Opinion
1:22-cv-02366-JPO-GRJ
04-10-2023
ANN M.M., obo, S.O., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, UNITED STATES MAGISTRATE JUDGE:
In March of 2019, Plaintiff Ann M.M.applied for Child Supplemental Security Income benefits under the Social Security Act on behalf of her daughter, S.O. (“Claimant”). The Commissioner of Social Security denied the application. Plaintiff, represented by the Law Office of Joseph A. Romano, Joseph Albert Romano, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits under 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a Report and Recommendation on March 17, 2022. Presently pending are Plaintiff's Motion for Summary Judgment (Docket No. 11)and Defendant's Motion for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket No. 14). For the following reasons, it is respectfully recommended that Plaintiff's motion should be denied, the Commissioner's motion should be granted, and this case should be dismissed.
Although Plaintiff styled her motion as a motion for summary judgment the parties and the Court address the motion as a motion for judgment on the pleadings, which is the practice in this Court.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on behalf of Claimant on March 5, 2019, alleging disability beginning May 22, 2009. (T at 25).Plaintiff's application was denied initially and on reconsideration. She requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on April 17, 2020, before ALJ I. Harrington. (T at 51-75). Plaintiff appeared with Claimant and an attorney and testified. (T at 62-72).
Citations to “T” refer to the administrative record transcript at Docket No. 10.
B. ALJ's Decision
On April 21, 2021, the ALJ issued a decision denying the application for benefits. (T at 22-37). The ALJ found that Claimant was a “school-age” child, as that term is defined under the Social Security Act, on March 5, 2019, when the application was filed, and remained so at the time of the decision. (T at 26). The ALJ noted Claimant had not engaged in substantial gainful activity since the application date. (T at 26).
The ALJ found that Claimant's Trauma and stressor related disorder, anxiety disorder, depressive disorder, and impulse control disorder were severe impairments as defined under the Social Security Act. (T at 26).
The ALJ found, however, that Claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the “Listings”). (T at 27). The ALJ also concluded that Claimant did not have an impairment or combination of impairments that functionally equaled the severity of the Listings. (T at 27-31).
As such, the ALJ found that Claimant had not been under a disability, as defined under the Social Security Act, since the application date and was therefore not entitled to benefits. (T at 31). On February 2, 2022, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 1-6).
C. Procedural History
Plaintiff commenced this action, by and through her counsel, by filing a Complaint on March 23, 2022. (Docket No. 1). On September 30, 2022, Plaintiff filed a motion for summary judgment, supported by a memorandum of law. (Docket No. 11, 12). The Commissioner interposed a cross-motion for judgment on the pleadings, supported by a memorandum of law, on November 23, 2022. (Docket No. 14, 15).
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Standard for Disability Claims for Children
To qualify for SSI benefits, a child under the age of eighteen must have “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).
The Social Security Regulations provide a three-step sequential analysis to determine whether a child is disabled and eligible for benefits. 20 C.F.R. § 416.924(a)-(d); see Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004). First, the ALJ considers whether the child is engaged in “substantial gainful activity.” 20 C.F.R. § 416.924(b). Second, the ALJ determines whether the child has a “medically determinable impairment(s) that is severe,” which is defined as an impairment that causes “more than minimal functional limitations.” Id. § 416.924(c). Third, if the child has a severe impairment(s), the ALJ must then decide whether the impairment meets or “medically” or “functionally” equals a disability listed in the regulatory “Listing of Impairments.” Id. § 416.924(c), (d); see also id. at Part 404, Subpart P, App. 1.
To demonstrate functional equivalence, the child must exhibit a “marked” limitation in two of six functional domains described in the regulations, or an “extreme” limitation in one of the domains. 20 C.F.R. § 416.926a(a) (2017); see Pollard, 377 F.3d at 190.
The first five domains consider the child's ability to acquire and use information, attend and complete tasks, interact and relate with others, move about and manipulate objects, and care for himself. 20C.F.R. § 416.926a(b)(1)(i)-(v) (2017). The sixth domain considers the child's health and physical well-being. Id. § 416.926a(b)(1)(vi).
A child has a “marked” limitation when the impairment “interferes seriously with [the child's] ability to independently initiate, sustain, or complete activities.” 20 C.F.R.§ 416.926a(e)(2)(i) (2017). “‘Marked' limitation . . . means a limitation that is ‘more than moderate' but ‘less than extreme.'” Id. An “‘extreme'” limitation is present when the impairment “interferes very seriously with [the child's] ability to independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(3)(i).
III. DISCUSSION
The ALJ concluded that Claimant did not have an impairment or combination of impairments that met or medically equaled one of Listings impairments. (T at 27). The ALJ further found that Claimant did not have an impairment or combination of impairments that functionally equaled the severity of the Listings. (T at 27-31).
In reaching this decision, the ALJ determined that Claimant had less than a marked limitation in acquiring and using information; less than a marked limitation in attending and completing tasks; less than a marked limitation in interacting and relating with others; no limitation in moving about and manipulating objects; less than a marked limitation in the ability to care for herself; and no limitation in health and physical well-being. (T at 28).
Plaintiff advances the argument that a proper consideration of the evidence should have led the ALJ to find that Claimant has marked limitation with respect to acquiring and using information; attending and completing tasks; interacting and relating with others; and caring for herself. This Court will examine the evidence related to each of these domains in turn.
A. Acquiring and Using Information
In this domain, the ALJ considers how well the child acquires or learns information and how well they use the information they have learned. 20 C.F.R. § 416.926a (g)(1).
A school-age child “should be able to learn to read, write, and do math, and discuss history and science.” The child demonstrates what they have learned in academic situations by “reading about various subjects and producing oral and written projects, solving mathematical problems, taking achievement tests, doing group work, and entering into class discussions.” The child uses the skills in daily living and the community by, for example, “reading street signs, telling time, and making change.” A school-age child should also be able “to use increasingly complex language (vocabulary and grammar) to share information and ideas with individuals or groups, by asking questions and expressing [their] own ideas, and by understanding and responding to the opinions of others.” 20 C.F.R. § 416.926a (g)(2)(iv).
The ALJ assessed less than marked limitation in this domain. (T at 31).
Claimant repeated a grade due to poor test scores, “shut down” when she found academic tasks challenging and required additional school support. (T at 29, 209, 350, 465, 484).
Loretta Reed, Claimant's fourth grade teacher, completed a questionnaire in April of 2019. She did not identify any “very serious” problems in Claimant's ability to acquire or use information. (T at 208).
Ms. Reed reported that Claimant had a “slight” problem understanding school and content vocabulary and reading and comprehending written material. (T at 208). She stated that Claimant had a “serious” problem expressing ideas in written form. (T at 208).
Ms. Reed assessed an “obvious” problem with Claimant's skill in comprehending and doing math problems, understanding and participating in class discussions, providing organized oral explanations and adequate descriptions, learning new material, recalling and applying previously learned material, and applying problem-solving skills in class discussions. (T at 208).
Dr. Cay White, a treating physician, reported that Claimant had “no intellectual deficit.” (T at 504). Eric Berman, a treating social worker, explained that while Claimant would “shut down” when tasks were too challenging, she was able to “accomplish tasks” and had achieved an age-appropriate level of independence and self-direction. (T at 351).
Dr. Susan Uber, a non-examining State Agency review consultant, assessed less than marked limitation in this domain. (T at 82). Another non-examining State Agency review consultant, Dr. Adrian Brown, reached the same conclusion. (T at 93).
A “marked” limitation exists when the claimant's “impairment(s) interferes seriously with [their] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i).
Based upon the evidence in the administrative record the ALJ's assessment of less than marked limitation in the domain of acquiring and using information is well supported by substantial evidence.
B. Attending and Completing Tasks
In this domain, the ALJ considers how well the child is “able to focus and maintain ... attention, and how well [they] begin, carry through, and finish ... activities, including the pace at which [they] perform activities and the ease with which [they] change them.” 20 C.F.R. § 416.926a(h).
School-age children should be able to “focus . attention in a variety of situations in order to follow directions, remember and organize . school materials, and complete classroom and homework assignments.” They “should be able to concentrate on details and not make careless mistakes in [their] work (beyond what would be expected in other children . who do not have impairments).” The school-age child “should be able to change . activities or routines without distracting [themselves] or others, . stay on task and in place when appropriate, . [and] sustain . attention well enough to participate in group sports, read by [themself], and complete family chores.” The child “should also be able to complete a transition task (e.g., be ready for the school bus, change clothes after gym, change classrooms) without extra reminders and accommodation.” 20 C.F.R. § 416.926a(h)(2)(iv).
The ALJ recognized some impairment in Claimant's ability to attend and complete tasks but concluded that she had less than marked limitation in this domain. (T at 31).
Ms. Reed reported that Claimant had a “serious” problem completing work accurately without careless mistakes and a “very serious” problem focusing long enough to finish an assigned activity or task, refocusing to task when necessary, and working with distracting herself or others. (T at 210).
Ms. Reed found only slight or no problem with Claimant's ability to pay attention when spoken to directly, carry out single or multi-step instructions, organize her school materials, and complete class and homework assignments. (T at 210).
Mr. Berman explained that Claimant gets frustrated when a task is difficult but can complete tasks. (T at 350). In a subsequent report, Mr. Berman reported “no inattentiveness or distractibility” and described Claimant's ability to accomplish tasks requiring concentration, persistence, and pace as “within normal limits for [her] age.” (T at 406).
Dr. White found Claimant's attention and concentration to be “within normal limits.” (T at 504). Tanya Bassett, a treating nurse practitioner, described Claimant's concentration/attention as “fair,” with intact orientation. (T at 398).
Dr. Brown assessed no limitation in this domain. (T at 93). Dr. Uber opined that Claimant had less than marked limitation in this domain. (T at 82).
As discussed above, “marked” limitation exists when the claimant's “impairment(s) interferes seriously with [their] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i).
The Court has no problem concluding that the above described evidence of record was sufficient to sustain the ALJ's assessment of less than marked limitation in this domain under the deferential standard of review applicable here.
C. Interacting and Relating to Others
In this domain, the ALJ considers how well the child can “initiate and sustain emotional connections with others, develop and use the language of [her[ community, cooperate with others, comply with rules, respond to criticism, and respect and take care of the possessions of others.” 20 C.F.R. § 416.926a(i).
A school-age child is expected to “develop more lasting friendships with children who are [their] age ... begin to understand how to work in groups to create projects and solve problems ... have an increasing ability to understand another's point of view and to tolerate differences . be well able to talk to people of all ages, to share ideas, tell stories, and to speak in a manner that both familiar and unfamiliar listeners readily understand.” 20 C.F.R. § 416.926a(i)(2)(iv).
The ALJ found less than marked limitation in this domain. (T at 31).
Ms. Reed reported “very serious” problems in Claimant's ability to seek attention, express anger, and ask permission appropriately. (T at 211). She likewise indicated very serious problems with respect to following rules and respecting/obeying adults in authority. (T at 211).
Notably, however, Ms. Reed explained that Claimant had only slight or no problem with many aspects of social interaction, including playing cooperatively with other children, making conversation, interpreting nonverbal cues, and making and keeping friends. (T at 211).
Treatment notes generally describe Claimant as friendly, pleasant, and cooperative. (T at 396, 398, 453, 459, 470, 478, 486, 494). Mr. Berman stated that Claimant was “very pleasant and easy to talk to and get along with.” (T at 350). Mr. Berman and Dr. White both reported that Claimant was “able to form [and] maintain age appropriate relationships.” (T at 405, 504). Dr. Uber and Dr. Brown assessed less than marked limitation in this domain. (T at 82, 93).
As with the other domains, this evidence was more than sufficient to sustain the ALJ's analysis under the deferential review applicable here.
D. Caring for Self
In this domain, the ALJ considers how well the child is able to “maintain a healthy emotional and physical state, including how well [they] get [their] physical and emotional wants and needs met in appropriate ways; how [they] cope with stress and changes in [their] environment; and whether [they] take care of [their] own health, possessions, and living area.” 20 C.F.R. § 416.926a(k).
School-age children are expected to “be independent in most day-today activities (e.g., dressing ..., bathing ...), although [they] may still need to be reminded sometimes to do these routinely; [they] should begin to recognize that [they] are competent in doing some activities and ... have difficulty with others; [they] should be able to identify those circumstances when [they] feel good about [themselves] and when [they] feel bad; [they] should begin to develop understanding of what is right and wrong, and what is acceptable and unacceptable behavior; [they] should begin to demonstrate consistent control over [their] behavior, and . be able to avoid behaviors that are unsafe or otherwise not good for [them].” 20 C.F.R. § 416.926a(k)(2)(iv).
The ALJ found less than marked limitation in this domain. (T at 28).
Ms. Reed identified “obvious” problems in several aspects of functioning, including Claimant's ability to calm herself when upset or overly excited, use good judgment about personal safety, know when to ask for help, and use appropriate coping skills to meet the daily demands of the school environment. (T at 214).
Ms. Reed notably did not report any “serious” or “very serious” problems in this domain of functioning. (T at 214).
Dr. White and Mr. Berman both opined that Claimant had achieved an age-appropriate level of independence and self-direction. (T at 351, 406, 505). Dr. Uber and Dr. Brown assessed less than marked limitation in this domain. (T at 82, 94).
The Court concludes that the foregoing evidence was more than sufficient to sustain the ALJ's analysis under the deferential review applicable here.
E. Overall Consideration of Record Evidence
Plaintiff objects generally to the manner in which the ALJ reviewed and analyzed the evidence. She points to evidence suggesting more significant symptoms and limitation, including diagnosed childhood trauma due to a violent home environment, multiple Global Assessment of Functioning (“GAF”) scores indicative of serious symptoms, reports of visual and auditory hallucinations, suicidal ideation, and documented difficulties in school.
The GAF “ranks psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.” Pollard v. Halter, 377 F.3d 183, 186 (2d Cir. 2004).
As outlined above, however, the record also contains ample evidence demonstrating that Claimant has “no intellectual deficit” (T at 504), has achieved an age-appropriate level of independence and self-direction (T at 351), is able accomplish tasks requiring concentration, persistence, and pace “within normal limits for [her] age” (T at 406), can “form [and] maintain age appropriate relationships” (T at 405, 504), and is “very pleasant and easy to talk to and get along with.” (T at 350).
When the record, as here, contains competing evidence, it is the role of the Commissioner, and not this Court, to resolve such conflicts. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”).
Moreover, “[s]ubstantial evidence is “a very deferential standard of review...." Brault v. SSA, 683 F.3d 443, 447-48 (2d Cir. 2012) (per curiam) (citation omitted). “The substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Id. at 448 (emphasis in original) (citation and internal quotation marks omitted). “The role of the reviewing court is therefore quite limited and substantial deference is to be afforded the Commissioner's decision.” Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008)(citation and internal quotation marks omitted).
Indeed, “[i]f the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists.” Id. (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)); see also McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.”)(citation omitted).
Accordingly, for the reasons outlined above, the Court concludes that the ALJ referenced and relied upon evidence sufficient to sustain her assessment regarding the degree of Claimant's limitation in the domains at issue. The Commissioner's decision, therefore, must be sustained under the deferential standard of review applicable here.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Summary Judgment (Docket No. 11) should be DENIED; the Commissioner's Motion for Judgment on the Pleadings (Docket No. 14) should be GRANTED; and this case should be DISMISSED.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).