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Miranda v. Barnhart


January 12, 2006




Ramon Miranda (the "plaintiff") brings this action on behalf of his son, Raymon Miranda, pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). The plaintiff seeks review of the determination by the Commissioner of the Social Security Administration (the "Commissioner") finding Raymon not disabled and denying his application for children's Supplemental Security Income ("SSI") benefits. The plaintiff contends that the court should modify the Commissioner's determination to grant monthly maximum insurance and/or SSI benefits to Raymon, or alternatively to remand to the Commissioner for reconsideration of the evidence. (Compl. at 3). For the reasons stated below, I recommend that the case be remanded for further proceedings.


A. Procedural History

On August 2, 2001, Raymon's mother, Helen Miranda, filed an application for SSI benefits on Raymon's behalf.*fn1 (Tr. 49-51). In the initial eligibility determination decision dated December 11, 2001, the Social Security Administration (the "SSA") found that the medical evidence demonstrated Raymon had "an emotional disorder, asthmatic attacks and a normal examination finding." (Tr. 45). In refusing to approve Raymon's application, the SSA concluded that subsequent treatment had improved Raymon's condition such that he had "no restrictions to his daily activities." (Tr. 45).

On December 20, 2001, Ms. Miranda filed a request for a hearing to contest the SSA's determination. She described the basis of her request as Raymon's need to "tak[e] 5 types of medication," participate in occupational therapy at school, and attend speech therapy. (Tr. 46). Ms. Miranda appeared pro se on Raymon's behalf at the hearing on June 4, 2002. (Tr. 32). The presiding Administrative Law Judge (the "ALJ") denied Raymon's claim on October 24, 2002 (Tr. 19, 24), finding, among other things, that Raymon was not disabled and that "allegations regarding his impairment and its impact upon his functioning [were] not entirely credible." (Tr. 23).

Ms. Miranda then requested and was denied Appeals Council review of Raymon's claim on June 23, 2004. (Tr. 5). The ALJ's ruling therefore stands as the Commissioner's final decision. The plaintiff filed this action on August 12, 2004, and the Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

B. Factual Record

Raymon was born on January 3, 1995. (Tr. 49). He is supported by his father, although when much of the record was compiled he lived with his mother. Raymon has a history of learning disabilities (Tr. 197-98), as do his siblings. (Tr. 106, 275). He is also reported to have a history of speech and language problems, middle ear infections, asthma, and right lower extremity weakness. (Tr. 197). He has been receiving speech therapy since pre-school (Tr. 241), and occupational therapy for fine motor coordination. (Tr. 197, 240). Raymon has also taken a regimen of medications for his asthma, including Flovent, Proventil, Albuterol, and Sena concentrate, as well as an antibiotic for his ear infections. (Tr. 197).

C. Evidence in the Record at the Time of the Hearing

1. Speech Impairment and Learning Disability*fn2

On May 20, 1998, Valerie Nieves Rodriguez of the Paul Institute for Mainstreaming Services, Inc. (the "Paul Institute") conducted a psychological evaluation of Raymon. (Tr. 118-21). Ms. Rodriguez's findings, reported on May 28, 1998, indicate that Raymon's cognitive functioning was "within the average range," and his overall social/adaptive functioning was found to be "within the moderately low range." (Tr. 120). Based on her findings, Ms. Rodriguez believed that Raymon would benefit from language development supportive services. (Tr. 120).

Carly-Robin Dresher, a state-licensed speech and language pathologist, evaluated Raymon on the same day as the Paul Institute visit. (Tr. 109). On the Preschool Language Scale, Third Edition, Raymon demonstrated a "moderate-severe" delay in the areas of auditory comprehension, expressive communication, and total language skills. (Tr. 109-10).

Ms. Dresher also administered the Preschool Language Scale Articulation Screener and noted that Raymon's intelligibility at the word and conversation levels was "fair." (Tr. 110). Ms. Dresher found speech delays and a limited ability to attend and concluded that the diagnostic tests revealed "severe delays across all parameters of language processing and expression." (Tr. 111). She recommended that Raymon continue to receive speech and language therapy three times per week. (Tr. 111).

On September 14, 1998, when Raymon was three and one-half years old, Nora Reid, a special educator, conducted an educational evaluation of Raymon. (Tr. 122-25). Noting that "it was extremely difficult to test him," Ms. Reid found that he had "many deficits and very little communication skills." (Tr. 122). Ms. Reid's summary indicated that Raymon was "under-stimulated and probably overprotected by his mother." (Tr. 125). All of the tested domains, with the exception of motor skills, revealed deficits. (Tr. 125). Ms. Reid found it "necessary that support services [be] provided." (Tr. 125).

Dr. Margaret Chu conducted a psychiatric consultative examination of Raymon on March 1, 1999. (Tr. 186). After noting a history of lead poisoning (Tr. 186), Dr. Chu observed that Raymon was "somewhat behind in age-related activities." (Tr. 187).

On April 9, 1999, Dr. Judith E. Belsky met with Raymon and completed a Childhood Disability Evaluation. (Tr. 52-55). Dr. Belsky found that Raymon's "impairment" was "severe, but [did] not meet, medically equal, or functionally equal the severity of a [listed impairment]." (Tr. 52). Dr. Belsky found Raymon's cognitive and communicative functional limitations to be "[l]ess than [m]arked," and found no evidence of a limitation for the Responsiveness to Stimuli, Personal, Social, or Concentration/Persistence/Pace domains. (Tr. 54). The portion of the evaluation form used to designate "established physical and mental impairments and associated symptoms" was left blank (Tr. 52), and Dr. Belsky found that "[Raymon] has speech delay with poor expressivity." (Tr. 55).

Dr. Irwin Ronson, a speech and language pathologist, conducted a speech and language review with Raymon on May 28, 1999. (Tr. 96). Dr. Ronson administered the Preschool Language Articulation Screener, remarking that Raymon displayed "[f]air intelligibility for words and conversation." (Tr. 96). Raymon's Preschool Language Scale ("PLS-3") test scores revealed "less than marked" impairments of his auditory comprehension, expressive communication, and total language skills Dr. Ronson summarized his findings by noting a "moderate speech and language impairment" that was less than marked. (Tr. 96).

Speech and language pathologist Michele Lieberman completed a New York State Office of Temporary and Disability Assistance "Request for Medical Advice" on August 20, 1999. (Tr. 60). Ms. Lieberman found that Raymon had a marked deficit "in speech/comm[unication] function as opposed to less than marked . . . [and his] overall lang[uage] skill [is] limited." (Tr. 60).

A "Dr. Dinoff" completed a Childhood Disability Evaluation Form on August 30, 1999. (Tr. 56-59). Dr. Dinoff found that Raymon had an established "learning disability" impairment, but that his disability did not "meet, medically equal, or functionally equal" a listed impairment. (Tr. 56). Dr. Dinoff found Raymon's cognitive and communicative functional limitations to be "less than marked," and found no evidence of a limitation for the Responsiveness to Stimuli, Personal, Social, or Concentration/Persistence/Pace domains. (Tr. 58). Explaining the findings, Dr. Dinoff indicated that Raymon "revealed some language problems." (Tr. 59).

A September 14, 1999, progress report completed by Loraine Cade, a speech pathologist at the Paul Institute, indicates that Raymon was receiving speech therapy two times per week for 30 minutes. (Tr. 293-94). Teachers had reported to Ms. Cade that Raymon was "very slow" in school and had not finished his assigned tasks. (Tr. 293). Ms. Cade reported that "[Raymon] has problems processing information. When the teachers ask Raymon[] to do something, he would look at them very strangely, without following any of their directions. The teachers have to repeat the questions or directions to Raymon[] several times before he is able to process the information or even begin the activity." (Tr. 293). According to Ms. Cade, these problems were similar to the difficulties that Ms. Miranda experienced when interacting with Raymon. Ms. Cade also pointed to progress in Raymon's speech and language skill development.

On February 5, 2000, Ms. Miranda reported to Juana Sosa-Mendez, A school social worker, that Raymon stuttered and had speech and language delays. (Tr. 286). Ms. Sosa-Mendez recommended "[r]elated [s]ervices only of speech and language therapy twice per week . . . provided by the Paul Institute." (Tr. 287).

Also on February 5, 2000, H. Vallescorbo, Raymon's school psychologist, completed a Confidential Psychological Report to determine Raymon's placement and services in the New York City public school system. (Tr. 274). The report noted that Raymon was then in preschool and to that point had reached all developmental milestones within normal limits with the exception of his language abilities. (Tr. 275).

In reviewing language functioning, Vallescorbo found that Raymon "has problems expressing himself verbally . . . . [He] mispronounced words and has a lack of words to identify familiar objects."*fn3 (Tr. 275). Raymon's "utterances were often unintelligible," continued Vallescorbo, and his "overall expressive and receptive language are delayed."*fn4 (Tr. 278).

To assess Raymon's intellectual capacity, Vallescorbo administered the Wechsler Preschool & Primary Scale of Intelligence, Revised ("WPPSI-R"). (Tr. 276). Raymon's test scores placed him in the "lower limits of the [l]ow [a]verage range." (Tr. 276). Raymon also tested in the low average range on the Verbal Scale.*fn5 (Tr. 276). Testing revealed Raymon's numerical abilities to be well-developed, "a [strength] for him." (Tr. 276). Vallescorbo also utilized the Stanford-Binet, Fourth Edition to assess Raymon's overall intellectual functioning, revealing results in the low average range. (Tr. 278).

After reviewing the results of a battery of other test scores, Vallescorbo summarized his findings. Testing indicated that Raymon was functioning below his age expectancy, particularly with respect to language abilities. (Tr. 276). Although tests revealed a "clos[e]-to-appropriate vocabulary," Vallescorbo also found that Raymon's verbal comprehension and concept formation were poor. (Tr. 276). Reviewing Raymon's physical functioning, Vallescorbo stated that Raymon's perceptual-motor skills and visual motor skills were adequate, but that he showed significant delays in his graphomotor skills. (Tr. 276).

On August 23, 2000, an Individualized Education Program ("IEP") was completed for Raymon. (Tr. 170-85, 215-32). Raymon was deemed eligible for assistance because of his speech impairment. (Tr. 170). The IEP recommended that Raymon be placed in general education with related services, speech and language therapy, and occupational therapy). (Tr. 170). At the same time, Raymon was cleared to "participate in all [school] activities."

(Tr. 172).

Dr. Evelyn Cumps-Bakst, who Ms. Miranda indicated was Raymon's treating physician (Tr. 81), completed a medical report for Raymon's visits to Metropolitan Hospital from April 25, 2001, to August 1, 2001. (Tr. 98-105). Raymon's first visit to Metropolitan Hospital had been when he was 17 days old; Dr. Cumps-Bakst's first date of treatment was on April 25, 2001, when Raymon was six years old. (Tr. 98). Dr. Cumps-Bakst's "treating diagnoses" included a speech disorder*fn6 that had been diagnosed in April or May of 1997 and encopresis*fn7 that was reportedly improving with Senokot.*fn8 (Tr. 98-99). Raymon was also noted to be hyperactive at home but well-behaved in school. (Tr. 101). Dr. Cumps-Bakst saw no behavior suggestive of a "significant psychiatric disorder." (Tr. 99).

Dr. Cumps-Bakst's summary indicates that Raymon's were cognitive skills were age-appropriate; his communication skills were deemed to be "decreased" due to an "extensive speech delay." (Tr. 100-01). Dr. Cumps-Bakst reported that Raymon's "activities"*fn9 were "not affected" by his impairment. (Tr. 100). Evaluating Raymon's level of attention and concentration, Dr. Cumps-Bakst opined that he "pays attention to my suggestions but [his] school teacher would be better [situated] to evaluate this [aspect of functioning]." (Tr. 103).

On April 30, 2001, Raymon's initial IEP was revised. (Tr. 295-306). He was again found eligible for special services due to a speech impairment. (Tr. 295). Raymon was to continue to attend general education classes and receive supplemental services, occupational therapy, and speech and language therapy.*fn10 (Tr. 295).

Dr. Lynn A. Sider evaluated Raymon's speech and language functioning on August 24, 2001. (Tr. 188). She found Raymon to be alert, well related, playful, and friendly, occasionally displaying evidence of distractibility. (Tr. 189). Raymon's oral peripheral speech mechanism was found to be "within functional limits," and his auditory skills were deemed "adequate for conversational purposes." (Tr. 189). Dr. Sider administered a CELF-3 test, for which the Total Language Score of 69 and Expressive Language Score of 57 were each classified as falling within the "very low range of functioning." (Tr. 190). Raymon's Receptive Language score was somewhat better at 84, though still within the low range. (Tr. 190). In summarizing Raymon's performance on the administered formalized testing, Dr. Sider found Raymon to be in the "below average range." (Tr. 192). Dr. Sider concluded that Raymon had a "severe expressive language delay." (Tr. 193).

On September 17, 2001, Dr. Robin Bryant met with Raymon and administered the Wechsler Intelligence Scale for Children, Third Edition ("WISC-III") and the Test of Nonverbal Intelligence, Third Edition ("TONI-III"). (Tr. 194). Raymon's TONI-III test yielded a score of 85, placing him in the low average range of functioning and the sixteenth percentile for his age. (Tr. 195). In Dr. Bryant's view, Raymon might be able to perform tasks on a higher level if he were not hindered by his speech delays. (Tr. 196). Raymon was found to be "mentally deficient" with respect to his long-term memory for learned information and expressive vocabulary. (Tr. 196). Dr. Bryant concluded that Raymon's basic intellectual, personal, and social functioning appeared moderately to seriously impaired overall due to expressive and receptive speech and language delay, although Raymon would be able to accomplish many age-appropriate tasks in school. (Tr. 196). Dr. Bryant's overall prognosis was "guarded to fair." (Tr. 196).

On February 8, 2002, Raymon's IEP was again reviewed. (Tr. 297). The IEP contains an observation that "Raymon[] speaks English with limited proficiency. Teacher indicates he is currently functioning below his age and grade levels. His absences interfere with current performance." (Tr. 299). Raymon's behavior was noted to be good both at home and school, although his interaction with his peers was thought to be restricted due to his inability "to initiate conversations[] or expand on a given topic." (Tr. 300).

On September 18, 2001, Dr. Tomasit Virey evaluated Raymon's impairments (Tr. 197). Dr. Virey's report indicates that at least some of the information was obtained from Ms. Miranda, whose reliability he noted as "fair." (Tr. 197). Raymon was described as a playful, friendly and cooperative child with a normal affect and mental status. (Tr. 198). Raymon displayed the ability to answer questions in an age-appropriate manner and his speech was noted to be "slightly unclear but understandable, comprehensible, audible and sustainable." (Tr. 198). Summarizing his findings, Dr. Virey listed Raymon's impairments as a speech and language problem, asthma, and weakness of the right lower extremity. (Tr. 199). Raymon's ability to do age-related activities was reported to be moderately affected, and his prognosis was listed as fair. (Tr. 199).

Frances Brenner, a parent-child development specialist at Metropolitan Hospital, submitted a letter dated May 29, 2002, indicating that Raymon had been attending counseling sessions with her for approximately six months. (Tr. 210). She further stated that Raymon's speech and occupational therapies have resulted in "slow improvement in his speech and motor skills." (Tr. 210).

Prior to Raymon's hearing, the ALJ requested Dr. Matilda Brust, a medical expert, to review the available evidence. (Tr. 240). Dr. Brust stated that Raymon had "a significant (marked) delay" in speech and language functioning. (Tr. 241). She opined that Raymon's primary problem was in the expressive domain and wrote that his speech was "not clear" but was nonetheless "understandable." (Tr. 241).

Reviewing the evidence of Raymon's behavior, Dr. Brust concluded that while he did fight at home, he was also described as timid and as having a good attention span. (Tr. 241). Dr. Brust's discussion indicates that "[n]o examiners found [Raymon] to be hyperactive, or distractible." (Tr. 241). While she stated that the record indicated that Raymon was regularly visiting a mental health clinic, she noted that the evidence before her contained no reports from any such clinic. (Tr. 241). Dr. Brust concluded that Raymon had a "marked" limitation in the area of acquiring and using information and a "less than marked" limitation in the area of interacting and relating with others. (Tr. 241).

2. Asthma

Ms. Sosa-Mendez's February 5, 2000, evaluation noted that Raymon "reported[ly] suffer[ed] from asthma, sinus and seasonal allergies;" at the time of reporting, Raymon had an ear infection and was taking medication. (Tr. 286).

Dr. Virey's report of September 8, 2001 indicates Raymon had never been hospitalized for asthma or any other medical problem. (Tr. 197). Dr. Virey also noted that Raymon had not visited the emergency room in the prior six months. (Tr. 197). According to Dr. Virey, Raymon's previous asthma attack had occurred two months prior to his evaluation and was successfully treated at home with medication. (Tr. 197). Dr. Virey described Raymon's physical activities at school as "moderately restricted" due to his asthma and right lower extremity weakness. (Tr. 197).

Dr. Brust's review of the evidence led her to conclude that Raymon's asthma was "mild and intermittent" and that he had never been hospitalized or visited the emergency room due to an asthma attack. (Tr. 241). She stated that Raymon's asthma "is treated with the usual asthma medications." (Tr. 241). Summarizing the combined result of her analysis of Raymon's asthma condition and her findings with respect to Raymon's other alleged infirmities, Dr. Brust concluded that Raymon did not have an impairment or combination of impairments that met or equaled the regulatory definition of asthma, mental retardation, or a "communication disorder." (Tr. 241). See 20 C.F.R. Pt. 404, Subpt. P, App. 1.

3. Motor Functioning

Dr. Chu's March 1, 1999 examination noted that Raymon was found to have no acute physical distress. (Tr. 186). Both Dr. Belsky and Dr. Dinoff came to similar conclusions, finding no evidence of a limitation in the Motor domain. (Tr. 54, 58).

Raymon's occupational therapy progress was assessed by Rosalee Howell on July 29, 2000. (Tr. 233). She viewed Raymon's motor development, including his range of motion of bilateral upper extremities and his muscle strength, as falling within functional limits. (Tr. 233). With respect to Raymon's gross motor skills, an abnormal gait characterized by an inversion of left foot was noted, although he was found to be "ambulatory without assistance" and was capable of walking, running, jumping, throwing and catching a ball, and hopping on one leg. (Tr. 233).

As part of Raymon's August 23, 2000, IEP, it was determined that he had difficulty with fine and gross motor skills. (Tr. 177). Dr. Cumps-Bakst's treatment summary for that same period deemed Raymon's functioning and behavior to be age appropriate for fine and gross motor skills and sensory abilities. (Tr. 100-01).

Dr. Virey's September 2001 report noted that Raymon had a slightly awkwardness of gait; a slight hypotonicity;*fn11 slightly decreased muscle tone; a slight medial deviation of the right foot; and a slight increase in deep tendon reflexes in the right lower extremity. (Tr. 198-99). Dr. Virey found no limitation of Raymon's range of motion and no muscular atrophy. (Tr. 199).

On January 3, 2002, Rachel Wright Thurber drafted a "To Whom It May Concern" letter indicating that Raymon had been receiving occupational therapy at his school for the academic years 2000-2001 and 2001-2002. (Tr. 200, 209). Ms. Thurber explained that "[Raymon's t]herapy sessions consist of activities to increase fine motor coordination skills, visual perceptual skills and gross motor skills to age-appropriate level[s]" and would continue until he met his goals. (Tr. 200).

In a June 2002 letter, Raymon's first grade teacher, Martha J. Solis indicated that Raymon had problems with his fine motor skills, explaining that his handwriting was difficult to understand, with tasks such as writing his name and the date "tedious" for him. (Tr. 236).

4. Behavior

Ms. Dresher's behavioral observations indicated that Raymon was a "distractible young boy" and listed a host of behavioral difficulties, including a limited attention to visual stimuli, poor auditory memory, and an inability to complete requested tasks unless redirected to do so. (Tr. 109). Ms. Cade of the Paul Institute considered Raymon to be a "very quiet child" who was "very shy when he talk[ed] to people," speaking in a low voice that was "almost like a whisper." (Tr. 293).

Ms. Miranda also said that Raymon had difficulty dressing himself, needed assistance with buttons and tying his shoes, and wore pampers at night because he was not completely toilet trained. (Tr. 286). Behaviorally, Ms. Miranda reported Raymon to be very quiet, shy, and well-behaved at home and school. (Tr. 287).

When meeting with Vallescorbo, Ms. Miranda indicated that Raymon liked to play alone and talk to himself or an imaginary friend. (Tr. 275, 277) (noting Raymon's reported "make believe" play). Vallescorbo noted that Raymon was well behaved and related well with all his family members, a disposition also reflected in Raymon's interaction with Vallescorbo. (Tr. 275). Raymon was cooperative, attempted to follow the testing procedures, and was "putting his best effort to succeed." (Tr. 293).

Vallescorbo found that Raymon "was easily distracted by external stimuli and [often needed to] refocus on task[s]. He often needed repetitio[n] and rephras[ing] in order to understand instructions . . . . Raymon[] moved in his seat often with rocking movements." (Tr. 275). At the same time, Vallescorbo reported that Raymon possessed an "adequate level of persistence" and "benefitted from extra time and [rehearsal], which improved his performance." (Tr. 293).

In conducting Raymon's social and emotional assessment, Vallescorbo found him to be friendly and cooperative but timid. (Tr. 277). Vallescorbo concluded that "[h]e might present problems initiating interaction with others and might need external motivation to be engage[d] in activities." (Tr. 277).

Dr. Bryant's September 2001 examination noted that Raymon had "been in psychiatric treatment at Metropolitan Hospital for 1 year without medications" but that Ms. Miranda was "considering trying [them]." (Tr. 194). Dr. Bryant opined that Raymon was "possibly" suffering from depression, but diagnosed his psychological difficulties as deriving from anxiety and hyperactivity. (Tr. 194). Dr. Bryant described Raymon as aggressive, moody, suffering from a sleep problem, and "not very sociable." (Tr. 194).

C. The Administrative Hearing

At the administrative hearing, Ms. Miranda began her testimony by noting that Raymon's problems included speech delays, asthma, a weak arm, and a learning disability. (Tr. 35). The ALJ first inquired about Raymon's arm, which Ms. Miranda indicated was due to a "weak side" starting at birth. (Tr. 35). The ALJ responded with a series of questions that probed into how Raymon's environs might potentially aggravate his asthmatic condition, inquiring about family pets and smoking by family members. (Tr. 35-36). The ALJ also asked questions pertaining to Raymon's means of getting to school and performance there, his height and weight, and his after-school playtime activities. (Tr. 36-37).

At the ALJ's prompting, Ms. Miranda next indicated that Raymon was attending counseling at Metropolitan Hospital. (Tr. 37). The ALJ asked if he was on any medication, and Ms. Miranda answered that he was not.*fn12 (Tr. 37). The ALJ asked then asked two questions about Raymon's toilet training and ability to feed and dress himself (Tr. 37-38), at which point the medical expert, Dr. Burris,*fn13 gave his evaluation of the medical evidence. (Tr. 38).

Dr. Burris first addressed Raymon's asthma. (Tr. 38). Noting that this condition had required neither hospitalizations nor visits to the emergency room, Dr. Burris classified his case as "mild and intermittent," opining that he did not "believe it interferes with [Raymon's] functioning whatsoever." (Tr. 38).

Dr. Burris then addressed Raymon's intellectual abilities, remarking that while his intelligence fell within the low average range and he was attending special education, he also attended a regular classroom. (Tr. 38). Dr. Burris followed by pointing out that Raymon's teacher considered Raymon's speech and language abilities to be problematic, but not his behavior. (Tr. 38).

After stating that he had considered the asthma (103.03), mental retardation (112.05), and communication disorder (111.09) categories of listed impairments, Dr. Burris ultimately concluded that Raymon did not have any impairment or combination of impairments that would meet or equal any impairment listed in 20 C.F.R. Pt. 404, Subpt. P, app. 1 ("Listing"). (Tr. 39). He found a marked limitation in the domain of acquiring and using information due to Raymon's language delays. (Tr. 39). Pointing to Raymon's timidity and occasional fights at home, Dr. Burris opined that his impairment was less than marked in the domain of interacting with others. (Tr. 39). Citing Raymon's "mild delays in fine motor skills and visual perception," Dr. Burris found Raymon's limitation in the areas of moving about and manipulating objects to be less than marked.*fn14 (Tr. 39).

D. Evidence Submitted to the Appeals Council Following the ALJ's October 24, 2002, denial of Raymon's application for benefits, Howard S. Davis of Legal Services, Inc. submitted a memorandum of law and new evidence to the Appeals Council requesting review of the ALJ's determination. (Tr. 242). Mr. Davis argued that the ALJ had failed to obtain the submitted evidence prior to his determination and had thereby failed to adequately develop the record. (Tr. 242).

The new evidence included: records of hospital visits for asthma attacks from October 23, 2001, to January 15, 2003, during which Raymon was treated nine times for asthma-related difficulties (Tr. 248-73); records pertaining to mental and emotional problems and to his ability to care for himself, including reports by independent care-givers raising the possibility that Raymon suffers from Attention Deficit Disorder ("ADD") (Tr. 274-78, 280-82, 286); records relating to the domain of attending and completing tasks, including evidence pertaining to grants of extra time to complete tests in school (Tr. 286, 293); reports concerning the domain of moving about and manipulating objects, including evidence of significant delays in grapho-motor skills (Tr. 276); and a report from Raymon's speech therapist, whom he had been seeing since 2001. (Tr. 308-09).


A. Determining Childhood Disability 1. Commissioner's Eligibility Rules To qualify for disability benefits, a child under the age of eighteen must have "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). The ALJ engages in a five-step analysis to decide whether a child is disabled under this standard.

First, the ALJ determines if the child is involved in "substantial gainful activity," which precludes a finding of disability. 42 U.S.C. § 1382c(a)(3)(C)(ii); 20 C.F.R. § 416.924(a).

If the child is not involved in such activity, the ALJ next evaluates whether he or she has a medically determinable impairment or combination of impairments that is "severe." 20 C.F.R. § 416.924(a). If the impairment is not "medically determinable" or amounts to "a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations," the child will be found not to be disabled. 20 C.F.R. § 416.924(c). If the child is found to have a severe impairment, but that impairment does not "meet, medically equal, or functionally equal[] . . . the severity of a set of criteria for [a Listing], the child will be deemed not to be disabled. 20 C.F.R. § 416.924(d). If the child meets the three criteria outlined above, the ALJ will find that the child is eligible for SSI benefits.

To "meet" a listed impairment under 20 C.F.R. § 416.924(d), the child must both be diagnosed with the impairment and "have the findings shown in the Listing for that impairment." 20 C.F.R. § 416.925(d). "Generally, when a symptom is one of the criteria in a listed impairment, it is only necessary that the symptom be present in combination with the other criteria." 20 C.F.R. § 416.925(f). It is generally not necessary "to provide information about the intensity, persistence, or limiting effects of the symptom." 20 C.F.R. § 416.925(f).

To "medically equal" a listed impairment, however, "the medical findings [must be] at least equal in severity and duration to the listed findings." 20 C.F.R. § 416.926(a), (b). The medical equivalence evaluation procedure will depend on whether the child has an impairment described in the Listing. 20 C.F.R. § 416.926(a). If the impairment is described in the Listing but the child does not exhibit any of the specified medical findings or "exhibit[s] all of the medical findings, but one or more of the findings is not as severe as specified in the [L]isting," the impairment will nevertheless be found to be medically equivalent to the Listing if the child has "other medical findings related to [the] impairment that are at least of equal medical significance."

20 C.F.R. § 416.926(a)(1)(ii). If the child has an impairment that is not described in the Listing or has "a combination of impairments, no one of which meets or is medically equivalent to a

[L]isting," the ALJ will compare the child's medical findings to "closely analogous listed impairments" and find the child disabled if such medical findings are "at least of equal medical significance to those of a listed impairment." 20 C.F.R. § 416.926(a)(2). The ALJ's determination for medical equivalence must be based solely on medical evidence. 20 C.F.R. § 416.926(b).

To "functionally equal" a listed impairment, the impairment "must result in 'marked' limitations in two domains of functioning or an 'extreme' limitation in one domain." 20 C.F.R. § 416.926(a). The Commissioner "will assess [the] functional limitations caused by the impairment(s) . . . [and] the interactive and cumulative effects of all of the impairments for which [there is] evidence, including any impairments . . . that are not severe." 20 C.F.R. § 416.926a(a)(internal quotation marks omitted). In making this assessment, the ALJ will consider, among other things, "(1) [the ability to] initiate and sustain activities, how much extra help [the child] need[s], and the effects of structured or supportive settings; (2) how [the child] function[s] in school; and (3) the effects of [] medications or other treatment. 20 C.F.R. § 416.924a(a); see 20 C.F.R. § 416.924a(b)(5), (7), (9).

The ALJ determines how well the child functions in completing activities according to six domains: acquiring and using information; attending and completing tasks; interacting and relating with others; moving about and manipulating objects; caring for oneself; and health and physical well-being. 20 C.F.R. § 416.926a(b)(1).

2. Standard of Judicial Review

In reviewing the Commissioner's denial of benefits for an SSI claim, a district court must examine the record by applying a two-step inquiry. First, the court must determine whether the Commissioner evaluated the claim based on the correct legal standards, as misapplication of such standards is grounds for reversal. Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984). Second, the court must ascertain whether "substantial evidence" supports the Commissioner's decision. 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."); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); Pollard, 377 F.3d at 188-89. 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 Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938) (internal quotation marks omitted)). "[T]o determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quotation marks and citation omitted).

The substantial evidence standard also applies to the Commissioner's inferences and conclusions based on the Commissioner's findings of fact. Toribio v. Barnhart, No. 02 Civ. 4929, 2003 WL 21415329, at *2 (S.D.N.Y. June 18, 2003) (citation omitted). As such, a district court may not review de novo the Commissioner's determination as to whether a claimant is, in fact, disabled. See 42 U.S.C. § 405(g). Rather, "it is up to the agency, and not [the reviewing court], to weigh the conflicting evidence in the record." Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998); see, e.g., DeChirico v. Callahan, 134 F.3d 1177, 1183 (2d Cir. 1998) (determination must be upheld where "we cannot say that the ALJ's finding . . . was unsupported on the record"); Vazquez ex rel. Jorge v. Barnhart, No. 04 Civ. 7409, 2005 WL 2429488, at *9 (S.D.N.Y. Sept. 29, 2005) (Commissioner's "inferences and conclusions must be affirmed even where the reviewing court's own analysis may differ, so long as substantial evidence supports the Commissioner's decision"). Nonetheless, an administrative decision cannot be upheld solely on the basis that the records contains a plausible foundation for it. Thomas v. Barnhart, No. 01 Civ. 518, 2002 WL 31433606, at *4 (S.D.N.Y. Oct. 30, 2002).

A district court may elect to affirm, reverse, or modify the Commissioner's final decision. 42 U.S.C. § 405(g); Butts, 388 F.3d at 385. If the ALJ has based a final determination on an improper legal standard, or if further development of the record is necessary to fill in evidentiary gaps, remand is warranted. See Butts, 388 F.3d at 385 (citing 42 U.S.C. § 405(a)). If the ALJ's rationale would be rendered more salient through further findings or a more complete explanation, remand is particularly appropriate. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).

3. ALJ's Duty to Develop the Record

As a disability benefits hearing is "essentially . . . Investigatorial, or inquisitory, rather than adversarial" in nature, Butts, 388 F.3d at 386 (citations omitted), "the ALJ, unlike a judge in a trial, must [] affirmatively develop the record. Pratts, 94 F.3d at 37 (quoting Echevarria v. Secretary of Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982) (internal quotation marks omitted)). Furthermore, when a claimant applying for SSI benefits appears pro se at the hearing, as was the case here, "the ALJ is under a heightened duty to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (citation and internal quotation marks omitted)).

4. New Evidence Submitted to the Appeals Council

Whether new evidence may be considered by a district court in a disability case depends on when in the appeals process the evidence was submitted. If new evidence is submitted for the first time to the district court, a remand based on that evidence is permissible only upon a showing that it is new and not merely cumulative of what is already in the record; that it is probative and relevant to the claimant's alleged condition during the claimed period of impairment but before the date of the ALJ's decision; and that there was good cause for the proffering party's failure to submit the evidence in a prior proceeding. Pollard, 377 F.3d at 193 (citing 42 U.S.C. § 405(g); Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)).

The "good cause" requirement does not apply where, as here, the new evidence is submitted for the first time to the Appeals Council. Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996); accord Tai-Fatt v. Barnhart, No. 04 Civ. 9274, 2005 WL 3206552, at *11 (S.D.N.Y. Nov. 30, 2005); Williams v. Barnhart, No. 01 Civ. 353, 2002 WL 618605, at *7 (S.D.N.Y. April 18, 2002). This Court may therefore review new evidence that is not merely cumulative and is relevant to the period of claimed disability prior to the ALJ's determination.

It is clear from the record that the new evidence in this case is "new" in the sense that it is not cumulative and does bear on Raymon's condition leading up to the ALJ's decision. The majority of the evidence is dated prior to the ALJ's June 4, 2002, determination. (Tr. 243-45). The few exceptions that post-date the determination include Raymon's January 14, 2003, visit to Metropolitan Hospital for a new Asthma Action Plan (Tr. 272); his treatment for asthma at Metropolitan Hospital the following day (Tr. 273); and his speech therapist's report dated February 6, 2003. (Tr. 308-09).

The speech therapist's report appears to warrant review under the test set forth in Pollard. See 377 F.3d at 193. Although the report was drafted after the date of the ALJ's decision (Tr. 308-09), the speech therapist has been seeing Raymon since 2001, and the report relates at least in part to Raymon's condition prior to the ALJ's decision. On the other hand, Raymon's Metropolitan Hospital consultation and treatment in early 2003 more closely relate to his condition at the time he visited Metropolitan Hospital, which was three months after the ALJ's determination. Consequently, I have considered the new evidence submitted by Mr. Davis for the first time to the Appeals Council (Tr. 248-309), with the exception of Raymon's January 14, 2003, and January 15, 2003, visits to Metropolitan Hospital. (Tr. 272-73).

B. Review of the ALJ's Determination

1. Duty to Develop the Record

The record of the hearing transcript is replete with instances where the ALJ neglected to follow up on statements by both Ms. Miranda and Mr. Burris that had the potential to yield information pertinent to the Commissioner's ultimate determination. When Ms. Miranda mentioned Raymon's "weak side" at the very beginning of the hearing, the ALJ responded by asking a series of questions about Raymon's asthma and whether any family members smoked. (Tr. 35). When addressing Raymon's asthma, the ALJ did not ask questions relevant to the acquisition of potential new medical records, current or prior treatment, or possible hospitalizations. (Tr. 35-36). Instead, the ALJ probed into possible aggravating factors at home and offered his advice to get rid of household pets before he inquired into, among other things, Raymon's height, weight, and after-school activities. (Tr. 35-36).

When Ms. Miranda volunteered that Raymon was in counseling, the ALJ asked how often he went and whether he was taking any medication but took no steps to ascertain where Raymon was being counseled, the kind of counseling, or how long he had been participating. (Tr. 37). When Dr. Burris later revealed that Raymon was attending counseling at Metropolitan Hospital but was uncertain of the nature or details, the ALJ did not follow up on the subject with Ms. Miranda. (Tr. 39).

The ALJ was equally uninquisitive throughout Dr. Burris's testimony. (Tr. 38-39). Dr. Burris's brief appearance provided only a cursory discussion of Raymon's alleged impairments, but the ALJ did not ask him a single clarifying question. (Tr. 38-39). No one instance of failing to follow up on a potential source of information may, taken by itself, be sufficient to indicate that an ALJ did not fulfill the duties of that position. Here, however, the ALJ displayed a consistent pattern of neglecting to follow up on pertinent topics of inquiry and failing to ask any questions of the medical expert.*fn15 As such, the ALJ failed to fulfill his heightened duty to affirmatively develop the record. See Cruz, 912 F.2d at 11.

2. Application of the Correct Legal Standards

In his decision, the ALJ first reviewed the procedural history of the claim. (Tr. 19). In the second sentence, the ALJ stated that "'[d]isability' was alleged on the basis of a speech deficit." (Tr. 19). Ms. Miranda's SSI application on Raymon's behalf clearly stated, however, that he had been disabled since September 12, 1997, due to a "learnin[g] diab[ility], speech [deficit], weakness on the right side, pain in [his] legs, [and] lead in [his] blood." (Tr. 78). It is clear that ALJ erroneously framed the basis of plaintiff's application.

As the hearing transcript reveals that Ms. Miranda raised and the ALJ did momentarily discuss Raymon's weak side, (Tr. 35), it is evident that the ALJ simply failed to consider the impact of that impairment in analyzing the evidence and drafting his decision. It is self-evident that an ALJ cannot properly apply any part of the five-step analysis outlined above to an alleged impairment that was not considered.

(Tr. 38-39). Such brevity, while not conclusive, is indicative of the ALJ's failure to conduct an investigation sufficient to fulfill his duty to develop the record. See Barreto ex rel. Rivas v. Barnhart, No. 02 Civ. 4462, 2004 WL 1672789, at *5 (S.D.N.Y. July 27, 2004) (finding that ALJ insufficiently developed evidentiary record where claimant's mother's testimony totaled six pages); Straw v. Apfel, No. 98 Civ. 5089, 2001 WL 406184, at *3 (S.D.N.Y. April 20, 2001) (same).

The ALJ's failure to account for the multiple bases upon which Raymon founds his SSI claim also vitiates the legal soundness of the ALJ's analysis of the impairments he does address. Most obviously, failing to account for Raymon's documented graphomotor problems renders impossible any meaningful analysis under 20 C.F.R. § 416.926a(b)(1), which requires the ALJ to assess a claimant's functionality with respect to "[m]oving about and manipulating objects." In addition, a proper functional limitations analysis of any of Raymon's claimed impairments requires that the ALJ acknowledge the evidence of a possible impairment due to weakness. See 20 C.F.R. § 416.926a(a) (importance of considering "interactive and cumulative effects" of multiple impairments). At the broadest level, the ALJ's limited discussion also implicitly violates the Commissioner's rules by neglecting to mention all of the impairments for which there is evidence in the record, even impairments that were did not specified as bases for the claim in the original benefits application. See 20 C.F.R. § 416.926a(a) ("[The Commissioner] will assess the functional limitations caused by [the] impairment(s) . . . [and] the interactive and cumulative effects of all of the impairments for which [there is] evidence, including any impairments . . . that are not severe.") (emphasis added) (citation and internal quotation marks omitted)).

3. Substantial Evidence Supporting the ALJ's Decision

The impairment for which the most evidence was available was Raymon's speech and language deficit. The ALJ's review of these problems included an observation that "the evidence consistently not[ed] deficits within [sic] the claimant's language functioning." (Tr. 20). The ALJ's discussion notes Raymon's CELF-3 scores gleaned from Dr. Sider's August 2001 evaluation and reference Raymon's total language score in the below average range. (Tr. 20). The ALJ noted that despite these poor scores, Raymon had no deficits with respect to any oral structures or their functioning and no signs of audiological dysfunction. (Tr. 20). The ALJ further remarked that Raymon "exhibited good early pragmatic behaviors and participated in conversations reciprocally, both as a speaker and a listener." (Tr. 20). While finding that Raymon's speech impairment was "severe" within the meaning of 20 C.F.R. § 416.920(c), the ALJ concluded did not "meet or equal" the criteria of any listed impairment. (Tr. 21).

As a preliminary matter, the ALJ's analysis was based on the dictates of a rule inapplicable to Raymon. The Commissioner's rules and standards embodied in 20 C.F.R. § 416.920 apply only to adult claimants, 20 C.F.R. § 416.920(a)(2) ("These rules apply to you if you are age 18 or older."); indeed the section is entitled "Evaluation of disability of adults." 20 C.F.R. § 416.920. As Raymon was born on January 3, 1995, his claimed disabilities are properly analyzed under 20 C.F.R. § 416.924,*fn16 a section of the Code to which the ALJ alluded earlier in his decision but seemingly failed to apply when reaching the appropriate step in his sequential evaluation of Raymon's claim. (Tr. 20).

The CELF-3 test upon which the ALJ relies almost exclusively in evaluating Raymon's speech deficit was administered by Dr. Sider. (Tr. 188). There is little doubt that the "pragmatic behaviors" language the ALJ uses in the decision also came from Dr. Sider due to the similarity between the ALJ's assertion and Dr. Sider's remark in the Functional Communication Status section of her evaluation. (Tr. 192) ("Raymon exhibited good early pragmatic behaviors. He participated in conversation reciprocally, as a speaker and as a listener.").

Using this language, the ALJ selectively quoted Dr. Sider without explaining why he discredited portions of her report that were favorable to the claimant. Dr. Sider's conclusion in the same paragraph states that "[Raymon's] [s]peech and language abilities were consistent with [the] levels [he] obtained on standardized testing." (Tr. 192). Hence, while Raymon may have demonstrated good early pragmatic behaviors, Dr. Sider found his communicative abilities to be no greater than the low and very low verbal ranges indicated by the CELF-3 test, the very test that the ALJ cites as evidence of a severe impairment. (Tr. 20, 190). As such, Dr. Sider's overall sentiment is lost when her positive remarks are taken out of context, undermining ALJ's reasoning.

In addition to the CELF-3 test, the ALJ, "[b]ased upon Dr. Brust's expertise, and in light of her independence . . . accord[ed] his [sic] findings great weight" under 20 C.F.R. § 416.927. (Tr. 22). The ALJ noted that Dr. Brust found that Raymon "demonstrated understandable speech" and "was considered to have a good attention span, as none of the examiners considered [him] hyperactive or distractible." (Tr. 22, 241).*fn17 Yet on the same page of the report in which Dr. Brust asserts that there was no finding of hyperactivity, she references Dr. Cumps-Baskt's findings that Raymon "was hyperactive at home."*fn18 (Tr. 241). Dr. Bryant also indicated that Raymon "suffers from some depression possibly, but mostly anxiety and hyperactivity." (Tr. 194). Among the new evidentiary exhibits submitted to the Appeals Council, Exhibit B also shows that Raymon was found to be "hyperactive" with the notation "rule out" ADD*fn19 on September 10, 2001, by a Metropolitan Hospital physician (Tr. 280), and on September 19, 2001, a Center Care physician made the same diagnosis. (Tr. 281).

Furthermore, the ALJ's heavy reliance on Dr. Brust's evaluation, despite the inconsistencies between its findings and those of Dr. Cumps-Bakst, casts doubt on the ALJ's correct application of the "treating physician rule." A treating physician's report is generally given more weight than other reports and will be controlling if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2). However, opinions relating to "dispositive" issues, such as whether a claimant "meet[s] the statutory definition of disability," are reserved for the Commissioner; the opinions of both treating and non-treating physicians on these issues are "not give[n] any special significance." 20 C.F.R. § 404.1527(e).

If the ALJ determines that a treating physician's opinion is not controlling, he is nevertheless required to consider other factors in determining the weight to the given to that opinion. 20 C.F.R. § 404.1527(d)(2). The ALJ must consider: (1) the length and frequency of the treatment relationship, (2) the nature and extent of such relationship, (3) the degree of evidence provided to support the treating physician's opinion, (4) the consistency of the opinion with the record as a whole, (5) the physician's area of specialty, and (6) other factors brought to the ALJ's attention tending to support or contradict the opinion. See 20 C.F.R. §§ 404.1527(d)(2)-(6); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).

The ALJ must give "good reasons" for determining the weight given to the treating physician's opinion, 20 C.F.R. § 416.927, and a failure to do so may result in remand of the case. See Halloran, 362 F.3d at 33; Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). Moreover, an ALJ has a duty to seek additional information from the treating physician if the clinical findings are inadequate. Schaal, 134 F.3d 496, 505 (2d Cir. 1998); Perez,77 F.3d at 47; Morillo v. Apfel, 150 F. Supp. 2d 540, 546 (S.D.N.Y. 2001).

There is conflicting evidence in the present record as to whether or not Dr. Cumps-Bakst was Raymon's treating physician. Raymon had been going to Metropolitan Hospital since he was 17 days old for a variety of medical services. (Tr. 37, 39, 98-105, 194, 210). Ms. Miranda's initial disability report indicates that Raymon saw Dr. Cumps-Bakst twice a week at Metropolitan Hospital. (Tr. 81). Dr. Cumps-Bakst was also listed as Raymon's "treating source" in medical reports from the fall of 2001. (Tr. 204-06, 208). Yet Dr. Cumps-Bakst indicated that she started seeing Raymon in April 2001, four years after the onset of the alleged impairments. (Tr. 98).

Prior to Raymon's hearing, Dr. Cumps-Bakst provided a report summarizing Raymon's diagnoses, treatments, and responses. (Tr. 211-14). Her report indicates diagnoses of expressive speech delay, learning disability, encopresis, nocturnal enuresis, and asthma. (Tr. 214). The report addresses Raymon's asthma in the treatment and response section, indicating that it is "well controlled" with "no exacerbation" and "no [exercise]-induced asthma." (Tr. 214). The report does not include, however, any indication of the treatments or responses for the other diagnosed ailments. (Tr. 214).

In spite of having requested a report from her, the ALJ made no reference to Dr. Cumps-Bakst or her findings. While it may be unclear whether or not Dr. Cumps-Bakst was Raymon's "treating physician," the ALJ should nevertheless have explained how he resolved this ambiguity in electing to render his decision without discussing her diagnoses.

Furthermore, the ALJ did not refer to any specific Listing in his decision. As the sequential analysis under 20 C.F.R. § 416.924(a)-(d) requires an ALJ to determine if a claimant's impairments meet or are medically equivalent to a Listing, "reference to [a] Listing is necessary," Morales ex rel. Morales v. Barnhart, 218 F. Supp. 2d 450, 460 (S.D.N.Y. 2002), to provide some foundation upon which a reviewing court can satisfy itself that the ALJ met the requirements for a proper analysis of the claim in question. Instead, after spending seven sentences summarizing a very narrow portion of the record, the ALJ's conclusion with respect to whether Raymon's speech deficit met or medically equaled a listed impairment read in its entirety as follows:

The undersigned [] finds that the claimant has never performed any substantially gainful activity. In addition, the claimant's speech impairment, while "severe" within the meaning of 20 CFR Section 416.920[(c)], nevertheless does not meet or equal the criteria of any of the listed impairments of Appendix 1, Subpart P, Regulations No. 4. Therefore, the undersigned must next determine if the functional limitations caused by the claimant's impairment are the same as the disabling functioning limitation of any listed impairment[.] (Tr. 21).

The ALJ failed to give sufficient explanation of his conclusion, failed to reveal what Listing or Listings he considered in his determination, and failed to give any inkling as to why the exceedingly scant facts he cites were given primacy among the multitude of professional opinions contained in a record exceeding 300 pages in length.

A decision that "merely states the conclusion that the medical evidence presented neither met nor medically equaled the

[L]istings" is insufficient to support a finding that the ALJ's analysis is supported by substantial evidence. Ramos v. Barnhart, No. 02 Civ. 3127, 2003 WL 21032012, at *9 (S.D.N.Y. May 6, 2003) (internal quotation marks and brackets omitted); see Morales, 218 F. Supp. 2d at 460, 462 (reversing ALJ's childhood disability determination because of ALJ's failure to address a specific Listing requirement); Colon v. Apfel, 133 F. Supp. 2d 330, 343 (S.D.N.Y. 2001) (conclusions "without explanation and analysis have little or no value"). Cf. Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982) ("[In] cases in which the disability claim is premised upon one or more listed impairments . . . the Secretary should set forth a sufficient rationale in support of his decision to find or not to find a listed impairment.").

C. Remand

The parties dispute the existence of evidentiary support for a finding that Raymon is disabled within the meaning of 42 U.S.C. § 1382c(a)(3)(C)(i). It is beyond doubt that Raymon has some limitations, but whether these impairments rise to the level of "disability" under the Act is not clear. In light of the ambiguity of the ALJ's determination as well as the new evidence that the ALJ did not have before him at the time of his decision, remand is appropriate in this case. See Pratts, 94 F.3d at 39 (remanding because court "unable to fathom the ALJ's rationale in relation to the evidence in the record"); Metaxotos v. Barnhart, No. 04 Civ. 3006, 2005 WL 2899851, at *7 (S.D.N.Y. Nov. 3, 2005) ("The appropriate remedy when faced with an ambiguous finding is to remand the case to the Commissioner for clarification of the ambiguity.").

A claim may be remanded pursuant to either the fourth or sixth sentence of 42 U.S.C. § 405(g). See Melkonyan v. Sullivan, 501 U.S. 89, 97-99 (1991). The fourth sentence provides that the "court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The sixth sentence provides that

[t]he court may, on motion of the Commissioner of Social Security made for good shown before the Commissioner files the Commissioner's answer, remand the case . . . for further action . . ., and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.

42 U.S.C. § 405(g). While there is new evidence that the ALJ did not evaluate in making his determination, this evidence was submitted to the Appeals Council, and therefore now comprises part of the record. Remand is therefore appropriate here under the fourth sentence of 42 U.S.C. 405(g), due to the lack of substantial evidence supporting the ALJ's decision; the ALJ's application of incorrect legal standards; and the ALJ's failure to adequately develop the record.


In light of the foregoing discussion, I recommend that the Commissioner's motion for judgment on the pleadings be denied, the determination denying SSI benefits be reversed, and the case be remanded for further proceedings. Specifically, a new hearing should be scheduled to give the ALJ an opportunity to probe more thoroughly into Raymon's current treatment and other potential treating sources. The ALJ should also seek information about Raymon's potential hyperactivity during this period and any other information required to cure relevant inconsistencies in the current record. The ALJ should make explicit the weight given to the various experts in the record. Specifically, the ALJ should explain what weight he gives to Dr. Cumps-Bakst's findings and why. In evaluating the evidence, the ALJ should consider the entire record, including the evidentiary exhibits submitted to the Appeals Council, with the exception of the evidence pertaining to Raymon's Metropolitan Hospital visits in early 2003.

Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Lewis A. Kaplan, Room 1310, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

Respectfully submitted,


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