DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

Maria C. Velez ("Plaintiff") brings this action on behalf of her minor child ("S.V.") pursuant to Title XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying her application for Supplemental Security Income ("SSI"). The Court has jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g), 1383(c). Both the Commissioner and Plaintiff have filed motions for judgment on the pleadings. Pl.'s Mot., Mar. 20 2015, ECF No. 9; Comm'r's Mot., May 19, 2015, ECF No. 10. For the reasons stated below, Plaintiff's motion for judgment on the pleadings, ECF No. 9, is granted in part, and the Commissioner's cross-motion for judgment on the pleadings, ECF No. 10, is denied. The case is remanded to the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g).

A. Procedural History

Plaintiff filed an application for SSI on behalf of S.V., a child under the age of 18, on February 9, 2011, with a protective filing date of December 15, 2010. In her complaint, she alleged that S.V. suffers from a disability that began on November 6, 2007. R. 39. The initial application was denied on April 28, 2011, and Plaintiff subsequently requested a hearing before an Administrative Law Judge ("ALJ"). Plaintiff and S.V. appeared with a paralegal from the Empire Justice Center at a hearing before ALJ Stanley K. Chin on October 16, 2012.

On October 26, 2012, the ALJ issued a written decision finding S.V. not disabled and therefore not eligible for SSI. R. 33-57. The ALJ's determination became the final decision of the Commissioner on June 23, 2014, when the Appeals Council denied Plaintiff's request for review. This action followed.

FACTUAL BACKGROUND

A. Testimonial Evidence

The hearing took place in Rochester, New York. Plaintiff testified through an interpreter about S.V.'s anxiety. She stated that when her daughter was born, doctors used forceps and as a result she has an indentation in the back of her head. At the time of the hearing, S.V. was six years old and in second grade. When the family was living in Puerto Rico, they had to take S.V. out of school because of her anxiety, vomiting, and asthma. In Puerto Rico, Plaintiff could not obtain services needed by her daughter, so she came to the continental United States.

S.V. was placed in the first grade here, and Plaintiff was able to obtain services for her anxiety and vomiting, but unable to advance her to the second grade. Plaintiff decided it would be better to keep her in first grade. Plaintiff further testified that her daughter does not handle change well. "Her nerves act up. She gets a panic attack. I've also noticed that her asthma attacks are also in connection with the changes; with her nervousness, she'll get an asthma attack." R. 19. Plaintiff described S.V.'s panic attacks as follows: "When she gets a panic attack, she starts to scream. Her heart starts to pound really fast." R. 20.

Plaintiff further testified that S.V. gets between five and six panic attacks a day, that she has never gone to the bathroom by herself,1 that she does not sleep by herself in her room, and that Plaintiff often has to wait until another person is available to supervise S.V. so that Plaintiff can proceed to do whatever she needs to do.

Plaintiff testified that her daughter is on medications and, as a result, has had some improvement; however, the medications make her drowsy. She testified that at school S.V. was receiving one day of speech therapy, and now receives two days, and that S.V. sees the psychologist one day per week. S.V.'s teacher reported that S.V. does not do well in large groups and is not socializing. S.V.'s mother further testified that S.V. did not say her first words until she was three years old, and even when she was five, S.V.'s grandmother would have to ask Plaintiff to translate S.V.'s speech for her. Presently, much of her language can be understood by others, except for more difficult or lengthier words. Plaintiff testified that S.V. also sees Michelle Sweatman, a psychologist, outside of school twice a week. She further testified that S.V. takes a small bus to school, but must sit at the window or she will have a panic attack. R. 25. At the conclusion of Plaintiff's testimony, the ALJ indicated he did not have any questions for her.

B. School Records

S.V. attends school in the City School District of Rochester. In November of 2010, the school had a psychosocial assessment made of S.V. R. 321. The assessment, completed by Clara Peechatt, Certified Social Worker, notes that S.V. was born in Ohio, came to Rochester in August of 2010, that her predominate language is Spanish, and that she lives with her parents and a sister. At the time of the assessment, she was in kindergarten. The assessment also notes that S.V. suffered fetal distress during labor, dropping her heartbeat significantly. In Puerto Rico, she attended a Head Start program, but only for six months "because of her behaviors relating to intense anxiety." R. 322. Ms. Peechatt noted as well that:

R. 322.

Attached to the psychosocial assessment is a psychological evaluation of S.V. dated December 11, 2010. R. 326. The evaluation was completed by Ana Olivares, a Certified School Psychologist, who wrote about S.V.'s inability to use the bathroom alone, self-induced vomiting in the morning, and avoidance of gym by saying she has to go use the bathroom. In addition, she noted that S.V.'s teacher reported S.V. knows only three letters, could not write her name, and could not identify numerals. R. 326. She also noted that S.V. has difficulty holding a pencil, indicating that her fine motor skills may be delayed. Dr. Olivares saw S.V. over two sessions and made several observations:

R. 327. Dr. Olivares concluded from the test results that S.V.'s intellectual ability fell within the low average range with a standard score of 81. Her verbal intellectual ability, reflecting vocabulary and accumulated verbal knowledge, was within the low average range with a standard score of 85. Her thinking ability fell within the average range, scoring 97, however, her cognitive efficiency, "which reflects automatic cognitive processing such as visual scanning and short-term memory for numerical sequences, fell within the low or borderline range with a standard score of 75." R. 327. Dr. Olivares observed that her low average range scores in verbal comprehension, sound blending, visual matching, retrieval fluency, and auditory working memory, along with her low or borderline ability to mentally manipulate and recall short numerical sequences, or to encode information with visual and auditory input were deficits that "can have a negative impact on her ability to learn." R. 327.

Dr. Olivares also made comments on S.V.'s achievement, perceptual, social and emotional functioning. R. 328. Her summary and diagnostic impressions indicated to Dr. Olivares that S.V. was "in fact experiencing a difficult transition into the school setting." R. 329.

In a report entitled Speech-Language Assessment, dated December 10, 2010, R. 333, a speech-language pathologist, Ellen L. Schulman, concluded the following:

R. 338-39.

In a report dated March 1, 2011, by the Committee on Special Education of the Rochester City School District ("CSE" or "the committee"), R. 315, it was noted that S.V. had a 504 plan,2 and that "[t]he CSE considered speech/language services as a speech impaired student. This option was rejected because as [S.V.'s] anxiety has decreased she has begun to make academic gains. [S.V.] will be considered a nondisabled [sic] at this time." R. 315. The report concludes that S.V. "needs new information repeated and simplified" as her only requirement. R. 317.

The CSE sent a letter to Plaintiff dated May 5, 2011. R. 248. In that correspondence, the committee attached an individualized education plan ("IEP") which concluded that S.V. had a speech or language impairment and classified her as disabled. R. 249. The IEP recommended special transportation, psychological counseling, and speech and language therapy. A similar IEP was put in place for S.V. on September 2, 2011. R. 256.

Teachers Ana I. Vega-Clark and Lourdes Gonzalez, who had been S.V.'s classroom teachers for 63 days, noted in a School Performance Questionnaire completed on December 7, 2011, R. 406-10, that S.V.'s impairments were "extreme" in the following areas: (a) learning new material; (b) reading and/or comprehending written material; (c) comprehension and/or following directions; and (d) receptive language skills. The teachers noted that S.V. processed information very slowly making it hard for them to know exactly what she wanted. R. 407. They also observed that although she did not receive any occupational therapy services, S.V. "has trouble walking and using the stairs." R. 408.

S.V. continued to be classified as a student with a disability and continued to receive special education services for the 2011-12 school year. R. 273. At the Special Education Meeting of April 2, 2012, the committee noted in its report that S.V. was making satisfactory progress toward her IEP goals in the fall, but showed difficulty with learning and retaining the vocabulary skills presented since January 2012. R. 279. She was able to write her first and last names, but needed a great deal of teacher support to complete any other writing activity. The report states that S.V. "received therapy in Spanish this year, which is also the primary language of instruction in her classroom." R. 279. In addition, it does note that her gross and fine motor skills seemed appropriate "for her level." R. 280. Finally, the report noted S.V.'s need for improvement in all academic areas.

C. Medical records

A Children's SSI Functional Assessment Form dated April 30, 2012, was prepared by Michelle Swanger, Licensed Psychologist. R. 422-26. In the form, Dr. Swanger noted that S.V. had a marked impairment in intellectual skills; an extreme impairment in communications; a marked impairment in social behavior; and a marked impairment in her ability to complete tasks in a timely manner. R. 424-26. Dr. Swanger also listed details about how the impairments negatively affected S.V. Id.

STANDARDS OF LAW

A. Child Disability Standard

The statutory standard for children seeking SSI benefits based on disability is

Social Security Act sec. 1614, 42 U.S.C. §§ 1382c(a)(3)(C)(1).

In evaluating disability claims in children, the Commissioner is required to use the three-step process promulgated in 20 C.F.R. §§ 416.924. First, the Commissioner must determine whether the claimant is engaged in any substantial gainful activity. Second, if the claimant is not so engaged, the Commissioner must determine whether the claimant has a "severe impairment" or combination of impairments. Third, the Commissioner must determine whether the impairment or combination of impairments correspond with one of the conditions presumed to be a disability by the Social Security Commission, that the impairment(s) met, medically equaled or functionally equaled the severity of an impairment in the listings. 20 C.F.R. § 416.924.

B. General Legal Principles

Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based on the denial of Social Security benefits. Section 405(g) provides that the District Court "shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g) (2007). The section directs that when considering such a claim, the Court must accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record. Substantial evidence is defined as "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149, 117 S.Ct. 1953, 138 L.Ed.2d 327 (1997).

When determining whether the Commissioner's findings are supported by substantial evidence, the Court's task is "to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.1983) (per curiam)). Section 405(g) limits the scope of the Court's review to two inquiries: determining whether the Commissioner's findings were supported by substantial evidence in the record as a whole, and whether the Commissioner's conclusions are based upon an erroneous legal standard. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir.2003); see also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try a benefits case de novo).

Under Rule 12(c), judgment on the pleadings may be granted where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988). A party's motion will be dismissed if, after a review of the pleadings, the Court is convinced that the party does not set out factual allegations that are "enough to raise a right to relief beyond the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

ANALYSIS

A. ALJ's Decision

In applying the three-step process, the ALJ found that S.V. had not engaged in substantial gainful activity during the period under adjudication; S.V.'s asthma, allergies, anxiety disorder with panic attacks, and language disorder were severe impairments, but those impairments did not meet or medically equal the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ then determined that S.V. was not disabled under the Act. R. 53.

B. The Domain of Acquiring and Using Information

Plaintiff first argues that S.V. has a marked to extreme impairment in the domain of acquiring and using information that functionally equals a listing.3 The Commissioner's regulation states that for a school age child, such as S.V., her abilities should be the following:

20 C.F.R. § 416.926a(g)(iv). In determining that S.V. did not suffer a marked limitation in this domain, the ALJ focused on the services S.V. was receiving at school:

R. 46.

Plaintiff relies on the evaluations of S.V.'s teachers and treating psychologist to support her position that "S.V. has extreme limitations in all areas of acquiring and using information." Pl.'s Mem. of Law 22. She contends that the ALJ did not accord the teachers' evaluations proper weight, citing, inter alia, Social Security Ruling ("SSR") 06-3p. Further, she argues that pursuant to 20 C.F.R. § 416.927(c)(2) and SSR 96-2p, the treating psychologist's opinion ought to have been "accorded controlling weight" as opposed to the ALJ's giving it only "some weight." Pl.'s Mem. of Law 22 n.26. SSR 06-3p states in relevant part as follows:

SSR 06-3p. SSR 96-2p states in relevant part as follows:

When the determination or decision:

SSR 96-2p.

Plaintiff argues, and the Court agrees, that S.V.'s placement in the classroom with integrated co-teaching, R. 46, is a special education placement under New York law. See 8 N.Y.C.R.R. § 200.1(cc) (least restrictive environment); § 200.6(a)(1) ("Students with disabilities shall be provided special education in the least restrictive environment, as defined in section 200.1(cc) of this Part."). Therefore, the ALJ's observation that S.V. was in a regular classroom does not, of itself, indicate the lack of limitations in the domain of acquiring and using information. Plaintiff points out that the ALJ wrote in his decision that "[b]eyond an additional thirty minute language class, that will be discussed by the third domain, her records are not noteworthy for any increased interventions (Exs. 7E; 8E)." R. 46. Plaintiff points out that in addition to the interventions noted by the ALJ, S.V. was also required by her individual education plan to be placed in

R. 280. (IEP Apr. 2, 2012). Speech and language therapy were increased to four times weekly starting in September 2012. R. 282. The ALJ's reason for not giving controlling weight to Dr. Swanger's medical opinion was: "such limitations appear overly restrictive in light of the special education services that the claimant receives and her academic gains as noted." R. 46. The ALJ did not explain what he meant by the phrase "in light of the special education services" S.V. receives, but presumably meant that since S.V. received language therapy for only 30 minutes per week, R. 46, she must not be markedly limited in the domain of acquiring and using information. The ALJ hearing date was October 16, 2012. However, in the April 2012 IEP, S.V.'s speech and language therapy had been increased to four times weekly. Plaintiff testified that S.V. was receiving "two days of speech therapy," and psychologic therapy one day a week at school. R. 23. The ALJ even asked Plaintiff to repeat her testimony, so clearly was informed that S.V. was receiving more than 30 minutes of language therapy per week. R. 24. The ALJ asked the following questions about S.V.'s language comprehension and Plaintiff responded as follows:

R. 25. The ALJ's decision does not account for this evidence of S.V.'s apparent inability to "use these skills in academic situations to demonstrate what you have learned" as required by the Commissioner's rules. S.V.'s treating psychologist, Dr. Swanger, saw her one to two times per month for a year prior to filling out the Children's SSI Functional Assessment form. R. 422. She noted that S.V. suffered from a severe receptive language deficit as well as a moderate expressive language deficit. R. 424. She also noted a marked deficiency in S.V.'s ability to complete age-appropriate tasks in a timely manner. R. 426. The ALJ's explanation for the weight given to the treating psychologist's opinion likewise does not meet the requirement of the Commissioner's rules.

In his decision, the ALJ noted S.V.'s progress toward goals, citing Exhibit 8E, an April 16, 2012, report from S.V.'s bilingual special education teacher. R. 266-72. The goals noted in the report are:

R. 267-68. By April, she had achieved each goal. Those goals fall far short of the Commissioner's anticipation that a school-age child will "learn to read, write, and do math, and discuss history and science." R. 45. Even the less rigorous requirements the Commissioner sets out for preschool age children were not set as goals in S.V.'s IEP:

R. 45.

The state agency consultant, R. Mohanty, whose opinion the ALJ evidently gave significant, if not controlling, weight, signed a report dated April 14, 2011. R. 367. In that report, the consultant wrote the following with regard to the domain of acquiring and using information:

R. 368.

The consultative examiner's opinion regarding S.V.'s ability to acquire and use information does not significantly differ from the opinion of Dr. Swanger, only the consultative examiner found S.V.'s limitations to be less than marked. Although Dr. Swanger treated S.V. and saw her frequently, and Dr. Swanger's opinion was supported by S.V.'s teachers, who saw S.V. daily for several hours per day, along with support from Plaintiff's testimony concerning this domain, the ALJ's explanation for not giving controlling weight to Dr. Swanger's opinion does not "make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p. Furthermore, the ALJ's determination relies on a consultative examination conducted by a consultant who did not have the full record.

The ALJ also referred to S.V.'s IQ scores in support of his determination that she was not markedly impaired in this domain. R. 46 ("Intelligence testing revealed low average intelligence."). IQ scores, however, are not determinative of a claimant's abilities in this domain. SSR 09-3p.

Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 218 (S.D.N.Y. 1999) (citation omitted). By including S.V.'s intelligence testing in the factors supporting his decision to find a less than marked limitation in this domain, the ALJ misapplied the Commissioner's ruling. Without discussing how he was using S.V.'s IQ scores, the ALJ's decision does not comply with SSR 09-3p ("this domain considers more than just assessments of cognitive ability as measured by intelligence tests, academic achievement instruments, or grades in school.").

Additionally, per the Commissioner's rules, the ALJ was obligated to consider not only how S.V. functioned in a structured setting, but also how she functioned in other settings and whether she "would continue to function at an adequate level without the structured or supportive setting." 20 C.F.R. 416.924a(b)(5)(iv)(C). As the Northern District observed:

Bonet ex rel. T.B. v. Colvin, No. 1:13-CV-924, 2015 WL 729707, at *5 (N.D.N.Y. Feb. 18, 2015).

The teachers' evaluations, each of whom observed S.V. in the classroom for 63 days from 9:15 AM until 3:15 PM, R. 409, stated that S.V.'s functioning would not be the same without the accommodations she was receiving, id. Their evaluation indicated that S.V. was extremely impaired in her ability to carry out instructions, maintain an age-appropriate pace, and complete tasks on time. R. 407. They noted that she processed information very slowly. Id. Contrary to the Commissioner's rules, the ALJ's decision does not analyze how S.V. would function without a structured or supportive setting. Therefore, on remand, the Court directs the Commissioner to properly apply the rules.

C. The Domain of Attending and Completing Tasks

In this domain, the Commissioner's rule requires the ALJ to consider "how well [S.V. is] to focus and maintain [her] attention, and how well [she] begin[s], carr[ies] through, and finish[es] [her] activities, including the pace at which [she] perform[s] activities and the ease with which [she] change[s] them. 20 C.F.R. § 416.926a(h). Further, the regulation provides details with respect to children of different ages, two of which are relevant here:

20 C.F.R. § 416.926a(h)(2)(i) & (ii).

The ALJ determined that S.V. had a less than marked limitation in this domain. R. 47. He noted S.V.'s achievement goals in study skills, reading, and math, and discounted the teachers' assessment of marked and extreme limitation in this domain, writing:

R. 47. Further, the ALJ discounted Dr. Swanger's opinion of S.V.'s marked limitation in this domain, noting that "based on the claimant's scholastic gains with treatment as already discussed, her opinion likewise appears overstated." R. 47.

The ALJ's decision does not discuss the CSE's report, dated April 2, 2012, which noted that "[s]he needs a lot of teacher's support to complete any writing activity," and "[S.V.] needs to write simple sentences independently," R. 279. S.V.'s teachers noted that she needed supervision all the time in order to complete any academic task. R. 407. With regard to the ALJ's reference to S.V.'s ability to meet achievement goals in, inter alia, study skills, the IEP for study skills included these goals for S.V., then in first grade: "[S.V.] will attend to and follow one-step directions," and "[S.V.] will retrieve coats hats, boots, etc. at the end of the school day." Those goals do not pertain to S.V.'s ability to classroom and homework assignments. As her mother testified to the ALJ, S.V. is able to complete homework assignments only with her mother's assistance. R. 25. Nevertheless, the consultative examiner found no limitation in this domain, and did not provide any explanation for the finding. R. 368. The ALJ's determination in this domain is not supported by substantial evidence. Further, as with the prior domain, the Court finds that the ALJ has failed to comply with the Commissioner's regulation requiring a good explanation for why he gave little, if any, weight to the treating psychologist's opinion and adopted the opinion of the consultative examiner instead. SSR 96-2p.

D. The Domain of Interacting and Relating with Others

The Commissioner, in this domain, considers how well a child initiates and sustains emotional connections with others, develops and uses the language of her community, cooperates with others, complies with rules, responds to criticism, and respects and takes care of others' possessions. 20 C.F.R. § 416.926a(i). With regard to the age levels involved here:

20 C.F.R. § 416.926a(i)(2)(iii) & (iv). The ALJ discounted Plaintiff's testimony concerning her child's abilities in this domain, evidently because "it was clear that she did not have a firm grasp of what treatment the claimant presently receives." R. 48. The ALJ further wrote:

R. 49.

Plaintiff accuses the ALJ of "cherry picking" evidence to support his conclusion, while ignoring evidence to the contrary. Pl.'s Mem. of Law 29. The teachers' evaluation noted no or mild problems with getting along with other children, but extreme problems with making and keeping friends, and conversation skills. R. 407-08. Her psychological evaluation of December 11, 2010, noted that she had one female friend, but that all the boys were her friends. R. 291. Her mother testified that she had made one female friend, a peer who is in class with her. R. 26. The ALJ noted that S.V.'s "language skills are progressing slower than other abilities," and that her mother testified "that other people have difficulties understanding her." R. 49. The ALJ relied on her "current IEP" which he interpreted to show that S.V. is generally understood, citing Exhibit 8E at 1-7. R. 49. One of the requirements for this domain, per the Commissioner's rules, is that an school age child should "should be well able to talk to people of all ages, to share ideas, tell stories, and to speak in a manner that both familiar and unfamiliar listeners readily understand." 20 C.F.R. § 416.926a(i)(2)(iv). In Exhibit 8E, the reviewer wrote in the category, "[S.V.] will identify and use vocabulary related to the end of kindergarten level content area curriculum through classification, categorization and association skills," the following comment:

R. 271. The portion in Spanish is not translated,4 but appears to elaborate on the goal more than the English portion. The ALJ presumably did not have a translation either (since none appears in the Record). The same issue of non-translation of the more elaborate Spanish comments is repeated throughout the exhibit. Therefore, the Court finds that without the information that may be contained in the Spanish portion, the ALJ could not rely on the exhibit to support his conclusion that S.V. did not have any limitations in this domain. On remand, the ALJ should develop the record by obtaining translations of the Spanish portions of the progress report to ascertain whether the progress comments support a finding that S.V. has no limitations in this domain.

CONCLUSION

For the foregoing reasons, Plaintiff's motion for judgment on the pleadings, ECF No. 9, is granted in part, and the Commissioner's cross-motion for judgment on the pleadings, ECF No. 10, is denied. The case is remanded to the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g).