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United States District Court, Southern District of New York

May 27, 2003


The opinion of the court was delivered by: Shira Scheindlin, District Judge


Maria Campos ("Plaintiff" or "Campos") brings this action on behalf of her minor child Mario Cruz pursuant to 42 U.S.C. § 405 (g). Plaintiff seeks judicial review of a final decision by the Commissioner of the Social Security Administration (the "Commissioner") denying her son's claim for supplemental security income ("SSI") benefits based on disability under Title XVI of the Social Security Act. See 42 U.S.C. § 1381-85. Plaintiff has moved for judgment on the pleadings and, in the alternative, seeks reversal of the Commissioner's decision and a remand for further administrative proceedings. The Commissioner opposes Plaintiff's motion for judgment on the pleadings but supports the motion for an order reversing the Commissioner's decision and remanding the case for further administrative proceedings. For the reasons set forth below, the decision of the Commissioner is reversed and the case is remanded solely for the calculation of benefits.


A. Procedural Background

Campos filed an application for SSI benefits on behalf of her minor son, Mario Cruz ("Mario"), on March 8, 1995. Transcript ("Tr.") at 30.*fn1 The application for benefits was denied on July 6, 1995. See id. at 36-38. Plaintiff requested reconsideration on September 20, 1995, which was denied on December 14, 1995. See Id. at 41-44. On September 18, 1997, at Campos' request, a hearing was held before Administrative Law Judge Robin J. Artz (the "ALJ") See Id. at 393-450.

At the hearing, Plaintiff's attorney requested an adjournment in order to provide a more complete medical record. See Id. at 396. The ALJ denied Plaintiff's request, but indicated that the record would remain open after the hearing for the submission of additional evidence. See Id. at 396, 407. Plaintiff also requested that testimony from a counselor and Mario's most recent teacher, as well as his school records regarding two suspensions, be subpoenaed. See Id. at 402-04. The ALJ denied Plaintiff's request, but later accepted a written closing statement with additional test results and medical evaluations. See id. at 355-92, 449-50.

On September 23, 1998, the ALJ concluded that Mario was not disabled and therefore not entitled to benefits. See id. at 27. The ALJ's decision became the final decision of the Commissioner on September 7, 2001, when the Appeals Council denied Plaintiff's request to review the ALJ's decision. See id. at 4-6.

B. Factual Background

1. Evidence of Mario's Impairments

On May 30, 1995, Dr. Jose N. Arcaya evaluated Mario, who was then seven years old, and determined that he demonstrated weak vocabulary skills and was limited in his ability to handle geometrical patterns and symbols. See id. at 136. Dr. Arcaya's report stated that Mario "seemed unknowing of many basic aspects of his ordinary existence, including his birth date, telephone number and place of birth." Id. He concluded that Mario was "a markedly maladjusted boy, whose problematical behaviors probably manifest themselves whenever he is in a structured and regimented environment." Id. at 137. At the time of Dr. Arcaya's evaluation, Mario obtained a score of 73 on a full scale Intelligence Quotient ("I.Q.") test. See id. at 136.

A report from the George L. Cooke School ("Cooke School"), dated October 13, 1995, indicated that Mario was unable to function at a second grade level in reading or basic mathematical skills. See id. at 75-76. In November of 1995, Mario's tutor indicated that he functioned at a kindergarten level. See id. at 251. At this time, Mario scored 79 on a full scale I.Q. test ("borderline range") and in the sixteenth percentile on the Beery Developmental Test of Visual-Motor Integration ("low average range"). See id. at 236. On January 2, 1996, after classifying Mario as learning disabled, the Board of Education moved Mario from a regular class at the Cooke School to an Individualized Education Program. See id. at 150.

On October 4, 1996, Dr. Sally Nason, a school psychologist, evaluated Mario. See id. at 271-75. Dr. Nason noted that Mario was "somewhat tense and reticent to the testing situation" but later became "more confident." Id. at 271. She described him as cooperative and that he "shifted easily from one task to the next." Id. Dr. Nason noted that he obtained a deficient scaled score on an English vocabulary test, but that he had a "significantly higher breadth of vocabulary in Spanish." Id. She also noted that Mario's attention span was average. See id. at 274.

On October 18, 1996, Mario was evaluated by Maximo Hernandez, a bilingual educational evaluator. See id. at 277-79. He reported that Mario "respect[ed] his teachers and authority figures in school" and that he "gets along well with peers." Id. at 277. Hernandez's report described Mario's language skills as meeting his grade level and his speech skills as adequate for social communication. See id. at 278-79.

Mario was seen by Dr. Vallescorto, a school psychologist, in July 1997. Dr. Vallescorto reported that Mario was friendly, although "timid and shy." Id. at 200. He "cooperated with the evaluation, attempted to follow all testing [procedures] and put forth his best effort to succeed." Id. Mario often "understood instructions without [the] need for repetition or rephras[ing]." Id.

Later that year, on the Kaufman Test of Educational Achievement ("KTEA"), Mario performed at a 1.2 grade equivalency in mathematics. See id. at 279. In August of 1997, Mario performed at a 1.0 grade equivalency in English on the Woodcock Language Proficiency Battery, see id. at 211, and at a 1.0 equivalency in mathematics on the KTEA. See id. at 206.

On September 10, 1997, Mario was evaluated by Arlene Donar, a bilingual speech-language pathologist. See id. at 188-92. Mario was "cooperative and compliant" and his ability "to focus on stimulus materials was adequate for testing." Id. at 189. Ms. Donar reported that Mario demonstrated moderate delays in both English and Spanish language skills and significant difficulties in comprehension and retrieval of oral information and semantic relationships. See id. at 190-91.

The evidence in the administrative record also suggests that Mario has behavioral problems. Mario's special education teacher sent his mother a letter, dated September 11, 1997, which described Mario's distractive behavior during class. See id. at 349. Specifically, Mario "took off his clothes, stood on the table, took out . . . instruments without [the teacher's] permission[,] and hit one female student on the head five times with his notebook." Id.

When Mario was nine years old, evaluators at the St. Mark's Place Institute for Mental Health, Inc. submitted a report dated November 2, 1997, indicating that Mario's scores in "Broad Cognitive Ability," comparable to I.Q., fell in the "Low Average" range. Id. at 365. In the categories of auditory closure, Mario scored in the "Deficient" range and in visual matching, he scored in the "Mildly-Retarded" range. Id. On the Woodcock-Johnson Tests of Achievement, Mario's scores ranged from "Low Average" to "Profoundly Mentally Retarded." Id.

Mario was also evaluated by the Kennedy Child Study Center ("Kennedy Center") from October 22, 1997 to November 5, 1997. See id. at 369-82. He was evaluated on October 24, 1997, by Dr. Jorge Oldan, a psychiatrist at the Kennedy Center. Dr. Oldan reported that Mario's answers to his questions were "relevant and coherent. His associations were goal directed. His thought process was logical, sequential and spontaneous." id. at 380. Mario spoke of his fights at school and indicated he would be willing to use nonviolent means to solve his problems in the future. See id.

On tests performed at the Kennedy Center, Mario received a composite score of 67 on the Stanford Binet Intelligence Scale. See id. at 370. This score placed Mario in the "Mentally Retarded" range.*fn2 Id. Mario's academic skills were "far below age expectancy and in great need of remediationt." Id. at 372. In addition, the Kennedy Center noted that Mario was unable to take care of his personal belongings and required assistance in bathing and toileting. See id. at 371. Mario was diagnosed with Mild Mental Retardation, Learning Disorder, Expressive Language Disorder, and Oppositional Defiant Disorder. See id. at 380-82.

Mario has also been treated for asthma both before and after his application for SSI benefits was filed. See id. 77-80, 83, 106, 115, 141-43, 144-45. He has also been hospitalized for viral meningitis. See id. at 219-34. He was discharged, however, after only three days and no restrictions were placed on his activities or diet. See id. at 219.

2. Testimony at the Hearing

At the hearing, Campos testified, through an interpreter, that Mario often fought with other children. She also described two incidents resulting in Mario's suspension from school. First, Mario urinated inside a school bus and then disobeyed a bus attendant. In the second incident, Mario hit another child on the head. See id. at 418-21. Campos also testified that Mario was unable to tie his shoes, choose his clothing, or tell time without a digital watch. In addition, she testified that Mario's behavior had grown worse in the year preceding the hearing. See id. at 419-23.

Mario also testified at the hearing. He said that he enjoyed school and liked his teacher. He also stated that he had friends both at school and at home, with whom he enjoyed playing games. Mario testified that he enjoyed playing video games and that he could complete all levels of his favorite game. He said that he liked his younger brother and denied fighting with him. He did admit to urinating on a school bus and to having fought with children at school on three separate occasions. With respect to his asthma, Mario testified that he was able to exercise without problems and he was able to "keep up" with his friends. Id. at 430-40.


A. Standard of Review

When reviewing a decision by the Commissioner, a court may enter a "judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the cause for a rehearing." 42 U.S.C. § 405 (g). When reviewing a decision denying benefits under the Social Security Act, the Commissioner's factual determinations must be regarded as conclusive unless they are not supported by substantial evidence. See 42 U.S.C. § 405 (g); see also Aubeuf v. Schweiker, 649 P.2d 107, 112 (2d Cir. 1981). Substantial evidence is defined as "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Furthermore, when reviewing the record for substantial evidence, the record should be viewed as a whole. See State of New York v. Secretary of Health and Human Servs., 903 F.2d 122, 126 (2d Cir. 1990) (citation omitted). "This means that in assessing whether the evidence supporting the [Commissioner's] position is substantial, [a court] will not look at that evidence in isolation but rather will view it in light of other evidence that detracts from it." Id.

Because the Comissioner's factual determinations must be regarded as conclusive, factual issues need not have been resolved in accordance with what a reviewing court conceives to be the preponderance of the evidence. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1983). Where there is substantial evidence to support more than one position, the determination of which position to take is to be made by the Commissioner. See, e.g., Schisler v. Bowen, 851 P.2d 13, 47 (2d Cir. 1988). In short, the district court is not to decide Social Security cases de novo. See Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980)

B. Duty to Develop the Record and Consider All Relevant Evidence

The ALJ has an affirmative duty to develop the record. See, e.g., Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). In addition, in making a disability determination, the ALJ must consider all of the relevant evidence in the record. See 20 C.F.R. § 416.924 (a) and (f), 416.926a(c)(2) (1998). "An ALJ may not selectively choose evidence in the record that supports [her] conclusions." Castillo v. Anfel, No. 98 Civ. 792, 1999 WL 147748, at *8 (S.D.N.Y. Mar. 18, 1999) (internal quotation marks and citation omitted).

C. Plaintiff Does Not Meet the Disability Requirements under Listing 112.02
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 procedure in determining whether a child meets these criteria.*fn3 See 20 C.F.R. § 416.924 (a) (1998). 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. If the child is not engaged in substantial gainful activity, the ALJ must determine whether the child has a "`medically determinable impairment(s) that is severe." 20 C.F.R. § 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. Finally, if the impairment is severe, the ALJ must determine whether the impairment(s) meets, medically equals, or functionally equals a disability listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listings"). 20 C.F.R. § 416.924 (d). If a claimant has an extreme*fn4 limitation in one area of functioning or marked *fn5 limitations in two areas of functioning *fn6 a claimant's impairment will be found to be functionally equivalent to a listed impairment. 20 C.F.R. § 416.926a(b)(2).

The Listing describing Organic Mental Disorder begins with the following diagnostic description:

Abnormalities in perception, cognition, affect, or behavior associated with dysfunction of the brain. The history and physical examination or laboratory tests, including psychological or neuropsychological tests, demonstrate or support the presence of an organic factor judged to be etiologically related to the abnormal mental state and associated deficit or loss of specific cognitive abilities, or affective changes, or loss of previously acquired functional abilities.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.02 (1998). The relevant criteria for finding an Organic Mental Disorder follow:

The required level of severity . . . is met when the requirements of both A and B are satisfied.
A. Medically documented persistence of at least one of the following:
8. Impairment of impulse control (e.g., disinhibited social behavior, explosive temper outbursts); or
9. Impairment of cognitive function, as measured by clinically timely standardized psychological testing; or
10. Disturbance of concentration, attention, or judgment;

B. . . .

2. For children (age 3 to attainment of age 18), resulting in at least two of the following:
a. Marked impairment in age-appropriate cognitive/communicative function . . . or
b. Marked impairment in age-appropriate social functioning . . .; or
c. Marked impairment in age-appropriate personal functioning . . .; or d. Deficiencies of concentration, persistence, or pace. . . .

Plaintiff contends that Mario meets both requirements of Listing 112.02: He has extreme cognitive impairments and marked impairments in social functioning and deficiencies in concentration, persistence, and pace. Thus, Plaintiff contends, Mario's impairments demonstrate the persistence of an impairment of impulse control, an impairment of cognitive function, as measured by clinically timely standardized psychological testing, and a disturbance of concentration, attention, or judgment. Plaintiff also contends that Mario meets the second requirement of Listing 112.02 because he has a marked impairment in social functioning, and his concentration, persistence, or pace is deficient. In the alternative, Plaintiff contends that Mario's impairments are at least functionally equivalent to the limitations in Listing 112.02.

Plaintiff does not meet the second requirement under Listing 112.02 because the ALJ determined that Mario did not exhibit a marked impairment in social functioning or a deficiency in concentration, persistence, or pace. Furthermore, there is no evidence in the record that Mario has any organic brain dysfunction.

1. Social Functioning

Although there is evidence that suggests that Mario's social functioning is limited, the ALJ's conclusion that Mario's social functioning was less than markedly impaired is supported by substantial evidence. Numerous reports in the record suggest that Mario was cooperative with his evaluators and related well to both adults and his peers. See Tr. at 189, 200, 271. As noted above, Mario "respect[ed] his teachers and authority figures in school" and "gets along well with his peers." Id. at 277. Mario's own testimony supported the finding that he had friends with whom he was able to interact appropriately. See id. at 430-31. In sum, although this Court might have exercised its discretion differently, the ALJ's finding is supported by substantial evidence.

2. Concentration, Persistence, or Pace

The ALJ's conclusion that Mario did not suffer from deficiencies of concentration, persistence, or pace is also supported by substantial evidence. For example, Mario's attention span was described as "good," Tr. at 380, or "average," id. at 274, and he was able to complete all levels of his favorite video game. Id. at 432. Ms. Donar's report noted that Mario's ability to "focus on stimulus materials was adequate for testing." Id. at 189. Furthermore, Dr. Oldan reported that Mario's "thought process was logical, sequential, and spontaneous." Id. at 380. In sum, there is substantial evidence to support the ALJ's findings with regard to Mario's concentration, persistence, or pace. Although the evidence was somewhat conflicting, it is the ALJ's job to weigh conflicting evidence and this Court must accept the ALJ's findings where supported by substantial evidence.

D. Mario's Impairments Are Not Functionally Equivalent to Limitations in Listing 112.02
If a claimant has extreme limitations in one area of functioning or marked limitations in two areas of functioning, a claimant's impairment will be found to be functionally equivalent to a listed impairment. See 20 C.F.R. § 416.926a(b)(2). The ALJ determined that Mario exhibited less than marked limitations in social functioning and in concentration, persistence, or pace.

Campos contends, on the other hand, that Mario demonstrated at least marked impairments in social functioning and concentration, persistence, or pace. According to Campos, Mario's impairments are functionally equivalent to a listed impairment. As discussed above, however, there is substantial evidence supporting the ALJ's findings that Mario's impairments regarding social functioning and concentration, persistence or pace were less than marked. Therefore, the ALJ's finding that Mario's impairments are not functionally equivalent to limitations in Listing 112.02 is supported by substantial evidence and cannot be disturbed.

E. Mario's Disabilities Meet the Requirements of Listing 112.05

Campos contends that the ALJ's decision contains errors of law, which include a failure by the ALJ to consider whether Mario's disability met or equaled Listing 112.05 for Mental Retardation. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.05. Campos also contends that if the ALJ had considered Listing 112.05, her son would have been entitled to benefits because the correct legal standard "lead[s] to only one conclusion" — that Mario is disabled. Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998). While the Commissioner opposes Campos' motion for judgment on the pleadings, she supports Campos' motion for an order reversing the Commissioner's decision and remanding the case for further proceedings.

Although the ALJ failed to consider Listing 112.05,*fn7 this Court finds that Mario's disabilities meet the requirements of Listing 112.05F.*fn8 Listing 112.05, dealing with mental retardation, is met when a claimant's mental condition is "[c]haracterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning," and when the requirements in either parts A, B, C, D, E, or V of the Listing are satisfied. Part F of Listing 112.05 is satisfied for children ages three to eighteen when the child has: (1) a marked impairment in age-appropriate cognitive/communicative function, documented by medical findings and, if necessary, the results of appropriate standardized tests and (2) a physical or other mental impairment imposing an additional and significant limitation of function. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.05F.

Mario's disabilities meet the first requirement of Listing 112.05F as the ALJ determined that Mario has a marked impairment in cognitive/communicative function. See Tr. at 23. Mario also meets the second requirement because he demonstrates "additional and significant limitation of function." This phrase appears verbatim in both Listing 112.05D and F. In Castillo v. Barnhart, No. 00 Civ. 4343, 2002 WL 31255158 (S.D.N.Y. Oct. 8, 2002), the court described the interplay between section 416.924(c) and the "significant limitation" requirement:

The final rules do indisputably link section 416.924(c) to listing 112.05D. A finding that a child has an additional impairment (besides low IQ), and that this impairment is "severe" under section 416.924(c) means that the impairment satisfies the 112.05D requirement of an impairment imposing an "additional and significant limitation of function.
Castillo, 2002 WL 31255158, at *9. See also Listing 112.00A (2002) ("For listings 112.05D and 112.05F, we will assess the degree of functional limitation the additional impairment(s) imposes to determine if it causes more than minimal functional limitations, i.e., is a `severe' impariment(s), as defined in § 416.924(c)."). The ALJ found that Mario suffered from severe impairments under section 416.924(c). See Tr. at 22 (finding Mario's language-based learning disorder with dyslexia and receptive and expressive language delays to be "severe" within the meaning of the Social Security Act and regulations). Under Castillo, the ALJ's findings automatically qualify as a "significant limitation of function" under Listing 112.05F.*fn9

Because Mario's disabilities indisputably meet Listing 112.05F, this case is remanded solely for the calculation of benefits. See Navarro v. Barnhart, No. 02 Civ. 1748, 2003 WU 942535, at *2 (S.D.N.Y. Mar. 10, 2003) ("Of course, where `the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose,' the proper remedy is to remand solely for the calculation of damages.") (quoting Parker, 626 F.2d at 235); Del Pilar v. Sullivan, 756 F. Supp. 117, 119 (S.D.N.Y. 1990) ("There is no reason to remand for agency reconsideration where application of correct legal principles to the record could lead to only one conclusion, that is, that plaintiff is disabled as defined by agency regulations.").

F. Plaintiff's Request for Interim Benefits and Time Restrictions

Finally, Campos asks this Court to award Mario interim benefits. In addition, Campos asks this Court to direct the Appeals Council to issue its order of remand within ninety days and order the Commissioner to complete administrative proceedings and issue its final determination within ninety days of the Appeals Council's remand. First, because this Court has determined that Mario is disabled, interim benefits should begin immediately. Second, although I decline to place a specific time restriction upon the Commissioner, in light of the fact that it has been over eight years since Mario first applied for SSI benefits, the Commissioner is urged to proceed expeditiously in awarding benefits.


For the foregoing reasons, the final decision of the Commissioner is reversed and the case is remanded solely for the calculation of benefits. The Clerk of the Court is directed to close this case.


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