Dimitrakios v. Colvin

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Chyrsi Dimitriakios,

Plaintiff,

MEMORANDUM AND ORDER

v.

17-CV-00009(KAM)

Andrew M. Saul, Commissioner

of Social Security,1

Defendant.

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MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C §§ 405(g) and 1383(c)(3),

Plaintiff Chyrsi Dimitriakios (“Plaintiff”), on behalf of her

minor son, EAD (“Claimant”), appeals the final decision of

defendant Andrew M. Saul, Commissioner of Social Security

(“Defendant,” or the “Commissioner”), denying Claimant’s

application for Supplemental Security Income (“SSI”) benefits

pursuant to Title XVI of the Social Security Act (the “Act”).

Plaintiff, who is represented by counsel, argues that she is

entitled to receive SSI benefits on behalf of her son due to her

son’s severe medically determinable impairments, including

speech and language disorders, asthma, and learning

1 Plaintiff commenced this action against Carolyn W. Colvin, as Acting

Commissioner of Social Security. On January 21, 2017, Nancy A. Berryhill

became the Acting Commissioner of Social Security, and on June 17, 2019,

Andrew M. Saul became the Commissioner of Social Security. Because Carolyn

W. Colvin was sued in this action only in her official capacity, Andrew M.

Saul is automatically substituted for Carolyn Colvin as the named defendant.

See Fed. R. Civ. P. 25(d). The Clerk of the Court shall amend the caption in

this case as indicated above.

disabilities, that render him disabled. (See generally ECF No.

1, Complaint (“Compl.”).)

Presently before the Court are the parties’ cross-

motions for judgment on the pleadings. (ECF No. 11, Plaintiff’s

Motion for Judgment on the Pleadings (“Pl. Mem.”); ECF No. 15,

Defendant’s Motion for Judgment on the Pleadings (“Def. Mem.”);

ECF No. 16, Defendant’s Reply Memorandum of Law in Further

Support of His Motion for Judgment on the Pleadings.) In the

alternative, Plaintiff seeks remand for further administrative

proceedings. (See Def. Mem.; Pl. Mem.) For the reasons set

forth below, Defendant’s motion is denied, Plaintiff’s motion is

granted in part and denied in part, and the case is remanded for

further proceedings consistent with this opinion.

I. BACKGROUND

a. Claimant’s Personal History

Claimant, EAD, was born on January 4, 2006, and was

nine years old and in the third grade on June 19, 2015, the date

of the ALJ hearing. (ECF No. 17, Administrative Transcript

(“Tr.”), 9, 12, 46.) He lives with his mother, his father, his

grandmother, and his sister. (Tr. 46.)

As an infant and toddler, EAD was treated for

bronchitis and infections and ultimately diagnosed with asthma.

(Tr. 224-312.) In April 2006, EAD was treated for an “upper

respiratory infection”; in May 2006, he was treated for

bronchiolitis; in August 2006, he was treated for “upper

respiratory infections”; and in December 2006, he was treated

for pneumonia. (Tr. 224-25.)

In May 2007, EAD was diagnosed as suffering from

asthma and placed on Albuterol, Xopenex, and Orapred. (Tr. 260-

63.) In September and October 2007, he was seen for a wet,

wheezing cough and was diagnosed with bronchiatitis and also

prescribed antibiotic Zithromax. (Tr. 260-61.)

At age 3, EAD’s pediatrician noted that less than half

of his speech was understandable, and he was diagnosed with a

speech disorder and referred for a speech evaluation. (Tr. 246-

47.) EAD began receiving services at the age of four for both

speech and language and occupational therapy. (Tr. 46.) By age

5, EAD was noted to be receiving both speech and language and

occupational therapy in his kindergarten classroom. (Tr. 237-

39.) EAD continued to receive both speech and language and

occupational therapy and remained in an integrated co-teaching

classroom through the relevant time period.

b. EAD’s Testimony

EAD appeared before the ALJ, who appeared unable to

hear EAD and turned off the fan in the room. (Tr. 43.) EAD

correctly answered that his birthday was on January 4. (Id.)

He was unable to answer what he received as a present. (Id.)

The ALJ asked EAD what he would have liked to have received for

his birthday, suggested to EAD that he wanted a bicycle, and

then asked if EAD knew how to ride a bicycle, to which EAD

responded, “Yes.” (Tr. 44.) She then asked EAD’s favorite

class and he responded, “before 11.” (Tr. 44.) EAD nodded his

head rather than providing an oral answer and was directed by

the ALJ to answer twice. (Tr. 43-44.) The ALJ and Plaintiff

prompted EAD as to whether he liked math, reading, or science,

and he indicated that science was his favorite subject and that

“we study electricity, magnetic force.” (Tr. 44.)

c. Plaintiff’s testimony

Plaintiff testified that EAD was in third grade at

P.S. 176 when he was receiving speech and occupational therapy,

and that he had been receiving those services since he was four

years old. (Tr. 46.) She testified that she had EAD evaluated

for speech and language delays after his nursery school teacher

told her EAD had delays. (Tr. 46-47.) Plaintiff testified that

the speech therapy improved his language, but that she “kept him

in” therapy because his teacher, Ms. Grainey, said it would help

and that he had “very bad” handwriting and that “his writing his

thoughts down is very scattered.” (Tr. 47.) She testified that

EAD had an Individualized Education Program (“IEP”). (Tr. 48.)

She testified that EAD had 2 special education teachers and a

“para.” (Tr. 49.) Plaintiff testified that the prior year, EAD

had a lot of behavioral issues in school and was doing better

this year in school but was still having behavioral problems at

home such as talking back, slamming doors, throwing toys and not

listening. (Tr. 50.) Plaintiff testified that EAD has three or

four friends who are the children of her friends and that he has

one friend in school but that he does not see that child outside

of school. (Tr. 50-51.) She testified that he misuses words.

(Tr. 53.) Plaintiff testified that EAD can’t complete things

and that she has to “yell at him to pick up his own toys.” (Tr.

54.) Plaintiff testified that EAD is “not so good” at

interacting with others and that he gets into fights with the

only friends he has and “has issues agreeing with the kids.”

(Tr. 54-55.) Plaintiff testified that EAD has no issues with

moving about and manipulating objects but that with regard to

caring for himself, he is limited, and that she picks up his

clothes. (Tr. 54.) Plaintiff testified that EAD had trouble

with math, English, writing, and penmanship. (Tr. 57.)

Plaintiff testified that EAD needed help with English and math

homework and needed to be pushed to complete his homework. (Tr.

58.) Plaintiff testified that EAD has never been hospitalized

for asthma but that they use a nebulizer unit “all the time” and

defined that to mean that EAD would use it daily in the winter.

(Tr. 59.)

d. Testimony of Dr. Chandrasekhar

Dr. Sree Devi Chandrasekhar, an internist who had not

personally examined Claimant but who had been provided with his

medical and educational records prior to the date of the

hearing, testified at the request of the Commissioner of Social

Security that EAD’s doctors had treated him for bronchitis,

upper respiratory infections, and well-child care. She

indicated that the records showed a mild intermittent asthma.

(Tr. 61.) Dr. Chandrasekhar noted that EAD had been seen by

consultative examiner Mindy Singer in 2013, who noted “normally

emerging speech and language skills.” (Tr. 61.) Dr.

Chandrasekhar noted that at the second evaluation in March of

2015, Dr. Singer found “mild receptive and expressive delay.

Still she didn’t make any recommendation for that.” (Tr. 62.)

She noted further that educational records showed that EAD was

functioning at 1.5 at the age of seven years and that reading

and math were on grade level. (Tr. 62-63.) Dr. Chandrasekhar

found that EAD had a less than marked impairment with acquiring

and using information; no limitation in attending and completing

tasks; a less than marked limitation in interacting with others

due to speech; no limitation with manipulating objects; no

limitation in caring for himself; and a less than marked

limitation due to asthma in health and physical well-being.

(Tr. 63-64.) When asked if she considered the teacher’s

questionnaire at 5E, Dr. Chandrasekhar stated, “well, the thing,

first of all, it’s they’re not . . . medical exhibits. I do

look at the E exhibits sometimes, if it’s important to my

opinion. And that has not been followed up by any psychiatrist

or psychologist. So I cannot just take that fact.” (Tr. 65.)

II. CLAIMANT’S MEDICAL HISTORY

Because Plaintiff is not alleging that there was error

with regard to the finding that EAD has less than a marked

limitation regarding the domain of health and well-being, the

Court does not address the medical records in detail. Records

from Gabriel Pediatrics indicate that EAD was treated for

asthma, bronchitis, sinusisits, and infection from January 2006

through January 2014. (Tr. 224-312.)

III. CLAIMANT’S PSYCHOLOGICAL AND EDUCATIONAL HISTORY

a. Claimant’s Individualized Education Program

i. 2013 IEP

EAD’s 2013 IEP, dated April 12, 2013, indicated that

he was a first-grader then in an integrated co-teaching

classroom and that he eagerly participated in therapy. (Tr.

313.) It notes that his intelligibility had improved

significantly but that he struggled in phonemic awareness and

was reading below grade level. (Id.) It notes that he

“struggle[d] with identifying sounds in words and blending

consonants and syllables” and that “his expressive language

[was] about one year delayed as measured by the Expressive Word

Picture Vocabulary Test.” (Id.) The IEP recommended continued

speech and language therapy, which EAD had received twice a

week, and noted that he also “[was] receiving OT (occupational

therapy) services in order to address some deficits in visual

motor skills and ability to attend to task and follow multi-step

directions.” (Tr. 313-314.) It further noted that EAD

“continue[d] to have some difficulty writing in class primarily

due to poor attention to task and becoming easily distracted.”

(Tr. 314.) It recommended that he continue with occupational

therapy and further recommended that he “stay in the [Integrated

Co-Teaching (“ICT”)] setting where he [would] receive the extra

support of two teachers. At this time he [would] not be

mainstreamed in any of the major subject areas.” (Id.)

ii. 2014 IEP

EAD’s 2014 IEP, dated December 14, 2014, stated that

he is approaching grade level and “ha[d] excellent fluency and

decoding skills.” (Tr. 432.) It noted, however, that he

“[could] become easily distracted when reading and need[ed]

refocusing to maintain comprehension of the text. At times, EAD

need[ed] prompting when answering text-based questions. Writing

[was] where EAD struggles most in literacy. He ha[d] poor

handwriting skills, and struggle[d] with adding correct

punctuation in his pieces. EAD struggle[d] with organizing his

ideas in sequential order and adding enough details to support

his ideas. In math, EAD [was] able to compute numbers, but he

struggle[d] with math word problems.” (Tr. 432.)

With regard to language skills, the IEP stated that

EAD then “receive[d] speech and language services twice a week.

EAD ha[d] made significant progress in phonemic awareness. He

[was] now reading on grade level. However, EAD continue[d] to

struggle communicating his thoughts in written medium. He ha[d]

trouble organizing his thoughts and expanding them into a

cohesive paragraph. He exhibit[ed] deficit in a variety of

words, pronoun usage, morphological endings, appropriate verb

tenses and punctuation. It [was] recommended that speech and

language therapy continue.” (Id.)

With regard to physical development, it was again

noted that EAD exhibited distractibility and poor attention. It

was noted that he had been taught strategies to deal with that

issue but had not used them. (Tr. 433.) It noted that “EAD

[was then] being seen in occupational therapy to address

impulsivity, rigidity, lack of self-awareness, and

focus/sustained attention. . . . He ha[d] great initiation

skills but needs to work on pacing.” (Id.) It further noted

that “[d]ue to his cognitive impulsivity, he usually act[ed] or

respond[ed] to questions before thinking things through.” (Id.)

The IEP recommended that he continue twice weekly occupational

therapy sessions. (Id.)

b. Claimant’s Social Security Administration

Consultative Speech and Language Evaluation

On August 20, 2013 and March 16, 2015 respectively,

upon the request of the Social Security Administration, Mindy

Singer, MA CCC-SLP, a speech/language pathologist, examined EAD.

In her first consultative examination, which took

place on August 20, 2013, Ms. Singer noted that EAD’s speech and

language developmental milestones had been mildly delayed, with

one word emerging between 16 and 20 months, and that EAD had

received speech and language therapy. (Tr. 324.) She noted

that EAD was scheduled to be placed in a second-grade education

class, and that he was accompanied by his mother and was a

“friendly cooperative child” who “remained compliant throughout

the evaluation.” (Id.) She stated that “attending and focusing

skills were judged good,” and that EAD’s “responses were judged

to be thoughtful, deliberate, and persevering, with no evidence

of distractibility or impulsivity.” (Id.) Ms. Singer noted

that voice pitch, rate, quality and intensity were appropriate.

(Tr. 325.) She found no dysfluent speech patterns. (Id.) She

found that EAD’s hearing appeared adequate for a one-to-one

testing situation. (Id.)

Ms. Singer administered the Clinical Evaluation of

Language Fundamentals, Fourth Edition (CELF-4), which revealed

that in “concepts and following directions” EAD was in the 50th

percentile at mean; that in word classes he was in the 63rd

percentile at +1 deviation; that in sentence structure he was in

the 16th percentile at -1 deviation; that in word structure he

was in the 25th percentile at -1 deviation; that in recalling

sentences he was in the 25th percentile at -1 deviation; and that

in formulating sentences he was in the 50th percentile at mean.

(Tr. 325.) His overall core language score was in the 34th

percentile. (Id.) She stated that “[t]he results obtained

indicated normally developing receptive and expressive language

skills.” (Id.)

Ms. Singer administered the Goldman-Fristoe 2 Test of

Articulation and stated that EAD obtained no errors. (Tr. 326.)

She diagnosed EAD with “[n]ormally developing receptive and

expressive language skills,” recommended that he not receive

speech and language therapy, and noted his prognosis as “fair.”

(Id.)

In her second consultative examination, which took

place on March 16, 2015, Ms. Singer again noted that EAD’s

speech and language developmental milestones has been mildly

delayed, with “one-words” emerging after age 2, and that EAD had

received speech and language therapy. (Tr. 424.) She

(incorrectly) noted that EAD, who was in a third-grade general

education class and who was accompanied by his father, was a

“friendly, outgoing child” who “followed requests

appropriately.” (Id.) She stated that “[a]ttending and

focusing skills were adequate” and that EAD’s “responses were

judged to be thoughtful, deliberate, and persevering, with no

evidence of distractibility or impulsivity.” (Id.) Ms. Singer

noted that voice was “[a]ppropriate for age and gender.” (Tr.

425.) She found no dysfluent speech patterns. (Id.) She found

that EAD’s hearing appeared adequate for a one-to-one testing

situation. (Id.)

Ms. Singer administered the Clinical Evaluation of

Language Fundamentals, Fourth Edition (CELF-4), which revealed

that in “concepts and following directions” EAD was in the 5th

percentile at -2 deviation; that in word classes receptive he

was in the 9th percentile at -2 deviation; that in receptive

language he was in the 5th percentile with no deviation given;

that in recalling sentences he was in the 16th percentile at -1

deviation; that in formulating sentences he was in the 9th

percentile at a -2 deviation; that in word classes/expressive he

was in the 16th percentile with a -1 deviation; and that in word

classes total he was in the 9th percentile with -2 deviation.

(Tr. 425.) His overall core language score was in the 5th

percentile. (Id.) Ms. Singer noted this to be “mild receptive

and expressive language delays.” (Id.)

Ms. Singer administered the Goldman-Fristoe 2 Test of

Articulation and stated that EAD had no errors. (Tr. 426.) She

diagnosed EAD with “mild receptive and expressive language

delays,” and again recommended that EAD not receive speech and

language therapy and noted his prognosis as “fair.” (Id.)

c. Social Security Administration Teacher Questionnaire

On May 21, 2013, EAD’s third-grade reading, math,

writing, language arts, science, and social studies teacher,

Carolyn Chieffo, completed a teacher questionnaire evaluation of

EAD’s functioning in school at the request of the Social

Security Administration. (See Tr. 170-179.) The scope of the

evaluation covered EAD’s day-to-day functioning in school,

including the six domains of “Acquiring and Using Information,”

“Attending and Completing Tasks,” “Interacting and Relating with

Others,” “Moving About and Manipulating Objects,” “Caring for

Himself or Herself,” and “Medical Conditions and

Medications/Health and Physical Well–Being.” (Id.)

At the time of the evaluation, Ms. Chieffo had known

Claimant for nine months, during which time she saw Claimant

five days per week. (Tr. 170.) Ms. Chieffo also noted that

Claimant received speech and language services and occupational

therapy. (Id.) Regarding acquiring and using information, Ms.

Chieffo checked the box indicating that Claimant had no

problems. (Tr. 171.)

Ms. Chieffo indicated that EAD had problems

functioning on a daily basis with attending and completing

tasks. (Tr. 172.) Specifically, she indicated that Claimant

had a slight problem paying attention when spoken to directly,

sustaining attention during sports or play, carrying out single

step instructions, and waiting to take turns. (Id.) She

indicated that EAD had an obvious problem with changing from one

activity to another without being disruptive, working without

distracting himself or others, or working at a reasonable

pace/finishing on time. (Id.) She indicated that EAD had a

serious problem with refocusing to task when necessary, carrying

out multi-step instructions, organizing his own things and

school materials, completing class/homework assignments, and

completing work accurately without careless mistakes. (Id.)

She indicated that EAD had a very serious problem in focusing

long enough to finish the task at hand. (Id.)

Regarding EAD’s interacting and relating with others,

Ms. Chieffo did not check either the yes or no box but went on

to address each specific function. She indicated that EAD had

no problem with following rules, relating experiences and

stories, using language appropriate to the situation and

listener, interpreting the meaning of facial expressions, body

language, hints, and sarcasm, and in using adequate vocabulary

and grammar to express thoughts/ideas in general, everyday

conversation. (Tr. 173.) She did note that he had a slight

problem with playing cooperatively with other children, making

and keeping friends, seeking attention appropriately, expressing

anger appropriately, respecting/obeying adults in authority,

introducing and maintaining relevant and appropriate topics of

conversation, and taking turns in a conversation. (Id.) Each

of these problems were reported as occurring daily. (Id.)

Finally, Ms. Chieffo reported that she could

understand EAD’s speech almost all of the time as a familiar

listener after repetition/rephrasing and on the first attempt

when the topic was known or unknown. (Tr. 174.) Ms. Chieffo

wrote that Claimant did not demonstrate any difficulty in the

domain of moving about and manipulating objects. (Id.)

Regarding Claimant’s ability to care for himself, Ms. Chieffo

noted no limitations. (Tr. 175.) As to Claimant’s medical and

physical well-being, Ms. Chieffo noted that there was no

medication prescribed for EAD, and that he did not frequently

miss school. (Tr. 176.)

IV. PROCEDURAL HISTORY

On April 13, 2013, Plaintiff filed an application for

SSI benefits on behalf of EAD alleging an onset of disability on

January 1, 2013 due to behavioral problems and speech and

language delays. (Tr. 137-142, 159, 164.) The Commissioner

denied EAD’s claim on September 13, 2013. (Tr. 77-88.)

Plaintiff then requested a hearing, which was held

before Administrative Law Judge M. Reeves (the “ALJ”) on June

19, 2015. (Tr. 89-91, 39-73.) At the hearing, Plaintiff

appeared with the assistance of counsel and testified on behalf

of Claimant. (Tr. 46-60.) The ALJ also heard limited testimony

from Claimant. (Tr. 43-45.) Lastly, an internist, Dr. Sree

Devi Chandrasekhar, testified by telephone at the request of the

Commissioner of Social Security. (Tr. 60-73.)

On August 17, 2015, ALJ Reeves issued a decision in

which she concluded that EAD was not disabled within the meaning

of the Act. (Tr. 6-31 (citing 20 C.F.R. § 416.924(a)).)

Performing the three-step evaluation process for determining

whether an individual under the age of 18 is disabled, 20 C.F.R.

§ 416.924, discussed further below, the ALJ first found that EAD

had not engaged in substantial gainful activity since the date

of his application. (Tr. 12.) Second, the ALJ found that EAD’s

asthma, bronchitis and speech delay were severe, medically-

determinable impairments that caused more than minimal

functional limitations. (Id.) At the third step, however, the

ALJ determined that EAD’s impairments did not meet, medically

equal, or functionally equal the severity of one of the listed

impairments set forth in Appendix I to Subpart P of Part 404 of

the Regulations. (Id.)

In determining that EAD’s impairments did not

functionally equal any listed impairment, the ALJ evaluated

EAD’s degree of limitation in the six domains set forth in 20

C.F.R. § 416.926a(b) after considering all of the relevant

evidence in the case record. (Tr. 13.) After considering

Claimant’s symptoms, the ALJ determined that Claimant and

Plaintiff’s statements regarding the intensity, persistence, and

limiting effects of the symptoms were not credible to the extent

they were inconsistent with the ALJ’s finding that Claimant’s

impairments did not functionally equal a listing. (Id.)

The ALJ found that EAD had a less than marked

limitation in the domain of acquiring and using information.

(Tr. 18-21.) She wrote that her finding was supported by

Exhibit 5E, in which Carolyn Chieffo, Claimant’s first grade

teacher had stated that EAD had no limitation in acquiring and

using information. (Tr. 19.)

The ALJ found that EAD had no limitation in the domain

of attending and completing tasks. (Tr. 21-23.) She indicated

that the finding was supported by Exhibit 1E, wherein Plaintiff

completed a function report that said that EAD was able to

finish what he started, and that despite the fact that Plaintiff

said she needed to push EAD to finish his math and writing, he

was able to complete homework in other subjects on his own.

(Tr. 22.) Additionally, the ALJ noted that despite the fact

that Ms. Chieffo stated in her teacher questionnaire that EAD

had obvious, serious, or very serious problems with regard to

most functions in this domain, he only had slight problems in

paying attention when spoken to directly, sustaining attention

during sports or play, carrying out single step instructions,

and waiting to take turns. (Id.)

The ALJ addressed the 2013 IEP, wherein it was noted

that EAD was easily districted and exhibited poor attention, as

well as the recommendation that he stay in an ICT classroom with

additional support and receive occupational and language

therapy. The ALJ stated that although the report indicated that

EAD needed extra support, there was no indication that he

received extra testing time. (Id.) The ALJ also addressed the

2014 IEP, which indicated that EAD had “difficulty in writing

due to poor attention to task and becoming easily distracted and

was attending occupational therapy to address impulsivity,

rigidity, lack of awareness, and sustained attention.” (Tr. 22-

23.) Lastly, the ALJ noted that Dr. Chandrasekhar had found

that EAD had no limitation in this domain. (Tr. 23.)

The ALJ found a less than marked limitation in the

domain of interacting and relating with others. (Tr. 23-25.)

She indicated that the finding was supported by Exhibits 1E and

4E, wherein Plaintiff said that that EAD had a problem keeping

his hands to himself and would get physical around other kids,

but said that EAD had friends his own age, could make friends,

and generally got along with adults and teachers. (Tr. 24.)

She noted that Ms. Chieffo had stated that EAD had slight

problems in playing cooperatively, in seeking attention

appropriately, in expressing anger, asking permission

appropriately, in respecting and obeying adults, and in taking

turns in a conversation, and had no problems in other functions

listed. (Id.) The ALJ noted that EAD’s 2013 IEP noted no

behavioral problems and that EAD liked “playing outside,

reading, swimming, playing video games, and watching

television.” (Id.) She noted that EAD’s 2014 IEP showed no

social concerns and that his grades were 2’s and 3’s with the

exception that he earned a failing grade in revising writing to

clarify detail and in respecting rules and working well in a

community. (Id.) Lastly, she noted that Dr. Chandrasekhar had

indicated a less than marked limitation in this area. (Id.)

In finding no limitation in the domain of moving about

and manipulating objects, the ALJ cited Exhibit 4E, page 2,

because Plaintiff noted that EAD “needed to be active and jump

around a lot.” (Tr. 25-26.) She also noted that Ms. Chieffo

had reported no limitations in this domain, and that Dr.

Chandrasekhar had found no limitations in this area. (Id.)

The ALJ found no limitation in the area of EAD’s

ability to care for himself, citing Exhibit 4E and Exhibit 1E,

in which Plaintiff stated that EAD could not wash his hair by

himself, hang up his clothes, accept criticism, or choose his

own clothes, but could take a bath or shower without help, brush

his teeth, comb his hair, eat by himself, pick up and put away

his toys, obey safety rules, and do what he was told most of the

time. (Tr. 26, 155.) She noted that Ms. Chieffo found no

problems in this domain, and that Dr. Chandrasekhar had noted

that there were no limitations in this domain. (Tr. 26.)

Finally, the ALJ found a less than marked limitation

in the area of health and physical well-being, which she

concluded from Exhibits 5E and 1F and Dr. Chandrasekar’s

opinion. (Tr. 27-28.) She noted that despite Plaintiff’s

testimony that EAD used a nebulizer frequently, his asthma

appeared well controlled and that in October 2012, a spirometry

test indicated that EAD’s “severe airway obstruction” was

markedly improved with the use of a bronchodialator. (Tr. 27.)

She noted that Ms. Chieffo found no limitation in this area and

that EAD had a wide range of activities which included playing

in the schoolyard with peers, playing outside, swimming, playing

video games, and watching television. (Tr. 27-28.) Lastly, she

noted that Dr. Chandrasekhar had noted a less than marked

limitation in this area. (Tr. 28.)

V. DISCUSSION

a. Standard of Review

A district court reviews the Commissioner’s decision

to “determine whether the correct legal standards were applied

and whether substantial evidence supports the decision.” Butts

v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004) (citing Machadio

v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)). “Substantial

evidence is ‘more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.’” Halloran v. Barnhart, 362 F.3d 28, 31

(2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401

(1971)). “A district court may set aside the [ALJ’s]

determination that a claimant is not disabled only if the

factual findings are not supported by substantial evidence or if

the decision is based on legal error.” Burgess v. Astrue, 537

F.3d 117, 127 (2d Cir. 2008) (internal citations and quotation

marks omitted).

In order to assess the legal standards and evidentiary

support used by the ALJ in his or her disability finding, the

reviewing court must be certain that the ALJ considered all the

evidence. Sutherland v. Barnhart, 322 F. Supp. 2d 282, 289

(E.D.N.Y. 2004); see also Carnevale v. Gardner, 393 F.2d 889,

891 (2d Cir. 1968) (“We cannot fulfill the duty entrusted to us,

that of determining whether the Hearing Examiner’s decision is

in accordance with the Act, if we cannot be sure that he

considered some of the more important evidence presented[.]”).

An evaluation of the “substantiality of evidence must also

include that which detracts from its weight.” Williams ex rel.

Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

Furthermore, “[b]efore the insulation of the

substantial evidence test comes into play, it must first be

determined that the facts of a particular case have been

evaluated in the light of correct legal standards.” Klofta v.

Mathews, 418 F. Supp. 1139, 1141 (E.D. Wis. 1976), quoted in

Gartmann v. Secretary of Health and Human Services, 633 F. Supp.

671, 680 (E.D.N.Y. 1986). The Commissioner’s determination

cannot be upheld when it is based on an erroneous view of the

law that improperly disregards highly probative evidence.

Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999).

After reviewing the Commissioner’s determination, a

district court may “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.” Butts, 388 F.3d at 384

(quoting 42 U.S.C. § 405(g)). “Remand is particularly

appropriate where further findings or explanation will clarify

the rationale for the ALJ’s decision.” Grace v. Astrue, No. 11–

cv–9162, 2013 WL 4010271, at *14 (S.D.N.Y. July 31, 2013)

(citing Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)).

b. Requirements for SSI Eligibility

An individual under the age of eighteen is considered

disabled under the Act if she has “a medically determinable

physical or mental impairment, which results in marked and

severe functional limitations, and which can be expected to

result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.” 42 U.S.C.

§ 1382c(a)(3)(C)(i); Kittles ex rel. Lawton v. Barnhart, 245 F.

Supp. 2d 479, 487 (E.D.N.Y. 2003). Further, although not in

dispute in this case, an individual under the age of eighteen

who “engages in substantial gainful activity” is not eligible

for SSI benefits. 42 U.S.C. § 1382c(a)(3)(C)(ii).

In order for a claimant under the age of eighteen to

be found disabled, the Act requires that an ALJ conduct a three-

step sequential analysis finding each of the following: (1) that

the claimant is not engaged in substantial gainful activity; (2)

that the claimant has a medically determinable impairment or a

combination of impairments that is “severe” (i.e., the

impairment or combination of impairments cause more than a

minimal functional limitation); and (3) that the impairment or

combination of impairments meets or equals a disabling condition

identified in the listing of impairments set forth in 20 C.F.R.

Part 404, Subpart P, Appendix 1 (a “listed impairment”). See

Jones ex rel. T.J. v. Astrue, No. 07–CV–4886, 2010 WL 1049283,

at *5 (E.D.N.Y. Mar. 17, 2010); Kittles, 245 F. Supp. 2d at 488;

20 C.F.R. § 416.924(b)-(d). Equivalence to a listed impairment

may be medical or functional. See Jones ex rel. T.J., 2010 WL

1049283, at *5; Kittles, 245 F.Supp.2d at 488; 20 C.F.R. §

416.924(d).

Analysis of functional equivalence requires the ALJ to

assess the claimant’s functional ability in six main areas,

referred to as “domains.” 20 C.F.R. § 416.926a(b)(1). The six

domains – (i) acquiring and using information, (ii) attending

and completing tasks, (iii) interacting and relating with

others, (iv) moving about and manipulating objects, (v) caring

for oneself, and (vi) health and physical well-being – are

“broad areas of functioning intended to capture all of what a

child can or cannot do.” Id. Functional equivalence is

established when the ALJ finds that the claimant has a “marked

limitation” in two domains or an “extreme limitation” in one

domain. Id. § 416.926a(a).

A “marked limitation” is one that “seriously

interferes” with a claimant’s ability to initiate, sustain, and

complete activities. 20 C.F.R. § 416.926a(e)(2). It is “more

than moderate, but less than extreme.” Id. In addition, the

regulations further describe a “marked limitation” as what would

be expected with the equivalent of two standard deviations below

the mean on standardized testing. 20 C.F.R. §

416.926a(e)(2)(iii). “A marked limitation may arise when

several activities or functions are impaired, or even when only

one is impaired, as long as the degree of limitation is such as

to interfere seriously with the ability to function (based upon

age-appropriate expectations) independently, appropriately,

effectively, and on a sustained basis.” Jones, 2010 WL 1049283,

at *6 (quoting 20 C.F.R. Pt. 404, Subpart P, App. 1, § 112.00(C)

(internal quotation marks omitted)).

An “extreme limitation” is one that “very seriously

interferes” with a claimant’s ability to independently initiate,

sustain, and complete activities. 20 C.F.R. § 416.926a(e)(3).

It is designated for the “worst limitations . . . but does not

necessarily mean a total lack or loss of ability to function.”

Id. The regulations describe an “extreme limitation” as what

would be expected with the equivalent of three standard

deviations below the mean on standardized testing. 20 C.F.R. §

416.926a(e)(3)(i), (iii).

c. Application

i. Failure to Adequately Consider the Record

Plaintiff argues that the ALJ erred in failing to

reconcile her findings with EAD’s CELF scores from March of

2015. Specifically, Plaintiff argues that the ALJ failed to

address the fact that EAD’s March 2015 test scores showed him to

be a least two standard deviations below that appropriate for

his age. The Court agrees with Plaintiff.

The relevant guidance, contained in SSR 09-2p Title

XVI: Determining Childhood Disability – Documenting a Child

Impairment-Related Functions, 74 Fed. Reg. 7625 (Feb. 18, 2009),

provides as follows:

Adjudicators should analyze and evaluate relevant evidence

for consistency and resolve any inconsistencies that need

to be resolved. After reviewing all of the relevant

evidence, we determine whether there is sufficient evidence

to make a finding of disability. “All of the relevant

evidence” means:

The relevant objective medical evidence and other

relevant evidence from medical sources;

Relevant information from other sources, such as

school teachers, family members, or friends;

The claimant’s statements (including statements from

the child’s parents(s) or other caregivers); and

Any other relevant evidence in the case record,

including how the child functions over time and across

settings.

Id. at 7629-30. Additionally, 20 C.F.R. § 416.926a addresses

resolving inconsistencies in the record and provides as follows:

If there is a material inconsistency between your test

scores and other information in your case record, we will

try to resolve it. The interpretation of the test is

primarily the responsibility of the psychologist or other

professional who administered the test. But it is also our

responsibility to ensure that the evidence in your case is

complete and consistent and that any material

inconsistencies have been resolved. Therefore, we will use

the following guidelines when we resolve concerns about

your test scores:

(A) We may be able to resolve the inconsistency with

the information we have. We may need to obtain

additional information; e.g., by recontact with your

medical source(s), by purchase of a consultative

examination to provide further medical information, by

recontact with a medical source who provided a

consultative examination, or by questioning

individuals familiar with your day-to-day functioning.

(B) Generally, we will not rely on a test score as a

measurement of your functioning within a domain when

the information we have about your functioning is the

kind of information typically used by medical

professionals to determine that the test results are

not the best measure of your day-to-day functioning.

When we do not rely on test scores, we will explain

our reasons for doing so in your case record and in

our decision.

20 C.F.R. § 416.926a(e)(4)(iii).

Courts in the Second Circuit have recognized the CELF-

4 as a valid indicator of a child’s ability to function in the

domain of interacting and relating to others. Miles ex rel JM

v. Astrue, 775 F. Supp. 2d 715 (S.D.N.Y. 2015); F.M. v. Astrue,

No. 08-CV-4430(CPS), 2009 WL 2242134, at *8 (E.D.N.Y. July 27,

2009). The fact that EAD’s test scores were shown to be two

standard deviations below mean is an issue which should have

been addressed by the ALJ.

Moreover, the Court notes that there was a marked

disparity between EAD’s 2013 test scores and EAD’s 2015 test

scores. It is significant that EAD’s core language score was in

the 34th percentile in 2013, and that by 2015, it had dropped to

the 5th percentile, despite the fact that EAD had regularly

received speech and language services throughout the intervening

period. The ALJ failed to resolve that inconsistency or the

inconsistency that, despite such a sharp decline in functioning

in a relatively short time frame while receiving services, Ms.

Singer inexplicably recommended against EAD’s receiving speech

and language services. This inconsistency is one that should be

addressed.

The Commissioner argues that EAD’s 2015 test scores

were less than two standard deviations below mean and, thus,

that Plaintiff’s argument must fail because a child must be

found to be two standard deviations below mean to have a marked

limitation. The Court disagrees with the Commissioner insofar

as the test scores are primarily two standard deviations below

mean. As the overall core language score is two standard

deviations below mean, and as the precipitous drop to that level

happened during a time when EAD was actively receiving speech

and language services, the scores had to be viewed in the

context of a child in a supported setting with services in place

to help prevent such a decline in functioning.

In assessing whether a child has marked or extreme

limitation, an ALJ must consider the amount of assistance that a

child is receiving. Title 20 C.F.R. § 416.926a, which addresses

functional equivalence for children, states as follows: “[W]hen

we assess your functional limitations, we will consider all the

relevant factors in Sections 9416.924a, 416.924b and 416.929

including but not limited to . . . [h]ow well you can initiate

and sustain activities, how much extra help you need and the

effects of structures and supported settings . . . .” 20 C.F.R.

§ 416.924a(a). Courts in the Second Circuit have routinely

found that “special classrooms” fall under the definition of a

“supported setting.” See, e.g., Thompson v. Barnhart, No. 02-

CV-4930 (SJ), 2004 WL 896663, at *7 (E.D.N.Y. Mar. 26, 2004).

The Court also notes that the ALJ failed to consider

in her decision not only the speech and language services which

EAD was receiving, but also the fact that he was learning in a

structured setting and receiving additional academic assistance

when assessing his test scores in general. The record clearly

indicates that EAD has been placed in an ICT classroom and

receives academic assistance. The ALJ should have, but did not,

address this in her analysis.

On remand, the ALJ shall address these inconsistencies

in the record and resolve them. The ALJ shall additionally

consider the setting in which EAD has been placed and the

supportive services which he receives both academically and with

regard to his receptive and expressive language delays. Lastly,

the ALJ shall consider the effect that removing EAD from a

structured environment would have on his overall functioning.

ii. Testimony of Dr. Chandrasekhar

The Commissioner argues in part that the ALJ’s

decision was supported by substantial weight insofar as the

ALJ’s findings were supported by the testimony of Dr.

Chandrasekhar. Because we have ordered that the case be

remanded for other reasons, we will only briefly address the

testimony of Dr. Chandrasekhar.

During Dr. Chandrasekhar’s testimony, when asked if

she considered the teacher’s questionnaire at 5E, she stated,

“well, the thing, first of all, it’s they’re not . . . medical

exhibits. I do look at the E exhibits sometimes, if it’s

important to my opinion. And that has not been followed up by

any psychiatrist or psychologist. So I cannot just take that

fact.” (Tr. 65.) When asked whether she knew that the

Commissioner’s regulations stated that in children’s disability

cases the reports of teachers and other school officials were

recognized as important evidence, Dr. Chandrasekhar indicated

that she gave no weight to the reports unless they were

countersigned by a medical expert. (Tr. 65-66.)

As noted above, SSR 09-2p provides that:

[E]vidence from other sources who are not medical sources

and who know and have contact with the child can be very

important to our understanding of the severity of the

child’s impairment(s) and how it affects day-to-day

functioning. These sources include parents and caregivers,

educational personnel (for example teachers, early

intervention team members, counselors, developmental center

workers and day care works) . . . .

74 Fed. Reg. at 7627. The SSR expressly addresses

“Comprehensive Evaluations in [Early Intervention] or School

Programs” and “Individualized Family Services Plans [“IFSPs”] or

Individualized Education Programs.” Id. at 7628. Specifically,

it states that:

We will consider the results of comprehensive evaluations

we receive. Children receive comprehensive evaluations

when they are candidates for EI or special education and

related services and periodically after that when they

receive services. These evaluations are usually conducted

by a team of qualified personnel who can assess a child in

all areas of suspected delay or educational need.

Id. The SSR addresses IFSPs and IEPs as well, stating that

“[b]oth ISFPs and IEPs are important sources of specific

information about a child’s abilities and impairment-related

limitations, and provide valuable information about the various

kinds and levels of support a child receives.” Id.

It was improper for Dr. Chandrasekhar to discredit the

evidence under the theory that it was not “medical evidence.”

The records of qualified educational professionals were evidence

which Dr. Chandrasekhar was required to consider and her

statement that she at times did not even review such evidence

was clearly an error which the ALJ should have, but did not,

address. The ALJ’s reliance upon the testimony of Dr.

Chandrasekhar is, therefore, flawed.

iii. Substantial Evidence Review

As noted above, the Commissioner argues that his

decision is supported by substantial evidence and should be

upheld. (See generally Def. Mem.) Consideration of whether the

Commissioner’s disability determination is supported by

substantial evidence is improper where remand is warranted due

to the ALJ’s failure to consider certain evidence or apply the

law properly in assessing the evidence. See, e.g., Lebron v.

Colvin, No. 13–CV–9140, 2015 WL 1223868, at *23 (S.D.N.Y. Mar.

16, 2015). Accordingly, the Court does not reach the issue of

whether the ALJ’s decision was supported by substantial evidence

here.

VI. CONCLUSION

For the reasons set forth above, the Court denies

Defendant’s motion for judgment on the pleadings, denies in part

Plaintiff’s motion to the extent it seeks remand solely for the

calculation of benefits, and grants Plaintiff’s motion to remand

this case for further proceedings consistent with this opinion.

On remand, the ALJ shall:

(1) Explain in specific detail the basis for a

determination, if warranted, that Claimant’s impairments are

insufficient to entitle him to benefits at the third step of the

disability determination;

(2) Specifically address the results of the CELF-4

tests administered to Claimant and whether the scores indicate a

marked or extreme limitation; and

(3) Specifically consider the amount and the nature of

supportive services provided to Claimant and how those services

affect Claimant’s functioning in each of the six domains, and

assess what effect the removal of services would have on

Claimant’s functioning.

The Clerk of the Court is respectfully requested to

close this case.

SO ORDERED.

Dated: Brooklyn, New York

September 22, 2019

/s/

Hon. Kiyo A. Matsumoto

United States District Judge