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Olivia Mendez O/B/O Not For Print Or v. Michael J. Astrue

April 18, 2013


The opinion of the court was delivered by: Matsumoto, United States District Judge:


Pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), plaintiff Olivia Mendez ("plaintiff"), on behalf of her minor daughter, E.V., seeks judicial review of the final decision of defendant Commissioner of Social Security Michael Asrue ("defendant" or the "Commissioner"), who denied plaintiff's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act"). Plaintiff contends that she is entitled to receive SSI benefits on behalf of E.V. because the Commissioner's decision did not include new and material evidence indicating E.V.'s marked limitations in the additional domains of "acquiring and using information" and "interacting and relating with others." (See generally ECF No. 1, Complaint, dated 9/8/2011 ("Compl.").) Presently before the court are plaintiff's motion for a remand in light of new evidence and defendant's motion for judgment on the pleadings. For the reasons set forth below, plaintiff's motion for remand is granted and defendant's cross-motion for judgment on the pleadings is denied.


I.Social Security Disability Determination Process

Under the Act, "[e]very aged, blind, or disabled individual who is determined . . . to be eligible on the basis of his income and resources shall, in accordance with and subject to the provisions of this subchapter, be paid benefits by the Commissioner of Social Security." 42 U.S.C. § 1381a. An individual under the age of eighteen is considered disabled under the Act if she 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." Id. § 1382c(a)(3)(C)(i); Kittles ex rel. Lawton v. Barnhart, 245 F. Supp. 2d 479, 487 (E.D.N.Y. 2003). Further, although not a relevant factor here, an individual under the age of eighteen who "engages in substantial gainful activity" is not eligible for SSI benefits.

42 U.S.C. § 1382c(a)(3)(C)(ii); Kittles, 245 F.Supp.2d at 488;

20 C.F.R. § 416.924(b).

In order for a claimant under the age of eighteen to be found disabled, the Act requires an ALJ to conduct a three-step sequential analysis finding each of the following: (1) that the claimant is not engaged in substantial gainful activity; (2) that the claimant has a medically determinable impairment or a combination of impairments that is "severe" (i.e., the impairment or combination of impairments cause more than a minimal functional limitation); and (3) that the impairment or combination of impairments meet or equal a disabling condition identified in the listing of impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (a "listed impairment"). See Jones ex rel. T.J. v. Astrue, No. 07-CV-4886, 2010 WL 1049283, at *5 (E.D.N.Y. Mar. 17, 2010); Kittles, 245 F. Supp. 2d at 488; 20 C.F.R. § 416.924(b)-(d). Equivalence to a listed impairment may be medical or functional. See Jones ex rel. T.J., 2010 WL 1049283, at *5; Kittles, 245 F.Supp.2d at 488; 20 C.F.R. § 416.924(d).

Analysis of functional equivalence requires the ALJ to assess the claimant's functional ability in six main areas referred to as "domains." 20 C.F.R. § 416.926a(b)(1). The six domains are "broad areas of functioning intended to capture all of what a child can or cannot do," id., and 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) health and physical well-being," id. Functional equivalence is established when the ALJ finds that the claimant has a "marked limitation" in two domains or an "extreme limitation" in one domain. 20 C.F.R. § 416.926a(a). "Marked limitation" is described as an impairment that seriously interferes with a claimant's ability to "independently initiate, sustain and complete activities." Id. § 416.926a(e)(2). It is "more than moderate, but less than extreme." Id. In addition, "marked limitation" is also described as what would be expected with the equivalent of two standard deviations below the mean on standardized testing. Id. § 416.926a(e)(2)(iii). "A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with the ability to function (based upon age-appropriate expectations) independently, appropriately, effectively, and on a sustained basis." Jones, 2010 WL 1049283, at *6 (quoting 20 C.F.R. Pt. 404, Subpart P, App. 1, § 112.00(C)).

II. Procedural History

Plaintiff applied for SSI benefits on behalf of E.V., a minor child, on February 28, 2009, claiming that E.V. was disabled since May 1, 2008. (See ECF No. 19, Administrative Record, filed 5/8/2012 ("Tr.") at 19, 141-149.) E.V.'s claim was denied on April 15, 2009 and the plaintiff requested an administrative hearing. (Id. at 19, 70-76.) Plaintiff and her attorney, with the help of a Spanish Interpreter, appeared before Administrative Law Judge David Nisnewitz ("the ALJ") on May 20, 2010. (See id. at 13-31.) On June 14, 2010, the ALJ issued a decision concluding that E.V. was not disabled within the definition of the Act because she does not have an impairment or combination of impairments that meets or medically equals the criteria of a listing, or that functionally equals the listings. (Tr. at 19-31); see also 20 C.F.R. § 416.924(d). The ALJ found that E.V. showed no extreme limitations in any one of the six functional equivalent domains, and that she had a marked limitation in only one of the domains, namely, moving about and manipulating objects. (Tr. at 20-30).

On June 14, 2010, plaintiff sought review of the ALJ's decision by the Appeals Council. (Id. at 1-3.) On July 8, 2011, the Appeals Council denied the plaintiff's request for review and, as a result, the ALJ's decision became the final decision of the Commissioner (Id.) This appeal followed.

On September 7, 2011, plaintiff commenced this action against the Commissioner, claiming that the defendant erred in failing to accept E.V.'s April 2010 test results as new and material evidence and remand the ALJ decision. (Compl. At 5.; see also ECF No. 17, Plaintiff's Brief, filed 5/8/2012 ("Pl. Br.") at 2.) The Commissioner answered on December 7, 2011 and moved for judgment on the pleadings on May 8, 2012. (ECF No. 10, Answer; ECF No. 14, Mot. For J. on the Pleadings ("Def. Mot.").) Plaintiff opposed the motion and filed a cross-motion for remand to consider additional evidence from a November 2010 hospitalization of E.V. In her cross-motion for remand, plaintiff also added new evidence of a November 2010 hospitalization during which E.V.'s shunt was replaced. (See ECF No. 16, Cross Mot. for Remand to Consider New and Material Evidence ("Pl. Motion"); Pl. Br. at 2-3, 9.)

III. Background and Medical History in the Administrative Record

E.V. was born on November 5, 2007 and was two years old when the ALJ rendered his decision. (Tr. 13, 126.) She lives in a three-bedroom apartment with her mother (plaintiff), father, and brother in Queens, NY. (Tr. 136,140, 142.) The apartment is shared with other families, and E.V.'s family shares one room. (Tr. 194.) Her family is originally from Mexico. (Tr. 194.) E.V.'s father, Benjamin Vasquez, works at a restaurant to support the family, and the family receives food stamps to aid with expenses. (Tr. 194, 196.) E.V.'s mother speaks Spanish, which is the only language spoken in the home, although E.V.'s father speaks English. (Tr. 175, 193, 196.)

E.V. has been disabled with Hydrocephaly since May 1, 2008, a congenital condition in which fluid builds up in the skull, placing pressure on the brain and causing the skull to grow at above-average rates. (Tr. 141, 156, 174, 193, 353.) As a result of E.V.'s condition, in July 2008 a shunt was placed in her skull to drain the fluid from her head to her stomach. (Tr. at 174-75, 193, 353). In September 2008, E.V. was hospitalized for three days due to a blocked shunt. (Tr. 175, 197.)

IV. Developmental History in the Administrative Record

In December 2008, when E.V. was thirteen months old, she was referred to Early Intervention Services (EIS) by her primary care physician, Dr. Caesar Preposi, because of her history of hydrocephalus and concerns with her motor development. (Tr. 192-93.) The EIS services were provided by TheraCare and an initial bilingual family assessment was performed on December 26, 2008 by Ivelisse Hills, LMSW. (Tr. 193-95.) This initial assessment showed that E.V. rolled with difficulty and was unable to bear weight on her legs. (Tr. 194.) The report also showed she was eating well, had different cries for different needs that could be differentiated, communicated her needs by pointing and saying "este," could say "mama" and "papa," was alert and responsive, and was described as a "good baby." (Id.) The report also found that Ms. Mendez was a "concerned mom" interested in ensuring that he daughter developed properly. (Tr. 195.) A physical evaluation was recommended. (Tr. 195.)

On December 26, 2008, TheraCare conducted a bilingual physical evaluation in the family's home using the Peabody Developmental Motor Scales to test her motor functions. (Tr. 201-03.) This assessment showed no issues with social-emotional behavior or sensory processing. (Tr. 201.) E.V. did, however, show severely low muscle tone in the pelvis and legs, severe muscle weakness and hypermobility in the legs and lower trunk, and inability to move to a sitting position, roll, crawl, or pull to stand or bear weight on her legs. (Tr. 202-03.) The evaluation determined E.V. functioned at the age-equivalent of seven months for locomotive skills, nine months for stationary skills, and twelve months for object manipulation skills. (Tr. 202.) Overall, this assessment placed E.V.'s functioning level at 2.13 standard deviations below the mean and in the first percentile. (Tr. 202.) Physical therapy was strongly recommended to address these issues with E.V.'s motor functioning. (Tr. 203.)

On January 7, 2009, TheraCare performed a bilingual development assessment in the family's home. (Tr. 196-200.) Using the Hawaii Early Learning Profile (HELP) test, E.V.'s cognitive and language skills were assessed as age appropriate. (Tr. 198.) Using the Developmental Assessment of Young Children (DAYC) test, E.V's social-emotional and adaptive skills were also found to be average for her age. (Tr. 198.) However, E.V.'s motor skills, also evaluated with the DAYC test, were described as "very poor" and 2.5 standard deviations below the norm. (Tr. 198.) With the exception of her ability to sit and crawl, E.V.'s developmental milestones were age-appropriate. (Tr. 199-200.) The Educational Evaluator recommended physical therapy. (Tr. 200.)

On January 8, 2009, TheraCare provided a multidisciplinary evaluation that summarized the results of their assessments. (Tr. 231-36.) In general, this evaluation restated information from the previous assessments and emphasized that E.V. had delays in motor development but age appropriate skills in all other domains. (Tr. 231.) On January 20, 2009, the New York City Early Intervention Program developed an Individualized Family Service Plan for E.V. to address issues with her motor skills development. (Tr. 179-89.) The plan authorized three different services to take place for thirty minutes each week for a period of six months. (Tr. 183.)

V. Medical Expert Hearing Testimony

At the ALJ hearing on May 20, 2010, Allan M. Rothenberg, M.D. ("Dr. Rothenberg") testified as a medical expert that E.V. did not meet or equal the social security disability listings. (Tr. 19, 361.) Dr. Rothenberg's opinion was based on plaintiff's testimony as well as the medical evidence submitted at the hearing. (Tr. 361-64.) Specifically, Dr. Rothenberg stated that E.V. did not show severe limitations in any of the six domains, and showed a marked limitation only in the fourth domain, moving about. (Tr. 361.) Dr. Rothenberg's opinion that E.V. had a marked limitation in moving about was based on E.V.'s delays in motor skills and failure to reach certain developmental milestones. (Tr. 363.)

Dr. Rothenberg testified that E.V. had a less than marked limitation in domains one (acquiring and using information) and six (health and physical well-being); and no limitation in domains two (attending and completing tasks), three (interacting with others), and five (caring for yourself). (Id.) Additionally, Dr. Rothenberg stated that in regards to the sixth domain--health and physical well-being--although E.V.'s condition requires the use of a shunt, it is common for a shunt to get infected or obstructed, therefore E.V.'s hospitalization was not an indication of E.V. needing shunt revisions "extra frequently." (Tr. 361, 364.)

VI. The ALJ Opinion

On June 14, 2010 the ALJ issued an opinion finding that E.V. was not disabled under the Act. (Tr. 31.) Performing the three-step analysis set forth in the Social Security Administration Regulations (the "Regulations") at 20 C.F.R. ยง 416.924, the ALJ first found that E.V. "is an older infant and has never engaged in substantial gainful activity" since February 28, 2009, the date the application was filed. (Tr. 22.) Second, the ALJ found that E.V.'s hydrocephalus and motor delays were severe impairments. (Id.) Third, however, the ALJ determined that E.V. did not "have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, ...

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