United States District Court, S.D. New York
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX, Magistrate Judge.
TO THE HONORABLE LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE
On September 30, 2013, Amarilis Cosme Rodriguez ("Rodriguez") commenced this action prose on behalf of her minor child, who is identified in the complaint as "JACC, " against the Commissioner of Social Security ("Commissioner") seeking review of an administrative law judge's ("ALJ") decision finding JACC ineligible for Supplemental Security Income ("SSI") benefits, pursuant to 42 U.S.C. §§ 405(g) and 1382c(a)(3)(c). The complaint was accompanied by the August 1, 2013 Notice of Appeals Council Action denying review of the ALJ's February 17, 2012 decision. On October 29, 2013, Rodriguez filed an amended complaint accompanied by exhibits postdating the ALJ's February 17, 2012 decision. Before the Court is the Commissioner's motion for judgment on the pleadings made pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Rodriguez opposes the motion.
Rodriguez filed an application for SSI benefits on behalf of her son, JACC, on January 18, 2010, alleging that he has been disabled since his birth on June 17, 2003. The claim was denied on July 2, 2010, and Rodriguez requested a hearing before an ALJ. On July 28, 2011, Rodriguez and JACC appeared pro se at a hearing before ALJ Selwyn S. Walters. Rodriguez testified that JACC was hyperactive, did not listen, did not comprehend what he was told, was aggressive with other children and was afraid of elevators and stairs. Rodriguez stated that JACC had behaved in these ways since he was approximately six years old and that he was being treated by a psychiatrist. Rodriguez also testified that JACC could undress himself, wash his hands and face, brush his teeth, use a spoon but not a fork and did not answer the telephone.
A medical expert, Dr. Shanashaka, also appeared at the hearing. According to the medical expert, there was insufficient evidence presented to form an opinion regarding the nature and severity of JACC's impairment; the only documentary evidence presented on that date was a prescription for Strattera; no report from a psychiatrist had been provided. As a result, the ALJ adjourned the hearing and advised that he would issue a subpoena for additional medical records to JACC's psychiatrist, Dr. Gerardo Posada ("Dr. Posada"), of the Urban Health Plan, Inc. A subpoena was sent to Dr. Posada on August 1, 2011.
The hearing was continued on November 3, 2011. As of that date, Dr. Posada had not responded to the ALJ's subpoena. The plaintiff testified concerning her son's condition, stating that he was in the third grade and that his teacher said he was at risk for being held back. Dr. Robert M. Berk ("Dr. Berk"), a pediatrician, testified as a medical expert on November 3, 2011. Dr. Berk found that there was insufficient evidence regarding JACC's impairment(s) because all that had been provided were two prescriptions, one for Strattera and one for Concerta.
At the conclusion of the hearing, the ALJ advised the plaintiff that he would issue another subpoena for medical records as well as a subpoena for school records from the New York City Department of Education.
On February 17, 2012, the ALJ found that JACC had not been disabled since January 18, 2010, the date the application for SSI benefits was filed. Rodriguez requested review of the ALJ's decision by the Social Security Administration's Appeals Council and submitted new evidence to that body. On August 1, 2013, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner.
Rodriguez filed a complaint with this court, on behalf of her son, on September 30, 2013, seeking review of the ALJ's decision and alleging that JACC is entitled to receive SSI benefits because of his "deficient att[ent]ion" and his "right eye condition." Thereafter, on October 29 2013, the plaintiff filed an amended complaint in which she expanded her statement of JACC's disability, stating, inter alia, that he used medication, had attention deficit, did not sleep well, was hyperactive, did not listen and did not eat much. As noted above, the plaintiff's amended complaint was accompanied by exhibits postdating the ALJ's February 17, 2012 decision.
The ALJ's Decision
The issue addressed by the ALJ was whether JACC is disabled under the Social Security Act ("SSA"). The ALJ found that JACC: (1) was born on June 17, 2003, and therefore was a school-age child from January 18, 2010, the date the application for SSI benefits was filed, until the date of the decision; (2) has not engaged in substantial gainful activity since January 18, 2010; (3) has the following severe impairments: attention deficit disorder with hyperactivity ("ADHD"), adjustment disorder and an anxiety disorder; (4) does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1 ("Listings"); (5) does not have an impairment or combination of impairments that functionally equals the severity of one of the impairments listed in the Listings; and (6) has not been disabled, as defined in the SSA, since January 18, 2010, the date the application for SSI benefits was filed.
In discussing JACC's impairments, the ALJ found that his ADHD, adjustment disorder and anxiety disorder were severe because they cause, inter alia, impulsiveness, inattention and hyperactivity. The ALJ noted further that, although JACC was diagnosed with strabismus-esotropia, this was not a severe impairment because, on examination by Dr. Thomas DePaola ("Dr. DePaola"), a pediatrician, his corrected vision was 20/25 and was found to be grossly normal for his age.
In determining whether JACC's severe impairments meet or medically equal the severity of one of the impairments in the Listings, the ALJ found that, although JACC was diagnosed with ADHD and takes Strattera for the condition, his ADHD does not meet the criteria for this condition found at section 112.11 of the Listings, "Attention Deficit Hyperactivity Disorder: Manifested by developmentally inappropriate degrees of inattention, impulsiveness, and hyperactivity." See 20 C.F.R. Part 404, Subpart P, Appendix 1 § 112.11. Specifically, there was "no indication in the treatment records or the consultative reports that [JACC's] impulsiveness, inattention and hyperactivity are markedly so.... To the contrary, Dr. [Edward] Hoffman, the consultative psychiatric examiner, reported adequate attention, concentration, and intact memory skills and opined that [JACC] could follow age appropriate instructions and directions."
In order to determine whether JACC has an impairment or combination of impairments that functionally equals a condition described in the Listings, the ALJ analyzed JACC's symptoms across the six domains set forth in 20 C.F.R. § 416.926a(b)(1): (i) acquiring and using information, (ii) attending and completing tasks, (iii) interacting and relating with others, (iv) moving about and manipulating objects, (v) caring for oneself, and (vi) health and physical well-being. In particular, the ALJ considered whether JACC had a marked limitation in two of the domains or an extreme limitation in one domain. The ALJ noted that he had considered all of the relevant evidence in the case record, including objective medical evidence and other relevant evidence from medical sources, information from other sources such as school teachers, family members, and friends, and statements from JACC, his parents and other caregivers.
The ALJ also noted that, as provided in 20 C.F.R. § 416.926a(b) and (c), he evaluated the "whole child" in making findings regarding functional equivalence, specifically how JACC functions as compared to other children the same age who do not have impairments and, inter alia, the type, extent, and frequency of help JACC needs to function. The ALJ also noted that he employed a two-step process in considering JACC's symptoms. First, he determined whether there was an underlying medically determinable physical or mental impairment that could reasonably be expected to produce JACC's pain or other symptoms. Secondly, once an underlying physical or mental impairment that could reasonably be expected to produce JACC's pain or other symptoms had been shown, the ALJ evaluated the intensity, persistence and limiting effects of those symptoms and the extent to which they limited JACC's functioning. For this purpose, when statements about the intensity of pain or other symptoms were not substantiated by objective medical evidence, the ALJ made a finding on the credibility of the statements based on a consideration of the entire case record.
a) Acquiring and Using Information
Acquiring and using information concerns how well a child is able to acquire or learn information and how well a child uses the information he has learned. The domain involves how well children perceive, think about, remember and use information in all settings. School-age children between the ages of 6 and 12 should be able to learn to read, write, and do math and discuss history and science. Some examples of difficulties children have in acquiring and using information are: not understanding words about space, size, or time, not being able to rhyme words or the sounds in words, and having difficulty recalling important things learned in school the day before.
The ALJ determined that JACC has a less than marked limitation in acquiring and using information. The ALJ found that, although there was some indication in the record that JACC has attention deficits, the evidence showed that these limitations are less than marked in severity. The ALJ noted that JACC was taking regular education classes and that his cognitive functioning was adequate.
In reviewing JACC's medical history, the ALJ noted that JACC was treated by Dr. Posada at Urban Health Plan, Inc., for ADHD, and that treatment consisted of a prescription for Strattera. He noted further that on initial psychiatric evaluation in March 2010, JACC was referred for anxiety and hyperactivity, impulsive behavior with poor self control and limited attention span, temper tantrums and poor academic performance. On examination, JACC had some articular problems and restless legs, mild stuttering and limited impulse control. He was ultimately diagnosed with ADHD, an adjustment disorder and an anxiety disorder NOS (Not Otherwise Specified).
The ALJ reviewed JACC's subsequent medical history, noting that he was next seen by Dr. Posada on September 24, 2010, and that medication was indicated. JACC returned to Dr. Posada on October 2, 2010, after undergoing an EKG, which revealed a normal heart rhythm. On that date, Dr. Posada prescribed Concerta. When JACC was seen on November 17, 2010, he remained anxious, irritable and more jumpy and his school performance was reported still poor; he was distracted, concentrated poorly and was frequently observed daydreaming. Strattera was prescribed and Concerta discharged. By December 15, 2010, JACC had a partial positive response but remained impulsive and hyperactive and his dosage was increased.
As part of the application process and at the request of the Commissioner, in June 2010, JACC underwent a consultative psychological evaluation performed by Edward Hoffman, PhD. ("Dr. Hoffman"), who reported that JACC was responsive and cooperative and his manner of relating was adequate. Dr. Hoffman also reported a constricted range of affect, a somewhat anxious but stable mood, and adequate attention and concentration and intact memory, as well as average cognitive functioning. Dr. Hoffman also administered the TONI-3 (Test of Nonverbal Intelligence 3rd Edition) on which JACC achieved a quotient of 100, representing an average ability nonverbally. The ALJ noted that, because Dr. Hoffman's opinion was well supported by the records, he accorded it significant weight.
The ALJ noted that, at the request of the Commissioner, Dr. DePaola conducted a consultative pediatric examination during which Rodriguez reported no developmental delays and stated that JACC was in regular education classes and was doing fairly well with some behavioral issues. Dr. DePaola ...