Keene v. Astrue
Keene v. Astrue
Opinion of the Court
DECISION and ORDER
I. INTRODUCTION
Helena Keene brings this action on be
A. Procedural Posture
Helena Keene (“Keene”) applied for SSI benefits on behalf of J.T. on February 9, 2007. Admin. R. at 89-92, ECF No. 9. On May 30, 2007, the Regional Commissioner denied Keene’s application. Id. at 60-63. Keene filed a request for a hearing by an Administrative Law Judge (the “hearing officer”) the following day. Id. at 43. On April 24, 2009, the hearing officer issued a decision finding that J.T. was not disabled. Id. at 43-56. After the Appeals Council denied Keene’s request for further review on January 27, 2010, the hearing officer’s decision became final. Id. at 1-4.
On March 26, 2010, Keene filed the present action with this Court to review the decision of the Commissioner pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). See Compl. 1-4. The government filed an answer, Def.’s Answer, ECF No. 8, and both sides filed briefs in support of their respective positions. Issues Presented Review (“Pl.’s Mem.”), ECF No. 17; Mem. Law Supp. Def.’s Mot. J. Pleadings (“Def.’s Mem.”), ECF No. 19.
B. Facts of Record
1. Background
J.T. was born on February 28, 1999. Admin. R. at 46. J.T., while physically healthy, is a child with an attention deficit hyperactivity disorder (“ADHD”). Id. at 47. In November 2002, the Albany County Health Department, prompted by Keene’s concerns regarding delays in J.T.’s overall development, conducted a Multidisciplinary Evaluation of the three-year-old child. Id. at 222. Testing revealed deficiencies in intelligence and achievement, see id. at 223, 226, 230, in social and emotional functioning, see id. at 223, 226-27, 230, in fine motor skills, see id. at 223, 227, 230, and in all communication skills, see id. at 224, 228-29, 231. After meeting the criteria to receive services through the Committee on Preschool Special Education, J.T. was recommended to receive speech and language therapy, occupational therapy, and other special education services in a structured setting. Id. at 231-32.
2. Mental Impairments
a. Treating Physician
J.T. has received primary health care from the Whitney M. Young, Jr. Health Center since birth. Id. at 116. On May 25, 2005, at age six, J.T. was diagnosed with ADHD, and his pediatrician, Dr. Estrella Esguerra (“Dr. Esguerra”), prescribed him medications (including Ritalin). Id. at 182.
At a doctor’s visit on March 20, 2007, after Keene informed the doctor that J.T.’s medication had not been working, Dr. Esguerra prescribed J.T. 27 mg of Concerta, continued a preexisting dosage of 5 mg of Ritalin to be taken at noon, and added Clonidine to help with sleep issues. Id. at 203-04. On April 12, 2007, the doctor noted that J.T. had a decreased appetite and had lost weight. Id. at 161-62. Because J.T. often became quiet and stared after taking his medication, Dr. Esguerra
Doctor’s notes from October 22, 2007, indicated that J.T.’s daily dosage of Concerta had risen to 36 mg.
On December 12, 2007, Dr. Esguerra again noted that J.T.’s school reported being out of required medication and was requesting a three-month supply of said medication. Id. at 392. J.T.’s teachers reported that they were happy with his progress, remarking that J.T. had problems when he was not on medication. Id. Nonetheless, J.T. still had trouble focusing, and even though he had many friends, he continued to experience difficulty interacting with peers and had mood swings. Id. J.T.’s mother reported that J.T. sometimes complained of feeling dizzy after taking Clonidine. Id.
Dr. Esguerra’s treatment notes, dated April 15, 2008, revealed that Keene expressed concern over J.T.’s inability to gain weight and picky eating habits. Id. at 401. J.T. was still described as hyperactive and lacked meaningful friendships, but his teachers were happy with his progress and had no complaints. Id. As a result, the dosage of Concerta was continued at 36 mg, but Clonidine was discontinued because J.T. was sleeping better. Id.
During a doctor’s visit on September 18, 2008, Keene again expressed concern about J.T.’s weight. Id. at 399. Consequently, Dr. Esguerra proposed decreasing the dosage of Concerta to 27 mg daily. Id. at 400. During this visit, the doctor observed that J.T. was able to tell time, read for pleasure, and had a sense of humor. Id. at 399.
J.T. next visited Dr. Esguerra on December 12, 2008. Id. at 397-98. The doctor was again told that J.T.’s medication was not working and that his hyperactivity had increased. Id. at 397. Further, J.T. was having difficulty focusing in school and exhibited behavioral problems such as “acting out,” being “disrespectful to adults,” and being “impulsive.” Id. J.T. was increasingly disruptive in class, did not listen well, and had hit other students “because they bother[ed] him.” Id. (internal quotation marks omitted). Dr. Esguerra diagnosed ADHD and behavioral problems (specifically, aggression and possible oppositional defiant disorder), as well as insufficient weight gain. Id. at 397-98. The doctor recommended starting Risper
J.T.’s continuing trouble with focusing and hyperactivity was noted at a January 22, 2009 visit. Id. at 395. The doctor reported that J.T. had been suspended from school for bringing in syringes with needles and that his grades were worsening. Id. J.T. was described as having several friends and was getting along with his parents. Id. Keene reported that Risperdal was not working, so Dr. Esguerra, after raising a question about J.T.’s compliance with his prescription, discontinued that medication. Id.
b. Consulting Physician
On May 29, 2007, non-examining state agency psychiatrist, Dr. J. Alpert (“Dr. Alpert”) completed a Childhood Disability Evaluation Form. Id. 154-59. Dr. Alpert found that J.T. had a severe impairment (borderline intellect), but he concluded that the impairment did not meet, medically equal, or functionally equal the listings concerning domain limitations. Id. at 154. Specifically, J.T. had less than marked limitations with respect to acquiring and using information, attending to and completing tasks, and interacting and relating to others, but had no limitations with respect to moving about and manipulating objects, caring for himself, or his health and physical well-being. Id. at 156-57.
Dr. Alpert explained that J.T.’s March 2006 IQ scores featured a full-scale score of 79, a performance score of 81, and a verbal score of 77. Id. at 159. On speech and language testing, J.T. had an expressive-language score of 84, a receptive-concepts score of 71, and á total-language score of 76. Id. In terms of social development, J.T. was reportedly able to make friends but required “frequent verbal prompts to leave peers alone as he frequently over step[ped] boundaries.” Id.
c. Teacher Questionnaires and Progress Reports
J.T.’s first-grade teacher at Eagle Point Elementary School, Melissa Shelmerdine (“Shelmerdine”), filled out a Teacher Questionnaire on March 22, 2007. Id. at 165-74. Shelmerdine stated that J.T. was in the first grade and that his instructional level at that time, with regard to reading, mathematics, and written language, was at the first-grade level. Id. at 165. She reported that J.T. received speech services three times per week and counseling services one half hour per week. Id. Shelmerdine observed that J.T. had no problems relating to the acquisition and use of information. Id. at 166. Shelmerdine further reported that when J.T. was off of his medications, he had difficulty in most of the areas touching upon attending and completing tasks (with very serious problems in focusing long enough to finish an assigned task, waiting to take turns, and working without distracting himself and others), and that “[t]he frequency of problems when he has his meds is much less.” Id. at 167. With respect to interacting with and relating to others, Shelmerdine reported only slight problems, with the exception of J.T.’s ability to “seek[ ] attention appropriately.” Id. at 168. Shelmerdine commented that J.T. had the capacity to finish work “correctly on an independent level as long as he’s focused,” which occurred only when he was on his medication. Id. Further, Shelmerdine reported that J.T. had no difficulty in moving about and manipulating objects. Id. at 169. She then concluded that J.T. had merely slight problems in almost all areas of caring for himself but noted that he had obvious problems with regard to being patient when necessary and responding appropriately to changes in mood and a serious problem with respect to knowing when to ask for help. Id. at 170. Lastly, Shelmerdine stated that J.T. took medication on a
J.T.’s second-grade teacher, K. Gravel (“Gravel”), indicated in a progress report that J.T., in the first quarter of the school year, was “very capable of completing second grade work” but that it was, however, “difficult to get him to read for comprehension when it is not something he chooses to read. With behavioral and pharmaceutical interventions, [J.T.] is better equipped to meet the challenges of second grade.” Id. at 438. By the second quarter, Gravel noted that even “[w]ith the behavioral and pharmaceutical interventions in placet,] [J.T.] continues to struggle to sustain mental effort. His behavior is a distraction to the other students.” Id. In the third quarter report, J.T. “continue[d] to have difficulty sustaining mental effort,” and “[w]hen correeted[,] it [was] difficult for him to stop [being distractive] even with pharmaceutical interventions.” Id. at 439.
On a January 13, 2009, Teacher Questionnaire, J.T.’s third-grade teacher at Eagle Point Elementary School, Shelette Pleat (“Pleat”), stated that she had known J.T. for five months and saw him five days per week. Id. at 427. Pleat noted that J.T. was at the first-grade level in reading, math, and written language. Id. With regard to acquiring and using information, she stated that J.T. had serious problems in “[c]omprehending and doing math problems,” “[understanding and participating in class discussions,” “[p]roviding organized oral explanations,” and “[recalling and applying previously learned material.” Id. at 428. Further, J.T. had very serious problems in “[e]xpressing ideas in written form,” “[l]earning new material,” and “[a]pplying problem-solving skills in class discussions.” Id. Pleat also indicated that “[J.T.] is not independent at all when it comes to his school work. [J.T.] receives extra support in Reading, Speech, as well as monthly consultations [with occupational therapists, physical therapists,] and [the] school social worker.” Id. With regard to attending and completing tasks, the teacher indicated that J.T. had very serious problems in almost all areas. Id. at 430. With regard to interacting and relating to others, the teacher stated that J.T. had serious or very serious problems in almost all areas. Id. at 431. Pleat noted that a behavior plan had been put into place but explained that J.T. had been moved several times and currently was in a change-of-school plan. Id. She further stated that J.T. was “always getting extra help” and that he required one-on-one support at times. Id. Pleat also noted that J.T. had no problems in moving about and manipulating objects. Id. at 432. With respect to J.T.’s ability to care for himself, Pleat indicated serious problems in six out of the ten listed activities. Id. at 433.
d. Individualized Educational Plans
(i) 2006-2007 School Year
In March 2006, the Albany City School District developed an Individualized Education Plan (“IEP”) for J.T. for the first grade, which was scheduled to begin in the fall of the 2006-2007 school year. Id. at 208-17. J.T. was classified as speech/language impaired. Id. at 208. J.T. was described as “a student who required a substantial amount of mobility.” Id. at 210. The IEP stated that (1) J.T.’s general intellectual functioning fell within the deficienf/borderline-to-low average range when compared against other students of his same age; (2) J.T. had difficulty solving problems using his “knowledge, long-term memory, and ... language”; and (3) J.T.’s ability to “acquire, retain, and retrieve general factual knowledge was delayed.” Id. J.T. demonstrated strengths, however, in word and letter-sound identifi
In the area of social development, J.T. was making friends, but he needed sensory integration for the first hour and a half of his day in order to be attentive and focused during the remainder of the day. Id. Because J.T. would often yell at and attempt to push his peers, he was frequently instructed to leave them alone. Id. The School District recommended placement in an integrated class with a 12:1:1 student-aide-teacher ratio, in addition to weekly counseling, group occupational therapy services twice a week, and speech therapy three times a week. Id. at 213.
(ii) 2007-2008 School Year
The Albany City School District conducted an annual review in April 2007 of J.T.’s need for continued special education for second grade. Id. at 384-86. J.T.’s IEP for the 2007-2008 school year continued to show that J.T. was a speecb/language-impaired child in need of services to properly treat his ADHD. Id. at 372.
Specifically, test results generated by a CELF-4 test
(iii) 2008-2009 School Year
The IEP for the 2008-2009 third-grade school year was originally drafted in January 2009 but was modified shortly thereafter after a behavioral incident involving J.T. resulted in his suspension from school. See PL’s Mem. 13. J.T. was reassigned for a period of two months to North Albany Academy and placed in a self-contained classroom there. Id. at 13; see also Admin. R. at 448. J.T. returned to Eagle Point Elementary School on March 9, 2009. PL’s Mem. 13.
Test results on the CELF-4 administered in January 2008, indicated an expressive-language score of 89 and a receptive-language score of 67. Admin. R. at 450, 454. J.T.’s performance was “average in broad reading, basic reading skills, and basic writing skills, low average in written expression, low in mathematics and very low in math calculation skills.” Id. at 455. Further, J.T. exhibited a high level of activity, which made it more difficult for him to hold his attention. Id. J.T. was learning at a slower rate than his peers, and “[t]he use of medication therapy improve[d] his focus and attention to task[s].” Id. J.T. could “visually identify the numbers through 100,” and could “match a quantity to them.” Id. J.T. had average grammatical skills and continued to demonstrate below-average auditory memory skills. Id. In the area of social development, J.T.
e. Hearing Testimony
At the hearing on March 13, 2009, both Keene and J.T. testified. See id. at 8-38. Keene testified first. She stated that she typically wakes her son up at 6:30 AM and lays his clothes out, and he dresses himself. Id. at 16. Then, after having breakfast, J.T. goes to the bus stop and waits for the bus to come. Id. at 17. Keene makes J.T. do his homework immediately upon arriving home from school and prepares dinner for him, even though J.T. usually lacked an appetite because of the medication he is taking. Id. at 17-19. After homework is done, J.T. generally watches television or plays games. Id. at 19. Further, Keene testified that J.T. took medications every morning; a social worker, however, informed her that the medication was not working and that J.T. was not focused at school. Id. at 20. Both in school and at home, J.T. was very active and constantly moved around. Id. at 23-24. Keene explained that she missed several of J.T.’s doctor’s appointments because of transportation difficulties. Id. at 29.
J.T. testified that he liked his school, his teacher, and his class. Id. at 32. He also noted that his grades were good. Id. at 32-33. J.T. testified that he liked taking medication because it helped to subdue his hyperactivity. Id. at 34. J.T. also stated that he likes reading comic books. Id. at 35. When asked whether he has friends, J.T. testified that he had two good Mends living in his neighborhood. Id. at 35-36.
II. DISCUSSION
A. Standard of Review
The Court’s role in reviewing a social security disability case is to determine whether appropriate legal standards were applied in the denial of benefits and whether the hearing officer’s findings of fact are supported by substantial evidence. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). The Court should set aside an administrative decision “only where it is based upon legal error or is not supported by substantial evidence.” Roma v. Astrue, 468 Fed.Appx. 16, 17-18 (2d Cir. 2012) (quoting Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)) (internal quotation mark omitted). “Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)) (internal quotation marks omitted). “ ‘[W]here there is a reasonable basis for doubting whether the Commissioner applied the appropriate legal standards,’ the decision should not be affirmed even though the ultimate conclusion reached is arguably supported by substantial evidence.” Jaskiewicz v. Comm’r of Soc. Sec., No. 3:08-CV-379, 2010 WL 5138477, at *2 (N.D.N.Y. Dec. 10, 2010) (quoting Martone v. Apfel, 70 F.Supp.2d 145, 148 (N.D.N.Y. 1999)).
An individual under the age of eighteen is disabled if he or she has “a medically
A child’s functional limitations are evaluated in accordance with the following six main areas, referred to as “domains”
(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 yourself; and,
(vi) Health and physical well-being.
20 C.F.R. § 416.926a(b)(l)(i)-(vi). A medically determinable impairment or combination of impairments functionally equals a listed impairment if it “results in ‘marked’ limitations in two domains of functioning or an ‘extreme’ limitation in one domain.” Id. § 416.926a(a); see also Ramos, 2003 WL 21032012, at *8. An “extreme limitation” is an impairment which “interferes very seriously with [the claimant’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(i). A “marked limitation” exists when the impairment “interferes seriously with [the claimant’s] ability to independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(2)(i). “A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with [the claimant’s] ability to function independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C).
B. Hearing Officer’s Decision
On April 24, 2009, the hearing officer rendered a decision on J.T.’s eligibility for SSI benefits. Admin. R. at 56. The hearing officer noted that J.T. was born on February 28, 1999, and thus was a “school-
The hearing officer further concluded that J.T. did not have an impairment or combination of impairments that meets or medically equals one of the impairments in the Listing. Id. at 46. In addition, the hearing officer stated that J.T. did not have an impairment or combination of impairments that functionally equals a condition in the Listing. Id.
As to the six domains of function, the hearing officer determined that J.T. had: (1) less than marked limitation in acquiring and using information; (2) less than marked limitation in attending and completing tasks; (8) less than marked limitation in interacting and relating with others; (4) no limitation in moving about and manipulating objects; (5) no limitation in the ability to care for himself; and (6) no limitation in health and physical well-being. Id. at 52-56.
In analyzing the area of acquiring and using information, the hearing officer looked at J.T.’s intellectual testing results. In particular, the hearing officer relied on WPPSI
In analyzing the area of attending and completing tasks, the hearing officer concluded, without pointing to any concrete evidence in the record, that J.T.’s ability to appropriately attend to and complete tasks when properly medicated counseled against a finding of disability. Id. at 53.
When considering J.T.’s ability to interact and relate with others, the hearing officer emphasized that J.T. “was described as a child who was at the center of and directing his peers” and “demonstrates out-of control behavior” only when he is not medicated. Id. at 54.
With respect to moving about and manipulating objects and caring for himself, the hearing officer summarily concluded that J.T. had no limitations in these domains. Id. at 55.
C. Analysis
Keene appeals two separate issues. Pl.’s Mem. 1. First, Keene challenges the hearing officer’s conclusion that J.T.’s impairments were not functionally equivalent to a listed impairment. Id. Specifically, Keene argues that “the evidence supports a finding that J.T. suffers from a marked limitation in the domains of acquiring and using information, attending and completing tasks, and interacting and relating with others.” Id. at 17. Second, Keene argues that the hearing officer did not “properly consider the effect of medication and a structured setting.” Id. at 1.
This domain focuses on the degree to which a child is able to acquire or learn information and to use the information that she has learned. 20 C.F.R. § 416.926a(g). A school-age child (that is, one who is between the ages of six and twelve) should be able to read, write, perform math calculations, and discuss history and science. Id. § 416.926a(g)(2)(iv). Moreover, such a child should have the capacity to demonstrate these skills in both academic and daily living settings. Id.
The Code of Federal Regulations (the “Regulations”) offers a number of examples of limited functioning with respect to this domain. For example, a child might display limited functioning if she does not “demonstrate understanding of words about space, size, or time” or has “difficulty solving mathematical problems.” Id. § 416.926a(g)(3)(i), (iv).
This Court holds that in reaching the conclusion that J.T. has less than marked limitation in acquiring and using information, the hearing officer did not sufficiently weigh the evidence of the record. The hearing officer’s discussion with respect to this domain is limited to a single paragraph, in which he points out J.T.’s scores on the WPPSI test administered on March 20, 2006 — -without explaining what •the scores meant — -and J.T.’s scores on the CELF-4 test given on January 18, 2007. Admin. R. at 52. Further, the hearing officer noted that “[a]cademic testing from 2007 indicated that the claimant’s performance was average with respect to his broad reading skills, basic reading skills and basic writing skills and was low average with respect to his written expression skills, was low in mathematics skills and was very low with regard to his math calculation skills.” Id.
The hearing officer’s conclusion is flawed for three reasons. First, the hearing officer does not thoroughly explain what the cited testing scores mean. J.T.’s consulting physician stated that J.T. had “borderline intellect,” id. at 154, and the hearing officer himself found that J.T.’s written expression skills, mathematics skills, and math calculation skills fell within the low average, low, and very low ranges, respectively. Id. at 52. “Although the scores may not be low enough to meet the clinical definition of mental retardation, this does not mean that Claimant has a less than marked impairment with respect to acquiring and using information.” Dabul-Montini ex rel. N.D. v. Astrue, No. 09-CV-966 (TJM/VEB), 2010 WL 3584348, at *6 (N.D.N.Y. July 30, 2010); see also id. (“A child of normal intelligence can also be cognitively impaired if some condition other than a low IQ severely affects the child’s ability to progress in the skills involved in reading, writing, and arithmetic.” (quoting Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 218 (S.D.N.Y. 1999)) (internal quotation mark omitted)). Second, the hearing officer failed to consider the entire record and identify any evidence that supported an alternative conclusion. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (holding that it is the hearing officer’s obligation “to weigh the conflicting evidence in the record”); Sutherland v. Barnhart, 322 F.Supp.2d 282, 289 (E.D.N.Y. 2004) (“It is not proper for the [hearing officer] to simply pick and choose from the transcript only such evidence that supports his determination, without affording consideration to evidence supporting the plaintiffs claims.”). Third, the hearing officer did not detail the particular weight accorded to supporting and contradicting evidence drawn from the record and failed to provide sufficiently concretized justifications for his finding. See Gravel v. Barnhart,
Even if the hearing officer’s ultimate conclusion was potentially supportable, the Court ought not affirm a decision where there is a reasonable basis for doubting whether the appropriate legal standards were applied. See Jaskiewicz, 2010 WL 5138477, at *2.
As a result, the Court remands to the administrative agency the issue of whether the record evidence supports a finding that J.T. has less than a marked limitation in acquiring and using information.
2. Attending and Completing Tasks
With regard to attending and completing tasks, the Commissioner considers a child’s ability “to focus and maintain ...
The Regulations provide various examples of limited functioning with respect to this domain. For example, a child might have limited functioning if she is “easily startled, distracted, or overreactive to sounds, sights, movements, or touch”; “slow to focus on, or fail[s] to complete activities of interest”; “repeatedly become[s] sidetracked from ... activities or ... frequently interrupts others”; becomes “easily frustrated and give[s] up on tasks”; or “require[s] extra supervision to [remain] engaged in an activity.” Id. § 416.926a(h)(3)(i)-(v).
The hearing officer found that J.T. had less than marked limitation in this domain. Admin. R. at 53. Again, while considering this domain, the hearing officer, instead of referring to and weighing the evidence in support of his finding, offered only two sentences: “When the claimant is appropriately medicated and assuming medication compliance, he is able to appropriately attend to and complete tasks. However, when the claimant is not appropriately medicated, he has a considerable amount of difficulty in this area.” Id.
The record contains contradictory evidence. For instance, Pleat indicated that J.T. had very serious problems in almost all areas of attending to and completing tasks. Id. at 430. Gravel noted that “[w]ith the behavioral and pharmaceutical interventions in place[,] [J.T.] continues to struggle to sustain mental effort. His behavior is a distraction to the other students.” Id. at 438. Gravel further reported that, in the third quarter of second grade, J.T. “[c]ontinue[d] to have difficulty sustaining mental effort,” and “[w]hen corrected[,] it [was] difficult for him to stop [being distractive] even with pharmaceutical interventions.” Id. at 439. In addition, Dr. Esguerra’s notes show that over a four-year course of treatment, the type or dosage of J.T.’s medications were changed at least twelve times because either J.T.’s mother, his teachers, or the school nurse complained that the current prescriptions were not working. See, e.g., id. at 161, 163, 182, 184, 186, 189, 190-91, 194, 204, 390, 394-95, 397-98. During the last two visits on December 12, 2008, and January 22, 2009, Dr. Esguerra noted that J.T.’s hyperactivity was increasing and that he was having trouble focusing. Id. at 395, 397. As a result, when the record is read in its entirety, it is unclear whether the medications were in fact effective on a consistent basis. Importantly, the hearing officer did not consider the effect, if any, these constant changes had on J.T.’s functioning. See id. at 53.
Accordingly, the Court remands to the administrative agency issue of whether the record evidence supports a finding that J.T. has less than marked limitation in attending and completing tasks.
This domain considers how well a child “initiate[s] and sustain[s] emotional connections with others, ... complies] with rules, respond[s] to criticism, and respects] and takes care of the possessions of others.” 20 C.F.R. § 416.926a(i)(l). A school-age child should be able to develop lasting relationships with children of her same age. Id. § 416.926a(i)(2)(iv). The child should begin to “understand how to work in groups”; have an “increasing ability to understand another’s point of view and to tolerate differences”; and “talk to people of all ages, ... share ideas, tell stories, and ... speak in a manner that both familiar and unfamiliar listeners readily understand.” Id.
The Regulations provide examples of limited functioning with respect to this domain. For example, a child might have limited functioning if she “ha[s] no close friends”; “avoids or withdraws from people [she] know[s], or [is] overly anxious or fearful of meeting new people or trying new experiences”; or “ha[s] difficulty communicating with others ... or in asking others for assistance.” Id. § 416.926a(i)(3)(ii)-(iii), (3)(v).
In analyzing this domain, the hearing officer again simply stated summarily that “[w]hen appropriately medicated the claimant has no difficulty interacting with peers and adults____Therefore, since his impairment is controllable by appropriate medication and medical follow through it is concluded that his impairments in this domain are less than marked.” Admin. R. at 54.
The hearing officer’s reasoning is flawed in the following two respects
For the foregoing reasons, the Court remands to the administrative agency the issue of whether the record evidence supports a finding that J.T. has less than marked limitation in interacting and relating.
4. Effects of Medication and a Structured Setting
Keene is also arguing that the hearing officer failed to consider the absence of a structured and supportive setting and the effects of medication on J.T.’s behavior.
Also, the hearing officer failed to determine the effectiveness of J.T.’s medications in light of the record evidence revealing frequent changes in the type and dosage of his medications. See, e.g., Roelandt ex rel. Roelandt v. Apfel, 125 F.Supp.2d 1138, 1148 (S.D.Iowa 2001) (holding that medication designed to treat ADHD may be deemed effective only if it diminishes the
This Court therefore remands for further development and consideration of the effects of a structured and supportive setting and medication.
III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Commissioner’s decision denying SSI benefits is REVERSED; it is further ORDERED that this case be REMANDED to the hearing officer for further evaluation consistent with this opinion.
SO ORDERED.
. Of the District of Massachusetts, sitting by designation. Reassignment Order, ECF No.
. J.T. is a minor. Thus, in accordance with Rule 5.2(a) of the Federal Rules of Civil Procedure, he will be referred to either as '‘Claimant'' or by his initials.
. Information in the record suggests that J.T.’s dosage of Ritalin was eventually phased out, id. at 394; when exactly this transition occurred, however, is not clear.
. CELF-4 stands for “Clinical Evaluation of Language Fundamentals — Fourth Edition.”
. The domains are described as "broad areas of functioning intended to capture all of what a child can or cannot do.” 20 C.F.R. § 416.926a(b)(l).
. WPPSI — which stands for the “Wechsler Preschool and Primary Scale of Intelligence” — is an intelligence test administered to young children.
. Notably, in his memorandum, the Commissioner stated that the hearing officer “was not required to give Ms. Pleat’s report greater weight than the conclusions of medical professionals.” Def.’s Mem. 8. This determination, however, was for the hearing officer to make. Besides, the case law emphasizes the importance of a child’s teachers’ evaluations. See, e.g., Quinones ex rel. Quinones v. Chater, 117 F.3d 29, 35 (2d Cir. 1997) ("We think that the reports of the psychologists are at best inconclusive with respect to [the claimant’s] concentration, persistence, and pace. Standing against the reports of [the claimant's] teachers, who dealt with her on a daily basis over at least a school year, these reports do not by themselves amount to ‘substantial evidence’ supporting the Commissioner’s finding.” (emphasis added)). As discussed, the hearing officer’s decision did not even mention the weight given or the credibility determinations made with respect to any evidence in the record.
In addition, although the Commissioner in his memorandum emphasized the findings of a disability evaluation performed by a state psychological consultant named Lisa Newman, Def.’s Mem. at 8, 10, 14, 17, the hearing officer made no reference to this evaluation in his decision, further confirming that the hearing officer failed to consider the entire record.
. In his memorandum, the Commissioner did highlight a report dated December 6, 2005, which was filled out by another one of J.T.’s teachers, Cynthia Clo (“Clo”). In the report, Clo stated that J.T. made positive gains in interacting and relating to others while on medication, which indicated that J.T. had no problem, only a slight problem, or no obvious problem in this domain. Def.’s Mem. 16. Further, the Commissioner noted that just one month later, Clo reported that J.T. had no problems or only slight problems in areas within the domain of interacting and relating with others. Id. The hearing officer, whose decision this Court is reviewing, did not mention either of Clo’s reports in his decision. Accordingly, this Court need not address their application to the analysis here.
. The Regulations provide that:
A structured or supportive setting may minimize signs and symptoms of your impairment(s) and help to improve your functioning while you are in it, but your signs, symptoms, and functional limitations may worsen outside this type of setting. Therefore, we will consider your need for a structured setting and the degree of limitation in functioning you have or would have outside the structured setting. Even if you are able to function adequately in the structured or supportive setting, we must consider how you function in other settings and whether you would continue to function at an adequate level without the structured or supportive setting.
20 C.F.R. § 416.924a(b)(5)(iv)(C).
Reference
- Full Case Name
- Helena KEENE f/b/o J.T. v. Michael J. ASTRUE, Commissioner, Social Security Administration
- Cited By
- 4 cases
- Status
- Published