Opinion
1:19-CV-01523 EAW
2021-02-24
TEENA H. O/B/O N.I.K., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Justin David Jones, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Alexander Broche, Social Security Administration Office of General Counsel, New York, NY, John P. Fox, Nicol Fitzhugh, Office of the General Counsel Social Security Administration, Kansas City, MO, for Defendant.
Justin David Jones, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Alexander Broche, Social Security Administration Office of General Counsel, New York, NY, John P. Fox, Nicol Fitzhugh, Office of the General Counsel Social Security Administration, Kansas City, MO, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, Plaintiff Teena H. ("Plaintiff") brings this action on behalf of N.L.K., a minor child, pursuant to Title XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying her application for children's supplemental security income ("SSI"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 7; Dkt. 9), and Plaintiff's reply (Dkt. 10). For the reasons discussed below, the Commissioner's motion (Dkt. 9) is granted, and Plaintiff's motion (Dkt. 7) is denied.
BACKGROUND
On November 29, 2012, Plaintiff protectively filed an application for SSI on behalf of N.L.K., a child under the age of 18. (Dkt. 5 at 21, 101). Plaintiff alleged N.L.K.’s disability began on November 21, 2012, due to ADHD, oppositional defiant disorder, and asthma. (Id. at 21, 102). Plaintiff's application was initially denied on March 22, 2013. (Id. at 21, 109-112). On July 25, 2014, Plaintiff and N.L.K. appeared at a hearing in Buffalo, New York, before administrative law judge ("ALJ") William M. Weir. (Id. at 21, 44-99). On April 21, 2015, the ALJ issued an unfavorable decision. (Id. at 18-38). Plaintiff requested Appeals Council review, and her request was denied on August 12, 2016. (Id. at 6-8). Plaintiff appealed the Commissioner's decision to the United States District Court for the Western District of New York, which reversed the decision of the Commissioner on March 21, 2018. (Id. at 518-23). The Appeals Council remanded the case to the ALJ for further administrative proceedings on September 6, 2018. (Id. at 524-26). The ALJ held another hearing on May 28, 2019. (Id. at 483-516). On July 9, 2019, the ALJ issued an unfavorable decision. (Id. at 457-76). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).
II. Disability Determination
To qualify as disabled under the Act, 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). An ALJ follows a three-step sequential evaluation to determine whether a child is entitled to SSI benefits. Encarnacion ex rel. George v. Astrue , 568 F.3d 72, 75 (2d Cir. 2009). "First, the child must not be engaged in ‘substantial gainful activity.’ Second, the child ‘must have a medically determinable impairment(s)’ that is ‘severe’ in that it causes ‘more than minimal functional limitations.’ Third, the child's impairment or combination of impairments must medically or functionally equal an impairment listed in an appendix to the regulations." Id. (quoting 20 C.F.R. § 416.924 ).
The limitations caused by a child's severe impairment are evaluated pursuant to six domains of functioning: (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 yourself, and (6) health and physical well-being. See 20 C.F.R. § 416.926a(b)(1). "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.’ " Encarnacion , 568 F.3d at 75 (quoting 20 C.F.R. § 416.926a(a) ). "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. An extreme limitation is more than marked and interferes very seriously with a child's ability to independently initiate, sustain, or complete activities." Id. (internal quotations and citations omitted).
DISCUSSION
I. The ALJ's Decision
In determining whether N.L.K. was disabled, the ALJ applied the three-step sequential evaluation set forth in 20 C.F.R. § 416.924. Initially, the ALJ determined that N.L.K. was born on October 23, 2006, and therefore was a school-age child on November 29, 2012, the date the application was filed, and on the date of the written determination. (Dkt. 5 at 463). At step one, the ALJ determined that N.L.K. had not engaged in substantial gainful activity since November 29, 2012, the application date. (Id. ).
At step two, the ALJ found that N.L.K. suffered from the severe impairments of attention-deficit hyperactivity disorder and oppositional defiance disorder. (Id. ). The ALJ further found that N.L.K.’s asthma was a non-severe impairment. (Id. at 464).
At step three, the ALJ found that N.L.K. did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 464). Similarly, the ALJ found that N.L.K. did not have an impairment or combination of impairments that functionally equaled the severity of the Listings. (Id. ). In making this determination, the ALJ considered N.L.K.’s functioning in each of the above-mentioned six domains and concluded that N.L.K. had no limitation in acquiring and using information, moving about and manipulating objects, and health and physical well-being. (Id. at 469-76). N.L.K. had less than a marked limitation in attending and completing tasks, interacting and relating with others, and caring for himself. (Id. ). Accordingly, the ALJ found that N.L.K. was not disabled as defined in the Act. (Id. at 476).
II. The Commissioner's Determination is Supported by Substantial Evidence and Free from Legal Error
Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the Commissioner, arguing that he "did not properly weigh the domains," including N.L.K.’s functioning in the domains of acquiring and using information, attending and completing tasks, interacting and relating with others, and caring for himself. (Dkt. 7-1 at 1, 17). Plaintiff generally contends that the ALJ should have found that N.L.K. had greater limitations in each of these domains and that the ALJ "failed to properly explain [his finding], and relied on overlooked or misapplied evidence." (Id. at 18, 21, 24, 27).
"An ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision." Dana F. o/b/o O.E.H. v. Berryhill , No 6:18-CV-1337 (ATB), 2019 WL 7067060, at *3 (N.D.N.Y. Dec. 23, 2019). Further, while "[a]n ALJ is not required to explicitly analyze every piece of conflicting evidence in the record ... the ALJ cannot ‘pick and choose’ evidence in the record that supports his conclusions." Id. (internal quotations and citation omitted). In the context of child disability proceedings, "[w]hen reviewing a child's impairments for functional equivalence, adjudicators must consider all of the relevant evidence, and employ a ‘whole child’ approach." Nivia D. o/b/o P.L.D. v. Comm'r of Soc. Sec., No. 5:18-cv-0634(TWD), 2019 WL 4573262, at *4 (N.D.N.Y. Sept. 20, 2019) (internal quotations and citation omitted). This approach "requires the ALJ 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.
As an initial matter, Plaintiff's argument—that the evidence supports marked limitations in the domains of acquiring and using information, attending and completing tasks, interacting and relating with others, and caring for himself—is based largely on his disagreement with how the ALJ weighed the evidence, and he identifies no specific legal error committed by the ALJ. Rather, Plaintiff's argument consists of a laundry list of evidence in the record he argues the ALJ failed to weigh in making his determination and supports a finding of marked limitations. (See, e.g. , Dkt. 7-1 at 18-29).
Plaintiff's arguments do not require remand. It is not the function of this Court to re-weigh evidence or consider de novo whether N.L.K. is disabled. See Urena v. Comm'r of Soc. Sec. , 379 F. Supp. 3d 271, 278 (S.D.N.Y. 2019) ("Importantly, it is not a reviewing court's function to determine de novo whether [a claimant] is disabled." (alteration in original) (internal quotation and citation omitted)). Rather, "[a]bsent a legal error, the Court must uphold the Commissioner's decision if it is supported by substantial evidence, even if the Court might have ruled differently had it considered the matter in the first instance." Russell v. Saul , 448 F. Supp. 3d 170, 175 (D. Conn. 2020) ; see also Genier v. Astrue , 606 F.3d 46, 49 (2d Cir. 2010) ("Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.").
The Court has reviewed the ALJ's written determination, as well as the administrative record, and finds that the ALJ's determination is supported by substantial evidence. While the record supports that N.L.K. has some limitations in functioning—particularly with regard to his ability to stay focused and appropriately express his feelings—the ALJ adequately explained how he arrived at his determination that N.L.K. has no limitation in the domain of acquiring and using information, and less than marked limitations in the domains of attending and completing tasks, interacting and relating with others, and caring for himself. (See Dkt. 5 at 469-76).
As explained in the written determination, the ALJ relied specifically on the May 8, 2014 Teacher Questionnaire completed by N.L.K.’s second grade teacher, Ms. Kutis, which the ALJ found "to be very valuable in evaluating the claimant's ability to function[ ]." (Id. at 467; see also id. at 222-31). Specifically, the ALJ explained that "[t]he teacher has been trained in childhood education and she has had the opportunity to observe the claimant's behavior in the classroom for nearly an entire academic year. Of significance, I again note that she stated that the claimant is easily distracted when he is not on medication, thus implying that he is not easily distracted and is able to concentrate and focus, when he is on medication." (Id. ; see also id. at 224 (Ms. Kutis explaining that she has known N.L.K. for nine months and sees him five days per week, six hours per day, for all subjects)). Both Ms. Kutis and Ms. Freeman, N.L.K.’s first-grade teacher, indicated that his behavior improved with medication. (See id. at 230; see also id. at 173 ("[N.L.K.] has gotten much better at remaining focused on his work since being on medication.")). The ALJ gave Ms. Kutis's opinion "significant weight." (Id. at 467).
The ALJ also considered the March 22, 2013 assessment of the state-agency reviewing pediatrician, Dr. Meyer, who found N.L.K. to have less than marked limitations in the domains of attending and completing tasks, interacting and relating with others, and caring for himself, because the opinion was well-supported by medical records from N.L.K.’s treating psychiatrist and by education records. (Id. ; see also id. at 105-06). The ALJ gave this opinion "significant weight." (Id. at 467). Plaintiff suggests that the ALJ should not have relied on Dr. Meyer's opinion because it was based on an incomplete record (see Dkt. 7-1 at 22); however, it is plain from the written determination that the ALJ relied on all the evidence in the record, including more recent evidence, in assessing N.L.K.’s functional limitations.
In his discussion of Dr. Meyer's opinion, the ALJ explained that "medical records fro[m] the claimant's treating pediatrician document persistent moderate asthma, which prompts me to conclude that the claimant also has [a] ‘less than marked’ limitation in the domain of ‘health and physical well-being’ also, rather than no limitation." (Dkt. 5 at 468). However, in his evaluation of N.L.K.’s limitation in the domain of health and physical well-being, the ALJ concluded that N.L.K. had no limitation. (Id. at 476). Regardless of whether the ALJ assessed N.L.K. with either no limitation or less than a marked limitation in this domain does not affect the determination that N.L.K. is not disabled because, as explained above, a finding of disability requires an assessment of marked limitations in two domains of functioning or an extreme limitation in one domain.
In her motion, Plaintiff cites to evidence offered by Ms. Robertson, N.L.K.’s mental health counselor, and Dr. Pabilonia, N.L.K.’s treating psychiatrist, as supporting marked limitations. As explained by the ALJ, while Ms. Robertson stated that N.L.K. was impulsive and had difficulty listening to and following directions, she did not assess any actual functional limitations, rendering her opinion not helpful. (Id. at 468; see also id. at 290-91). Further, Dr. Pabilonia refused to complete a childhood disability form opining on N.L.K.’s functional limitations. (Id. at 469; see also id. at 453-56). Accordingly, in terms of assessing specific functional limitations, those opinions were not entirely helpful.
The Court has reviewed the May 8, 2014 evaluation completed by Ms. Kutis and finds that it supports the ALJ's conclusions relating to N.L.K.’s functioning in the six domains. For acquiring and using information, out of ten categories, Ms. Kutis found that Plaintiff had "no problem" in four categories and a "slight problem" in six categories. (Id. at 225). Ms. Kutis explained that N.L.K. sometimes needed instructions repeated back to him or problems demonstrated several times before working independently, and that he participates during class discussions, but sometimes "cannot wait to share and interrupts others while they are talking." (Id. ). For attending and completing tasks, out of 13 categories, Ms. Kutis found that N.L.K. had "no limitation" in three categories and a "slight problem" in seven categories. (Id. at 226). N.L.K. had an "obvious problem" with paying attention when spoken to directly, a "serious problem" with organizing his own things or school materials, and a "very serious problem" with working without distracting himself or others. (Id. ). Ms. Kutis explained that N.L.K. "works much better by himself," and that when he is spoken to, he has difficulty making eye contact, but understands what is being said. (Id. ). Ms. Kutis also noted that N.L.K.’s desk is not organized, and that she helps him to organize it during the week. (Id. ). As explained by the ALJ, N.L.K. was rated as having no problem or only a slight problem for most of the categories in this domain. (Id. at 467).
For interacting and relating with others, out of 13 categories, N.L.K. had "no problem" in seven categories and a "slight problem" in five categories. (Id. at 227). He had an "obvious problem" in expressing anger appropriately. (Id. ). Ms. Kutis explained that N.L.K. works best with his desk separated from groups to avoid distraction when working. (Id. ). Ms. Kutis further explained that sometimes N.L.K. "does not express his emotions appropriately—he will become very angry or upset that he may cry and shuts down. He will calm himself down ... sometimes with assistance finding a solution. Other times by himself just needing a few moments alone." (Id. ). Ms. Kutis was able to understand "almost all" of N.L.K.’s speech, both when the topic of conversation was known and unknown. (Id. at 228).
Finally, for caring for himself and others, out of ten categories, N.L.K. had "no problem" in four categories and a "sight problem" in two categories. (Id. at 229). N.L.K. had an "obvious problem" handling frustration appropriately, identifying and appropriately asserting emotional needs, responding appropriately to changes in his own mood, and using appropriate coping skills to meet daily demands of the school environment. (Id. ). Ms. Kutis explained that there were times when "something does not go [N.L.K.]’s way, or he is unable to do something he wants that he cannot handle his emotions—he becomes frustrated and remove[s] himself from the class. At times he can calm himself down, other times he needs an adult to help him calm down and find a solution. Once a week he meets with the school counselor." (Id. ). Ms. Kutis also noted that N.L.K. is easily districted when not on his medication. (Id. at 230). The evaluation completed by Ms. Kutis—who not only has expertise in early childhood education but also had the opportunity to observe and interact with N.L.K. on a continuous and significant basis—plainly supports the ALJ's determination that N.L.K. had either no limitation or less than marked limitations in those particular domains of functioning.
The ALJ also discussed N.L.K.’s disciplinary issues, evidence of which Plaintiff cites to several times in support of remand. (See, e.g. , Dkt. 7-1 at 19, 20, 25, 26, 29). Contrary to Plaintiff's assertion, the ALJ specifically acknowledged and discussed N.L.K.’s disciplinary infractions (see Dkt. 5 at 466), but found that many of the infractions "were relatively minor and perhaps not extraordinary for a second-grade student," and none of the infractions involved injury to another student (id. ). The ALJ also discussed the May 2014 report of a school counselor, who noted that N.L.K. appeared shy and unsure of himself at times, had difficulty discussing his home life, appeared sad or angry at times, but "offered no specific instances of significant behavioral problems or concerns." (Id. at 466-67; see also id. at 388). N.L.K.’s grandmother testified that there was a "very subtle" difference in his behavior when he was taking his medication, although she still found him to be defiant and "zoned out." (Id. at 509-10). She further testified that while N.L.K. was currently struggling in school, his previous grades reflected that had done well in the past. (Id. at 510-11; see also id. at 466). The ALJ further explained that the updated record reflected that N.L.K.’s ADHD symptoms were improving or well-controlled; specifically, his accommodations, including that he should be seated near instructors and away from distractions, did not indicate marked limitations; he was developing or proficient in reading and writing; and during his "worst behavioral year" his grades were still passing. (Id. at 467). In sum, the Court finds that the ALJ's determination is supported by substantial evidence. While there is evidence in the record supporting that N.L.K. has some limitations, it is not this Court's function to re-weigh the evidence, and the ALJ's conclusion that N.L.K.’s limitations do not rise to the level of being marked is well-supported in the record. Accordingly, remand is not required.
CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 9) is granted and Plaintiff's motion for judgment on the pleadings (Dkt. 7) is denied.
SO ORDERED.