REPORT AND RECOMMENDATION
Plaintiff Jennifer Gonzalez on behalf of her son (hereinafter "C.C.") brings this action pursuant to the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), denying his application for child's supplemental security income ("SSI").*fn2 Specifically, Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") denying C.C.'s application for benefits was not supported by substantial evidence and was contrary to the applicable legal standards. The Commissioner argues that the decision was supported by substantial evidence and made in accordance with the correct legal standards.
For the reasons set forth below, the Court finds the Commissioner's decision was not determined in accordance with the applicable law. Therefore, the Court recommends that the Plaintiff's motion for judgment on the pleadings be granted in part and Defendant's cross-motion for judgment on the pleadings be denied.*fn3
On February 24, 2003, Plaintiff, filed an application for CDB on behalf of C.C., who was then 12 years old, claiming disability since August 25, 1999, because of attention deficit hyperactivity disorder ("ADHD"), major depressive disorder ("MDD" or "depression"), neurofibromatosis 1 ("NF-1"),*fn4 migraines, headaches, and a learning disorder (R. at 46-50, 89).*fn5 His application was denied initially on July 16, 2003 (R. at 28-29, 33-37). C.C.'s motherfiled a timely request for a hearing on September 16, 2003 (R. at 38).
On August 17, 2004, C.C.'s mother, and his attorney appeared before the ALJ (R. at 320-48).The ALJ considered the case de novo and, on September 27, 2004, issued a decision finding that C.C. was not disabled (R. at 18-27). On November 24, 2004, Plaintiff requested review of the hearing decision and Plaintiff's attorney requested a transcript and tape of the hearing and an extension of time to submit a brief (R. at 16-17). On January 17, 2006, the Appeals Council granted a 25 day extension and sent tapes of the hearing (R. at 14-15). Because the tapes were inaudible, Plaintiff's attorney requested a new set of tapes (R. at 9). Although Plaintiff's attorney did not received tapes of the hearing, on October 20, 2006, the Appeals Council denied Plaintiff's request for review (R. at 11-13). On December 5, 2006, Plaintiff's attorney requested that the Appeals Council vacate the decision and remand for a new hearing (R. at 9-10). The Appeals Council set aside their initial decision, considered the arguments raised by Plaintiff's attorney, and again denied Plaintiff's request for review on March 8, 2007 (R. at 4-6). When the Appeals Council denied review, the ALJ's September 27, 2004 decision became the final decision in this case. On May 4, 2007, Plaintiff filed this action disputing the agency'sdisability determination.
Based on the entire record, the Court recommends remand because the ALJ improperly dismissed C.C.'s diagnosis of NF-1 and his related headaches without recontacting C.C.'s treating physician's to properly develop the record and because the ALJ failed to consider the effects of a structured environment upon C.C.'s functioning.
A. Legal Standard and Scope of Review
A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383 (c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); see Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
A child is considered disabled under the Act if she or he has "a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §1382c(a)(3)(C)(i). The Commissioner has established the following three-step sequential analysis to determine whether a child is disabled. 20 C.F.R. § 416.924. At the first step, if the Commissioner determines the claimant is "doing substantial gainful activity," the claimant will be found not disabled. 20 C.F.R. § 416.924(a). If the claimant is not engaging in substantial gainful activity, at the second step the Commissioner will determine whether the claimant has a severe medically determinable impairment or combination of impairments. The Commissioner will determine at step three whether the claimant's impairment or combination of impairments "meets, medically equals, or functionally equals the listings." 20 C.F.R. § 416.924(a); see also 20 C.F.R. § 416.924(d).
1. The Commissioner's ...