The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Christina Hamedallah brings the above-captioned action on behalf of her minor daughter, E.B., pursuant to 42 U.S.C. §§ 405(g) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision to deny E.B.'s application for supplemental security income ("SSI").
On August 8, 2008, plaintiff filed an application on E.B.'s behalf for Supplemental Security Income ("SSI"). (Administrative Transcript at p.63).*fn1 Plaintiff was 5 years old at the time of the application and allegedly suffered from mental retardation. On February 23, 2009, E.B.'s application was denied and plaintiff requested a hearing by an ALJ which was held on November 16, 2010. (T. 69, 132). On January 21, 2011, the ALJ issued a decision denying E.B.'s claim for benefits. (T. 12-28). The Appeals Council denied plaintiff's request for review on June 13, 2011, making the ALJ's decision the final determination of the Commissioner. (T. 1-4). This action followed..
The medical record establishes that E.B. suffered a traumatic brain injury as a result of an in utero stroke. On June 12, 2003, when E.B. was nine days old, she treated was at Schenectady Family Health Services and diagnosed with seizure disorder. In April 2004, E.B. was hospitalized for seizures and at her fifteen month well child visit, the doctors diagnosed E.B. with seizure disorder and developmental delay. (T. 478). The doctors referred E.B. to a pediatric neurologist.*fn2 In December 2004, at her eighteen month well child visit, the doctors noted that E.B. was taking Phenobarbital for her seizures.*fn3 (T. 479). In April 2005, the doctors concluded that E.B.'s seizures were related to fevers. (T. 461). In June 2005, at her two year well-child visit, the doctors noted that E.B. suffered from speech delays and indicated that E.B. was receiving speech therapy. (T. 473). In September 2005, E.B. was evaluated after experiencing additional seizures. The doctors noted that she was also being treated at Albany Medical Center. In December 2005, the doctors indicated that E.B. was no longer taking seizure medication.
In April 2006, E.B. had a three year well child visit at Hometown Health Center. The doctors noted that she had been "off seizure meds since 12/05". E.B.'s speech was unintelligible, she was not potty trained and was receiving speech and occupational therapy at school. In August 2007, at E.B.'s five year well child visit at Hometown H.C., the doctors noted that E.B. suffered from seizure disorder and developmental delays. (T. 564).
On April 10, 2008, during a visit at Hometown Health Centers, plaintiff complained that E.B. exhibited disruptive behavior after a visit with her biological father. Plaintiff claimed the E.B.'s father alleged "odd behavior with an eight year old girl" and that E.B. went "under covers with a boy". The doctor noted, "suspected sexual abuse by father", "history concerning". (T. 541). The doctor gave plaintiff the telephone number for "peds assault" and noted that plaintiff was comfortable with plan and indicated that E.B. would not be alone with father. (T. 541).
On August 22, 2008, E.B. was seen for a 5 year well-child visit. Plaintiff stated that E.B. had been exhibiting behavioral problems once a month consisting of urinating, breath holding, tantrums and smearing feces. The doctor noted that plaintiff behaved well with teachers and at summer camps. The doctor also noted that plaintiff had not experienced any seizures for the last four years. The doctor referred plaintiff and E.B. for family counseling. (T. 413).
On September 8, 2008, E.B. was assessed at Northeast Parent and Child Society, Child Guidance Center by Mary Baker, LMHC and Ms. Baker's supervisor, Karen Nabors, LCSW. Plaintiff complained that E.B. was defiant with a history of distress in utero with developmental delays and slow speech. Plaintiff also complained that E.B. was difficult with her peers and inattentive. The evaluators noted that E.B. had visits with her father but that there was a history of domestic violence between her mother and father and that her mother was verbally abusive towards E.B. (T. 430). The evaluators also noted that E.B.'s stepfather provided well-needed structure. At the time of the examination, E.B. was receiving occupational and speech therapy services. The evaluators noted that more information was necessary to determine whether E.B. met the criteria for ADHD. E.B. was diagnosed with cognitive delays and environmental influences which "greatly impeded her self-organization and social development", oppositional defiance disorder and noted as "extremely disorganized". Ms. Baker opined that E.B.'s problems would improve if her parents provided structure and expectations.
On January 6, 2009, Seth Rigberg, Ph.D. evaluated E.B. at the request of the agency. Plaintiff advised that E.B. was learning disabled with behavioral problems and indicated that E.B. received services at school consisting of occupational therapy, speech therapy and physical therapy. Plaintiff stated that E.B. loses her temper and becomes physical but otherwise is a happy child who does what she is told and pays attention. Upon examination, Dr. Rigberg noted that E.B. was cooperative, she had mild to moderate articulation problems and her judgment was poor. Dr. Rigberg diagnosed E.B. with phonological disorder*fn4 , parent-child relational problems and mild mental retardation. In his medical source statement, Dr. Rigberg opined that E.B. had trouble attending to and following directions and tasks and some trouble with social behavior. The doctor noted that E.B. was a slow learner who was aware of danger but had trouble interacting with others. (T. 423). Dr. Rigberg conducted a Wechsler IQ evaluation and found E.B.'s verbal IQ was 67; performance IQ was 65 and her full IQ was 67. This was noted in the "deficient range".
On February 20, 2009, A. Herrick completed a Childhood Disability Form at the request of the agency.*fn5 Herrick noted that E.B. suffered from "M.R. - mild, phonological disorder, parent-child problems". Herrick concluded that E.B.'s impairments did not meet any listed impairments and analyzed the functional domains. Specifically, Herrick opined that E.B. displayed "marked" limitations in the domain of acquiring and using information. Herrick opined that E.B.'s limitations were less than marked in all remaining domains with the exception of "health and well-being" where she displayed no limitations. (T. 445).
On March 18, 2009, E.B. was seen at Hometown Health Center. The doctor noted that E.B.'s last seizure was one to two years prior. At the time of the visit, E.B. was not being treated by a pediatric neurologist and was no longer taking any medication for her seizures. Plaintiff stated that E.B. last took medication for seizures two to three years ago.
On April 2, 2009, E.B. underwent a CT scan at Albany Medical Center
which was compared to a prior MRI taken in September 2003.*fn6
The scan revealed a small area of tissue loss in the left
opercular region related to an old infarct. (T. 411).
On January 19, 2010, E.B. had a six year well child visit. A Department of Health check up indicated that E.B. was accompanied by her foster mother with whom E.B. had been living since December 2009. The doctor noted that she was doing well since being removed from her home due to domestic violence and plaintiff's refusal to leave. E.B. exhibited no behavior problems, was a good eater and good with social interactions. E.B. had supervised visits with her biological father and the doctor indicated that she received special education services. (T. 562).
On July 28, 2010, E.B. was examined at Ellis Hospital Mental Health Services. (T. 481). Upon mental examination, E.B. exhibited slow speech, anxious mood and affect, her thought process was coherent and goal directed. E.B.'s judgment and impulse control were fair and it was noted that she had only mild impairments. E.B. was diagnosed with anxiety disorder.
On October 19, 2010, Ms. Baker authored a letter addressed "To Whom It May Concern" stating that she treated E.B. for two years and "observed that she is unfocused". Ms. Baker opined that E.B. has significant inattention and distractibility that interferes with her learning and further, that she is oppositional at home. (T. 573).
In March 2008, an IEP was prepared for the 2008/2009 school year. E.B.'s disability classification was noted as "traumatic brain injury". The evaluators noted that she required adult supervision to navigate her relationships with her peers, her impulsivity decreased and her attentiveness was increased but she had difficulties with directions. E.B. would "shut down" and was easily distracted. (T. 208).
On October 15, 2008, E.B.'s special education teacher, Sheila McPherson completed a Teacher Questionnaire. At the time she completed the questionnaire, Ms. McPherson knew E.B. for two and a half months. (T. 349). Ms. McPherson opined that E.B. exhibited obvious to serious problems in some areas of acquiring and using information. Specifically, E.B. required support to follow directions. E.B. also displayed slight to obvious problems in some areas of attention and concentration and was easily distracted. Ms. McPherson concluded that E.B. had serious problems relating and expressing herself and that her language impacted her social functioning. E.B. had obvious problems moving and manipulating objects and required occupational therapy and slight problems caring for herself.
On November 10, 2008, E.B.'s kindergarten teacher completed a Teacher Questionnaire. Ms. Cutty indicated that she knew E.B. for two months at the time she prepared the evaluation. The teacher opined that E.B. had serious problems with acquiring and using information, specifically with reading and comprehension and expressing ideas. E.B. also exhibited slight to obvious problems daily with attending and completing tasks and slight to obvious problems interacting and relating with others. No behavior modification was necessary and the teacher was able to understand E.B.'s speech. E.B. had no limitations moving and manipulating objects and only slight difficulties caring for herself. (T. 362).
On April 21, 2009, Ms. McPherson completed a second Teacher's Questionnaire and indicated that she knew E.B. for seven months. Ms. McPherson noted that E.B. was in an "inclusion class" and required support to be independent. E.B. had difficulties focusing in large groups and required a behavior management plan. E.B. received occupational therapy and was "shut down" on occasion.
On September 28, 2010, Gregory Osenko completed a Psycho-Educational Report for the Schenectady City School District. Mr. Osenko noted that E.B. suffered a traumatic brain injury due to a stroke in utero. As a result, E.B. suffered brain damage and her ability to control her impulses and judgment was impaired. E.B. received special education services at school with speech and language therapy. (T. 505). Mr. Osenko noted that E.B.'s intellectual functioning was in the "borderline range" with difficulties in the verbal comprehension and perceptual reasoning index. E.B.'s capacity to process information was in the "average range" and her capacity to remember information was in the "low average range". (T. 503).
On October 15, 2010, the Committee on Special Education held a transfer meeting with respect to E.B.'s 2010-2011 IEP. The Committee noted that E.B. made a "nice adjustment" to second grade at a new school. She was noted as, "sweet, talkative, outgoing" and "a pleasure to have in class". E.B. was able to work independently and in small groups and her abilities were noted as "slightly below grade level". E.B. had difficulties with vocabulary skills and some "speech sound errors" however, these deficiencies did not impact her intelligibility. However, her difficulties affected her ability to understand and follow multi-step directions. E.B. was noted as "attentive in the Resource Room" and "excelled in all areas". E.B. was "age appropriate" with no displays of negative behavior. She made friends easily and assisted her peers with tasks. Physical therapy was not needed as E.B. was able to function independently in a safe manner.
E.B. still required adult support to "stay on task" and focused in a large classroom. It was recommended that E.B. attend the Resource Room five times a week and that she continue to receive speech therapy two to three times a week and social counseling once a week. (T. 575).
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 ...