with [the claimant's] ability to independently initiate, sustain, or complete activities." Id. § 416.926a(e)(2)(i). An "extreme" limitation — which means "more than marked" and is given only to the worst limitations — signifies the impairment "interferes very seriously with [the claimant's] ability to independently initiate, sustain, or complete activities." Id. § 416.926a(e)(3)(i).
If the impairment meets (or is medically or functionally equal to) a disability in the listings and satisfies the twelve-month duration requirement, the claimant will be deemed disabled. Id. § 416.924(d)(1).
B. Ramos' Application
1. The ALJ's Decision
ALJ Sochaczewsky issued his decision on August 22, 2001. R. 11-17. The ALJ noted that Michelle was not engaged in substantial gainful activity. R. 15, 16. Next, he determined Michelle's diabetes was a "severe impairment" and that it satisfied the duration requirement. R. 15, 16. The ALJ concluded that the impairment "neither meets nor medically equals the clinical criteria of any impairment" in the listings, R. 15, and proceeded to analyze whether Michelle's impairment was functionally equal to those in the listings. See R. 15-16. He concluded that Michelle had at most a less than marked limitation in four of the six domains and thus found that she was not disabled. R. 16. He included in his decision a finding that "[t]he testimony at the hearing was credible, but does not establish a valid basis for a finding of disability." R. 16; see also R. 16 ("although the claimant and her mother's testimony were generally credible, there is no valid basis to establish disability").
Ramos appealed the decision. R. 7-10. The Appeals Council denied the request for review, R. 3-4, thus rendering the ALJ's decision final. See, e.g., Perez, 77 F.3d at 44.
Ramos' principal argument is that the ALJ failed to analyze properly whether Michelle actually met the requirements in the listings. Listing 109.08 reads:
Juvenile diabetes mellitus (as documented in 109.00C)
requiring parenteral insulin. And one of the
following, despite prescribed therapy:
A. Recent, recurrent hospitalizations with acidosis; or
B. Recent, recurrent episodes of hypoglycemia; or
C. Growth retardation as described under the criteria
in 100.02 A or B; or
D. Impaired renal function as described under the
criteria in 106.00ff.
As noted in section II.A.2 above, ALJ Sochaczewsky was required to consider at the third step of the analysis whether Michelle's IDDM met or was medically or functionally equal to a disability in the listings, including Listing 109.08. This analysis required the ALJ to consider the facts relevant to the listing. See, e.g., Morales v. Barnhart, 218 F. Supp.2d 450, 459-60 (S.D.N.Y. 2002); see also Aviles v. Bowen, 715 F. Supp. 509, 513-14 (S.D.N.Y. 1989). Despite the facial relevance of 109.08(B) — making explicit reference to "[r]ecent, recurrent episodes of hypoglycemia" — the ALJ did not mention Listing 109.08 in his decision. Indeed, the decision did not mention hypoglycemia at all. This omission is rendered all the more inexplicable given that Michelle appears to have based her claim for SSI benefits specifically on the ground that she suffered hypoglycemic attacks, see, e.g., R. 85, 103, and a considerable portion of the hearing before the ALJ was devoted to the issue. See R. 25-26, 28-34, 36-37.
Instead, the decision merely states the conclusion that the medical evidence presented "neither [met] nor medically equal[ed]" the listings. R. 15. This was insufficient. Morales, 218 F. Supp.2d at 460-62 (reversing decision in child diabetes case where, inter alia, ALJ failed to address 109.08 listing requirements); see, e.g., Colon v. Apfel, 133 F. Supp.2d 330, 343 (S.D.N.Y. 2001) (conclusory findings "without explanation and analysis have little or no value" in child disability case); McCaskill, 152 F. Supp.2d at 274 ("It is not sufficient for the [ALJ] to make a single, conclusory statement.") (quotation marks and citation omitted) (brackets in original); accord Scott v. Barnhart, 297 F.3d 589, 595-96 (7th Cir. 2002) (discussion of applicable listing necessary so that reviewing court "may assess the validity of the agency's ultimate findings and afford a claimant meaningful judicial review").
In reaching his conclusion that Michelle failed to demonstrate a listed impairment, ALJ Sochaczewsky passed over the testimony presented at the hearing concerning Michelle's hypoglycemia, see R. 25-26, 28-34, 36-37 — testimony that in his decision he twice referred to as "credible," R. 16 — as well as certain record evidence. For example, Michelle testified that she had two to three hypoglycemic attacks per week notwithstanding that she adhered to her prescribed therapy. R. 28. While Listing 109.08 does not define "recent" or "recurrent" episodes of hypoglycemia, the testimony concerning Michelle's episodes required analysis of what these terms meant as applied to her case. The ALJ appears to have likewise ignored the import of the October 20, 2000 report completed by one of Michelle's treating physicians, Dr. Vargas, who noted that Michelle suffered from hypoglycemic attacks and "frequently" experienced symptoms associated with her diabetic condition. R. 269-70. While the ALJ referenced this report in noting that Michelle suffered from "serious blood sugar fluctuations," R. 15, he did not explain how the report impacted on his decision that Michelle failed to satisfy the listings. R. 15-16. Because Michelle's hypoglycemic attacks represented a significant issue before the ALJ, his "failure to mention such evidence and set forth the reasons for his conclusions with sufficient specificity hinders [this Court's] ability . . . to decide whether his determination is supported by substantial evidence." Polidoro, 1999 WL 203350, at *7; accord Ferraris, 728 F.2d at 587.
The Commissioner argues that the decision reached by the ALJ should not be disturbed as the Court is "able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence." Def. Reply Mem. at 2. The Commissioner cites Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982), in support of this proposition. The Commissioner is correct that Berry was willing to ignore the ALJ's failure to explain his rejection of the claimed listed impairments because the court there was "able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence." Id. at 469. Nonetheless, Berry took pains to note that in some cases we would be unable to fathom the ALJ's rationale in relation to evidence in the
record, especially where credibility determinations
and inference drawing is required of the ALJ. In such
instances, we would not hesitate to remand the case
for further findings or a clearer explanation for the
decision. Thus, in future cases in which the
disability claim is premised upon one or more listed
impairments of Appendix 1, the Secretary should set
forth a sufficient rationale in support of his
decision to find or not to find a listed impairment.
Id. at 469 (internal citations omitted) (emphasis added). Here, as noted, the ALJ failed to set forth any rationale in support of his finding that Michelle's impairment failed to satisfy the listings, let alone a "sufficient" one. See id.
The Commissioner urges that "four physicians, after review of the evidence, concluded that plaintiff's condition did not meet or equal the requirements of a listed impairment" and that these findings constitute substantial evidence. See Def. Reply Mem. at 2; accord Def. Mem. at 16-17. Specifically, she points to the conclusions reached by Drs. Shukla, Santos, Goldstein and Chandrasekhar. See Def. Reply Mem. 2; see also Def. Mem. at 16-17. These conclusions are not in any way explained by references to the text of the listing itself and, in any event, it is for the ALJ not a physician to make the ultimate determination as to whether a listing has been met.
The Commissioner also cites to Mongeur v. Heckler, 722 F.2d 1033 (2d Cir. 1983) and Miles v. Harris, 645 F.2d 122 (2d Cir. 1981), to support her argument that a remand is unnecessary. These cases, however, merely stand for the proposition that an ALJ need not specifically reference "every item of testimony presented to him or . . . explain why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability." Mongeur, 722 F.2d at 1040; accord Miles, 645 F.2d at 124 ("we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony"). This authority does not excuse an ALJ from addressing an issue central to the disposition of the claim.
See, e.g., Ferraris, 728 F.2d at 587 ("We of course do not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, but we do believe that the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.") (citations omitted); Morales, 218 F. Supp.2d at 459 ("because the ALJ found that [claimant] suffered the `severe' impairment of [IDDM], it is difficult to reconcile its failure to consider whether [the] impairment met Listing 109.08"); Polidoro, 1999 WL 203350, at *7 (ALJ's failure to mention certain evidence in the record relevant to claimed impairment "hinders the ability of a reviewing court" to find substantial evidence); accord Scott, 297 F.3d at 595 (ALJ left the reviewing court with "grave reservations as to whether his factual assessment addressed adequately the criteria of the [applicable] listing" where he failed to discuss the listing).
C. Whether the Case Should be Remanded with an Instruction to
Ramos argues that the case should be remanded with an instruction that benefits be awarded on the ground that a remand would "serve no purpose" given that the record "contain[s] ample substantial evidence that [Michelle] does suffer hyopglycemic [sic] attacks." Pl. Mem. at 28; Pl. Reply Mem. at 7. Remand, however, is not appropriate where there are gaps in the administrative record or where the ALJ has applied an improper legal standard. See Parker v. Harris, 626 F.2d 225
, 235 (2d Cir. 1980). Here, the ALJ has failed to explain the applicability of the critical regulation relating to Ramos' disability claim. Certainly, this is not a case where "the record provides persuasive proof of disability and . . . further evidentiary proceedings would serve no purpose." Id. (citation omitted). Rather, because of the "lack of specificity" in the ALJ's decision and the "inconclusiveness of the record, it is appropriate to remand the case to [the Commissioner] in order to ensure that the correct legal principles are applied" to the determination of Ramos' claim. See Johnson v. Bowen, 817 F.2d 983
, 986 (2d Cir. 1987).*fn3
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings should be denied. Ramos' cross-motion for judgment on the pleadings should be granted in part and denied in part. The case should be remanded to the Commissioner for further proceedings consistent with this decision.
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Loretta A. Preska, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Preska. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140