Pollard v. Halter, 03-6007.

• Decision Date: 23 July 2004
• Docket Number: No. 03-6007.,03-6007.
• Citation: 377 F.3d 183
• Parties: Detra POLLARD, Plaintiff-Appellant, v. William HALTER, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

377 F.3d 183

Detra POLLARD, Plaintiff-Appellant, v. William HALTER, Commissioner of Social Security, Defendant-Appellee.

No. 03-6007.

United States Court of Appeals, Second Circuit.

Argued: February 25, 2004.

Decided: July 23, 2004.

Appeal from the United States District Court for the Eastern District of New York, Ross, J.

COPYRIGHT MATERIAL OMITTED

Carolyn A. Kubitschek, Lansner & Kubitschek, New York, NY, for Plaintiff-Appellant.

Som Ramrup, Special Assistant United States Attorney for the Eastern District of New York (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Varuni Nelson, Kathleen A. Mahoney, and Elliot M. Schachner, Assistant United States Attorneys for the Eastern District of New York, on the brief), Brooklyn, NY, for Defendant-Appellee.

Before: STRAUB, POOLER, and B.D. PARKER, Circuit Judges.

POOLER, Circuit Judge.

On July 30, 2001, Detra Pollard, on behalf of her son David Pearson, pro se, brought this action pursuant to 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of the Social Security Administration ("SSA" or "Commissioner"), dated September 20, 2000, finding David ineligible for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. She claims that the Commissioner erred in denying disability benefits to David by failing to consider new evidence regarding the severity of David's attention deficit hyperactivity disorder ("ADHD") and oppositional defiant disorder ("ODD"), as well as evidence regarding neurological and chemical imbalances in his brain. A. 8. We find that the district court erred in applying outdated SSA regulations in reviewing David's claim. Moreover, we find that the new evidence was material and should have been considered. Accordingly, we reverse and remand to the district court with instructions to remand the matter to the Commissioner for further proceedings consistent with this opinion.

BACKGROUND

David was born in 1991 and has been allegedly disabled since August 1995 due to ADHD and ODD. Ms. Pollard initially filed an application for SSI benefits on David's behalf in November 21, 1997, which application was denied in April 1999. On July 29, 1999, an application for reconsideration was denied. On August 22, 2000, a hearing was held before the Administrative Law Judge (Martin K. Kahn, J.), in which Ms. Pollard proceeded pro se on David's behalf. At the hearing, the ALJ heard testimony from Ms. Pollard, David, and a medical expert.

Ms. Pollard testified that David takes Ritalin three times a day and had done so since he attended the first grade. She testified that David chewed his fingers until they bled, was hard to manage, and got into fights with other students and teachers. She also stated that she has had to call the fire marshal because David lit balls on fire, and that he threw rocks and broken glass, sometimes at cars.

Dr. Allan D. Rothenberg, a pediatrician, testified that while David's social limitations were marked, he was not "extremely limited" in any areas of social or personal functioning. Dr. Rothenberg testified as well that although David had social and behavioral problems, they were "fairly well controlled," and that he had less than marked problems in areas other than social development, such as cognition and communication, or concentration, persistence and pace.

The ALJ also considered numerous documentary reports and evaluations. The following school reports from academic years of 1995 and 1996 were before the ALJ:

(1) In October 1995, David was first examined at the age of four and a half. Admin. R. 130-31. A report, captioned "Individualized Education Program," indicates that David had a normal IQ of 96, and average cognitive and functioning skills. This report, however, also notes that he suffers from certain "behavioral issues," which could present a "major concern and require immediate attention." Id. at 130-31. Finally, the report conducts a multiaxial assessment and ranks David's Global Assessment of Functioning¹ at 50, in a range of 1 to 100. Diagnostic and Statistical Manual of Mental Disorders, 4th Ed. (American Psychiatric Ass'n 1994) ("DSM") at 32.

(2) A psychological evaluation, prepared in October 1995, by Evelyn Finestone, M.S., a school psychologist with "`On Our Way' Learning Center." It recalls Ms. Pollard as reporting that teachers must give David "special attention to settle him down and [that] he `ticks off for no apparent reason,'" Admin. R. 171, and also that "[w]hen walking in the street, David reportedly throws things that are dangerous, like bottles and rocks, and he plays angry, violent games. Imaginative play usually involves shooting and killing." It observes that although he appeared to have "good communication skills," "David eyed [the] examiner suspiciously, never appeared related, never smiled and generally responded to both formal and informal questions with arrogance..." The evaluation, however, observes that David's adaptive behaviors, functional motor skills, and daily living skills, all appear adequate.

(3) A letter dated November 17, 1995, by Barbara Frankel, M.S., the Educational Director of "`On Our Way' Learning Center" which notes that, based on psychological testing, David functioned "in the average range of intelligence." Admin. R. 167. Ms. Frankel also states that, although David "exhibits hostile, aggressive behavior," he was still within a "normal" range and recommends that he continue to be enrolled in a regular preschool program.

(4) An evaluation, dated December 7, 1995, captioned "Individualized Education Program," which classifies David as a "preschool student with a disability" and recommends that he be placed in a "special class in an integrated setting." Admin. R. at 126.

The following psychological and psychiatric evaluations were also before the ALJ:

(1) An evaluation captioned "Psychosocial/Psychiatric Consultation," dated January 19, 1996, prepared by Dr. Bradford Tepper, a psychiatrist with the Rockaway Youth Consultation Center, Admin. R. 150-53, diagnoses David with ADHD and ODD, and recommends that David receive therapy and medication.

(2) An evaluation performed by Dr. Shelia Solis, indicates that David's limitations were "fairly controlled with medication[,] [although he] continues to be oppositional," frustrated and difficult to manage. Admin. R. 142-43. In another evaluation in October 1997, Dr. Solis again notes that David "hits children, fails to finish his work, cannot sit still, [and] crawls under the desk. Once, he tried to open the emergency exit in the bus." Id. at 149.

(3) In May 1999, Dr. Kwang Lee reported that David's social/emotional skills were not age appropriate. He notes that David took Ritalin three times a day and attended weekly psychotherapy sessions. Dr. Lee apparently examined David again in May 1999, in which he found that his motor skills, sensory abilities, communication skills and cognitive skills were age appropriate, but that his social and emotional skills were not.

(4) A report prepared by Dr. Michael Bernstein, dated April 13, 1999, for the New York State Department of Temporary and Disability Assistance, following a consultative examination of David on March 25, 1999. This report notes that David was "hyperactive, impulsive and aggressive and distractible at school" and "frequently defiant" at home, but also that David is "generally happy and easily contented with his Nintendo 64 or watching t.v." It observes, however, that David's mother reported difficulty controlling him, and that he, on one occasion, "took a hammer and smashed the wall." Moreover, the report mentions that David "appeared to have either low average or borderline IQ," but concludes that David was "appropriately placed in the appropriate after school therapeutic program." Admin. R. 183.

(5) A report, dated April 19, 1999, prepared by Dr. J. Pauporte, a non-examining consultative physician for the SSA. This report notes that David, by then eight years old, had ADD and ODD, which caused a "severe" impairment. His condition, however, "[did] not meet, medically equal, or functionally equal the severity of a listing." Admin. R. 186-87. It describes David's cognitive/communicative, social, personal, and concentration, persistence or pace limitations as "less than marked," but concludes, however, that David's behavior had improved because of his medication.

On September 20, 2000, the ALJ issued a decision rejecting Ms. Pollard's claim. Citing several of the academic and medical reports listed above, the ALJ concluded that, under interim SSA regulations, David's ADHD and ODD symptoms did not meet or were medically equal to any listed impairments. It also found that David's impairments, though severe, were not "functionally equivalent in severity" to one or more of the listed impairments.

On October 13, 2000, Ms. Pollard filed a request for a review of the ALJ's determination. On June 27, 2001, the SSA's Appeals Council denied her request without providing any legal or fact specific reason for doing so. It also summarily concluded that new SSA regulations, which had gone into effect while Ms. Pollard's request for review was pending before the Appeals Council, provided no basis for reversing the ALJ's determinations.

On August 7, 2001, Ms. Pollard filed a pro se complaint in the Eastern District of New York seeking review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). After obtaining several extensions of time, on June 4, 2002, nearly a year after Ms. Pollard initiated her court action, the Commissioner moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

On December 16, 2002, the district court granted the Commissioner's motion and dismissed Ms. Pollard's complaint. Pollard v. Barnhart, No. 01-CV-5503 (E.D.N.Y. Dec. 16, 2002). The district court reviewed Ms. Pollard's claim using the interim SSA regulations, which...