LISA MARGARET SMITH, Magistrate Judge.
Plaintiff Jocelyn Estrella commences this action pursuant to 42 U.S.C. § 405(g). She seeks judicial review of the final decision of the Commissioner of Social Security (the "Commissioner"), which denied her application for Supplemental Security Income ("SSI") benefits. ECF No. 1. Each party has submitted a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 17, 22. For the reasons discussed below, I conclude, and respectfully recommend that Your Honor should conclude, that the Commissioner's motion for judgment on the pleadings (ECF No. 22) be denied, and Plaintiff's motion (ECF No. 17) be granted. As such, the ALJ's decision should be vacated, and the case should be remanded to the Agency for further proceedings consistent with this Report and Recommendation.
Plaintiff filed a claim for SSI on behalf of her infant son, M.R.E. (or "the claimant"), on July 24, 2012. AR 178-87.
The instant lawsuit followed.
M.R.E. began receiving treatment through Steinway Child and Family Services, Inc. ("Steinway"), a non-profit agency, in February, 2009. AR 377. On March 19, 2009, Lauren McEvoy, a licensed master social worker ("LMSW"), completed an Intake Summary, which recorded M.R.E.'s educational and developmental histories to date. AR 377-80.
Ms. McEvoy's notes with respect to the frequency and intensity of M.R.E.'s symptoms are somewhat equivocal. At times, she noted, M.R.E. demonstrated the ability to follow directions and accept limits. AR 377. On other occasions, he was susceptible to temper tantrums and spells of yelling, "especially when limits [were] set by his mother." AR 377. M.R.E. displayed marked impulsivity, distractability, and low frustration tolerance, but was able "to appropriately take turns and to stick to a game at other times[]." AR 377. She also wrote that M.R.E. appeared to be of average intelligence and was, at times, friendly and easily engaged, while at other times he displayed impulsive and oppositional behavior. AR 377. Ms. McEvoy determined that M.R.E. was in need of therapy "to support he and his mother in decreasing his impulsivity, distractibility and occupational behavior." AR 378. She also found that M.R.E. would benefit from further psychiatric evaluation and possible medication management, in order to address his symptoms of ADHD and ODD. AR 380.
On June 22, 2011, Dr. Salvacion Bonete, a psychiatrist at Steinway, evaluated the claimant. AR 369. M.R.E. was six years old at the time, and had previously been diagnosed with ADHD, combined type, and ODD, rule out bipolar disorder, by Dr. Jose Vito on March 21, 2009. AR 369.
Dr. Bonete found that M.R.E. was cooperative and relatable throughout much of the evaluation, but could be resistant and oppositional to direction at times. AR 370. Generally, the claimant appeared to be in an excited mood — he was fidgety, restless, talkative, and unable to sit still — and was easily distracted. AR 370. Although he was fully oriented and displayed an appropriate affect, M.R.E.'s concentration was impaired, and he demonstrated poor judgment, insight, and impulse control. AR 371-72. Dr. Bonete diagnosed M.R.E. with ADHD, combined type, and ODD, rule out bipolar disorder. AR 373. She also assigned him a global assessment of functioning ("GAF") score of 48, which indicates a serious impairment in social, occupational, or school functioning. AR 373.
On June 30, 2011, Ms. McEvoy noted that the claimant continued to struggle with aggressive outbursts. AR 374. Additionally, M.R.E. demonstrated difficulty accepting limits, managing his responses to provocation, and was often provocative in his interactions with classmates. AR 374. Ms. McEvoy found that the claimant was intelligent, curious, and capable of interacting in a friendly and engaging manner, but struggled with impulsivity, hyperactivity, and difficulty focusing, while also exhibiting oppositional behavior. AR 374. Although M.R.E. made progress toward decreasing the intensity of these symptoms, Ms. McEvoy found that he continued to struggle "significantly with aggression at school, which [was] getting in the way of overall functioning and peer relationships." AR 376.
On August 16, 2011, Dr. Bonete and Ms. McEvoy wrote to the New York City Department of Education ("DOE") concerning M.R.E.'s academic placement. AR 263.
M.R.E. was discharged from Steinway on September 14, 2011. AR 367-68. According to a summary prepared by Ms. McEvoy on the same date, M.R.E.'s symptoms "fluctuated significantly" over the course of treatment. AR 367. After a period of sustained improvement, M.R.E. began displaying increased aggression, difficulty accepting limits, and poor frustration tolerance. AR 368. The claimant was therefore transferred to Bellevue Hospital's Child and Adolescent Day Treatment Program (the "Bellevue Program"), where he could receive a higher level of care. AR 368. The final diagnoses rendered by Ms. McEvoy was consistent with the prior findings: ADHD, combined type, and ODD, rule out bipolar disorder. AR 368. At the time of his discharge from Steinway, M.R.E. had been prescribed Concerta, 72 mg, Ritalin, 5 mg, and Risperidone, 2.5 mg. AR 374.
M.R.E. enrolled in the Bellevue Program in the Fall of 2011, through which he was placed in a highly structured educational setting at PS 35, and was provided psychiatric care and individual therapy on a weekly basis. ECF Nos. 19, at 13-14; 23, at 7. On December 15, 2011, M.R.E. met with Debra McVey, a licensed clinical social worker ("LCSW"). AR 434. Ms. McVey noted that the claimant could follow directions, did not "boss other peers," and was able to complete his school work. AR 434. On the following day, December 16, M.R.E. saw Dr. Eric Alcera, who reported that M.R.E. had been struggling to follow directions at school. AR 435. Dr. Alcera noted that the claimant was cooperative, well-related, oriented, alert, and possessed normal judgment and insight. AR 435. He diagnosed M.R.E. with ADHD, with significant hyperactivity and inattention, as well as a history of aggression. AR 436.
On December 19, 2011, Courtney Karp, a social work intern, met with M.R.E. for a weekly therapy session. AR 431. M.R.E. reported that he was "fine," but provided poor eye contact. AR 431. Otherwise, he was cooperative, alert, and oriented, and his insight and judgment were both intact. AR 431. On December 20, 2011, Dr. Kathryn Kavanaugh, a psychologist, and Christina Laitner, a psychology extern, co-authored notes which described M.R.E.'s struggles in the classroom. AR 433. He had difficulty waiting his turn and frequently requested to be called on by his teachers before other students. AR 43. When he was not, he became "vocal." AR 433. Ms. Karp and M.R.E. met once again on December 22, 2011. AR 437. M.R.E. had been "acting out" in class, and was very upset when confronted about his behavior. AR 437. The claimant also reported that he and his family would soon be moving to the Bronx, which made him feel overwhelmed and anxious. AR 437.
On January 3, 2012, Dr. Kavanaugh and Ms. Laitner described that M.R.E. often "pout[ed] and whine[d]" when he was not called on before other students. AR 439-40. The claimant could also "be bossy with his peers." AR 440. At the same time, Dr. Kavanaugh and Ms. Laitner noted, M.R.E. actively sought interpersonal connections with his classmates, and was motivated by the point system in place at school, which rewarded good behavior. AR 440.
On January 10, 2012, Dr. Alcera wrote that M.R.E. continued to exhibit "some oppositional behavior," although the intensity and frequency of such outbursts had decreased. AR 443. Citing a recent school report, Dr. Alcera noted that M.R.E. performed adequately academically. AR 443. Results from a mental status examination were also unremarkable. AR 443.
On January 24, 2012, Dr. Kavanaugh, along with Debroh Zlotnik, a psychology extern, noted that M.R.E. participated actively and appropriately in group activities. AR 445. Indeed, he "encourage[d] his peers not to get upset when they were not winning" during a class exercise. AR 445. On January 26, Ms. Karp reported that M.R.E. had "been doing really well and will soon be ready to move on to a new school." AR 459. On January 27, Dr. Kavanugh and Ms. Zlotnik wrote that M.R.E. demonstrated good behavioral control, was not disruptive, and appeared fully engaged in group activities. AR 447. Once again, on February 3, M.R.E. was an active, and appropriately behaved, participant in group activities. AR 451.
Also on February 3, 2012, M.R.E. met with Ms. Karp, appearing in a good mood, and with a cooperative attitude. AR 453. Ms. Karp noted that M.R.E. spoke at a normal rate and rhythm, "varying between a normal volume and very loud outbursts when [he became] excited." AR 453. The claimant sat still in his chair during the session, and demonstrated sound insight and judgment. AR 455. On February 9, however, he apparently regressed; as Dr. Kavanaugh and Ms. Zlotnik noted, M.R.E. exhibited hyperactive behavior, impulsivity, and difficulty focusing during group exercises. AR 450. Nevertheless, they noted, M.R.E. could be redirected to engage in appropriate behavior when instructed to do so. AR 450.
On February 13, 2012, Dr. Alcera reported that M.R.E. was compliant with his medications. AR 465. A mental status examination was normal, and Dr. Alcera noted that M.R.E.'s aggression and outbursts in class had improved. AR 465. As of February 16, M.R.E. was once again comporting himself well in the classroom. AR 461. Dr. Kavanaugh and Ms. Zlotnik described his euthymic mood and active, appropriate behavior, as well as his positive responses to verbal praise and reinforcement. AR 461. Also on February 16, M.R.E. met with Ms. Karp; although he appeared claim, he was easily distracted and had to be redirected multiple times throughout the session. AR 463. Ms. Karp indicated that M.R.E. had "done very well behaviorally in school over the past month, earning [moderate scores] on the behavioral point sheet." AR 463.
According to notes prepared by Ms. Zlotnik on March 1, 2012, M.R.E. was generally on task during class exercises. Ar 470. Although he demonstrated hyperactivity and impulsivity, the claimant participated actively and appropriately with his classmates. AR 470. Additionally, Ms. Zlotnik noted, M.R.E. was responsive to positive reinforcement of his good behavior, and generally well behaved. AR 471. Ms. Zlotnik's notes from March 8 are substantively indistinguishable from the above. AR 475.
On March 22, Ms. Zlotnik provided an apparently conflicting account of M.R.E.'s behavior in class. On the one hand, she noted, he was generally on task and well behaved; at the same time, however, M.R.E. "often told tangential stories that were not on topic and it was difficult to redirect him." AR 481. On March 23, Ms. Karp met with M.R.E. to discuss a recent threat he had made to a fellow classmate while on the school bus. AR 484.
M.R.E. met with Ms. Karp once again on March 30, 2012, at which time he admitted that his threatening actions the previous week were "wrong" and that he and his classmate were "fine." AR 486. Although M.R.E. appeared happy at the beginning of the meeting, he grew upset after discussing his transition to a new school. AR 486-87.
M.R.E. presented to Ms. Zlotnik on April 5, 2012, in an irritable mood; he had continuously been provoked by one of his classmates. AR 490. M.R.E. threatened to fight the classmate, and Ms. Zlotnik noted that he demonstrated hyperactivity and impulsivity throughout the group meeting. AR 490. On April 9, 2012, Dr. Alcera reported that the claimant remained compliant with his medication, and that both home and school reports showed that M.R.E.'s attention and focus had improved. AR 494. M.R.E. was also less irritable and argumentative, and "more flexible", complying "without difficulty with staff, teachers and [his] mom." AR 494. A mental status examination was normal. AR 494. Dr. Alcera observed that M.R.E. was generally doing better but still suffered from significant hyperactivity and inattention. AR 495.
On April 13, 2012, Plaintiff informed Ms. Karp that M.R.E., who was home from school at the time on a scheduled break, had been "difficult" but "not out of control." AR 496. Indeed, Plaintiff was capable of redirecting M.R.E. to behave appropriately, but it often required threatening to call the police or a hospital to calm him down. AR 496. Upon his return to school, on April 16, M.R.E. met with Ms. Karp for an individual therapy session. AR 500. Although the claimant remained cooperative and calm throughout the session, he told Ms. Karp that he sometimes felt as though he was incapable of controlling himself. AR 500. On April 19, Ms. Zlotnik noted that M.R.E. had been verbally aggressive toward a classmate, but "responded well to redirection and was [thereafter] able to use effective problem solving skills to resolve peer conflict." AR 498. Aside from the initial conflict, M.R.E. was generally on task and well-behaved. AR 498.
Ms. Karp, who was leaving the Bellevue Program at the end of the month, met with M.R.E. for the final time on April 27, 2012. During their meeting, they discussed a minor altercation between the claimant and other students on the bus, and went out for ice cream to celebrate M.R.E.'s otherwise good behavior. AR 502. Ms. Karp noted that, in general, the claimant got along well with his peers and was well-behaved. AR 502. During the meeting M.R.E. interacted with Ms. Karp in a friendly and appropriate manner. AR 502.
In group sessions on both April 26 and May 3, 2012, M.R.E. became verbally aggressive toward a classmate, but responded well to redirection. AR 504, 506. As Ms. Zlotnik wrote, M.R.E. appropriately sought extra help from the staff and generally behaved well after the initial conflict. AR 504, 506. On May 10, Ms. Zlotnik reported that M.R.E. was generally on task and interacted well with his peers. AR 488. The claimant responded well to redirection from his teachers and demonstrated "good team work." AR 488.
Also on May 10, 2012, M.R.E. met with Debra McVey, who had replaced Ms. Karp as his therapist at the Bellevue Program. AR 508. Ms. McVey noted that M.R.E. had a short temper in the classroom, and was incapable of responding to redirection from his teachers. AR 508. Less than one week later, on May 16, Dr. Alcera wrote that M.R.E. was doing well in the program, remaining "engaged academically with minimal to nil tantrums or outbursts." AR 509. M.R.E. exhibited good behavior at home and continued to demonstrate improved frustration tolerance at school. AR 509. A mental status examination was unremarkable; M.R.E. was alert, oriented, and cooperative. AR 509.
On May 24, 2012, Ms. Zlotnik rendered an apparently conflicting account of M.R.E.'s behavior during group activities. AR 512. She began her narrative by stating that the claimant was generally on task and well behaved during the group activity, but wrote in the next sentence that he "demonstrated bossy behavior towards group members." AR 512.
M.R.E. told Ms. McVey on June 1, 2012, that he felt "in control" and did not think he required more medication. AR 515. He reported that two students in his after school program were being provocative by "always saying bad or mean things" about his mother, but he was able to ignore them. AR 515. On June 8, Ms. McVey noted that M.R.E. behaved well in class over the previous week. AR 515. According to Ms. Zlotnik's notes of June 14, 2012, M.R.E. was generally on task and interacted well with his peers. AR 517. On the following day, June 15, Ms. McVey noted that M.R.E. was "doing better" in the after school program. AR 518. Plaintiff also reported that the claimant's behavior at home had improved. AR 518. On June 22, Ms. McVey wrote that M.R.E. had a good week, and was able to play with a classmate without "being too bossy[.]" AR 519.
Dr. Alcera, writing on July 11, 2012, noted that M.R.E. did not have any tantrums or aggressive outbursts in the previous month. AR 520. The claimant continued to show improvement in his behavior at school; his attention, focus, and mood were each considered "good" as well. AR 520. M.R.E. was compliant with his medications, and a mental status examination was normal. AR 520. On the same day, July 11, Ms. McVey met with M.R.E. for an individual therapy session. AR 523. They discussed a recent altercation between the claimant and a classmate of his during an after school program, wherein the claimant threatened to hit the peer for jumping ahead of him in line. AR 523. M.R.E., according to Ms. McVey, "agreed that learning is more important . . . than being the first on line." AR 523.
On July 20, 2012, Ms. McVey wrote that M.R.E.'s anger management had improved. AR 524. She had also spoken with Plaintiff, who confirmed that the claimant would begin attending PS 96 in the fall and receiving additional care from Astor Services for Children and Families, a clinic located in the Bronx, New York. AR 524. Both Ms. McVey and Plaintiff "agreed that [M.R.E.] improved and he did great in the [Bellevue Program]." AR 524.
At the end of the Spring Term of 2012, M.R.E.'s principal at PS 35, Marta Barnett, completed a report card which detailed the claimant's social behavior. AR 260. According to Ms. Barnett, M.R.E. demonstrated a low threshold and tolerance for others, and got "set off very easily." AR 260. She also noted that M.R.E. had a difficult time recovering from spells of frustration. AR 260. Although he had good friends in the class, with whom he interacted on a daily basis, he could, according to Ms. Barnett, stand to "learn to keep an indoor voice and how to keep himself together in a group setting." AR 260.
On July 27, 2012, Ms. McVey noted that the claimant had another good week in school, where he continued to display behavioral improvement. AR 525. M.R.E. acknowledged that he was in better control of his anger, and that he had made many friends at the Bellevue Program whom he would miss upon leaving. AR 525. Ms. McVey, speaking on behalf of the staff, wrote that "we will miss him also, and it's nice to see him mature so nicely." AR 525.
On August 14, 2012, Dr. Alcera noted that M.R.E. had continued to do well behaviorally, and did not exhibit any tantrums or outbursts over the prior month. AR 527. A mental status examination revealed that M.R.E. had a good mood and full affect. AR 527. The claimant was compliant with his medications and treatment, and got along well with his classmates. AR 527. Writing on August 16, Ms. McVey indicated that M.R.E. had perfect attendance over the previous two weeks, and had "matured as a person" over the course of the Bellevue Program. AR 529.
Ms. Susan Berman, the claimant's second grade teacher at PS 35, noted on a report card that M.R.E. had "come a long way since the beginning of the year." AR 289. Although M.R.E. was still working on certain behavioral issues — using his "indoor voice" within the classroom — he was, "for the most part," able to control himself. AR 289.
On August 8, 2012, Ms. Berman completed a questionnaire at the request of the SSA. AR 248. She first found that M.R.E.'s ability to acquire and use information was not impaired. AR 249. Next, she found that, generally, M.R.E. had no difficulty attending and completing tasks, but had some trouble finishing his work within a reasonable period of time. AR 250.
With respect to the final domain of functioning, caring for himself or herself, Ms. Berman found that M.R.E. had an "obvious problem" being patient when necessary, and a "slight problem" with respect to handling his frustration and responding appropriately to changes in his mood. AR 253.
On October 21, 2012, Heather Sutorius, M.R.E.'s third grade teacher at PS 96, completed a questionnaire at the request of the SSA. AR 410. M.R.E. was in an intergrated co-teaching ("ICT") class, with twenty-nine other students and two teachers. AR 410.
Ms. Sutorius found that M.R.E. exhibited "slight problems" in nine of the ten categories listed under the domain of acquiring and using information. AR 411.
With respect to interacting and relating with others, M.R.E. exhibited "slight problems" in five categories: playing cooperatively with classmates; seeking attention; expressing anger; asking permission appropriately; as well as following rules. AR 413. Otherwise, M.R.E. had "no problem" in each of the eight remaining categories listed on the form. AR 413.
On September 13, 2012, staff members at Astor Services for Children and Families ("Astor Services") in the Bronx, New York, prepared an intake form in connection with M.R.E.'s admission into their comprehensive outpatient program. AR 404. Upon admission, M.R.E. was diagnosed with disruptive behavior disorder and ADHD. AR 404. Atara Hiller, a doctoral intern in psychology with Astor Services, met with M.R.E. for weekly therapy sessions. AR 422. On April 3, 2013, she authored a letter which indicated that the claimant had been diagnosed with ADHD and disruptive behavior disorder; he was then taking Vyvanse, 60 mg, to address these conditions. AR 422.
On August 20, 2012, Dr. R. Altmansberger, a non-examining Agency consultant, considered the record that was submitted to date and determined that M.R.E. was not disabled. AR 91. Relying on Ms. Berman's responses to the teacher questionnaire, Dr. Altmansberger determined that M.R.E. had no limitation in the domain of acquiring and using information. AR 89. He then found that M.R.E. suffered from less than marked restrictions in the domain of attending and completing tasks. AR 90. Once again, he based this determination on Ms. Berman's responses to the teacher questionnaire. AR 90. He also relied on notes from the Bellevue Program, citing to a mental status examination on May 16, 2012, wherein Dr. Alcera found that M.R.E. was doing well and was stable on his medication regimen. AR 90. Dr. Altmansberger found that the claimant possessed less than marked restrictions in the domains of interacting and relating with others, health and physical well-being, and caring for himself. AR 90. The consultative doctor concluded that M.R.E. was not limited in the domain of moving about and manipulating objects. AR 90.
In the narrative section of his report, Dr. Altmansberger explained that by most accounts M.R.E. was doing well, had improved at the Bellevue Program, and was stable on his medication. AR 90. M.R.E.'s mental status examination results, moreover, fell within normal limits. AR 90. The claimant was repeatedly found to be cooperative, not aggressive, and in a euthymic mood. AR 90. In addition to Dr. Alcera's notes, Dr. Altmansberger relied heavily on Ms. Berman's teacher questionnaire. AR 91. Otherwise, the consultative doctor noted, the record lacked any opinionative evidence form any other sources. AR 91.
On July 24, 2012, Plaintiff completed a Function Report in connection with her son's application for SSI benefits.
The first of two administrative hearings was held on August 21, 2013. AR 71. Both Plaintiff and Dr. Sriti Vishan Resicart, a medical expert, testified at the hearing. AR 70. Plaintiff and the claimant did not appear with counsel. AR 72.
The ALJ first informed Plaintiff of her right to proceed with an attorney, and gave her the option to adjourn the hearing so that she may attempt to find counsel. AR 72. Plaintiff opted to go forward without an attorney. AR 72.
Plaintiff testified that M.R.E., who was nine and one-half years old at the time, was disabled as a result of his ADHD and extreme hyperactivity, conditions which led to "incidents within the school[.]" AR 73. The claimant had apparently been out of school for approximately six months before beginning at the Bellevue Program. AR 74. She explained that her son was accepted into the program because his previous school could no longer handle his out of control behavior. AR 73. At that prior school, M.R.E. was hyper, unable to focus, and "very destructive"; he would hit the teacher as well as his classmates. AR 74-75.
M.R.E. was scheduled to begin attending PS 96 in September, where he would be placed in special education classes. AR 75-76. At the time, he was also receiving therapy and psychiatric treatment through Astor Services. AR 75-76. Plaintiff testified that M.R.E. made progress through treatment. AR 77. She added that, for at least half of the school day, M.R.E.'s medication kept his symptoms under control. AR 77.
Dr. Sriti Vishan Resicart, a board certified pediatrician, family physician, and internist, testified as a medical expert at the first hearing. AR 77. She diagnosed M.R.E. with ADHD, combined type; ODD; seasonal allergies; and problems with his primary support group and in school. AR 79. M.R.E. was taking Concerta, Risperidone, Depakote, and Ritalin at the time. AR 79.
Dr. Resicart found that, looking at M.R.E.'s impairments in combination, the claimant neither met nor medically equaled the severity of listed impairment. AR 80-81. Turning next to the six domains of functioning, Dr. Resicart found as follows: M.R.E. had (1) a less than marked limitation in the domain of acquiring and using information, as demonstrated by the fact that he was below grade level in math and writing; (2) a less than marked limitation in the domain of attending and completing tasks, due to his attention deficit disorder; no limitation with respect to each of the next three domains — (3) interacting or relating with others, (4) moving about or manipulating objects, and (5) caring for himself; and (6) a less than marked limitation in the domain of health and physical well-being, because he suffered from seasonal allergies. AR 81.
A second hearing was held on December 6, 2013, where Plaintiff and M.R.E., appearing
The ALJ began the hearing by reminding Plaintiff of her right to proceed with an attorney, and she responded that she wished to go forward
M.R.E. testified that he had friends in school, but only enjoyed gym class, where he was able to run around. AR 57-58. Although he recognized that he misbehaved in school, he did "not really" believe it to be his fault. AR 59. M.R.E. described getting mad and throwing his book bag in the closet, before acknowledging that doing so was generally not a good idea. AR 60. He also described getting upset when he did not get his way. AR 60. M.R.E. stated that he liked the group therapy he received at school, which his mother also found helpful. AR 62. Outside of school he was friendly with other children in the neighborhood, and enjoyed playing basketball and soccer as well as listening to music on the radio. AR 58.
Dr. Edward N. Halperin, a board certified adolescent psychiatrist, testified as a psychological expert at the second administrative hearing. AR 62. He began by noting M.R.E.'s diagnosis of ADHD, which was "responding moderately well" to Vyvanse. AR 65. The claimant had also been diagnosed with ODD, which Dr. Halperin described as a mild case, noting that there had been much less evidence of related symptoms in the chart than there were previously. AR 66.
Dr. Halperin testified that M.R.E.'s conditions did not meet nor equal the severity of a listed impairment. AR 66. As to the six domains of functioning, M.R.E. had less than marked limitations with respect to acquiring and using information, attending and completing tasks, interacting and relating with others, and with respect to his health and physical well-being. AR 67. According to Dr. Halperin, M.R.E. did not suffer from any limitations in the domains of caring for himself or moving and manipulating objects. AR 67.
On March 6, 2014, Plaintiff sought review of the ALJ's unfavorable decision by the Appeals Council. AR 25. In support of that appeal, she submitted additional records from the DOE, Astor Services, the Bellevue Program, and Steinway. AR 5-7. In its Notice of Denial of Review, the Appeals Council stated that it had considered this new evidence, but that it did not provide a basis for changing the ALJ's decision. AR 1-2.
On November 2, 2009, Plaintiff wrote to the DOE, requesting that a full psychological test be provided to M.R.E. in order to determine if he was eligible for special education classes. AR 294.
On January 13, 2010, Dr. Guadalupe Coll, a school psychologist, conducted a psychoeducational evaluation of M.R.E. AR 340. Dr. Coll found that the claimant was alert and active, but required constant attention and direction, throughout the evaluation. AR 341. He frequently grabbed nearby materials, and tried to climb on the table. AR 342.
M.R.E.'s verbal IQ score was in the average range, while both his performance and full scale IQ scores fell within the high average range. AR 342. On a Woodcock-Johnson test, M.R.E. scored in the 91
Dr. Coll concluded that M.R.E. lacked self-control and an ability to respond appropriately to authority and social constraints. AR 344. These behavioral limitations, the examiner opined, prevented the claimant from "functioning in a regular classroom despite his overall high level in cognitive and academic functioning." AR 344. Accordingly, Dr. Coll recommended that M.R.E. be provided an educational setting which had a crisis paraprofessional who could provide additional structure and individualized attention. AR 344.
On April 1, 2011, M.R.E.'s teachers prepared an Individualized Education Program ("IEP") for the claimant's upcoming 2011-2012 school year. AR 296-305. M.R.E.'s teachers found that he had difficulty controlling his anger and could be argumentative at times. AR 296-97. As noted elsewhere in the record, M.R.E. was described as having a low frustration tolerance and a susceptibility to distraction. AR 296. Although he responded well to praise and reinforcement, he often sought it when it was "not earned." AR 296. His teachers opined that he would benefit from special attention, repetition, redirection, and praise. AR 296. Accordingly, they recommended that M.R.E. be placed in an ICT classroom, and receive individual counseling on a weekly basis. AR 300.
On March 21, 2009, Dr. Jose Vito of Steinway conducted a psychiatric evaluation of the claimant. AR 544. M.R.E.'s teachers had complained that he was hyperactive, oppositional, impulsive, and unable to focus on tasks in school. AR 544. Additionally, Plaintiff reported having difficulty with the claimant at home; he could not sit still and had tantrums. AR 544. Dr. Vito diagnosed the claimant with ADHD, combined type, ODD, rule out bipolar disorder, and seasonal allergies, while assigning him a GAF score of 50, indicating a serious impairment. AR 547. During a mental statutes examination, M.R.E. was uncooperative at times, easily distracted, and displayed poor impulse control and judgment, as well as a brief attention span. AR 545.
On January 12, 2010, Dr. Vito, along with Ms. McEvoy, the claimant's therapist at Steinway, wrote to the DOE in connection with determining M.R.E.'s appropriate educational placement. AR 548. At the time, the claimant's medications had recently been changed from Adderral XR, 30 mg, to Focalin XR, 20 mg, which he took on a daily basis, along with .5 mg of Risperidone. AR 548. According to Dr. Vito and Ms. McEvoy, M.R.E. was very bright, but struggled significantly with frustration tolerance, impulsivity, difficulty focusing, hyperactivity, oppositional behavior, and affect regulation. AR 548. In their joint opinion, M.R.E. had dual academic needs: "the need to be both challenged academically and socially, while also having the intensive support necessary to be successful in both of these realms." AR 548.
On April 6, 2011, Dr. Vito completed a form titled "Medical Report for Determination of Disability." AR 549. M.R.E. was seven years old at the time. AR 549. Although the claimant showed some behavioral improvement since beginning his treatment at Steinway, in February, 2009, significant symptoms persisted. AR 549. Dr. Vito noted that the claimant continued to experience hyperactivity, difficulty focusing, impulsivity, difficulty regulating the tone and volume of his voice, excessive talking, low frustration tolerance, trouble regulating his emotions, difficulty accepting limits, frequently losing his temper, and he was argumentative as well as easily annoyed by others. AR 549. Dr. Vito opined that M.R.E.'s frequent mood swings and oppositional behavior would interfere with his responsibilities at home and at school, and lead to conflicts with peers. AR 549.
In a "Request for Medical Accommodations" form, completed on June 27, 2011, Dr. Salvacion Bonete and Ms. McEvoy indicated that M.R.E. suffered from several limitations as a result of his ADHD and ODD. AR 551.
On April 17, 2012, Ms. Berman, Ms. McVey, and Plaintiff, along with a school psychologist and district representative, completed an IEP for M.R.E.'s 2012-2013 school year. AR 306-16. They described the claimant as "a very respectful youngster who [got] along well and enjoy[ed] helping out with the younger students in his class." AR 306. M.R.E. had, according to the authors of the IEP, "come a long way fast" since beginning at the Bellevue Program; he was "no longer argumentative and [was] described as being a `gentleman' [who was] easily redirected if there [was] a conflict, but ha[d] not been in conflict in a long while." AR 306. They recommended that the claimant receive counseling services twice weekly in a group setting, and once each week on an individual basis. AR 307. M.R.E. was also best suited for placement in an ICT classroom. AR 307, 310-11.
On July 5, 2012, M.R.E.'s primary clinician, Ms. McVey, and attending physician, Dr. Alcera, completed a treatment plan. M.R.E. still carried the diagnoses of ADHD, combined type, ODD, and had a GAF score of 50. AR 564. He was taking Vyvanse, 50 mg, at the time. AR 564. The claimant was compliant with his medication, but his teacher, Ms. Berman, reported that he often lost focus, and patience, near the end of the school day. AR 564-65. The authors of the treatment plan noted that, although M.R.E. got along nicely with older classmates, he continued to boss around his peers. AR 565. Overall, however, M.R.E.'s teachers noted that he was less easily agitated. AR 565.
On November 26, 2012, Ms. Sutorius, along with school psychologist and district representative Jose Roque, social worker Helen Crespo, general education teacher Diana Shkreli, and Plaintiff completed an updated IEP for M.R.E.'s 2012-2013 school year. Although he "tried hard to stay on task," M.R.E. continued to experience difficulty focusing, and could often get "fidgety," in the classroom. AR 345-46. The authors of the IEP nevertheless described him as "well behaved," "respectful," and having a "good attitude." AR 345.
On March 19, 2014, Ms. Sutorius completed a second teacher questionnaire. AR 331-39.
With respect to the domain of acquiring and using information, Ms. Sutorius found that M.R.E. had "slight problems" in nine of the ten categories which appeared on the questionnaire, and an "obvious problem" expressing his ideas in written form. AR 332.
As to the second domain of functioning, attending and completing tasks, Ms. Sutorius indicated that the claimant possessed a number of serious problems. AR 333. On a daily basis M.R.E. had difficulty refocusing to task when necessary, completing his homework assignments, finishing his work accurately without careless mistakes, and working without distracting himself or others. AR 333. Additionally, Ms. Sutorius found that the claimant had an "obvious problem" focusing long enough to finish assigned activities or tasks, changing from one activity to another without being disruptive, and working at a reasonable pace. AR 333. She also noted that M.R.E. had "slight problems" in several other categories within the second domain of functioning, such as paying attention when being spoken to directly and waiting to take turns. AR 333.
The third domain of functioning fell under the title of "interacting and relating with others." Here, of the thirteen categories listed under this title, Ms. Sutorius found that M.R.E. exhibited a "serious problem" in expressing anger appropriately, five "obvious problems," six "slight problems," and no problem with respect to interpreting meaning of facial expression, body language, or hints. AR 334.
As to the fourth domain of functioning, moving about and manipulating objects, Ms. Sutorius opined that M.R.E. had "slight problems" with managing the pace of physical activities or tasks, and showing a sense of his body's location and movement in space. AR 335. He was often fidgety and wrote on his fingers, and, at times, required sensory stimulation to calm down. AR 335.
The next domain of functioning fell under the title of "caring for himself." Here, Ms. Sutorius found that M.R.E. exhibited "serious problems" responding appropriately to changes in his mood and using appropriate coping skills to meet the daily demands of the school environment. AR 336. The claimant exhibited "obvious problems" handling frustration appropriately, being patient when necessary, identifying and appropriately asserting his emotional needs, and knowing when to ask for help. AR 336. He had "slight problems" caring for his physical needs, taking his medications, and using good judgment regarding personal safety and dangerous circumstances. AR 336. Ms. Sutorius indicated that M.R.E. had no problem taking care of his personal hygiene. AR 336. She noted that M.R.E. often had difficulty beginning the school day in the morning, but could begin functioning appropriately within the first hour and a half of the day, and regress toward the end of the day, when he could become irritiable, especially on extended days. AR 336.
On August 27, 2012, an Astor Services employee, whose name appears illegible, completed an intake summary. AR 553. M.R.E. presented with ADHD and low frustration tolerance;
On the same date, Tisha John, a licensed mental health counselor ("LMHC"), met with M.R.E. for an initial assessment. AR 568. The claimant was cooperative and easily engaged in conversation. AR 568. Based on the history provided by Plaintiff and her own assessment of M.R.E., Ms. John found that there was sufficient evidence to support the diagnoses of DBD and ADHD, and to warrant admission for outpatient treatment. AR 568.
On September 25, 2012, M.R.E. met with Dr. Desmond Heath of Astor Services for a psychiatric assessment. AR 569-70. Dr. Heath diagnosed the claimant with ADHD, rule out bipolar disorder and stimulant-induced psychosis, and assigned a GAF score of 50. AR 569-70. The claimant intimated that he felt as thought others were looking at him, talking about him, and laughing at him at times. AR 570. Upon conducting a mental status evaluation, Dr. Heath noted that M.R.E. did not appear to have mood swings and denied OCD symptoms. AR 570.
On June 10, 2013, staff members at Astor Services noted that M.R.E. still took Vyvanse, 60 mg, as well as Vitamin E, 200 units, per day. AR 575. Although the claimant continued to experience symptoms related to ADHD, he had apparently been able to identify certain triggers which elicited anger, and began utilizing coping methods and problem-solving skills to better regulate his emotions. AR 576-77. Collaborative problem-solving techniques also proved successful in addressing the claimant's behavior at home. AR 577. The author of the treatment plan review wrote that M.R.E.'s ADHD symptoms had improved with medication, "and [he] continue[d] to succeed academically and behaviorally at school." AR 578. On September 10, 2013, a nurse practitioner whose name is illegible on the document completed a medical only treatment plan, noting that M.R.E. continued to struggle from ADHD and took Vyvanse, 60 mg. AR 579.
On April 1, 2014, LMSW Pinchus Brecher, LCSW June Helme, and Dr. Christina Atkin completed a treatment plan. AR 571-74. M.R.E.'s diagnosis of ADHD remained unchanged. AR 571. His disruptive, attention-seeking behavior persisted as well; he interfered with his classmates' attention and concentration by "talking excessively, blurting out remarks, speaking without permission, and laughing or making noises[.]" AR 572. The claimant continued to "talk back" to his teachers and mother, and would throw tantrums that lasted for long periods of time. AR 572. To treat these symptoms, the staff at Astor Services prescribed individual therapy with Mr. Brecher two to four times each month as well as monthly medication management with Dr. Atkin. AR. 573.
On April 9, 2014, Enca Silen, a nurse practitioner, wrote that M.R.E. continued to exhibit impulsivity, inattention, hyperactivity, and irritability. AR. 325. Ms. Silen described a recent incident in which the claimant apparently threw a tantrum in the street which led to emergency medical services being called. AR 325. According to Ms. Silen, M.R.E.'s symptoms had worsened in recent months, resulting in the need for increased medication and therapy visits. AR 325. In addition to an increase in the dosage of Vyvanse, from 60 to 70 mg, M.R.E. began taking Strattera, 18 mg, as well as participating in weekly therapy. AR. 325.
The scope of review in an appeal from a social security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to determine whether the Commissioner applied the correct legal standard when determining that the plaintiff was not disabled.
The SSI program provides benefits to "needy aged, blind, or disabled individuals" who meet certain statutory income and resource limitations.
Pursuant to SSA regulations, an ALJ applies a three-step analysis to determine whether a particular child claimant is disabled. 20 C.F.R. § 416.924. First, the ALJ determines whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). If the claimant is not, the ALJ proceeds to the second step, where he or she considers whether the claimant has a medically determinable impairment which is severe. 20 C.F.R. § 416.924(c). An impairment is "severe" if it results in more than a "slight abnormality" or if it constitutes a "combination of slight abnormalities that causes . . . more than minimal functional limitations." 20 C.F.R. § 416.924(c).
At the third and final step, the ALJ determines whether the claimant's impairment(s) meets, medically equals, or functionally equals the criteria of an impairment found in 20 C.F.R. Pt. 404 Subpt. P., App. 1 (the "listings"). 20 C.F.R. § 416.924(d). To "functionally equal" a listing, the claimant must demonstrate that his or her impairments "result in `marked' limitations in two domains of functioning or an `extreme' limitation in one domain." 20 C.F.R. 416.926a. There are six domains of functioning: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) self-care; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). A "marked" impairment is one which is "more than moderate" but "less than extreme." 20 C.F.R. § 416.926(e)(2)(I). An "extreme" limitation is one which "interferes very seriously" with a child's ability to initiate, sustain, or complete activities; it is a rating reserved for the worst limitations. 20 C.F.R. § 416.926(e)(3)(i).
Plaintiff's instant lawsuit challenges the ALJ's unfavorable decision, which become the final determination of the Agency on July 24, 2015. AR 1-6. She asks this Court to reverse that decision and award benefits, or, alternatively, to vacate the decision and remand the case to the Agency for additional proceedings. ECF No. 1, at 5. Plaintiff raises four arguments in support of such relief. She contends that (1) the ALJ failed to develop the record; (2) the decision was not supported by substantial evidence; (3) the Appeals Council failed to provide "good reasons" for rejecting post-hearing treating source evidence when it denied Plaintiff's request for review; and (4) remand is appropriate in the "interests of justice." ECF Nos. 19, at 29-45; 23. For the reasons that follow, the Court recommends that the Agency's decision be vacated and the case be remanded for further proceedings consistent with this Report and Recommendation.
On January 15, 2014, the ALJ issued a written decision denying Plaintiff's application for SSI benefits on behalf of M.R.E. AR 35-45. Performing the three-step analysis set forth above, the ALJ first determined that M.R.E. had not been engaged in substantial gainful activity since July 24, 2012, the date the application was filed. AR 38. At step two, he concluded that M.R.E. suffered from two severe impairments, asthma and ADHD. AR 38. At the third step, the ALJ concluded that M.R.E.'s impairments, whether considered singly or in combination, neither met, medically equaled, nor functionally equaled a listing. AR 38.
In reaching this conclusion, the ALJ found that Plaintiff's allegations regarding the severity of M.R.E.'s impairments were not supported by the evidence of record. AR 38. The ALJ noted that M.R.E. did not require "full time therapy" and had been responding well to medication. AR 38. Moreover, mental status examination results were all within normal limits, and a May 16, 2012, examination, performed by Dr. Alcera of the Bellevue Program, stated that M.R.E. was doing well and was stable on his medication regimen. AR 38. The ALJ then considered the fact that the teacher evaluations of record did not find that M.R.E. had a marked limitation in any of the six domains of functioning. AR 38. Ms. Sutorius, on a teacher questionnaire from October, 2012, described M.R.E. as suffering from "slight problems" in some areas of functioning and "no problems" in others. AR 39. Likewise, the ALJ noted, consultative examiner Dr. Altmansberger and testifying expert Dr. Halperin both found that the claimant had less than marked limitations in various levels of functioning but never any marked or extreme impairments. AR 39. Although teacher reports described M.R.E.'s moderate difficulty in being patient, and his tendency to become moody when he did not get his way, other records noted an improvement in these behaviors. AR 39. As to the Astor Services records, the ALJ noted that the administrative file did not include progress notes or detailed assessments from M.R.E.'s treatment providers at the program. AR 40. Nevertheless, a letter from Ms. Hiller dated April 3, 2013, stated that, although the claimant had some difficulty managing his anger, impulsivity, hyperactivity, and ability to focus, he continued to make progress. AR. 40.
The ALJ then considered M.R.E.'s limitations in reference to the six domains of functioning. AR 40-44. He found that M.R.E. had a less than marked limitation in the following four domains: acquiring and using information, attending and completing tasks, interacting and relating with others, and health and physical well-being. AR 40-44.
Plaintiff contends that the ALJ failed to develop the administrative record, particularly in light of the fact that M.R.E. was an unrepresented minor at the time of the hearing. ECF Nos. 19, at 29-41; 26, at 1-5. This error, Plaintiff argues, falls into two categories. First, she contends that the ALJ did not correct gaps in the psychiatric and academic evidence, errors which were compounded by the ALJ's failure to request an opinion from one of M.R.E.'s treating psychiatrists. Second, she argues that the ALJ did not conduct a full and fair hearing. The Court, for the reasons that follow, finds merit in both contentions. As such, this case should be remanded for further development of the record.
The claimant bears the burden of proving that he or she is disabled, and must therefore provide evidence to support a claim for SSI disability. 20 C.F.R. § 416.912(a)(1). Due to the non-adversarial nature of social security hearings, however, an ALJ also has the affirmative duty to develop a "complete medical history for at least the 12 months preceding the month in which [the claimant] file[d] [his or her] application." 20 C.F.R. § 416.912(b);
Here, the ALJ failed to fulfill his heightened duty to develop the record. As an initial matter, the ALJ's duty was elevated in this case because, at the time of his decision, he was confronted with an (1) unrepresented (2) minor claimant (3) alleging mental impairments. The record, moreover, contained glaring gaps. Regarding the relevant period between the application date and the date of the ALJ's decision, an 18-month span, the record included only 14 pages
One such gap was the paucity of records from M.R.E.'s treating psychotherapists at Astor Services. At the time of the decision, the record included a letter dated April 3, 2013, from Ms. Atara Hiller of Astor Services. AR 422. Therein, Ms. Hiller wrote that she had provided M.R.E. weekly psychotherapy, and that Erica Silen, a nurse practitioner, had provided the claimant with monthly medication management since September 13, 2012. AR 422. Plaintiff also testified that M.R.E. was receiving ongoing treatment at Astor Services. AR. 63. The record, however, was devoid of any treatment notes from these sessions; nor did it include an opinion regarding M.R.E.'s ability to perform in the six functional domains from any treating mental health professional. Aside from Ms. Hiller's letter, the next most recent notes from Astor Services were dated in early October, 2012. AR 404. This left nearly six months of treatment records unaccounted for.
Additionally, the ALJ failed to assist Plaintiff in seeking evidence to resolve an apparent gap in M.R.E.'s academic records. SSA regulations "require adjudicators to try to get . . . school records whenever they are needed to make a determination or decision regarding a child's disability." Social Security Ruling ("SSR") 09-2p(IV): Title XVI: Determining Childhood Disability — Documenting a Child's Impairment-Related Limitations, 74 Fed. Reg. 7525 (Feb. 18, 2009);
Nevertheless, the Commissioner argues that, despite "the few records before the ALJ from the period at issue", the "SSA fully discharged its regulatory obligation" to develop the record, 2012. ECF No. 23, at 27-28. In developing a claimant's complete medical history, the regulations require that the SSA make "every reasonable effort to obtain medical evidence from [a claimant's] medical sources." 20 C.F.R. § 416.912(d). "Every reasonable effort" means making an initial request for evidence from the medical source, followed by a subsequent request at any time between 10 to 20 calender days later. 20 C.F.R. § 416.912(d). If, after making such requests, "the documents received lack any necessary information, the ALJ should recontact the treating [sources]."
The full and fair hearing requirement is derived from the ALJ's affirmative duty to develop the record.
The December, 2013, hearing in this case consumed 18 minutes, and generated a 16-page transcript. AR 52-68.
A closer examination of the hearing transcript, moreover, shows that the ALJ's questioning of the medical expert was especially wanting. Dr. Halperin simply repeated M.R.E.'s diagnoses, and stated that the claimant was "responding moderately well" to Vyvanse, although the medication wore off in the afternoon. AR 65. The ALJ then prompted the expert with a series of questions as he walked Dr. Halperin through the three-step disability analysis. AR 66-67.
The parties also dispute whether the ALJ's decision was supported by substantial evidence, both as written and in light of the newly submitted evidence. ECF Nos. 23, at 24-27; 26, at 6. Where, as here, an ALJ has "failed to develop the record, the reviewing court `need not — indeed, cannot — reach the question of whether the Commissioner's denial of benefits was based on substantial evidence.'"
Likewise, the Court cannot conclude that the ALJ's decision was supported by substantial evidence in light of the records first submitted to the Appeals Council.
For the foregoing reasons, I conclude, and respectfully recommend that Your Honor should conclude, the Commissioner's motion for judgment on the pleadings (ECF No. 22) be denied, Plaintiff's motion (ECF No. 17) be granted, the ALJ's decision vacated, and the case be remanded to the Agency for further proceedings consistent with this Report and Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1), as amended, and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days, plus an additional three (3) days, pursuant to Fed. R. Civ. P. 6(d), or a total of seventeen (17) days, see Fed. R. Civ. P. 6(a), from the date hereof, to file written objections to this Report and Recommendation. Such objections, if any, shall be filed with the Clerk of Court with extra copies delivered to the chambers of The Honorable Cathy Seibel at the United States Courthouse, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at the United States Courthouse, 300 Quarropas Street, White Plains, New York, 10601.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Seibel.
Expert: Yes
ALJ: What about domain one, acquiring and using information. . . . No limitation, less than marked, marked, or extreme?
Expert: Less than marked.
ALJ: And domain two, attending and completing tasks?
Expert: Less than marked.
ALJ: Domain three, interacting, relating with others?
Expert: That varies. It's from, again, less than marked.
The ALJ then continued with the same questioning through all six domains, before asking the expert whether he had anything to add, to which he responded that he did not, and the inquiry concluded. AR 66-67.
