Opinion
5:16-cv-00636 (FJS/TWD)
09-11-2017
LAKENA N. GAMBLE O/B/O Z.L.T., Plaintiff, v. COMM'R OF SOC. SEC., Defendant.
APPEARANCES: LAKENA N. GAMBLE Plaintiff, pro se 135 W. Lafayette Avenue Syracuse, New York 13205 U.S. SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN. COUNSEL - REGION II Counsel for Defendant 26 Federal Plaza, Room 3904 New York, NY 10278 OF COUNSEL: JOSHUA LENARD KERSHNER, ESQ.
APPEARANCES: LAKENA N. GAMBLE
Plaintiff, pro se
135 W. Lafayette Avenue
Syracuse, New York 13205 U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG'L GEN. COUNSEL -
REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278 OF COUNSEL: JOSHUA LENARD KERSHNER, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
This matter was referred to the undersigned for report and recommendation by the Honorable Frederick J. Scullin, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3. This case has proceeded in accordance with General Order 18 of this Court which sets forth procedures to be followed when appealing a denial of Social Security Benefits. Lakena N. Gamble ("Plaintiff"), on behalf of her son, Z.L.T. ("Claimant" or "Z.L.T."), filed this action against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Pro se Plaintiff has not filed a brief although she was provided ample opportunity to do so. (Dkt. Nos. 12, 13, 15.) Defendant filed a brief. (Dkt. No. 16.) Oral argument was not heard. For the reasons discussed below, the Court recommends that the decision of the Commissioner be affirmed and the Complaint (Dkt. No. 1) be dismissed.
I. RELEVANT BACKGROUND
A. Factual Overview
Z.L.T., the child for whom Plaintiff brings this action, was born in December 2006, making him 5 years old at his alleged onset date of July 2, 2012, and 9 years old at the date of the final Social Security Administration ("SSA") decision issued April 4, 2016. (T. 1-5, 23, 139.) Generally, Plaintiff alleges Z.L.T. suffers from Attention Deficit Hyperactivity Disorder ("ADHD"), allergies, and asthma. (T. 143.) At the time the application was filed, Z.L.T. was a preschooler, and at the time of the administrative hearing he was a school-age child. 20 C.F.R. § 416.926a(g)(2)(iv); see also T. 23. Z.L.T. is enrolled in the Syracuse City School District (the "school" or "SCSD"). (T. 185-218.)
The Administrative Transcript is found at Dkt. No. 8. Citations to the Administrative Transcript will be referenced as "T." and the Bates-stamped page numbers as set forth therein will be used rather than the page numbers assigned by the Court's CM/ECF electronic filing system.
B. Procedural Background
On January 17, 2013, Plaintiff protectively filed an application for Social Security Income ("SSI") benefits under the Social Security Act on behalf of her son, Z.L.T. Claimant was 7 years old at the time of the administrative hearing. (T. 23, 41.) Plaintiff alleges Z.L.T. has suffered from ADHD, allergies, and asthma since July 2, 2012. (T. 139.)
Plaintiff's application for SSI benefits was denied on July 10, 2013. (T. 61, 121-126.) Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"). (T. 67-69.) On December 16, 2014, both Plaintiff and Claimant appeared before ALJ Elizabeth W. Koennecke, and Plaintiff provided testimony. (T. 37-53.) On January 20, 2015, the ALJ issued a written decision finding Z.L.T. was not disabled under the Social Security Act. (T. 20-33.) On April 4, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (T. 1-5.) Plaintiff commenced this action on June 3, 2016. (Dkt. No. 1.) Plaintiff was initially represented in this action by counsel who was later permitted to withdraw (Dkt. No. 11) on motion with proper notice to Plaintiff. (Dkt. Nos. 7, 9, 10.)
C. The ALJ's Decision
Generally, in her decision, the ALJ applied the three-step sequential evaluation process to determine whether an individual under the age of eighteen is disabled. (T. 20-33.) The ALJ made the following findings of fact and conclusions of law. Id.
First, the ALJ, as required by 20 C.F.R. § 416.924(b), found that Z.L.T. had not engaged in substantial gainful activity since the date of his application for benefits. (T. 23.) Next, the ALJ determined that Z.L.T. had a severe impairment under 20 C.F.R. § 416.924(c), consisting of a mental impairment, variously characterized. Id. The ALJ also found that Z.L.T.'s alleged allergies and asthma were not severe impairments. Id. The ALJ then found Z.L.T.'s mental impairment did not meet or medically equal impairments in 20 C.F.R. Pt. 404, Subpart P, App. 1 (the "Listings"). (T. 24; see also 20 C.F.R. §§ 416.924, 416.925, 416.926.) Next, as required by 20 C.F.R. § 416.926a, the ALJ determined that Z.L.T. did not have an impairment or combination of impairments that functionally equaled the severity of the Listings. (T. 24- 33; see also 20 C.F.R. §§ 416.924(d), 416.926a.) Specifically, the ALJ evaluated Z.L.T. in terms of the six functional equivalence domains and found that he had (1) less than marked limitation in acquiring and using Information (T. 26-27); (2) marked limitation in attending and completing tasks (T. 28-29); (3) less than marked limitation in interacting and relating with others (T. 29-30); (4) no limitation in moving about and manipulating objects (T. 30-31); (5) less than marked limitation in caring for himself (T. 31-32); and (6) less than marked limitation in health and physical well-being (T. 32-33). Because Z.L.T. did not have an impairment or combination of impairments resulting in either marked limitations in two domains of functioning or an extreme limitation in one domain of functioning, the ALJ found that he was not disabled under the Act. (T. 33.)
D. The Parties Briefing on Their Cross-Motions
Plaintiff has not submitted a brief although the Court gave her opportunities to do so. (Dkt. Nos. 12, 13, 15.)
Defendant asserts two arguments in support of her motion for judgment on the pleadings. (See generally Dkt. No. 16.) Defendant generally argues that the ALJ's determination was supported by substantial evidence. Id. at 8-21. More specifically, Defendant first asserts that the ALJ evaluated and weighed the record evidence before making her determination, and that the assignment of weight to the opinion evidence in the record was supported by substantial evidence. Id. at 8-14. In support of this argument, Defendant notes the ALJ properly considered evidence from State agency pediatric consultant J. Randall, M.D., consultative psychological examiner Christina Caldwell, Psy.D., the questionnaire from Z.L.T.'s teacher, Ms. Angela Finistrella, and Z.L.T.'s medical treatment providers. Id.
Page references to documents identified by docket number are to the numbers assigned by the Court's CM/ECF docketing system.
Defendant also argues substantial evidence supports the ALJ's determination in each of the six domains and that Z.L.T. did not have a marked limitation in two domains of functioning or an extreme limitation in one domain of functioning. Id. at 15-21. Defendant emphasizes the ALJ's reliance on Z.L.T.'s school records, Dr. Caldwell's opinion, and State agency psychiatric consultant Dr. Randall's opinion, all demonstrate the ALJ had substantial evidence to support her determination. Id.
E. Claimant's Medical and School Records
1. Syracuse Community Health Center
Since 2010, Z.L.T. treated mainly with Melanie Dunham, N.P., and sometimes with other providers at Syracuse Community Health Center ("SCHC"). (T. 225-56, 263-68.) Most of Z.L.T.'s visits to SCHC have been for routine well-child visits, acute onset illnesses, and follow up appointments. (T. 225-56.) Z.L.T. has been treated for mild persistent asthma, well controlled, and chronic allergies. (See, e.g., T. 239, 243-44, 248-49.) He has also been treated for ADHD. (T. 225-29, 231-37, 240-41.)
On April 20, 2011, NP Dunham noted that Z.L.T. had behavioral problems and exhibited aggressive and hyperactive behaviors. (T. 241.) On October 14, 2011, Plaintiff complained to NP Dunham that Claimant was "too hyper." (T. 240.) On January 20, 2012, Claimant was diagnosed with ADHD and started on medications to address it. (T. 236.) On March 10, 2012, NP Dunham noted Claimant's ADHD was not controlled so she increased his medication dosage. (T. 233.) On May 24, 2012, a physician assistant at SCHC noted the Claimant's ADHD medication was to be given by mouth in the morning and at noon. (T. 231.) On January 15, 2013, Plaintiff complained that Claimant had behavioral and focus issues at school, and that she had lost the prescription for the ADHD medication. (T. 229.) NP Dunham noted the Claimant's ADHD and asthma were not controlled so his ADHD medication was restarted, asthma medications were adjusted, and a new nebulizer was ordered. Id. On February 12, 2013, NP Dunham charted in a subjective report that Claimant had no more crying episodes, as controlled on the medication, but that his behavior was out of control. (T. 228.) NP Dunham increased Claimant's ADHD medication and encouraged a therapist. Id. On February 28, 2013, Plaintiff reported that Z.L.T.'s "school worried about stomach ache this week and that [Z.L.T.] is not his 'happy self' and seems more 'irritable.'" (T. 227.) NP Dunham kept Claimant's ADHD medication at the same dose and again emphasized the need for a therapist. Id. On March 12, 2013, Z.L.T.'s morning dose of medication for ADHD was increased, although he was active and talking in the exam room and eating but had reported a stomach ache. (T. 226.) On April 12, 2013, Claimant was noted to be very active in the exam room, and his mother reported that the ADHD "medicine was not working at all morning or afternoon." (T. 225.) At that time, Claimant's ADHD medication was changed. Id. There are no further treatment notes from SCHC in the record, and at the hearing on December 16, 2014, Plaintiff's attorney at the time indicated to the ALJ that the administrative record was complete except for some school records. (T. 40.)
The ALJ held the record open, but no further records were submitted by Plaintiff. (T. 20.)
About a year and a half after Z.L.T.'s last office visit at SCHC, on November 6, 2014, NP Dunham completed a Medical and Functional Capacity Assessment which was countersigned by Latrice Belfon-Kornych, M.D. (T. 264-68.) As to the domains of functioning, NP Dunham noted marked limitations for Claimant in attending and completing tasks, and in interacting and relating with others. (T. 266-67.) She noted moderate limitations in caring for himself and in health and well-being. (T. 267-68.) NP Dunham was unable to assess Claimant in the domain of acquiring and using information, and noted he had none to slight limitation in moving and manipulating objects. (T. 266-67.)
2. Consultative Examination
On May 23, 2013, Claimant was examined by Christina Caldwell, Psy.D. (T. 257-60.) Z.L.T. was a six year-old male who took a taxi to the evaluation with his mother. (T. 257.) He lived with his mother and two siblings, and was enrolled in kindergarten in regular education. Id. On mental status examination, Z.L.T. had a normal demeanor and was cooperative; his manner of relating, social skills, and overall presentation were fair-to-poor; he was somewhat sad and reported not having any friends. (T. 258.) Claimant's dress was appropriate; he was well groomed; posture and motor behavior were normal; and eye contact was appropriate. Id. Z.L.T.'s overall intelligibility was good; his voice was clear; and his expressive and receptive languages were age appropriate. Id. His thought processes were clear and goal directed with no evidence of hallucinations, delusions, or paranoia. Id. His affect was somewhat sad; mood was neutral; sensorium clear; he was fully oriented; his attention and concentration were mildly impaired; his recent and remote memory skills were mildly impaired; his intellectual functioning was average to below average; and insight and judgment were fair-to-poor. (T. 258-59.)
Z.L.T.'s mother reported that Z.L.T. needed help getting himself dressed, bathed, and groomed; needed to be told repeatedly to complete household chores and often needed help completing them; he was mean to his peers and had difficulty interacting with his family; he was physically aggressive; he played outside; and "he play[ed] with girl baby dolls." (T. 259.) Dr. Caldwell diagnosed disruptive behavioral disorder, ADHD, and rule-out mood disorder. (T. 260.) She recommended that Z.L.T. receive individual psychological counseling, consider intelligence testing, continue psychiatric intervention, and consider alternative educational placement. Id. Prognosis was fair to guarded. Id. Dr. Caldwell opined that Z.L.T. did not have any limitations in his ability to follow and understand simple directions and instructions. (T. 259.) The doctor then repeated several limitations reported by Z.L.T.'s mother, but did not offer any opinion as to those limitations. Id.
3. State Agency Consultant
State agency pediatric consultant Dr. Randall reviewed the record and provided his expert opinion in a report dated July 8, 2013. (T. 54-60.) The doctor identified diagnoses of Attention Deficit Disorder ("ADD")/ADHD and rated Z.L.T.'s ability to function in each of the six functional domains. (T. 57.) The doctor opined that Z.L.T. had less than marked limitation in acquiring and using information, explaining that Z.L.T. was not enrolled in special education, but his mother indicated that he was doing poorly in school. Id. Z.L.T. had not been held back in school and his intellectual functioning was estimated in the average to below average range. Id.
Dr. Randall found Z.L.T. had less than marked limitation in attending and completing tasks, noting Z.L.T. was taking medication for his mental impairment, and the consultative examiner observed mildly impaired attention and concentration; but Z.L.T. was still enrolled in regular education classes. Id. Z.L.T. had less than marked limitation interacting and relating with others, which the doctor supported by noting that Z.L.T. had poor family and peer relations, and Z.L.T. reported having no friends. Id. Dr. Randall also noted that Z.L.T. could become aggressive at times. Id.
Dr. Randall opined that Z.L.T. had no limitation in moving about and manipulation of objects. Id. He had less than marked limitation caring for himself, explaining that Z.L.T. needed assistance with dressing, bathing, and grooming himself, and his mother indicated he continued to experience bed wetting. Id. Lastly, Z.L.T. had less than marked limitation in health and physical well-being, with the doctor pointing out that Z.L.T. was being treated with medication for allergies, and had a history of using an inhaler to control asthma attacks although he had not required an office visit or emergency room visit in the past year. Id. Dr. Randall concluded by stating Z.L.T.'s impairments do not functionally equal the Listings, although he does have a medically determinable severe impairment. (T. at 58.)
4. School Records
Z.L.T.'s teacher, Ms. Finistrella, completed a teacher questionnaire on November 19, 2014. (T. 193-200.) She had been Z.L.T.'s teacher for three months at the time she completed the form and taught Z.L.T. all day in every subject in a second grade class of twenty-two students. (T. 193.) She reported that Z.L.T. read at a kindergarten to first grade level, and had math and written language skills at a first grade level. Id. The questionnaire evaluated Z.L.T.'s limitations in each of the six functional domains. (T. 194-99.)
In the domain of acquiring and using information, Ms. Finistrella reported serious to very serious problems. (T. 194.) She stated that Z.L.T. struggled with reading and tried to avoid reading and writing. Id. He also struggled with second grade math concepts and often would not even try. Id. Oral directions often needed to be repeated to Z.L.T. before he would comply. Id.
In the domain of attending and completing tasks, Ms. Finistrella reported slight to very serious problems. (T. 195.) Specifically, Z.L.T. had only slight problems sustaining attention during play/sports activities and organizing his own things or school materials, but had greater problems with other tasks in this domain. Id. The teacher explained that Z.L.T. had difficulty focusing, especially in the second half of the day, and was easily distracted; transitions were extremely difficult for him, and he was more likely to get into arguments with others during transitions between activities. Id.
In the domain of interacting and relating with others, Ms. Finistrella reported slight to very serious problems. (T. 196.) Specifically, Z.L.T. had only slight problems relating experiences and telling stories, using language appropriate to the situation, and using adequate vocabulary and grammar to express his thoughts; he had very serious problems seeking attention appropriately, expressing anger appropriately, respecting adults in authority, and following rules; otherwise, he had only obvious problems in other areas in this domain. Id. The teacher explained that Z.L.T. has had to go to timeout, was often disruptive in other classrooms, and would often "shut down," make noises, or mock others. Id.
In the domain of moving about and manipulating objects, Ms. Finistrella opined that Z.L.T. had no limitations. (T. 197.) In the domain of caring for himself, she reported Z.L.T. did not exhibit problems caring for his hygiene and physical needs; obvious problems being patient and knowing when to ask for help; serious problems using good judgment regarding personal safety, appropriately asserting his emotional needs, calming himself, and using appropriate coping skills; and a very serious problem handling frustration appropriately. (T. 198.) The teacher explained that Z.L.T. had no problem taking care of his personal or physical needs, but needed to learn other methods for dealing with his anger and frustration. Id. She noted that when Z.L.T. followed instructions to go to a timeout at the back of the room for ten minutes to settle down and relax, there were no further problems that day. Id.
Lastly, in the domain of health and physical well-being, Ms. Finistrella noted that Z.L.T. had ADHD, asthma, and allergies, and took medication for his conditions. (T. 199.) She noted Z.L.T.'s behavior had been good during the first month or so of school, but around the time Z.L.T. stopped receiving his second dose of ADHD medication at lunchtime, his behavior in class deteriorated. Id.
School attendance records also show Z.L.T. had significant absences and tardiness during the 2012-2013 and 2013-2014 school years, as well as repeated instances of absence and tardiness for the fall of the 2014-2015 school year. (T. 206-18.) However, Claimant has not been held back any grades, nor is he in special education; and he does not have an individualized education plan ("IEP"). (T. 185-92.)
II. RELEVANT LEGAL STANDARD
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); see also Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation and citation omitted). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and "may not substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. Standard to Determine Disability
An individual under the age of 18 is disabled, and thus eligible for SSI benefits, if he or 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). However, that definitional provision excludes from coverage any "individual under the age of 18 who engages in substantial gainful activity. . . ." Id. § 1382c(a)(3)(C)(ii). By regulation, the agency has prescribed a three-step evaluative process to determine whether a child can meet the statutory definition of disability. 20 C.F.R. § 416.9249(a)-(d); accord Kittles ex rel. Lawton v. Barnhart, 245 F. Supp. 2d 479, 487-88 (E.D.N.Y. 2003); Ramos v. Barnhart, No. 02-CV-3127 (LAP/GWG), 2003 WL 21032012, at *7 (S.D.N.Y. May 6, 2003). First, the ALJ must consider whether the child is engaged in "substantial gainful activity." 20 C.F.R. § 416.924(b). If so, the child is not disabled. Id.
The Court will provide Plaintiff with copies of all unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Next, the ALJ must determine whether the child has a "medically determinable impairment [ ] that is severe." Id. § 416.924(c). If not, or if the impairment is a "slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations," then the child is not disabled. Id.
Third, if the impairment is severe, the ALJ must determine whether the impairment meets or is medically or functionally equal to a disability in the Listings. Id. § 416.924(d). "An impairment meets the severity of a Listing if it matches the precise definition in the listings," while an impairment is "medically equivalent to a listed impairment if it is 'at least equal in severity and duration to the listed findings."' McCaskill v. Massanari, 152 F. Supp. 2d 270, 273 (E.D.N.Y. 2001) (quoting 20 C.F.R. § 416.926(a)).
Functional limitations are evaluated in 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. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). An impairment will functionally equal a listed impairment if it results in a "marked" limitation in two of the domains or an "extreme" limitation in one domain. Id. § 416.926a(d). A "marked" limitation is found where the impairment "interferes seriously with [the claimant's] ability to independently initiate, sustain, or complete activities." Id. § 416.926a(e)(2)(i). "An 'extreme' limitation—which means 'more than marked' and is given only to the worst limitations—signifies the impairment 'interferes very seriously with [the claimant's] ability to independently initiate, sustain, or complete activities.'" Ramos, 2003 WL 21032012, at *8 (quoting 20 C.F.R. § 416.926a(e)(3)(i)).
If the impairment meets (or is medically or functionally equal to) a disability in the Listings and satisfies the twelve-month duration requirement, the claimant will be deemed disabled. 20 C.F.R. § 416.924(d)(1). In essence, a child is disabled under the Social Security Act "if his impairment is as severe as one that would prevent an adult from working." Sullivan v. Zebley, 493 U.S. 521, 529 (1990).
III. ANALYSIS
A. Plaintiff's Failure to File a Brief in Response to Defendant's Motion for Judgment on the Pleadings
This Court's General Order 18 sets forth the briefing schedule in Social Security cases. After Plaintiff's attorney withdrew, the Court extended the time within which Plaintiff had to file her brief. (Dkt. No. 12.) After Plaintiff failed to comply with that order extending her time to file a brief, the undersigned issued an order on April 17, 2017, which directed Plaintiff to file her brief within 45 days after service of Defendant's brief. (Dkt. No 13.) Defendant then requested an extension of time to file her brief, which was granted, and Plaintiff was then directed to file her brief by August 25, 2017. (Dkt. No. 15.) Despite this, Plaintiff filed neither papers opposing Defendant's motion nor a request to enlarge the time within which to oppose Defendant's motion.
In the usual civil case, a plaintiff's failure to comply with court orders would subject the complaint to dismissal under Federal Rule of Civil Procedure 41(b). In addition, other Districts in the Second Circuit have held that where a Social Security plaintiff files a complaint but fails to file a brief on the merits, the complaint is conclusory and insufficient to defeat a motion for judgment on the pleadings. Winegard v. Barnhart, No. 02-CV-6231 CJS, 2006 WL 1455479, at *9-10 (W.D.N.Y. Apr. 5, 2006); Feliciano v. Barnhart, Civ. No. 04-9554 KMW AJP, 2005 WL 1693835, at *10 (S.D.N.Y. July 21, 2005); Reyes v. Barnhart, Civ. No. 01-4059 LTS JCF, 2004 WL 439495, at *3 (S.D.N.Y. Mar. 9, 2004).
In this District, however, General Order 18 permits a different course in Social Security cases. General Order 18 contains the following: "Notification of the Consequences of Failing to File a Brief . . . . A party's brief is the only opportunity to set forth arguments that entitle the party to a judgment in its favor. The failure to file a brief by either party may result in the consideration of the record without the benefit of a party's arguments. In the event a plaintiff fails to submit a brief, the defendant may file a motion to dismiss for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b), and the action may be dismissed with prejudice on the basis of plaintiff's failure to file a brief." (General Order 18 at 7.) General Order 18 thus states that the Court may consider the matter on the merits without plaintiff's brief. Here, Defendant did not file a motion to dismiss for failure to prosecute. Accordingly, the Court has, despite Plaintiff's failure to file a brief, examined the record to determine whether the ALJ applied the correct legal standards and reached a decision based on substantial evidence. Additionally, in a case such as this wherein the plaintiff is proceeding pro se, a consideration of the merits complies with the special solicitude that the Second Circuit mandates for pro se litigants.
B. Whether Substantial Evidence Supports the ALJ's Determination Regarding the Weight Accorded the Opinion Evidence
After carefully considering the matter, the Court answers this question in the affirmative for the reasons set forth in Defendant's memorandum of law. (See Dkt. No. 16 at 8-14.) To those reasons, the Court adds the following analysis.
The medical opinions of a claimant's treating physician are generally given more weight than those of other medical professionals. "If . . . a treating source's opinion . . . is well-supported by medically acceptable clinical and laboratory techniques and is not inconsistent with other substantial evidence . . . [it] will [be] give[n] controlling weight." 20 C.F.R. § 404.1527(c)(2), 416.927(c)(2). "Medically acceptable techniques include consideration of a patient's report of complaints, or the patient's history, as essential diagnostic tools." Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003). Generally, the longer a treating physician has treated the claimant and the more times the claimant has been seen by the treating source, the more weight the Commissioner will give to the physician's medical opinion. Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008).
An opinion from a treating source that the claimant is disabled cannot itself be determinative. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). However, a lack of specific clinical findings in the treating physician's report is not, by itself, a reason to justify an ALJ's failure to credit the physician's opinion. Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (citing Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998)).
"An ALJ who refuses to give controlling weight to the medical opinion of a treating physician must consider various factors to determine how much weight to give to the opinion." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citation omitted). This analysis must be conducted to determine what weight to afford any medical opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c). This is necessary because the ALJ is required to evaluate every medical opinion received. Id. These factors include: (1) the length of the treatment relationship and frequency of examinations; (2) the nature and extent of treatment relationship; (3) the medical evidence in support of the opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is from a specialist; and (6) any other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
Generally, the opinion of the treating physician will not be afforded controlling weight when the treating physician issued opinions that were not consistent with those of other medical experts and is contradicted by other substantial evidence in the record. Halloran, 362 F.3d at 32; 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Snell, 177 F.3d at 133 ("When other substantial evidence in the record conflicts with the treating physician's opinion . . . that opinion will not be deemed controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given."). Other findings, including the ultimate finding of whether the claimant is disabled, are reserved to the Commissioner. Snell, 177 F.3d at 133; 20 C.F.R. §§ 404.1527(c)(2), 416.927(d).
The Regulations require the Commissioner's notice of determination or decision to "give good reasons" for the weight given a treating source's opinion. 20 C.F.R. §§ 404.1527(c)(2), 416. 927(c)(2). This is necessary to assist the court's review of the Commissioner's decision and it "let[s] claimants understand the disposition of their cases." Halloran, 362 F.3d at 33 (citing Snell, 177 F.3d at 134). Failure to provide "good reasons" for not crediting the opinion of a claimant's treating physician is a ground for remand. Snell, 177 F.3d at 133; Halloran, 362 F.3d at 32-33. However, remand is unnecessary where application of the correct legal standard could lead to only one conclusion. Schaal, 134 F.3d at 504.
1. SCHC Providers
As noted above, Plaintiff's primary pediatric care providers at SCHC completed a functional capacity assessment form on November 6, 2016, which was about a year and a half after Claimant's last office visit at SCHC. (T. 264-68.) It was signed by NP Dunham and countersigned by Dr. Belfon-Kornych. (T. 268.) As to the domains of functioning, NP Dunham noted marked limitations for Claimant in the domains of attending and completing tasks, and in interacting and relating with others. (T. 266-67.) She noted moderate limitations in the domains of caring for himself and in health and well-being. (T. 267-68.) NP Dunham was unable to assess Claimant in the domain of acquiring and using information, and finally noted he had none to slight limitation in the domain of moving and manipulating objects. (T. 266-27.)
The ALJ accorded less weight to this opinion finding that the health providers indicated that the report was based primarily on the subjective reports of Plaintiff, and did not have support in terms of clinical evidence. (T. 26, 264-68.) Indeed, much of the treatment notes from SCHC are based upon the subjective complaints of Plaintiff, with very little objective findings related to Claimant's ADHD. (T. 225-37.) Plaintiff also completed forms upon which the providers based their findings. (T. 236, 242, 254.) The ALJ also noted that the opinion was contradicted by other opinion evidence in the record. (T. 26.) The opinions of Dr. Caldwell, Dr. Randall, and Z.L.T.'s teacher, Ms. Finistrella, differed from the opinion of NP Dunham, as further discussed below. Accordingly, the Court finds that the ALJ gave good reasons for giving less weight to the opinion from the SCHC providers.
2. Dr. Caldwell
The ALJ gave significant weight to the specific opinion of Dr. Caldwell that Z.L.T. did not have any limitations in his ability to follow and understand simple instructions. (T. 26, 259.) The ALJ noted this was the extent of Dr. Caldwell's opinion, since the rest of her comments in the medical source statement of her report are specifically based upon what the Plaintiff reported to Dr. Caldwell. (T. 26, 259-60.) Upon exam, Dr. Caldwell found Z.L.T. had a normal demeanor and was cooperative, but his manner of relating, social skills, and overall presentation were fair-to-poor and he reported being sad and not having any friends. (T. 258.) Z.L.T. was well groomed and his eye contact was appropriate. Id. His overall intelligibility was good; his voice was clear; and his expressive and receptive languages were age appropriate. Id. His thought processes were clear and goal directed. Id. While his affect was somewhat sad and his mood was neutral, his sensorium was clear and he was fully oriented. (T. 258-59.) Dr. Caldwell also found Claimant's attention, concentration, and memory skills were only mildly impaired; his intellectual functioning was average to below average; and insight and judgment were fair-to-poor. Id. The ALJ noted these findings were consistent with Claimant's lack of an IEP, lack of being held back in school, and lack of structured mental health treatment. (T. 26.) The ALJ also explained that Dr. Caldwell personally evaluated Z.L.T. and took a history from Plaintiff. Id.
The Court finds that the ALJ considered Dr. Caldwell's opinion appropriately. The ALJ considered the nature and extent of the evaluation, along with Dr. Caldwell's findings in support of her sole opinion that Z.L.T. did not have any limitations in his ability to follow and understand simple instructions. (T. 26.) Dr. Caldwell is a psychological specialist and the ALJ noted that her opinion was consistent with other evidence in the record as a whole. Id.
3. State Agency Consultant
The ALJ also gave significant weight to the opinion of Dr. Randall, the State agency medical consultant. (T. 25.) He reviewed the record and provided his expert opinion. (T. 54-60.) The ALJ explained that Dr. Randall had expertise in Social Security disability programs and standards, had relevant professional expertise, and his opinion was consistent with records from Z.L.T.'s school. (T. 25.) Dr. Randall pointed out that Z.L.T. was not enrolled in special education and had not been held back in school. (T. 57.) The ALJ found that the doctor's opinion was consistent with records from Claimant's school. (T. 25, 185-202.) In addition, the ALJ noted that Dr. Randall discussed Z.L.T.'s treatment history and that Z.L.T. had not been to the emergency room for asthma nor had he been to a doctor in the recent past. (T. 25, 225-56.) Accordingly, the Court finds the ALJ properly gave Dr. Randall's well-supported opinion significant weight. State agency consultants are qualified experts in the field of Social Security disability, and an ALJ is entitled to rely on their opinions in issuing decisions. See 20 C.F.R. § 416.912(b)(6); SSR 96-9p, 1996 WL 374180, at *2; see also Diaz v. Shalala, 59 F.3d 307, 315 n.5 (2d Cir. 1995) (the opinions of non-examining sources may even override treating source opinions provided they are supported by evidence of record).
4. School Records
The ALJ appropriately gave significant weight to the teacher questionnaire from Ms. Finistrella of the SCSD. (T. 25.) She knew Claimant for three months at the time of her assessment and saw him on a daily basis. (T. 193.) She indicated he missed the first week of school and was often tardy. Id. The ALJ noted that while the questionnaire identified many serious and some very serious problems, Z.L.T.'s behavior was good for a month and then worsened when his ADHD medication was decreased such that he stopped receiving the second dose. (T. 25-26, 199.) The teacher stated that Z.L.T.'s most disruptive behavior occurred after 11a.m., and that his behavior changed with medication. (T. 199.) The ALJ found that Ms. Finistrella's statements demonstrate that with appropriate medication, Z.L.T. did not have any behavior difficulties. (T. 25.) The Court finds the weight given to Ms. Finistrella's questionnaire is appropriate and supported by the evidence in the record overall. She was with Z.L.T. on a daily basis in the fall of the 2014-2015 academic year.
Accordingly, the Court finds the ALJ's assignment of weight to all of the opinion evidence in the record is supported by substantial evidence.
C. Whether Substantial Evidence Supports the ALJ's Determination that Z.L.T.'s Impairment or Combination of Impairments Functionally Equaled the Severity of the Listings was Supported by Substantial Evidence
After carefully considering the matter, the Court answers this question in the affirmative for the reasons set forth in Defendant's memorandum of law. (See Dkt. No. 16 at 14-21.) To those reasons, the Court adds the following analysis.
The ALJ appropriately considered whether Z.L.T.'s impairments functionally equaled the Listings. (T. 26-33.) As noted above, for a child's impairments to functionally equal the Listings, he must have a "marked" limitation in at least two domains or an "extreme" limitation in at least one domain. 20 C.F.R. § 416.926a(a). The ALJ found that Z.L.T. had a marked limitation in the domain of attending and completing tasks. (T. 28-29). The ALJ found no limitation in the domain of moving about and manipulating objects, (T. 30-31), and less than marked limitations in the remaining four domains of functioning. (T. 26-27, 29-33.) Accordingly, the ALJ found Z.L.T. was not disabled. (T. 33.)
1. Acquiring and Using Information
The ALJ found that Z.L.T. had a less than marked limitation in the domain of acquiring and using information. (T. 27.) This domain considers how well a child is able to acquire or learn new information, and how well a child uses the information learned. 20 C.F.R. § 416.926a(g). The record shows that Z.L.T. was not enrolled in special education classes, and had not been held back in school. (T. 41, 185-192.) In completing the function report (T. 129-38), the Plaintiff reported that Z.L.T. could deliver phone messages, repeat stories, tell jokes accurately, explain why he did something, and use sentences with "because," "what if," and "should have been." (T. 132.) Plaintiff noted he also talks with family and friends, generally gets along with teachers, and completes his homework. (T. 132, 135, 137.) His instructional level was one grade level behind, but he was in a classroom with a total of 22 students and one teacher. (T. 193.) His teacher just started using "alternate written work in math and reading seatwork" for Z.L.T. (T. 194.) The consultative examiner, Dr. Caldwell, found his intellectual functioning to be average to below average (T. 259) and the State agency psychiatric consultant, Dr. Randall, found that Z.L.T. had a less than marked limitation in this domain. (T. 57.) The providers at SCHC did not assess this domain. (T. 266.)
Based on the above-outlined materials, the Court finds there is substantial evidence in the record to support the ALJ's finding that Z.L.T. had a less than marked limitation in the domain of acquiring and using information.
2. Attending and Completing Tasks
The ALJ found Z.L.T. had a marked limitation in the domain of attending and completing tasks. (T. 28.) This domain considers how well the child focuses and maintains attention, and how well he begins, carries through, and finishes activities. See 20 C.F.R. § 416.926a(h). The providers at SCHC indicated Z.L.T. had a marked limitation in this domain. (T. 266.) Plaintiff indicated that although Claimant could read capital and small letters, print his name and some letters, he had difficulty reading simple sentences, spelling most three and four letter words, writing simple stories, and telling time. (T. 133.) She testified he acted out at school. (T. 43-45.) Ms. Finistrella, his teacher, indicated transitions were difficult for him, he had difficulty focusing especially in the second half of the day, and was easily distracted and needed "constant redirection." (T. 195.) He only had a slight problem with sustaining attention during play activities and with organizing his own things or school materials. Id. However, he was not in special education classes and had never been held back. (T. 193.) Consultative examiner Dr. Caldwell found Z.L.T.'s overall intelligibility good and his expressive and receptive languages were age appropriate. (T. 258-59.) Dr. Caldwell also found Z.L.T.'s thought processes were clear and goal directed; his attention and concentration were mildly impaired; and his recent and remote memory skills were mildly impaired. Id. Thus, substantial evidence in the record supports the ALJ's finding that Z.L.T. had a marked impairment in the domain of attending and completing tasks.
3. Interacting and Relating with Others
The ALJ found that Z.L.T. had a less than marked limitation in the domain of interacting and relating with others. (T. 29-30.) This domain considers how well the child is able to initiate and sustain emotional connections with others, develop and use the language of the community, cooperate with others, comply with rules, respond to criticism, and respect and take care of the possessions of others. See 20 C.F.R. § 416.926a(i). Plaintiff indicated Z.L.T. generally got along with teachers, although she noted he did have a problem having friends. (T. 48, 135.) Both Plaintiff and his teacher reported Z.L.T. had to go to "timeout" because of his behavior. (T. 46, 196.) Ms. Finistrella also indicated Z.L.T. had an obvious problem playing cooperatively, taking turns, and often had an "I don't care" attitude, but she further reported that he was the "first one to try to break up fights others are starting." (T. 196.) The teacher found only slight problems in his ability to relate experiences and tell stories, use language appropriate to the situation, and use adequate vocabulary and grammar to express thoughts in general, everyday conversation. Id. She also indicated that Z.L.T.'s speech was almost always understandable when the topic of conversation was known. (T. 197.) Dr. Caldwell said he was cooperative and used appropriate eye contact (T. 258), and Dr. Randall opined Z.L.T. had a less than marked limitation in this domain. (T. 57.) Accordingly, the Court finds substantial evidence in the record supports the ALJ's finding of a less than marked impairment in this domain.
4. Moving About and Manipulating Objects
The ALJ determined Z.L.T. had no limitation in the domain of moving about and manipulating objects. (T. 31.) This domain considers how well a child is able to move his body from one place to another and how a child manipulates and moves objects. See 20 C.F.R. § 416.926a(j). Plaintiff has not alleged any limitations in this domain. (T. 143.) Ms. Finistrella reported Z.L.T. had no problems in this domain and his functioning in the domain was age appropriate. (T. 197.) The providers at SCHC found Z.L.T.'s limitation in this domain as "none to slight." (T. 267.) Based on the above, substantial evidence supports the ALJ's finding of no limitation in this domain.
5. Caring for Oneself
The ALJ found Z.L.T. had a less than marked limitation in the domain of caring for oneself. (T. 32.) This domain assesses how well the child maintains a healthy emotional and physical state, including how well he has his physical and emotional needs met in appropriate ways, and whether he cares for his own health, possessions, and living area. See 20 C.F.R. § 416.926a(k). The record shows Z.L.T. did not always use good judgment regarding his personal safety and did not always respond appropriately to changes in his own mood. (T. 198.) However, Z.L.T. had no problems taking care of his personal hygiene, caring for his physical needs, taking medication, or picking up and putting away his toys. (T. 136, 198.) He was able to eat by himself using silverware. (T. 136.) The providers at SCHC noted that he could dress himself, and he ate and slept well. (T. 229, 241, 248.) He did not engage in any self-injurious behavior, and was able to pursue enjoyable activities and interests. Dr. Randall, whose opinion the ALJ assigned significant weight, opined that Z.L.T. had less than marked limitation in this domain. (T. 57.) Accordingly, the Court finds substantial evidence supports the ALJ's finding of less than marked limitation in this domain.
6. Health and Physical Well-Being
The domain of health and physical well-being considers the cumulative physical effects of physical and mental impairments and any associated treatments or therapies on the child's health and functioning that were not considered in the evaluation of the child's ability to move about and manipulate objects. 20 C.F.R. § 416.926a(l). Unlike the other five domains of functional equivalence, which address the child's abilities, this domain does not address typical development and functioning. Id. Instead, this domain addresses how recurrent illness, the side effects of medication, and the need for ongoing treatment affect the child's health and sense of physical well-being. Id. Here, the ALJ found Z.L.T. to have a less than marked limitation. (T. 32.) Z.L.T.'s records from SCHC show he has asthma and allergies (T. 229, 231, 233, 239, 243 -45, 248-49) but his asthma was well controlled. (T. 239.) Plaintiff reported Z.L.T. had not needed to use his inhaler "in a few months;" his teacher could not recall any visits to the nurse for these impairments and noted he did not frequently miss school due to illness; and at a recent health evaluation, the examination was "entirely normal." (T. 199, 239, 263.) Dr. Randall opined Z.L.T. had a less than marked limitation in this domain. (T. 57.) Therefore, the Court finds substantial evidence supports the ALJ's determination in this domain.
To summarize, the ALJ considered all of the relevant evidence and her determination of Z.L.T.'s functional limitations in all domains is supported by substantial evidence. "When reviewing a child's impairments for functional equivalence, adjudicators must consider 'all of the relevant evidence,' and employ a 'whole child' approach.'" Carrera v. Colvin, No. 1:13-cv-1414 (GLS/ESH), 2015 WL 1126014, at *3 (N.D.N.Y. Mar. 12, 2015). "'All of the relevant evidence' includes objective medical evidence and other relevant evidence from medical sources; information from other sources, such as school teacher, family members, or friends; the claimant's statement (including statements from the claimant's parent(s) or other caregivers); and any other relevant evidence in the case record, including how the claimant functions over time and in all setting[s] (i.e., at home, at school, and in the community)." Id. at *3 n.8 (citing SSR 09-2P, 2009 WL 396032, at *11 (SSA Feb. 18, 2009)). The "whole child" approach requires the ALJ to "to consider a child's everyday activities, determine all domains involved in performing them, consider whether that child's medically determinable impairment accounts for limitations in activities, and determine what degree such impairment limits that child's ability to function age-appropriately in each domain." Id. at *3 (citing SSR 09-1P, 2009 WL 396031, at *2-3 (SSA Feb. 18, 2009)). Here, the ALJ considered Z.L.T.'s medical and school records, his every day activities, and Plaintiff's statements. The ALJ also reviewed how Claimant functioned at home, in school, and in the community. The ALJ discussed evidence from medical, consultative examinations, and school records and considered Claimant's functioning in a variety of settings. As such, the Court finds the ALJ considered all of the relevant evidence and employed the "whole child" approach when evaluating Z.L.T.'s functional limitations.
ACCORDINGLY, based on the finding above, it is hereby
RECOMMENDED that the decision of the Commissioner be AFFIRMED, and Defendant's motion for judgment on the pleadings (Dkt. No. 16) be GRANTED, and the complaint (Dkt. No. 1) be DISMISSED; and it is hereby
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: September 11, 2017
Syracuse, New York
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge