Miranda v. Colvin

Filing 33

RULING denying 30 Motion to Reverse the Decision of the Commissioner; granting 31 Motion to Affirm the Decision of the Commissioner. Signed by Judge Holly B. Fitzsimmons on 12/4/17. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
GRIZEL I. MIRANDA o/b/o
:
J.A.F.
:
:
v.
: Civil No. 3:16CV00887 (HBF)
:
NANCY A. BERRYHILL, ACTING
:
COMMISSIONER, SOCIAL SECURITY :
ADMINISTRATION
:
December 4, 2017
:
------------------------------x
RULING ON CROSS MOTIONS
Grizel I. Miranda (“Miranda”) brings this action on behalf
or her son, J.A.F., pursuant to 42 U.S.C. §405(g), seeking
review of a final decision of the Commissioner of Social
Security which denied her claims for Supplemental Social
Security Income (“SSI”) under Title XVI of the Social Security
Act, (“the Act”). Plaintiff has moved to reverse the
Administrative Law Judge’s (“ALJ”) decision and declare the
claimant disabled. The Commissioner has moved to affirm.
For the reasons set forth below, plaintiff’s Motion for
Reversal of Commissioner’s Decision [Doc. #30] is DENIED.
Defendant’s Motion for an Order Affirming the Decision of the
Commissioner [Doc. #31] is GRANTED.
I. ADMINISTRATIVE PROCEEDINGS
The procedural history of this case is not disputed.
Plaintiff filed an application on behalf of her minor son for
1

SSI on August 10, 2012, with an alleged disability onset date of
July 16, 2012. [Certified Transcript of the Record, Compiled on
July 29, 2016, Doc. #25 (hereinafter “Tr.”) 10; 197].
Plaintiff’s claims were denied initially and on reconsideration.
[Tr. 10, 72, 79, 91].
On November 4, 2014, plaintiff, represented by counsel,
appeared before ALJ Ryan A. Alger for an administrative hearing.
[Tr. 45-71]. The claimant J.A.F. also testified at the hearing.
[Tr. 47-52]. On December 15, 2014, ALJ Alger found that J.A.F.
was not disabled, and denied the claim. [Tr. 7-25]. The Appeals
Council denied plaintiff’s request for review on April 6, 2016.
[Tr. 1-5]. The case is now ripe for review under 42 U.S.C.
§405(g).
Plaintiff, represented by counsel, timely filed this action
for review and moves to reverse the Commissioner’s decision.

II.

STANDARD OF REVIEW
The review of a social security disability determination

involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide whether
the determination is supported by substantial evidence. Balsamo
v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation omitted).
Substantial evidence is evidence that a reasonable mind would
2

accept as adequate to support a conclusion; it is more than a
“mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The reviewing court’s responsibility is to ensure
that a claim has been fairly evaluated by the ALJ. Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (citation omitted).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.”). “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.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
3

evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alteration added) (citation omitted). The ALJ is free to accept
or reject the testimony of any witness, but a “finding that the
witness is not credible must nevertheless be set forth with
sufficient specificity to permit intelligible plenary review of
the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255,
260-61 (2d Cir. 1988) (citation omitted). “Moreover, when a
finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, Civil Action No. 3:13-CV00073(JCH), 2014 WL 1304715, at *6 (D. Conn. Mar. 31, 2014)
(internal citations omitted).
It is important to note that, in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the 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) (citations and internal quotation marks omitted).
“[W]hether there is substantial evidence supporting the
appellant’s view is not the question here; rather, we must
decide whether substantial evidence supports the ALJ’s
decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d
4

Cir. 2013)(citations omitted)(emphasis in original).
III. SSA LEGAL STANDARD
A child under the age of eighteen will be considered
disabled if it can be shown that he 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).
The Social Security Administration (“SSA”) has devised a
three-step process for hearing officers to use in determining
whether a child is disabled under the Code of Federal
Regulations (the “Regulations”). 20 C.F.R. §416.924(a). At step
one, the hearing officer is charged with determining whether the
claimant is engaged in “substantial gainful activity,” id.,
which is defined as “work activity that involves doing
significant physical or mental activities” typically in exchange
for “pay or profit.” 20 C.F.R. §416.972(a)-(b). If the claimant
is not engaging in substantial gainful activity, then the
hearing officer may proceed to step two, at which the hearing
officer must determine whether the claimant has “an impairment
or combination of impairments that is severe.” 20 C.F.R.
§416.924(a). If the claimant is found to have a severe
impairment or a combination of severe impairments, the analysis
5

proceeds to the third step, at which point the hearing officer
must determine whether the claimant has an impairment or
combination of impairments that “meets, medically equals, or
functionally equals” a presumptively disabling condition found
within the Regulations' listings of impairments (the
“Listings”). Id.; see also 20 C.F.R. pt. 404, subpt. P, app. 1.
A child's functional limitations are evaluated pursuant to
criteria set forth in the following 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. 20 C.F.R.
§416.926a(b)(1)(i)-(vi). A medically determinable impairment or
combination of impairments is considered to functionally equal a
condition in the Listings if it “result[s] in ‘marked’
limitations in two domains of functioning or an ‘extreme’
limitation in one domain.” 20 C.F.R. §416.926a(a). A marked
limitation is characterized in the Regulations as any limitation
that is “more than moderate but less than extreme.” Id.
§416.926a(e)(2)(i) (internal quotation marks omitted). “A marked
limitation may arise when several activities or functions are
impaired, or even when only one is impaired, as long as the
degree of limitation is such as to interfere seriously with [the
claimant's] ability to function independently, appropriately,
6

effectively, and on a sustained basis.” 20 C.F.R. pt. 404,
subpt. P, app. 1, §12.00(C). In considering how well a child is
functioning in a given domain, adjudicators will compare a
child’s functioning to “a typical functioning of children your
age who do not have impairments.” 20 C.F.R. §416.926a(f).
IV.

THE ALJ’S DECISION
Following the above-described three step evaluation

process, ALJ Algers concluded that J.A.F. was not disabled under
the Social Security Act. [Tr. 7-25]. The ALJ first noted that
J.A.F., born 2009, was a preschool age child during the relevant
period. [Tr. 13].

At step one, the ALJ found that plaintiff had

not engaged in substantial gainful activity since August 10,
2012, the application date. [Tr. 13].
At step two, the ALJ found that attention deficit disorder
(ADD), post-traumatic stress disorder (PTSD), and mood disorder
were severe impairments. [Tr. 13-14].
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
the severity of one of the listed impairments in 20 C.F.R. Pt.
404, Subpart P, Appendix 1. [Tr. 14].
Because J.A.F. did not have an impairment that met or
medically equaled a listed impairment, the ALJ evaluated
J.A.F.’s limitations to determine whether they were functionally
equivalent to a listed impairment [Tr. 14-25]. The ALJ
7

considered the six domains of functioning and concluded that
J.A.F. had:


A less than marked limitation in Acquiring and Using
Information;



A less than marked limitation in Attending and Completing
Tasks;



A marked limitation in Interacting and Relating with
Others;



No limitation in Moving About and Manipulating Objects;



A less than marked limitation in Caring for Yourself; and



A less than marked limitation in Health and Physical WellBeing.

[Tr. 14-25]. As a result of these findings the ALJ found that
J.A.F. was ineligible to receive SSI benefits.
V.

DISCUSSION
On appeal, plaintiff contends that the ALJ’s determination

that J.A.F. had a “less than marked” limitation in the domains
of “attending and completing tasks” and “caring for yourself” is
not supported by substantial evidence of record.
A.

“Attending and Completing Tasks” Determination

The domain of attending and completing tasks is focused
principally on assessing the degree to which a child can “focus
and maintain ... attention, and ... begin, carry through, and

8

finish ... activities ... including the pace at which [a child]
performs the activities and the ease with which [he or she] can
change them.”

20 C.F.R. §416.926a(h). In assessing a preschool-

age child, (age 3 to the attainment of age 6), the regulations
state that:
As a preschooler, you should be able to pay attention
when you are spoken to directly, sustain attention to
your play and learning activities, and concentrate on
activities like putting puzzles together or completing
art projects. You should also be able to focus long
enough to do many more things by yourself, such as
getting your clothes together and dressing yourself,
feeding yourself, or putting away your toys. You
should usually be able to wait your turn and to change
your activity when a caregiver or teacher says it is
time to do something else.
20 C.F.R. §416.926a(h)(2)(iii); see also Social Security Ruling
(“SSR”) 09-4p, 2009 WL 396033 (S.S.A. Feb. 18, 2009); [Tr. at
21].
Plaintiff contends that the ALJ erred in finding a “less
than marked” limitation in the domain of attending and
completing tasks, arguing that the ALJ misread the evidence and
overemphasized a select few facts to the exclusion of
overwhelming and compelling evidence. [Doc. #30-1 at 12-14]. The
Court finds that the ALJ’s finding is supported by substantial
evidence of record.
First, the ALJ properly assigned “significant weight” to
the co-signed opinions of State agency psychological consultant
Dr. Pamela Fadakar and State agency speech language pathologist
9

Elaine Siegel that J.A.F. had only a “less than marked”
impairment in attending and completing tasks, Tr. 19 (citing Tr.
101), and assigned “significant weight” to consultative examiner
Dr. Judith Mascolo’s finding that J.A.F. could follow simple,
one-step instructions. Tr. 19, 21 (citing Ex. 664-65). Plaintiff
does not challenge any of the opinion evidence relied on by the
ALJ. See Doc. #30-1 at 12-14.
The ALJ properly considered, and accorded “some weight”, to
Heather Lasky’s teacher questionnaire dated February 25, 2013,
in which Ms. Lasky rated J.A.F.’s functioning in 13 categories
relevant to the domain of attending and completing tasks. Tr. 21
(citing Tr. 280). At the time the questionnaire was completed,
J.A.F. was receiving 2 hours of special education a week from
Ms. Lasky. Tr. 279. Ms. Lasky did not assess the highest
functionally limiting rating of “a very serious problem” in any
of the 13 areas. Tr. 280. She assessed a “serious problem,” in
the second most limiting rating, in only three areas: refocusing
to task when necessary, carrying out multi-step instructions and
waiting to take turns. Id. In the remaining 10 areas, Ms. Lasky
assessed ratings ranging from “a slight problem” (paying
attention when spoken to directly, carrying out single-step
instructions, and changing from one activity to another), to “no
problem” (sustaining attention during play/sports and working at
reasonable pace/finishing on time). Id.
10

The ALJ also addressed other evidence of record in
consideration of this domain, including J.A.F.’s improved
academic performance over time; J.A.F.’s ability to perform
tasks such as completing various mazes; connecting dots; cutting
out a circle; folding paper; copying designs; and building a
tower; feeding himself; putting away toys; riding a bike; and
watching movies and television.” [Tr. 19 (citing Tr. 393); Tr.
21 (citing 236, 248, 286-313; 384, 390-95, 399-400, 464-66, 63338); see also Tr. 60 (plaintiff testifying that J.A.F. sustained
concentration from 15 to 20 minutes when playing video games);
see 20 C.F.R. §416.926a(h)(2)(iii); see also Social Security
Ruling (“SSR”) 09-4p, 2009 WL 396033 (S.S.A. Feb. 18, 2009).
The ALJ correctly noted that plaintiff reported that her
son had an “average academic performance” during an August 2014
intake interview. Tr. 21 (citing Ex. 14F, Tr. 769). The ALJ also
considered the PPT from October 2014, noting that there was “no
change in the recommended amount of special education” and that
“all of the areas of function were rated as ‘age appropriate’
except in some areas of math and language arts.” Tr. 17 (citing
Ex. 23E (Tr. 467-79).
Similarly, the ALJ did not err in finding that the “lack of
consistent medication use [was] also a factor given the mother’s
admission at the hearing that medication helps with his focus
and behavior.” Tr. 21; Tr. 19-20 (ALJ finding that J.A.F. was
11

not consistently on medication during the relevant period
(citing Ex. 5E (Tr. 251) (August 2012, ADL Questionnaire
completed by the mother indicating that J.A.F. was not taking
medication), 18E (Tr. 327) (undated report to SSA completed by
the mother stating, “no prescription presently but in the near
future he will be taking meds.”), 14F (Tr. 765-64)(In a
discharge summary dated August 2014, from Community Mental
Health Affiliates (“CMHA”), it was noted that J.A.F. was
discharged on July 18, 2014, due to “lack of participation in
psychotherapy due to location,” adding that, “[w]ithout the
recommended treatment, client’s reported behaviors are not
anticipated to change, resulting in on-going discord at home.”);
see Tr. 55 (mother testifying on November 4, 2014, that J.A.F.
“was seen by a specialist on October 14. She raised up the
milligrams on the Focalin, and it is working.”); Tr. 63 (mother
testifying J.A.F. is “more calmer, more relaxed, when he’s on
his medication.”). Plaintiff argues that the ALJ’s citation to
Ex. 14F “expressly contradicts the assertion that the Claimant’s
shortcomings in this area of functioning was due to inconsistent
use of medication.” [Doc. #30-1 at 13 (citing Tr. 766 “Family
has difficulty managing behavior despite compliance with
medication.”)]. However, the clinician made this note on March
20, 2014, during the intake assessment at CMHA, under the
heading “Reason for Seeking Treatment.” Tr. 766. At that time,
12

the mother also indicated that she was seeking treatment for
medication management. Id. J.A.F. attended psychotherapy at CMHA
three times, April 10, May 15 and 29, 2014, before he was
discharged from care on July 18, 2014, due to lack of
participation. Tr. 790-92; 787-89; 783-86. Tr. 280-82. There is
no indication in the treatment records, nor has plaintiff cited
to any entries, showing that J.A.F. was on medication while
treating at CMHA. See Tr. 791 (medication compliance “NA”); Tr.
788 (same); Tr. 784 (same); Tr. 781 (same). The Court finds no
error on this record.
It is apparent that the ALJ reviewed the entire record. Tr.
15-19. Plaintiff has not identified how the ALJ’s finding that
J.A.F. did not have “marked” limitations in the domain of
“attending and completing tasks” is error. As set forth above,
the ALJ relied on evidence of record and followed the criteria
set forth in the regulations for assessing a preschool child. 20
C.F.R. §416.926a(h)(2)(iii). Instead, plaintiff selectively
lists evidence from the ALJ’s decision that she contends shows
that his decision is not supported by substantial evidence.
[Doc. #30-1 at 14 (citing Tr. 15-19)]. This recitation of
alternative evidence does not overcome the ALJ’s reliance on
opinion evidence in the record and other records that support
his assessment of a “less than marked” limitation in this
domain. “[W]hether there is substantial evidence supporting the
13

appellant’s view is not the question here; rather, we must
decide whether substantial evidence supports the ALJ’s
decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d
Cir. 2013)(citations omitted)(emphasis in original).
Accordingly, the ALJ’s finding that J.A.F. had a “less than
marked” limitation in the domain of “attending and completing
tasks” is supported by substantial evidence.
B.

“Caring for Yourself” Determination

Plaintiff also argues that the ALJ erred in his finding
that J.A.F. had a “less than marked” limitation in the domain of
caring for yourself. [Doc. #30-1 at 14-17]. She argues that the
ALJ “focused on a narrow aspect of this domain of functioning”;
“ignored the consistent and persistent evidence”; swept “away
the abundant proof of this incapacity”; and “misread[] ... the
evidence concerning the Claimant’s medication compliance.” [Doc.
#30-1 at 14-16].
The domain of caring for yourself,
consider[s] how well [a child] maintain[s] a healthy
emotional and physical state, including how well [a
child] gets [his or her] physical and emotional wants
and needs met in appropriate ways; how [a child]
cope[s] with stress and changes in [his or her]
environment; and whether [a child] take[s] care of
[his or her] own health, possessions, and living area.
20 C.F.R. §416.926a(k).
In assessing a preschool-age child, (age 3 to the
attainment of age 6), the regulations state that:
14

You should want to take care of many of your physical
needs by yourself (e.g., putting on your shoes,
getting a snack), and also want to try doing some
things that you cannot do fully (e.g. tying your
shoes, climbing on a chair to reach something up high,
taking a bath). Early in this age range, it may be
easy for you to agree to do what your caregiver asks.
Later, that may be difficult for you because you want
to do things your way or not at all. These changes
usually mean that you are more confident about your
ideas and what you are able to do. You should also
begin to understand how to control behaviors that are
not good for you (e.g., crossing the street without an
adult).
20 C.F.R. §416.926a(k)(2)(iii); see also, SSR 09-7p, 2009 WL
396029, at *2 (S.S.A. Feb. 17, 2009)(“[i]n ‘Caring for
Yourself,’ we focus on how well a child relates to self by
maintaining a healthy emotional and physical state in ways that
are age-appropriate and in comparison to other same-age children
who do not have impairments.”).
As set forth above, the ALJ properly assigned “significant
weight” to the co-signed opinions of State agency psychological
consultant Dr. Pamela Fadakar and State agency speech language
pathologist Elaine Siegel that J.A.F. had only a “less than
marked” impairment in the domain of caring for yourself. Tr. 19,
24 (citing Tr. 102). The ALJ also noted other evidence in the
record which reflected that although J.A.F. had some issues with
hygiene and dressing, he only required a “moderate” or a
“minimal” level of assistance. Tr. 24 (citing Tr. 638); see also
Tr. 58 (mother testified that J.A.F. requires some

15

assistance/oversight with hygiene and dressing). “[I]t is common
for all children to experience some difficulty in this area from
time to time,....” SSR 09-7p, 2009 WL 396029, at *2. Plaintiff
testified that her son followed her direction to put away his
clothes/laundry and toys. Tr. 60-61. She also testified that she
has never been called to the school to bring her son home. Tr.
68. While plaintiff testified that J.A.F. had behavioral
problems on the bus, the record shows that it occurred on three
occasions, March 28, April 4 and 28, 2014, during a period when
J.A.F. was not receiving consistent medication or treatment at
CMHA. Tr. 669, 674, 681 (handwritten diary from J.A.F.’s teacher
Mrs. Katetski); see also Tr. 766-79 (3/20/14 initial evaluation
at CMHA); Tr. 790-92 (4/10/14-CMHA treatment); Tr. 787-89
(5/15/14-CMHA-treatment); Tr. 783-82 (5/29/14-treatment); Tr.
766-79 (7/18/14-discharge due to lack of participation). Review
of a diary prepared by Mrs. Katetski, J.A.F.’s teacher, from
March through June 2014, also contains several entries that he
was having a “good” or “great” day, Tr. 670, 671, 673, 674, 677,
678 (“better day”), 679, and he was able to follow the rules,
sometimes with prompting. Tr. 668, 670, 671, 672.
The ALJ correctly noted that although the record contained
reports of “self-harm due to anger, none of these instances
resulted in a need for emergency treatment.” Tr. 24; see
Swianteck v. Comm’r of Soc. Sec., 588 F. App’x 82, 83-84 (2d
16

Cir. 2015)(affirming ALJ’s finding that child was not markedly
impaired in her ability to care for herself, despite “several
instances in which she made suicidal gestures and remarks, the
contemporaneous notes of her own treating physicians describe
[the child] during these events as ‘attention seeking’ or as
making a ‘situational threat’ with no evidence of ‘acute
lethality that would warrant acute inpatient care.’”). As set
forth above, the Court finds no error with the ALJ’s finding
that “given that medication use had been admitted to make him
calmer, the lack of consistent use of medication is a factor.”
Tr. 24; see Swianteck, 588 F. App’x at 85 (noting that “the ALJ
emphasized the lack of restrictions placed on the claimant by
the treatment doctor and observed that [the child] has not
generally received the type of medical treatment that one would
expect for a totally disabled individual.”).
The Court has considered plaintiff’s cases and evidence and
finds them unavailing. Again, it is not enough that there may be
substantial evidence to support the plaintiff’s view; rather,
the question is whether “substantial evidence supports the ALJ’s
decision.” Bonet ex rel. T.B., 523 F. App’x at 59.
The Court finds that the ALJ’s reliance on the State Agency
opinions, as well as evidence of record, provides substantial
evidence to support his finding of a “less than marked”
limitation in the domain of caring for yourself. See Burgess v.
17

Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (“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.”) (internal quotation marks omitted)).
VI.

CONCLUSION
For the reasons stated, plaintiff’s Motion for Reversal of

Commissioner’s Decision [Doc. #30] is DENIED. Defendant’s Motion
for an Order Affirming the Decision of the Commissioner [Doc.
#31] is GRANTED.
This is not a Recommended Ruling.

The parties consented to

proceed before a United States Magistrate Judge [doc. #24] on
March 29, 2017, with appeal to the Court of Appeals.

Fed. R.

Civ. P. 73(b)-(c).

SO ORDERED at Bridgeport this 4th day of December 2017.

___/s/____________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

18