The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff F.S, a minor child, brings the above-captioned action pursuant to 42 U.S.C. § 405(g), seeking a review of the Commissioner of Social Security's decision to deny his application for supplemental social security ("SSI").
II. PROCEDURAL BACKGROUND
In September 2007, plaintiff's mother, Jamie Czuwala, filed an application for SSI benefits on F.S.'s behalf. (Administrative Transcript at p.94).*fn1 Plaintiff was 9 years old at the time of the application and allegedly suffered from Attention Deficit Hyperactivity Disorder ("ADHD").*fn2 On February 21, 2008, F.S.'s application was denied and plaintiff requested a hearing by an ALJ which was held on July 21, 2009. (T. 61, 30). On September 18, 2009, the ALJ issued a decision denying F.S.'s claim for benefits. (T. 13-29). The Appeals Council denied plaintiff's request for review on February 23, 2010, making the ALJ's decision the final determination of the Commissioner. (T. 1-3). This action followed.
Medical Evidence William A. Grattan, M.D.
The record contains office notes from William A. Grattan, M.D., plaintiff's pediatrician.
In January 2005, during plaintiff's six year well child visit, the doctor noted that plaintiff was not receiving any services at school, "shared with peers" and "does well in school - tries spelling, not good". Dr. Grattan suspected that plaintiff had a learning disability. (T. 209). In July 2005, at plaintiff's seven year well child visit, the doctor noted that plaintiff repeated the first grade but "does well in school, shares with peers, cooperates and reads". (T. 296). Under "Plan", the doctor noted, "safety issues". (T. 296).
In September 2005, Dr. Grattan examined plaintiff for "suspected ADHD". Dr. Grattan diagnosed plaintiff with ADHD, oppositional defiance disorder and anxiety and prescribed Concerta. In January 2006, Dr. Grattan examined plaintiff for an "ADHD Follow Up". (T. 292). Plaintiff's mother stated that plaintiff refused to take his medication in December and that the teacher did not notice. The doctor noted that plaintiff sleeps "whenever and wherever" and that three older boys in the home were "in and out of jail". The doctor opined, "there is a lack of structure in the home" and diagnosed plaintiff with oppositional behavior due to poor parenting and "no positive role models". (T. 292). Dr. Grattan recommended parenting classes and gave plaintiff's mother the telephone number for "Big Brothers". (T. 292).
In April 2006, at plaintiff's eight year well child visit (second grade), plaintiff's mother indicated that F.S. was a "handful in school when not on his medication" and that he didn't focus. Plaintiff's mother indicated that he "stopped Concerta for the summer".
On March 7, 2007, Dr. Grattan prepared a Child Protective Services Report Form indicating that he was concerned with "ineffective parenting". On September 2, 2008, at plaintiff's ten year old well child visit, Dr. Grattan noted that plaintiff was in fourth grade and did well in school, engaged in extra curricular activities, had friends, understood rules and was responsible for his health, school and chores. (T. 278).
On March 19, 2009, plaintiff appeared for a "sick visit". Plaintiff's mother noted that he was "hyper and fighting", "impulsive" and misbehaving at school. (T. 274). The doctor noted, "restart Concerta". (T. 274). In July 2009, at plaintiff's eleven year old well-child visit, the doctor noted "did well in school. . . plans to attend State Police Summer Camp".
On July 17, 2009, Dr. Grattan prepared an IFA For A Child From Age 3 to Attainment Age of 16. (T. 269). Dr. Grattan opined that plaintiff suffered from extreme limitations in social development and functioning; marked limitations in personal/behavioral development and function; and extreme limitations in concentration, persistence and pace. (T. 270). Dr. Grattan further concluded, "Patient requires long term medication and medical supervision in order to maintain function and to ameliorate limitations listed above." (T. 270).
On January 15, 2008, Dr. Thibodeau performed a psychiatric and intelligence evaluation at the request of the agency. (T. 211). On examination, plaintiff's speech and language skills were below age expectations and, "[r]eceptively and expressively [plaintiff] appeared to be in the borderline mentally retarded range". (T. 212). Plaintiff's thought processes were normal, his appearance was normal and he was alert and oriented. Plaintiff's insight and judgment were fair but less than appropriate for his age and his cognitive functioning was in the borderline to mildly mentally retarded range. (T. 213). Dr. Thibodeau diagnosed plaintiff with ADD but noted that his hyperactive impulse was controlled with medication. Dr. Thibodeau also suspected borderline to mild mental retardation. (T. 214). Dr. Thibodeau opined that plaintiff, "would have difficulty following and understanding age appropriate directions. He would complete age appropriate tasks with some difficulty because of his suspected low intelligence". Plaintiff was noted as "only mildly impaired" in social behavior, age appropriate for learning and aware of danger. Plaintiff could interact with adults and peers. (T. 214).
With regard to intelligence testing, the WISC-IV yielded a verbal comprehension score of 69 and a full scale IQ of 72. (T. 218). Dr. Thibodeau opined that the scores, "are indicative of a solidly borderline mentally retarded range and should be considered significantly mentally handicapped". (T. 218).
On January 15, 2008, Dawn Megyeri performed a speech and language evaluation at the request of the agency. Ms. Megyeri noted that plaintiff was enrolled in a special education program where he received speech therapy two to three times per week. (T. 207). Upon examination, Ms. Megyeri noted plaintiff was attentive but frustrated. An informal observation of oral motor structure was normal and the parameters of pitch, quality, intensity and rate were appropriate. (T. 208). Plaintiff's speech was intelligible throughout the conversation. (T. 209). A Clinical Evaluation of Language Fundamentals ("CELF") was performed and revealed that plaintiff was receptive to language skills and developing within normal limits with a moderate expressive language delay. (T. 209). Ms. Megyeri did not consider this delay significant and opined that it would not impact on his future educational success. Ms. Megyeri also found that plaintiff was able to communicate in an effective manner using appropriate vocal quality, fluency and articulation. Ms. Megyeri concluded that plaintiff was able to follow and understand directions and to make his needs and wants know. (T. 210).
Childhood Disability Evaluation Form
On February 20, 2008, J. Meyer, M.D., a state agency review physician, prepared a Childhood Disability Evaluation.*fn3 (T. 227). Dr. Meyer, a pediatric specialist, indicated that F.S.'s impairments (ADHD, asthma, speech and language impairments and learning disability) were severe but did not meet, medically equal or functionally equal a listed impairment. (T. 227). Dr. Meyer found that F.S. exhibited less than marked limitations in the domains of acquiring and using information and attending and completing tasks. Dr. Meyer also found that F.S. had no limitation interacting and relating to others, moving and manipulating objects, caring for himself or in his health and physical well being. (T. 227-230).
On May 29, 2007, plaintiff was evaluated by Jennifer Riedel, a Speech-Language Pathologist for the Watervliet Elementary School. (T. 162). Ms. Riedel opined that plaintiff's expressive and receptive language scores fell below the average for his age and that he had the most difficulty with working memory tasks. Ms. Riedel recommended speech and language services twice per week in a group setting and on individual session per week. (T. 162).
On November 1, 2007, plaintiff's Special Education Teacher, Christi Green, completed a Teacher Questionnaire. At that time, she had known plaintiff for five months and opined that plaintiff had "very serious problems" in five out of ten areas in the domain of acquiring and using information. Ms. Green also opined that plaintiff had a "serious problem" in three of the four areas of the domain. (T. 144). Ms. Green noted that plaintiff had no limitations interacting or relating with others, moving and manipulating, caring for himself or in his health and well being. As for attending and completing tasks, Ms. Green opined that F.S. had "slight problems" in 7 of the 13 factors, a "serious problem" carrying out multi-step instructions and "very serious problems" in two (working without distractions and focusing on a task to finish) of the 13 factors. These problems were present on a daily basis. (T. 145).
On March 19, 2009, plaintiff's teachers, Christine Goodell (fourth grade) and Jennifer Meehan (special education teacher), completed a Vanderbilt Assessment form and evaluated plaintiff's behavior over a period of seven months. At that time, plaintiff was not taking medication. (T. 277). The teachers noted that "very often", plaintiff failed to pay attention, was easily distracted and had difficulty focusing. They commented that "often" plaintiff had difficulty organizing and staying still and that he would often interrupt and defy rules.
In June 2009, Ms. Goodel and Ms. Meehan completed a Teachers Questionnaire. At that time, they had known plaintiff for a year. In the area of acquiring and using information, they opined that he had an "obvious to serious problem". The teachers also noted that plaintiff had a "slight to serious" problem in the area of attending and completing tasks on a daily basis. (T. 193). However, they also indicated that when plaintiff took his medication, he was able to focus and his productivity changed dramatically. The teachers opined that plaintiff had a "slight problem" interacting with others when he was not on medication and no problems moving or manipulating. With respect to caring for himself, they opined that he had a "slight problem" as he was "impulsive" and very impatient. (T. 196).
The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." An individual under the age of eighteen is disabled, and thus eligible for SSI benefits, if 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). That definitional provision goes on to exclude from coverage any "individual under the age of 18 who engages in substantial gainful activity. . . ." 42 U.S.C. § 1382c(a)(3)(C)(ii).
Regulations enacted by the Social Security Administration set forth a three-step analysis for evaluating whether a child's impairment meets this definition of disability: First, the ALJ considers whether the child is engaged in "substantial gainful activity." 20 C.F.R. § 416.924(b). Second, the ALJ considers whether the child has a "medically determinable impairment that is severe," which is defined as an impairment that causes "more than minimal functional limitations." Id. § 416.924©. Finally, if the ALJ finds a severe impairment, he or she must then consider whether the impairment "medically equals" or, as is most pertinent here, "functionally equals" a disability listed in the regulatory "Listing of Impairments." Id. § 416.924(c)--(d).
Miller v. Comm'r of Soc. Sec., 409 F. App'x 384, 386 (2d Cir. 2010).
Equivalence to a Listing can be either medical or functional. 20 C.F.R. § 416.924(d); Kittles ex rel. Lawton v. Barnhart, 245 F. Supp.2d 479, 488 (E.D.N.Y. 2003). If an impairment is found to meet, or qualify as medically or functionally equivalent to, a listed disability, and the twelve month durational requirement is satisfied, the child will be deemed disabled. 20 C.F.R. § 416.924(d)(1); see also Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004).
Under the Social Security Regulations (the "Regulations"), analysis of functionality is performed by consideration of how a claimant functions in six areas which are denominated as "domains," and described as "broad areas of functioning intended to capture all of what a child can or cannot do." 20 C.F.R. § 416.926a(b)(1). Those prescribed domains include:
(i) [a]cquiring and using information;
(ii) [a]ttending and completing tasks;
(iii) [i]nteracting and relating with others;
(iv) [m]oving about and manipulating objects;
(v) [c]aring for [oneself]; and
(vi) [h]ealth and physical well-being.
20 C.F.R. § 416.926a(b)(1). A finding of disability is warranted if a "marked" limitation, defined as when the impairment "interferes seriously with [the claimant's] ability to independently initiate, sustain, or complete activities," 20 C.F.R. § 416.926a(e)(2)(i), is found in two of the listed domains. 20 C.F.R. § 416.926a(a). Functional equivalence also exists in the event of a finding of an "extreme" limitation, meaning "more than marked," representing an impairment which "interferes very seriously with [the claimant's] ability to independently initiate, sustain, or complete activities," and this rating is only "give[n] to the worst limitations". 20 C.F.R. § 416.926a(e)(3)(i); see also Pollard, 377 F.3d at 190.
A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). The ALJ must set forth the crucial factors supporting the decision with sufficient specificity. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Where the weight of the evidence, however, does not meet the requirement for substantial evidence or a reasonable basis for doubt exists as to whether correct legal principles were applied, the ALJ's decision may not be affirmed. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
Using the three-step disability evaluation, the ALJ found at step one that F.S. has not engaged in any substantial gainful activity since September 10, 2007. (T. 16). At step two, the ALJ concluded that F.S. had severe impairments consisting of ADHD, oppositional defiant disorder, a learning disorder, speech and language delay and borderline intellectual functioning.
(T. 16). At the third step of the analysis, the ALJ found that none of F.S.'s severe impairments meet, medically equal, or functionally equal any of the listed, presumptively disabling conditions set forth in Appendix 1 of the Regulations. (T. 17). The ALJ evaluated F.S.'s functional abilities in the six domains established by 20 C.F.R. § 416.926a(b)(1) and found that F.S.'s limitations were "less than marked" with regard to acquiring and using information and attending and completing tasks. (T. 21-23) . The ALJ found that F.S. had no limitation with regard to interacting and relating with others, in his ability to move about and manipulate objects, in caring for himself or in his health and physical well-being. (T. 23-28). Consequently, the ALJ concluded that F.S. was not disabled. (T. 28).
In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:
(1) the ALJ erred when he failed to assign controlling weight to the opinion of plaintiff's treating physician, Dr. William Grattan; (2) the ALJ erred when he failed to find that F.S.'s impairments meet or equal a listed impairment; (3) the ALJ erred by failing to find that F.S.'s impairments are functionally equivalent to the Listings.; and (4) the ALJ improperly evaluated plaintiff's mother's credibility. (Dkt. No. 11).*fn4
The Second Circuit has defined a treating physician as one "who has provided the individual with medical treatment or evaluation and who has or had an ongoing treatment and physician-patient relationship with the individual." Coty v. Sullivan, 793 F.Supp. 83, 85-86 (S.D.N.Y. 1992) (quoting Schisler v. Bowen, 851 F.2d 43 (2d Cir. 1988)). Under the Regulations, a treating physician's opinion is entitled to "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see also Rosa, 168 F.3d at 78-79; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).
When an ALJ refuses to assign a treating physician's opinion controlling weight, he must consider a number of factors to determine the appropriate weight to assign, including:
(i) the frequency of the examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion.
20 C.F.R. § 404.1527(d)(2). The Regulations also specify that the Commissioner "will always give good reasons in [her] notice of determination or decision for the weight [she] give[s] [claimant's] treating source's opinion." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)); see also Schaal v. Apfel, 134 F.3d 501, 503-504 (2d Cir. 1998). Failure to provide "good reasons" for not crediting the opinion of a claimant's treating physician is a ground for remand. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
An ALJ may rely upon the opinions of both examining and non-examining State agency medical consultants, since such consultants are deemed to be qualified experts in the field of Social Security disability." Williams v. Astrue, 2011 WL 831426, at *11 (N.D.N.Y. 2011) (citing 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c), 404.1527(f)(2), 416.912(b)(6), 416.913( c), and 416.927(f)(2)). Generally, a non-examining source's opinion, including the opinions of state agency medical consultants and medical experts, will be given less weight than an examining source's opinion. 20 C.F.R. § 416.927(d)(1). However, "[i]f the Commissioner shows that a treating source's opinion is not well-supported or not consistent with the record, the regulations 'permit the opinions of nonexamining sources to override treating sources' opinions provided they are supported by evidence in the record.'" Williams, 2011 WL 831426, at *11 (the ALJ is permitted to use the state agency medical review opinion to override the plaintiff's treating physician so long as the reviewer's opinion was supported by evidence in the record) (citing Diaz v. Shalala, 59 F.3d 307 (2d Cir. 1995)). If an ALJ relies upon a non-examining reviewer's opinion, that opinion must be supported by the bulk of the record. See Social Security Ruling ("SSR") 96--6p, 1996 WL374180, *2 (July 1996); see also Rocchio v.Astrue, 2010 WL 5563842, at *14 (S.D.N.Y. 2010).
The ALJ has a duty to develop the record regardless of whether the claimant is represented by counsel. Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); see also Shaw, 221 F.3d at 131 ("The ALJ has an obligation to develop the record in light of the non-adversarial nature of the benefits proceedings, regardless of whether the claimant is represented by counsel."). "The duty to develop the record is 'particularly important' when obtaining information from a claimant's treating physician due to the 'treating physician' provisions in the regulations." Dickson v. Astrue, 2008 WL 4287389, at *13 (N.D.N.Y. 2008); see also Rosa v. Apfel, 1998 WL 437172 at *4 (S.D.N.Y. 1998) ("A simple follow-up request from the ALJ could have resulted in an assessment of the claimant's residual functional capacity from his treating physician.") The failure to contact a physician constitutes a breach of the ALJ's duty to develop the record and provides a basis for remand. Lawton v. Astrue, 2009 WL 2867905, at *16 (N.D.N.Y. 2009). In Shaw v. Chater, the Second Circuit held:
For the ALJ to conclude that plaintiff presented no evidence of disability at the relevant time period, yet to simultaneously discount the medical opinion of his treating physician, ...