The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Plaintiff Sandra K. Jeffries brings this action on behalf of her son, T.J., against Michael J. Astrue (the "Commissioner"), in his official capacity as the Commissioner of the Social Security Administration (the "Administration"), seeking the reversal of the Administration's denial of Social Security Income Benefits to T.J. pursuant to 42 U.S.C. § 405(g) (2006). Currently before this Court are the defendant's Motion for Judgment of Affirmance and the plaintiff's Motion for Judgment of Reversal or a Remand to the Social Security Administration. After carefully considering the plaintiff's complaint, the administrative record, the parties' motions and their memoranda of law and exhibits submitted in support of their motions,*fn1 the Court concludes that it must grant in part the defendant's motion, deny in part the plaintiff's motion, and remand this case to the Administration so that the Commissioner may evaluate the teacher's questionnaires that were unavailable to the Administrative Law Judge (the "ALJ") when the ALJ decision being challenged by the plaintiff was rendered. Specifically, the Court must grant the defendant's motion in part because contrary to the plaintiff's arguments, (1) the ALJ properly weighed the assessment of a reviewing doctor who concluded that T.J. was functioning at the borderline level of intelligence and (2) the agency's determination was based on an adequately developed administrative record. However, as to the plaintiff's additional challenge of the Appeals Council's failure to consider additional information provided by the plaintiff, the Court must remand this matter to the Commissioner for further review so that the agency may evaluate the evidence that was not available to the ALJ at the time of his or her decision.
The following facts are part of the administrative record. In 1998, as a young child, T.J. was struck by a car and suffered head injuries. Administrative Record (the "A.R.") at 437-439. Although neurological examinations revealed no signs of brain injury, shortly after the automobile accident T.J.'s test scores began to decline and he appeared to demonstrate traits of a student who had suffered a traumatic brain injury. Id. at 107. From 2002-2005, T.J. underwent numerous neuropsychological evaluations, id. at 108-18, 232-44, 299-302, 415-22, 429-33, and most of the objective medical tests placed T.J. in the low average intelligence range. Id. However, an examination by Dr. Sambhu N. Banik placed T.J. at the borderline level of intelligence, but this test was not based on a full neuropsychological evaluation. Id. at 299-302.
During the 2002-2005 time period, T.J.'s mother and teachers created an individualized education program for T.J. Id. at 107, 134-47, 253, 423-28. In 2004, T.J.'s special education teacher filled out a Teacher Questionnaire provided by the Administration, analyzing T.J.'s abilities in the Administration's six domains of function. Id. at 291-298. In 2007, five other teachers filled out the questionnaires, id. at 449-84, and while these evaluations were initially unavailable to the ALJ at the time of his decision, they were submitted to the Appeals Council for their consideration in reviewing the ALJ's initial determination, id. at 6-7.
The plaintiff had filed an application for supplemental security income on T.J.'s behalf on June 10, 2004. Id. at 17. The ALJ denied the initial request for a hearing at the agency level, however, the plaintiff appealed that determination to the agency's Appeals Council, which subsequently ordered the ALJ to conduct a hearing. Id. At the February 28, 2007 hearing conducted by the ALJ, T.J. and the plaintiff were represented by counsel and were permitted to provide testimony. Id. After making several findings of fact based on the evidence, the ALJ denied the T.J.'s claim for benefits. Id. at 28. Specifically, the ALJ determined that T.J. "was a school-age child [when] the application was filed"; he was "not engaged in substantial gainful activity at any time relevant to [the] decision"; he had a "severe... learning disorder;" but his "impairment or combination of impairments" did not "meet or medically equal one of the listed impairments" in the applicable regulations; and his "impairment or combination of impairments" were not "functionally equal" to those impairments listed in the applicable regulation that would entitle him to benefits. Id. at 20-21.
In determining whether T.J.'s impairments were functionally equal to those impairments entitling a person to benefits, the ALJ considered "six domains of function[ing]." Id. at 23-28. The ALJ determined that T.J. had less than marked limitations in the areas of acquiring and using information, attending and completing tasks, and health and physical well-being, but that the evidence did not support that T.J. had limitations in the remaining three areas, i.e. interacting and relating with others, moving about and manipulating objects, and caring for himself. Id. In making his findings, the ALJ determined that T.J.'s attention deficit/hyperactivity disorder diagnosis "was too heavily dependant on statements from [T.J.]'s mother and under stated the evaluation of [T.J.]'s teacher." Id. at 20. The ALJ further concluded "that [T.J.]'s medically determinable impairments could reasonably be expected to produce the alleged symptoms, but that the statements concerning the intensity, persistence and limiting effects of... [T.J.]'s symptoms are not entirely credible to the extent of being at a marked level." Id. at 22.
The plaintiff appealed the ALJ's decision to the Appeals Council, submitting additional evidence that was unavailable before the ALJ ruling was issued. Id. at 6-7. The Appeals Council rejected the challenges to the ALJ's ruling, but provided no more than a boilerplate explanation for why the newly submitted evidence did not provide a basis for changing the decision, merely stating that the Appeals Council considered the evidence and "found that this information does not provide a basis for changing the [ALJ]'s decision." Id. The plaintiff then appealed that final agency decision to this Court.
Pursuant to 42 U.S.C. § 405(g), a court reviewing a benefit determination by the Administration is "confined to determining whether the [ALJ's] decision... [was] supported by substantial evidence in the record." Brown v. Bowen, 794 F.2d 703, 705 (D.C. Cir. 1986). If a district court determines that "[t]he findings of the Commissioner of Social Security as to any fact" are "supported by substantial evidence," they "shall be conclusive." § 405(g). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, "[s]ubstantial-evidence review is highly deferential to the agency fact-finder." Rossello ex. rel Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008). "[W]here a claim has been denied by the Commissioner of Social Security [,]... the court shall review only the question of conformity with such regulations and the validity of such regulations." 42 U.S.C. § 405(g). Thus, a reviewing judge must uphold the ALJ's legal "determination if it... is not tainted by an error of law." Smith v. Bowen, 826 F.2d 1120, 1121 (D.C. Cir. 1987). Moreover, "[j]udicial review... is limited to determining whether... the Secretary applied the correct legal standards." Scott v. Shalala, 879 F. Supp. 109, 110 (D.D.C. 1995).
A. The Plaintiff's Challenge to the ALJ's Borderline Intellect Determination
The first issue for the Court to consider is whether the ALJ properly assessed T.J.'s impairments, specifically whether the ALJ failed to consider a diagnosis by a reviewing doctor, Dr. Sambhu Banik, that T.J. was functioning at the borderline level of intelligence and if so, whether this constitutes reversible error.*fn2 Pl.'s Mem. at 4; Def.'s Mem. at 9. This issue must be resolved in favor of the defendant.
An appendix to the Social Security Act (the "Act"), 42 U.S.C. §§ 1381-1383f (2010), provides a listing of impairments for which an individual may receive disability benefits. SSA Federal Old-Age Survivors and Disability Insurance Rule, 20 C.F.R. § 404 Subpt. P App. 1 § 112.05(c)-(e) (2010). In evaluating whether a child has a disability under Title XVI of the Act, the Commissioner of Social Security must conduct a multi-step evaluation. 20 C.F.R. § 416.924 (2006). First, the Commissioner must determine if the claimant is performing substantial gainful activity. 20 C.F.R. § 416.924(a)- (b). This determination is known as "step one." Guthrie v. Astrue, 604 F. Supp. 2d 104, 107 (D.D.C. 2009) (explaining the "three-step sequential evaluation [that] is used to determine whether a child is eligible for [benefits] on the basis of a disability") (citing 20 C.F.R. § 416.924). If the Commissioner finds at step one that the claimant can perform substantial gainful activity, the Commissioner must conclude that the claimant is not disabled. 20 C.F.R. § 416.924(a)-(b). If, on the other hand, the Commissioner find that the claimant is not performing substantial gainful activity, the Commissioner will move on to "step two" and assess the claimant's physical or mental impairment or combination of impairments to determine if the claimant has an impairment or combination of impairments that is severe. 20 C.F.R. § 416.924(a), (c). If the Commissioner finds that the claimant does not have a severe impairment or combination of impairments, the claimant will be deemed "not disabled." Id. However, if the impairment (or combination ...