The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff Sharise Scott initiated this action on behalf of her minor son, SLC, pursuant to section 405(g) of the Social Security Act, 42 U.S.C. § 405(g), to review the final determination of the Commissioner of Social Security (the "Commissioner"), finding that SLC was no longer disabled and entitled to Supplemental Security Income ("SSI") benefits. The Commissioner has filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Item 7), and plaintiff has filed a cross-motion for the same relief (Item 13). For the following reasons, the Commissioner's motion is denied, plaintiff's cross motion is granted, and the matter is remanded for the calculation of benefits.
SLC was born on January 22, 1999 (Tr. 38).*fn1 Plaintiff Scott filed an application for SSI benefits on his behalf due to his premature birth. The claim was allowed based on SLC's low birth weight (Tr. 39-40). SLC's disability status was reviewed in 2000 and, upon reconsideration, he was found to be disabled (Tr. 43, 64-66). SLC's status was again reviewed in 2005. He was found to have medically improved such that he was no longer disabled under Social Security Administration ("SSA") regulations (Tr. 44, 69-73). At plaintiff's request, a disability hearing was held on June 15, 2006. In a decision dated June 27, 2006, Disability Hearing Officer ("DHO") Salvatore Agro found that SLC had medically improved and was no longer disabled (Tr. 83-94). Plaintiff then requested a hearing, which was held on January 17, 2007 before Administrative Law Judge ("ALJ") William R. Pietz (Tr. 499 - 518). Plaintiff and SLC testified and were represented at the hearing by counsel.
By decision dated February 14, 2007, ALJ Pietz found that SLC's disability ended as of February 2006 (Tr. 16-28). Following the sequential evaluation process outlined in the SSA regulations (see 20 C.F.R. Part 416), the ALJ reviewed the evidence and determined that medical improvement had occurred and that SLC's impairment no longer functionally equaled the criteria of an impairment listed in the regulations at 20 C.F.R. Part 404, Subpt. P, App. 1 (the "Listings") (Tr. 20). Specifically, the ALJ considered the six functional domains and found that SLC had a marked limitation in only one, the domain of interacting and relating with others (Tr. 24). The ALJ's decision became the Commissioner's final determination on March 23, 2007, when the Appeals Council denied plaintiff's request for review (Tr. 6-9).
Plaintiff filed this action on April 20, 2007, seeking judicial review pursuant to 42 U.S.C. § 405(g). On October 26, 2007, the Commissioner moved for judgment on the pleadings, seeking affirmance on the ground that the ALJ's decision is supported by substantial evidence in the record (see Item 7). On January 28, 2008, plaintiff responded by cross motion, seeking reversal of the Commissioner's determination, asserting that the ALJ erred in failing to properly consider SLC's new diagnoses of Attention Deficit Hyperactivity Disorder ("ADHD") and bipolar disorder, and failed to properly evaluate SLC's difficulties in communication and attending to tasks (see Item 13). The Commissioner filed a Reply Memorandum on February 11, 2008 (Item 15).
I. Scope of Judicial Review
The Social Security Act states that upon district court review of the Commissioner's decision, "[t]he findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is defined as evidence which "a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tejada v. Apfel, 167 F.3d 770, 773-72 (2d Cir. 1999). Under these standards, the scope of judicial review of the Commissioner's decision is limited, and the reviewing court may not try a case de novo or substitute its findings for those of the Commissioner. Richardson, 402 U.S. at 401. The court's inquiry is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982), quoted in Winkelsas v. Apfel, 2000 WL 575513, at *2 (W.D.N.Y. February 14, 2000).
However, "[b]efore the insulation of the substantial evidence test comes into play, it must first be determined that the facts of a particular case have been evaluated in light of correct legal standards." Klofta v. Mathews, 418 F. Supp. 1139, 1141 (E.D.Wis. 1976), quoted in Gartmann v. Secretary of Health and Human Services, 633 F. Supp. 671, 680 (E.D.N.Y. 1986). The Commissioner's determination cannot be upheld when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Tejada, 167 F.3d at 773.
II. Standard for Determining Eligibility for Disability Benefits
The Social Security Administration considers a child disabled and thus eligible for SSI benefits if: he is not working; he has a medically determinable impairment that is severe; and his impairment meets or equals, medically or functionally, an impairment listed in the Listings. See 20 C.F.R. § 416.924. The implementing regulations provide a three-step process for determining eligibility. 20 C.F.R. § 416.924(a). In the first step, the ALJ must determine whether the child is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). If not, the analysis proceeds to step two, which requires the ALJ to determine whether the child has a medically determinable, severe impairment or combination of impairments. 20 C.F.R. § 416.924(c). If there is a finding of severe impairment, the analysis proceeds to step three, which requires the ALJ to determine whether the impairment(s) meet, medically equal, or functionally equal an impairment in the Listings. A child's impairment functionally equals one in the Listings if he exhibits "marked" limitations in at least two or an "extreme" limitation in one of the six domains of childhood functioning: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1) (i-iv); 20 C.F.R. § 416.926a(d). A child has a "marked" limitation in a domain when the impairment "interferes seriously with [the child's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2). A "marked" limitation is "'more than moderate' but 'less than extreme.'" Id. The Commissioner finds a "marked" limitation when the child has a valid score that is two standard deviations or more below the mean (but less than three standard deviations) on a comprehensive standardized test designed to measure ability or functioning in that domain, and the child's day-to-day functioning in domain-related activities is consistent with that score. 20 C.F.R. § 416.926a(e)(2)(iii).
As indicated above, ALJ Pietz followed the sequential evaluation process in this case and determined that as of April 25, 2001, the date of the most recent favorable medical decision, SLC was disabled by developmental delays that functionally equaled an impairment in the Listings (Tr. 20). However, the ALJ found that as of February 2006, medical improvement had occurred. Id. The ALJ found a marked limitation in the domain of interacting and relating with others, but less than marked or no limitations in the remaining domains (Tr. 22-26). The ALJ also found that SLC suffered from ADHD and bipolar disorder, but found that these impairments, while severe, likewise did not functionally equal an impairment in the Listings, as he found only a marked limitation in the domain of interacting and relating with others (Tr. 27-28).
III. Summary of the Evidence
For the 2004-05 school year, the record indicates that SLC was in kindergarten, classified as speech/language impaired, and received support services of speech/language therapy twice weekly for 30 minutes (Tr. 192). A speech/language evaluation in May 2005 revealed that while SLC was 6 years and 4 months old, his receptive vocabulary skills were at the 4 years and 9 months age level, expressive vocabulary was at 3 years and 7 months, listening comprehension was at 4 years and 6 months, and oral expression was at 4 years and 1 month (Tr. 183). In May 2005, SLC was evaluated by a school psychologist, who found that his cognitive skills were in ...