# Dimitrakios v. Colvin

> District Court, E.D. New York · September 23, 2019

URL: https://www.frixlaw.com/law-library/cases/10303107

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 23, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
Chyrsi Dimitriakios,

Plaintiff,
MEMORANDUM AND ORDER
v.
17-CV-00009(KAM)
Andrew M. Saul, Commissioner
of Social Security,1

Defendant.
----------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303107. Public record. Not legal advice.