Opinion
18-CV-280 (AT)(KNF)
02-15-2019
STEPHANIE SANCHEZ, on behalf of ITR, Plaintiff, v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
TO THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE
Stephanie Sanchez ("Sanchez") commenced this action pro se on behalf of her minor child, who is identified as ITR, against the Commissioner of Social Security ("Commissioner"), seeking review of an administrative law judge's ("ALJ") decision, dated April 28, 2016, finding ITR ineligible for Supplemental Security Income ("SSI") benefits, pursuant to 42 U.S.C. § 405(g). On April 21, 2017, the Appeals Council denied review of the ALJ's decision. Before the Court is the Commissioner's motion for judgment on the pleadings, made pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The plaintiff has not opposed the motion.
BACKGROUND
Procedural History
Sanchez filed an application for SSI benefits on behalf of her son, ITR, on February 11, 2014, alleging that he was disabled due to speech, hearing and vision impairments, and asthma. The claim was denied on June 18, 2014, and Sanchez requested a hearing before an ALJ. On February 19, 2016, Sanchez appeared pro se at a hearing before ALJ Sheila Walters. On April 28, 2016, the ALJ found that ITR had not been disabled since the date the application for SSI benefits was filed. Sanchez requested review of the ALJ's decision by the Social Security Administration's Appeals Council. The Appeals Council denied the plaintiff's request for review on August 21, 2017, making the ALJ's decision the final decision of the Commissioner. On October 18, 2017, Sanchez filed a complaint with this court on behalf of her son seeking review of the ALJ's decision and alleging that her son was entitled to receive SSI benefits because of his impairments. Testimonial Evidence
As noted above, Sanchez testified at a hearing before the ALJ on February 19, 2016. At the beginning of the hearing the ALJ explained to Sanchez that she had the right to be represented by an attorney or other qualified representative. Sanchez acknowledged her right to representation and the possible availability of free legal services but stated that she preferred to proceed without representation.
Sanchez testified that she lived with her daughter and her mother in addition to her son; she stated that her daughter is three years old and her mother works full time. She testified that ITR attends Success Academy Charter School and is in the second grade. He attends both regular classes and a special education class; he has been in special education for three years.
Sanchez testified that ITR was doing well in school and that he wears a hearing aid and sits in front of the class. She reported that his grades in math were "pretty good" but that he struggled in reading and science. Sanchez also stated that ITR was a "late walker" and extremely late talker and still could not ride a bicycle. She also stated that he had poor vision in his left eye and a speech impairment and that he received speech therapy, occupational therapy and hearing services. She testified that ITR could brush his teeth and dress himself. Medical Evidence
From March 2013 through May 2014, the New York Presbyterian Hospital treated ITR for complaints of mild hearing loss. In September 2015, consultative speech and language pathologist Mindy Singer ("Singer") evaluated ITR. Singer assessed that ITR, whom she described as friendly and outgoing, had an unremarkable voice and fluency and adequate hearing in a one-on-one setting. Sanchez told Singer that ITR only wears his hearing aids while at school. Singer administered the Clinical Evaluation of Language Fundamentals, Fifth Edition ("CELF-5") to assess ITR's receptive and expressive language skills. ITR's test scores indicated a mild receptive language delay and normally developing expressive language. Singer assessed that the results of the CELF-5 were a true and valid indication of his receptive and expressive language skills.
Singer also administered the Goldman-Fristoe 2 Test of Articulation. She observed that ITR's articulation intelligibility was 85-90%. She concluded that ITR had fair communication skills, normal expressive language skills, and mildly delayed receptive language skills. She diagnosed a mild receptive language delay and stated that ITR did not require speech and language services.
On February 25, 2016, ITR returned to New York Presbyterian Hospital for a well-child visit. ITR reported that he was not falling as frequently and was able to play sports. Sanchez reported that ITR behaved well at school, but not at home, and that his asthma was well controlled. Dr. Suzanne Friedman observed that: (a) ITR's vision was 20/20 in both eyes; (b) ITR had a normal gait and a full range of motion and normal muscle tone throughout his arms and legs; (c) ITR's asthma was well controlled; and (d) his obesity was improving. Educational Record
ITR's occupational therapist, Waiming Cheung ("Cheung"), noted that ITR could attend and focus during instructions in class and work with minimal supervision. Cheung noted that ITR could express his needs and be self-directed. He was well behaved, friendly, sociable and respectful and was able to follow directions and move through the school environment safely and independently. Cheung also noted that ITR was independent in all of his activities of daily living, including eating, bathing and dressing.
An Individualized Education Program report ("IEP") dated January 17, 2014, noted that ITR's reading skills were at grade level and that his intellectual functioning was within the upper bounds of the below-average range. The IEP stated that ITR was a friendly and social student who completed tasks independently and respected teachers and other adults in authority in the school environment. The IEP noted that ITR had mild, bilateral high frequency hearing loss for which he used hearing aids. ITR's recommended special education services were hearing education services, occupational therapy, speech and language therapy. An IEP report prepared in January 2015 noted that ITR's reading skills were approaching expectations, his writing skills were at grade level, and his math skills were below expectations. ITR's recommended special education services were hearing education services, occupational therapy, speech-language therapy, a seat close to the teacher, and use of an FM unit.
As noted by the Commissioner in her Memorandum of Law in support of the instant motion, "FM units deliver speech directly from the speaker's mouth to the listener's ears and thus reduce background noise, improve clarity, and reduce listening fatigue. See Healthy Hearing at https://www.healthyhearing.com/help/assistive-listening-devices/fm-systems."
THE ALJ'S DECISION
The issue addressed by the ALJ was whether ITR is disabled under the Social Security Act ("SSA"). The ALJ found that ITR: (1) was born on January 29, 2008, and, therefore, was a school-age child on February 11, 2014, the date the application for SSI benefits was filed, until the date of the decision; (2) has not engaged in substantial gainful activity since February 11, 2014; (3) has the following severe impairments: hearing loss, asthma, mild receptive language delay and sensory deficits; (4) does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"); (5) does not have an impairment or combination of impairments that functionally equals the severity of one of the impairments in the Listings; (6) has not been disabled as defined in the SSA, since February 11, 2014, the date the application for SSI benefits was filed.
In discussing ITR's impairments, the ALJ found that his hearing loss, asthma, mild receptive language delay and sensory deficits were severe because they "more than minimally limit [ITR's] ability to perform tasks." She also noted that Sanchez alleged vision loss that is corrected with glasses and that the record did not reflect any functional limitations resulting from this impairment; consequently, the ALJ found that the impairment was not severe.
In determining whether ITR's severe impairments meet or medically equal the severity of one of the impairments in the Listings, the ALJ, having reviewed the record in this case, found that the requirements of the Listings in question -- 102.10 (hearing loss), 103.3 (asthma) and 111.06 (sensory deficit) -- were not met. However, the ALJ, based on the evidence of record, found that while ITR's medically determinable impairments could reasonably be expected to produce the alleged symptoms, her statements concerning the intensity, persistence and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record.
The ALJ noted that ITR presented for a consultative examination with Singer, a speech and language pathologist, on September 17, 2015. According to Singer, ITR's hearing appeared adequate in a one-on-one setting. The ALJ noted further that a CELF-5 revealed mild receptive language delay and normally developing expressive language. Singer noted that ITR had fair language skills and was also able to maintain a conversation for two to three exchanges. In terms of articulation, his intelligibility was between 85 and 90 percent.
Regarding ITR's asthma, he presented on March 7, 2014, with complaints of coughing and wheezing; however, his symptoms were resolved with albuterol and in subsequent examinations, his treating clinician noted that his asthma was well controlled. As to his alleged sensory deficits, in a primary care visit on January 21, 2016, ITR's mother reported that he was falling once a week and had foot pain. However, ITR stated that he could play football at school with no issues. ITR's education records demonstrated lesser severity. His 2013-2014 report card indicates below average ratings in English language arts and physical education, but he was at grade level in all other areas.
In terms of the six functional equivalence domains set forth in 20 C.F.R. § 416.926, the ALJ found as follows:
a) Acquiring and Using Information
Acquiring and using information concerns how well a child is able to acquire or learn information and how well a child uses the information he has learned. The domain involves how well children perceive, think about, remember and use information in all settings, which includes daily activities at home, at school and in the community. School-age children, between the ages of 6 and 12, should be able to learn to read, write, do math, and discuss history and science. Some examples of difficulties children have in acquiring and using information are: not understanding words about space, size, or time, not being able to rhyme words or the sounds in words, and having difficulty recalling important things learned in school the day before.
The ALJ determined that ITR has less than marked limitation in acquiring and using information. The ALJ found that ITR has mild receptive language delay and normally developing expressive language as per Singer - had fair language skills and was able to answer questions and state his age, phone number, birth date, school and grade. He was able to maintain a conversation for two or three exchanges and request directions to be repeated and clarified. The results obtained on formal language testing indicated normally developing expressive language and a mild receptive language delay. Therefore, the result obtained did not appear to be significant and, as such, was not consistent with Sanchez's allegations.
ITR's 2013-2014 report card indicates below average ratings in English language arts and physical education but ITR was at grade level in all other areas. An IEP report dated January 1, 2014, noted that ITR was functioning at his grade level and was able to read at grade level.
b) Attending and Completing Tasks
This domain considers how well a child is able to focus and maintain attention and how well he is able to begin, carry through and finish activities, including the mental pace at which he performs activities and the ease of changing activities. The ALJ found that ITR has no limitation with respect to attending and completing tasks. She noted that while ITR's mother stated that he could not finish tasks or complete homework she also reported that he could brush his teeth, comb and wash his hair, eat with utensils, put away toys, follow directions and obey rules. Also, he could keep busy on his own and complete arts and crafts projects.
ITR's 2013-2014 report card indicates that he was at or above grade level in terms of behavior and his teacher noted that he was well mannered. Also, the IEP reported that ITR followed rules and was able to complete tasks independently. ITR followed directions despite the difficulty related to his hearing loss and was also able to write his name and draw pictures and to work with minimal supervision.
c) Interacting and Relating with Others
This domain considers how well a child is able to initiate and sustain emotional connections with others, develop and use the language of the community to cooperate with others, comply with rules, respond to criticism, and respect and take care of the possessions of others.
The ALJ concluded that ITR had no limitation in interacting and relating with others. Contrary to statements of his mother regarding social functioning, she also reported that he had friends, could make new friends and got along with teachers. His 2013-2014 report card indicates that he was at or above grade level in terms of behavior and his teacher noted that he was well mannered.
d) Moving About and Manipulating Objects
This domain considers how well a child is able to move his body from one place to another, and how a child moves and manipulates objects. These activities may require gross motor skills, fine motor skills or a combination of both. ITR's mother testified that he had difficulty with motor skills such as riding a bike and that he had problems with balance. However, she also noted that he could walk, run, throw a ball, and work video-game controls and that he could brush his teeth, comb and wash his hair, eat with utensils and put away toys.
e) Caring for Yourself
This domain considers how well a child maintains a healthy emotional and physical state, including how well a child satisfies his physical and emotional wants and needs in appropriate ways. As noted by the ALJ, ITR's mother alleged he could not perform basic tasks but also reported that he could brush his teeth, comb and wash his hair, eat with utensils and follow directions and obey rules.
f) Health and Physical Well-Being
This domain considers the cumulative physical effects of physical and mental impairments and any associated treatments or therapies on a child's health and functioning that were not considered in the evaluation of the child's ability to move about and manipulate objects. This domain addresses how recurrent illness, the side effects of medication and the need for ongoing treatment affect the child's health.
While ITR's mother reported that he had delayed development and hearing loss, she did not follow up with a medical visit and reported that his symptoms were resolved. Furthermore, ITR's asthma was resolved with medications.
Based on her analysis, the ALJ found that ITR does not have an impairment or combination of impairments that result in either marked limitations in two domains of functioning or an extreme limitation in one domain of functioning. Based on these findings, the ALJ determined that ITR is not disabled under the relevant SSA provisions.
DEFENDANT'S CONTENTIONS
On June 15, 2018, the Commissioner filed a motion for judgment on the pleadings. In her memorandum of law in support of the motion, the Commissioner offers a review of the medical treatment given to ITR, his school evaluations and the plaintiff's testimony at the hearing before the ALJ. The Commissioner contends that the ALJ's determination that ITR is not disabled is supported by substantial evidence and should be affirmed and that her motion for judgment on the pleadings should be granted.
DISCUSSION
Legal Standard "After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by "substantial evidence" or if the decision is based on legal error. Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Shaw v. Charter, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted).
"Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations." Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations omitted). Standard for Determining Disability in a Child
"An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual 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). To determine whether a claimant is entitled to SSI benefits on behalf of a child, an ALJ must apply a three-step process as set forth in 20 C.F.R. § 416.924(a). The Second Circuit, in Encarnacion ex rel. George v. Astrue, described this process as follows:
First, the child must not be engaged in "substantial gainful activity." [20 C.F.R.] § 416.924(a). Second, the child "must have a medically determinable impairment(s)" that is "severe" in that it causes "more than minimal functional limitations." Id. § 416.924(c). Third, the child's impairment or combination of impairments must medically or functionally equal an impairment listed in an appendix to the regulations. See id. § 416.924(d) . . . .568 F.3d 72, 75-76 (2d Cir. 2009). Application of Legal Standard
For a child's impairment to functionally equal a listed impairment, the impairment must "result in 'marked' limitations in two domains of functioning or an 'extreme' limitation in one domain." 20 C.F.R. § 416.926a(a). The domains that the regulations establish to determine whether impairments result in marked or extreme limitations are: (1) acquiring and using information, (2) attending and completing tasks, (3) interacting and relating with others, (4) moving about and manipulating objects, (5) caring for oneself, and (6) health and physical well-being. Id. § 416.926a(b)(i). The [Social Security Administration] must determine whether an impairment or combination of impairments causes a "marked" limitation on a child's functioning in at least two of these domains, or an "extreme" limitation in at least one domain. A "marked" limitation is "'more than moderate' but 'less than extreme'" and "interferes seriously with" a child's "ability to independently initiate, sustain, or complete activities." Id. § 416.926a(e)(2)(i). An "extreme" limitation is "'more than marked'" and "interferes very seriously with" a child's "ability to independently initiate, sustain, or complete activities." Id. § 416.926a(e)(3). The regulations recognize that an impairment or combination of impairments may have effects in more than one domain; thus, the [Social Security Administration] evaluates a child's impairments in any domain in which they cause limitations. Id. § 416.926a(c).
Whether the ALJ's Decision is Supported by Substantial Evidence
The ALJ determined correctly that ITR has not engaged in substantial gainful activity since February 11, 2014, the date of the instant application. The ALJ's finding that ITR's severe impairments include hearing loss, asthma, mild receptive language delay and sensory deficits was supported by the medical records. The ALJ's finding that ITR's vision loss was not severe was also supported by substantial evidence insofar as the alleged vision loss was corrected with glasses and the record does not reflect any functional limitations resulting from this impairment.
The ALJ's finding that ITR's hearing loss, while severe, did not meet or medically equal a condition included in the Listings is also supported by substantial evidence. Similarly, the ALJ's finding that ITR's asthma, while severe, does not meet or medically equal a condition included in the Listings is also supported by substantial evidence. Additionally, the ALJ's finding that ITR's sensory deficit did not meet or medically equal a condition included in the Listings is also supported by substantial evidence, namely, that the record does not indicate persistent disorganization or deficit of motor function for age involving two extremities, which interferes with age-appropriate major daily activities and results in disruption of fine and gross movements or gait and station.
The ALJ's findings concerning the six functional equivalence domains are supported by substantial evidence. She determined properly that ITR did not have two marked limitations or one extreme limitation in functioning in his activities. The record supports the finding that ITR had less than a marked limitation in acquiring and using information. Although ITR has mild receptive language delay he was able to answer questions and state his age, telephone number, birth date, school and grade. He was also able to maintain a conversation for two or three exchanges and request directions to be repeated and clarified.
Substantial evidence indicates that ITR has less than a marked limitation in attending and completing tasks. Although ITR's mother alleged that he could not finish tasks or complete homework or chores, she also reported that he could brush his teeth, comb and wash his hair, eat with utensils, put away toys, follow directions and obey rules. Also, ITR's 2013-2014 report card indicates that he was at or above grade level in terms of behavior and his teacher noted that he was well-mannered. His IEP reported that ITR followed rules and was able to complete tasks independently. The ALJ determined properly that ITR had no limitations in interacting with and relating to others and substantial evidence also supports the finding that ITR has no limitations in moving about and manipulating objects, or in caring for himself, or with respect to his health and physical well-being, because no such limitations were suggested by any evidence in the record. Accordingly, substantial evidence supports the ALJ's determination that ITR is not disabled.
Whether the ALJ's Decision Was Contrary to Law
The ALJ followed the three steps of the sequential analysis required to be performed in determining disability for an SSI-benefits claimant under the age of 18. At each of the three steps, the ALJ articulated and applied the correct legal standard in making her determinations. The Court perceives no legal' error in the ALJ's determinations. Thus, the ALJ's decision is not contrary to law.
RECOMMENDATION
For the reasons set forth above, I recommend that the Commissioner's decision be affirmed and the defendant's motion for judgment on the pleadings, Docket Entry No. 16, be granted.
FILING OF 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 shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, 500 Pearl Street, Room 2210, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 425, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Torres. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Dated: New York, New York
February 15, 2019
Respectfully submitted,
/s/_________
KEVTN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE Copy mailed to: Stephanie Sanchez