Garcia v. Commissioner of Social Security
Filing
20
ORDER granting 14 Motion for Judgment on the Pleadings - For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, defendant's motion for judgment on the pleadings is granted, the Commissioner's decision is affirmed and t his action is dismissed. The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro se plaintiff, enter judgment, and close this case. SO ORDERED by Judge Dora Lizette Irizarry on 3/27/2014. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FRANCES GARCIA, o/b/o, R.G., pro se,
:
:
Plaintiff,
:
:
-against:
:
:
CAROLYN W. COLVIN,
:
Commissioner of Social Security,
:
:
Defendant.
:
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DORA L. IRIZARRY, United States District Judge:
MEMORANDUM AND ORDER
12-CV-4966
On March 31, 2009, plaintiff Frances Garcia, pro se,1 filed an application for
supplemental security income (“SSI”) under the Social Security Act (the “Act”), on behalf of her
minor daughter, R.G., alleging that R.G. suffered from a learning disability. (R. 136-42, 203.)2
On June 12, 2009, the Social Security Administration denied plaintiff’s application and plaintiff
requested a hearing before an administrative law judge (“ALJ”). (R. 71-76.) On December 14,
2010, ALJ Timothy C. Pace conducted a hearing, at which plaintiff and R.G. were represented
by counsel. (R. 48-70.) On February 3, 2011, the ALJ issued a decision concluding that R.G.
was not disabled within the meaning of the Act. (R. 29-45.) On August 3, 2012, the ALJ’s
decision became the Commissioner’s final decision when the Appeals Council denied plaintiff’s
request for review. (R. 1-5.) Plaintiff timely filed the instant action seeking judicial review of
the denial of benefits. (See generally Complaint, Dkt. Entry No. 1.) The Commissioner moves
1
Pro se pleadings are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v.
Rowe, 449 U.S. 5, 9 (1980) (citation omitted). Courts should “interpret [such papers] to raise the strongest
arguments that they suggest.” Forsyth v. Fed’n Emp’t & Guidance Serv., 409 F. 3d 565, 569 (2d Cir. 2005) (citation
and quotation marks omitted). Though a court need not act as an advocate for pro se litigants, in such cases there is
a “greater burden and a correlative greater responsibility upon the district court to insure that constitutional
deprivations are redressed and that justice is done.” Davis v. Kelly, 160 F. 3d 917, 922 (2d Cir. 1998) (citation
omitted).
2
“R.” refers to pages from the administrative transcript.
for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure,
seeking affirmation of the denial of benefits (see Memorandum of Law in Support of
Commissioner’s Motion for Judgment on the Pleadings (“Comm’r’s Mem.”), Dkt. Entry No. 15),
which plaintiff opposes (see Plaintiff’s Opposition to Comm’r’s Mem. (“Pl. Opp’n”), Dkt. Entry
No. 16). For the reasons set forth below, the Commissioner’s motion is granted and this action is
dismissed in its entirety.
BACKGROUND
I.
Testimonial and Self-Reported Evidence
On March 31, 2009, Plaintiff filed an application for SSI disability benefits for R.G. for
an unspecified learning disability. (R. 136-42, 203.) In a disability report dated April 3, 2009,
Plaintiff reported that R.G. had not received any treatment for illnesses, injuries, or conditions.
(R. 207.) In a function report dated April 3, 2009, Plaintiff reported that R.G. had no problems
seeing, hearing or talking. (R. 213-22.) Plaintiff indicated that R.G. could not repeat stories, tell
jokes or riddles accurately, or explain why she did something, or use sentences that started with
“because,” “what if,” or “should have been.” (R. 216.) She noted that R.G. had the ability to
read, but could not read capital letters or small letters, could not read or understand simple
sentences, and could not read or understand stories in books or magazines. (R. 217.) R.G. had
the ability to write small words, but could not write a simple six or seven sentence story. (Id.)
She could add and subtract numbers over ten. (Id.)
But, R.G. did not know the days of the
week or months of the year, and could not make change or tell time. (Id.)
At the December 14, 2010 hearing, Plaintiff appeared with counsel and testified before
the ALJ. Plaintiff testified that R.G. was in the fifth grade but functioned at a third grade level.
(R. 52-53.) R.G. could read, but could not remember what she had read. (R. 53.) Plaintiff
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conceded that R.G. was well-behaved at school, but testified that R.G. was overactive at home
and bothered her sister. (R. 63.) R.G. started taking medication prescribed by a psychiatrist in
February, which made her less depressed and more hyperactive. (R. 64, 66.) R.G. had trouble
following directions. (R. 54-55. 57, 63.) At the time of the hearing, R.G. took Risperdal,
Wellbutrin, and fish oil. (R. 55-56.) Recently, R.G. struggled with a hearing test, and the test
showed trouble with respect to hearing in one ear. (R. 56.)
R.G., too, testified at the hearing. She stated that she could read a street sign. (R. 53.)
She demonstrated that she could read a clock, make change, and that there were seven days in a
week. (R. 53-54.) She did not know how many months were in a year. (R. 54.) She denied
experiencing any problems at school. (R. 58.) She enjoyed singing, playing soccer with her
friends, playing video games, and riding her bicycle. (R. 58-59.) She stated that she had not
gotten into any fights with other students at schools and was able to take turns when required.
She denied getting into any fights with other students and reported that she was respectful of her
teachers. (R. 59-60.) She acknowledged that she “sometimes” did not listen to her mother and
that during disagreements with her mother, R.G. “sometimes” stomped on the floor or slammed
the doors. (R. 60.)
II.
School Records
A.
10th & Penn
R.G. began her education at the 10th and Penn Elementary School in Reading,
Pennsylvania (“10th & Penn”). (R. 257.) An interim report dated September 29, 2008 indicates
that R.G. had poor grades in reading and mathematics. (Id.) In a letter dated October 10, 2008,
Dara Miller, R.G.’s third grade teacher, indicated that R.G. was a “sweet child” who should be
3
tested for special education. (R. 256.) On October 10, 2008, R.G. withdrew from 10th & Penn.
(R. 231.)
Subsequently, on April 30, 2009, Ms. Miller completed a Teacher Questionnaire in
connection with R.G.’s application for SSI, summarizing her observations of R.G.’s abilities. (R.
223-30.) Under the Acquiring and Using Information category, Ms. Miller scored R.G. as
having a “serious problem” in each skill assessed. (R. 224.) She specified that R.G. “needs
extreme amounts of re-focusing help” and that she exerts “little effort in focusing [and] trying.”
(Id.) With respect to the skills assessed under the Attending and Completing Tasks category,
Ms. Miller gave R.G. mixed scores, ranging from skills for which R.G. had “no problem”
completing to skills for which R.G. had a “serious problem” completing. (R. 225.) She noted
that R.G. needed help focusing and pacing herself, which seemed like “an unlearned
responsibility problem mostly. She wasn’t taught to be responsible or focus.” (Id.) Finally, Ms.
Miller stated that she did not know of any limitations with respect to R.G.’s “Health and Physical
Well-Being.” (R. 229.)
B.
Antietam School District
After leaving 10th & Penn during the middle of third grade, R.G. enrolled in an
elementary school within the Antietam School District (“Antietam”). On February 10, 2009,
Antietam completed an Evaluation Report (“ER”) of R.G. at a parent’s request.3 (R.160-73.) At
the time the ER was prepared, R.G. had attended class in Antietam for approximately one month
after transferring from 10th & Penn. (R. 160.) The ER indicated that R.G.’s current grades were
a “D” in math, and “F” in reading, and a “D” in writing. (R. 160, 170.) She completed most
homework, but failed to complete long-term projects in a timely manner. (R. 160, 171.) She
often needed directions repeated or explained differently. (R. 160, 166, 178.) Her teacher, Ms.
3
The Evaluation Report does not specify whether R.G.’s mother or father requested the evaluation.
4
Outland, indicated that R.G.’s behavior was fine, but that she could be mean to other students.
(R. 160.) As a result, other students rarely asked her to play with them. (R. 160, 167, 171.)
Although R.G.’s spelling had improved, she suffered from an “inadequate mastery of the current
curriculum” and was “below grade level in math, writing, and reading.” (R. 160, 171.) R.G.
“usually [did] not master new concepts or skills taught.” (Id.)
Ms. Outland recommended that R.G. receive extra explanation of assignments, extra oneon-one support, small group work, and preferential seating to limit distraction. (R. 161.) Ms.
Outland also recommended that tests be read to R.G. (R. 161.)
The ER summarized other records which evaluated R.G.’s academic progress. The report
card for second grade, which R.G. attended at 10th & Penn, indicated that R.G’s: (1)
Independent Reading Level was “Below Grade Level;” (2) her Reading Achievement, evaluated
for different skills, varied between “Below Basic” and “Basic” levels; (3) her English was
“Proficient; (4) her Written Communication was “Proficient; and (5) her Mathematics score
averaged as “Basic,” with her fourth quarter grade reflecting “Proficient” skills. (R. 161.) Her
second quarter report card for third grade, which she attended in Antietam, indicated that she
received the following grades (with the class average in parentheses): Library – 100 (100);
Health – 76 (90); Reading – 52 (87); Writing – 72 (91); Social Studies – 72 (98); Math – 62 (82);
and Physical Education – 93 (95). (R. 162.)
The ER also contains the results of cognitive tests conducted by Chris Stofko, a school
psychologist.
On January 23, 2009, Mr. Stofko administered a Wechsler Intelligence for
Children – Fourth Edition (“WISC-IV”) to R.G. (R. 166, 172.) The WISC-IV indicated that
R.G. had an IQ of 99, which was in the average range and that she had average scores in verbal
comprehension, perceptual reasoning, and processing speed. (R. 162-63.) She scored a 116 in
5
working memory, which was in the high average range. (Id.) On that same day, Mr. Stofko
administered the Wechsler Individual Achievement Test – Second Edition (“WIST-II”) to R.G.
(R. 163-64, 166.) She scored in the average range for reading, mathematics, written language,
and listening comprehension. (R. 170.) Mr. Stofko reported that R.G. was “pleasant and
talkative” during the testing. (R. 167.)
The ER concludes that R.G.’s cognitive ability was average, but notes a discrepancy
between her intellectual ability and her actual achievement. (R. 167, 170.) R.G. gave her best
effort the majority of the time, had shown improvement during her tenure at Antietam, and was
pleasant, energetic, and well-behaved. (R. 167.) She regularly completed homework on time.
(Id.) However, she had poor handwriting and struggled with reading comprehension. (Id.) The
ER recommended specially designed instruction for R.G., including smaller student-teacher
ratio, individualized pace of instruction, multiple cues to facilitate information acquisition and
retrieval, as well as reading instruction within a special education program. (R. 168.) The ER
also recommended instruction on study and time management skills as well as regular
monitoring and support for R.G. at her regular education program. (Id.) The ER recommended a
number of accommodations, including, inter alia, preferential seating, additional assistance with
assignments, simplified directions, and extended time for assignments and tests. (Id.)
On February 24, 2009, Antietam issued an Individualized Education Program Report
(“IEP”) for R.G. (R. 174-96.) The IEP recommended the following accommodations: allowing
portions of tests to be read aloud, multiple testing sessions, scheduled extended time, scheduled
breaks, simplifying directions, small group testing, and testing in a separate room. (R. 182.) The
IEP recommended that Antietam provide R.G. with special education support and services for
two out of the six and one-half hours of her school day. (R. 192, 194.)
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On January 14, 2010, Antietam issued an IEP Revision, recommending that R.G. receive
“writing instruction in the general education classroom with modifications and adaptations to the
curriculum and the special education teacher to support [the teacher] in this setting.” (R. 315.)
On February 24, 2010, Antietam issued R.G.’s annual IEP report. (R. 281-303.) With
respect to academics, R.G. was reading at the beginning of third grade level and her listening
comprehension was at a second grade level. (R. 284-85.) Her teacher, Suzanne Messner, noted
that R.G.’s handwriting was “often neat” but could be “sloppy if she [did] not take her time.” (R.
285.) Ms. Messner had no concern with R.G.’s gross motor skills and organization. (Id.) She
noted that R.G. was “able to effectively express herself,” got along well with other peers, and
was “very kind and respectful of others[’] feelings.” (Id.) She demonstrated “age appropriate
self-help and daily living skills.” (Id.) The IEP report recommended that R.G. receive testing
accommodations as well as specialized daily instruction. (R. 295.) Based on this report, R.G.
received supplemental education support, spending four hours out of six and one-half hours of
the school day in a regular education setting. (R. 297, 299, 308.)
A review of her report cards indicate that R.G. improved academically from 2008 to
2010. (R. 243-44, 255, 260, 262-63.) Indeed, she received mostly A’s (with some B’s) by the
end of 2010. (R. 260, 262-63.)
III.
Defendant’s Case Examiners
On June 11, 2009, Junko McWilliams, Ph.D., a state agency review psychologist,
reviewed the record accumulated thus far in this case and completed a childhood disability
evaluation form for R.G. (R. 415-21.) Dr. McWilliams indicated that R.G.’s impairment was a
“Learning Disorder, NOS [not otherwise specified]” of “Mild-Moderate” severity. (R. 416.) He
indicated that this impairment was severe, but did not “meet, medically equal, or functionally
7
equal the listings.” (Id.) She opined that R.G. had a marked limitation in acquiring and using
information; less than marked limitations in attending and completing tasks, and in caring for
oneself, and no limitations in interacting and relating with others, moving about and
manipulating object, and health and physical well-being. (R. 418-19.)
IV.
Biopsychological Evaluations
On January 14, 2010, Robert E. Slawinski, M.A., of Progressions Behavioral Health
Rehabilitation Services, conducted a biopsychological re-evaluation of R.G. (R. 275-80.) Mr.
Slawinski diagnosed R.G. with Attention Deficit Hyperactivity Disorder and Disruptive
Behavior Disorder. (R. 279.) Mr. Slawinski recommended that R.G. continue to receive the
services of a Mobile Therapist three hours per week to increase R.G.’s “frustration tolerance,
impulse control and anger management skills.” (R. 280.) He noted that the Mobile Therapist
should also “help the parent to develop and implement a behavior plan which can improve
compliance, increase the overall level of structure in the home and help her to use parenting
strategies . . . .” (Id.) He recommended that R.G. see a psychiatrist to “determine the potential
efficacy of using medication as part of her treatment.” (Id.) He also recommended that the
treatment team should meet monthly and should “provide and discuss a crisis de-escalation plan
with the family.” (Id.)
On May 20, 2010, Mr. Slawinski conducted a comprehensive biopsychological reevaluation of R.G. (R. 268-74.) He noted improvement in academics and that her interests were
stable. (R. 269.) He reported that R.G. took Wellbutrin SR, 100 mg. (R. 270.) He reported that
R.G. was cooperative and friendly, and that she appeared candid, thoughtful, and honest. (R.
271.) His diagnoses remained the same. (R. 273.) He opined that R.G.’s continued difficulties
8
warranted continued treatment in accordance with the recommendations contained in his prior
evaluation. (R. 273-74.)
DISCUSSION
I.
Standard of Review
This Court has the “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).
In
reviewing the Commissioner’s decision, the Court need not determine de novo whether a
claimant is disabled. See Pratts v. Chater, 94 F. 3d 34, 37 (2d Cir. 1996). Rather, the Court’s
inquiry is limited to the question of whether the Commissioner applied the correct legal standard
in making the determination and, if so, whether such determination is supported by substantial
evidence in the record. See 42 U.S.C. § 405(g); Shaw v. Chater, 221 F. 3d 126, 131 (2d Cir.
2000); Beauvoir v. Chater, 104 F. 3d 1432, 1433 (2d Cir. 1997). “‘Substantial evidence’ is
‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Lamay v. Astrue, 562 F. 3d 503, 507 (2d Cir. 2009)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“[T]o determine whether the findings are supported by substantial evidence, the
reviewing court is required to examine the entire record, including contradictory evidence and
evidence from which conflicting inferences can be drawn.” Brown v. Apfel, 174 F. 3d 59, 62 (2d
Cir. 1999) (quoting Mongeur v. Heckler, 722 F. 2d 1033, 1038 (2d Cir. 1983)). Moreover,
“[e]ven when a claimant is represented by counsel, it is the well-established rule in our circuit
‘that the social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . .
affirmatively develop the record in light of the essentially non-adversarial nature of a benefits
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proceeding.’” Moran v. Astrue, 569 F. 3d 108, 112-13 (2d Cir. 2009) (quoting Lamay v. Comm’r
of Soc. Sec., 562 F. 3d 503, 508-09 (2d Cir. 2009)). Therefore, the court must be satisfied “that
the claimant has had a full hearing under the . . . regulations and in accordance with the
beneficent purposes of the [Social Security] Act.’” Id. at 112 (quoting Cruz v. Sullivan, 912 F.
2d 8 (2d Cir. 1990)).
“If the reviewing court finds substantial evidence to support the Commissioner’s final
decision, that decision must be upheld, even where substantial evidence supporting the
claimant’s position also exists.” Hernandez v. Barnhart, 2007 WL 2710388, at *7 (S.D.N.Y.
Sept. 18, 2007) (citing 42 U.S.C. § 405(g)). “The role of the reviewing court is therefore ‘quite
limited and substantial deference is to be afforded the Commissioner’s decision.’” Id. (quoting
Burris v. Chater, 1996 WL 148345, at *3 (S.D.N.Y. Apr. 2, 1996)).
II.
Governing SSA Regulations for Defining Childhood Disability
To qualify for SSI benefits, a child under the age of eighteen must have “a medically
determinable physical or mental impairment, which results in marked and severe functional
limitations, and which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i); see
also Pollard v. Halter, 377 F. 3d 183, 189 (2d Cir. 2004). The SSA has provided a three-step
sequential analysis to determine whether a child is eligible for SSI benefits on the basis of
disability. 20 C.F.R. § 416.924(a); see also Pollard, 377 F. 3d at 189.
First, the ALJ must consider whether the child is engaged in “substantial gainful
activity.” 20 C.F.R. § 416.924(b).
“Second, the ALJ considers whether the child has a
‘medically determinable impairment that is severe,’ which is defined as an impairment that
causes ‘more than minimal functional limitations.’” Pollard, 377 F. 3d at 189 (quoting 20
10
C.F.R. § 416.924(c)). Third, “if the ALJ finds a severe impairment, he or she must then consider
whether the impairment ‘medically equals’ or . . . ‘functionally equals’ a disability listed in the
regulatory ‘Listing of Impairments’” as set forth in 20 C.F.R. § Part 404, Subpart P, Appendix 1
(the “Listings”). Id. (quoting 20 C.F.R. § 416.924(c), (d)). Under the third step, to demonstrate
functional equivalence to a listed impairment, the child must exhibit “marked” limitations in two
of six domains, or an “extreme” limitation in one domain. 20 C.F.R. § 416.926a(a). These six
domains consider a child’s: (1) ability to acquire and use information; (2) ability to attend and
complete tasks; (3) ability to interact and relate with others; (4) ability to move about and
manipulate objects; (5) ability to care for oneself; and (6) health and physical well-being. 20
C.F.R. §§ 416.926a(a)-(b). A “marked” limitation “interferes seriously with [the child’s] ability
to independently initiate, sustain, or complete activities.” Johnson v. Astrue, 563 F. Supp. 2d
444, 454 (S.D.N.Y. 2008) (quoting 20 C.F.R. § 416.926a(e)(2)(i)). In addition, the regulations
provide that a limitation is “marked” when standardized testing shows functioning two standard
deviations below mean levels. Id.; see also Pacheco v. Barnhart, 2004 WL 1345030, at *4
(E.D.N.Y. June 14, 2004). An “extreme” limitation exists when the impairment “interferes very
seriously with [the child’s] ability to independently initiate, sustain, or complete activities.” 20
C.F.R. § 416.926a(e)(3)(i). An “extreme” limitation would be found in a domain where the child
scores at least three standard deviations below average. Id.
III.
Analysis
The ALJ reviewed the entire record and prepared a thorough and well-reasoned decision
denying Plaintiff’s application for benefits from R.G. (R. 42.) The ALJ noted that R.G., who
was born on May 3, 2000, was a school age child on March 31, 2009, the date her application
was filed. (R. 32.) At the first step, the ALJ found that R.G. had not engaged in substantial
11
gainful activity since the date of her application. (Id.) The Court does not construe Plaintiff’s
submissions in connection with this action as challenging this finding.
At the second step, the ALJ made a number of findings. He found that R.G. suffered
from two severe impairments: attention deficit disorder and a mood disorder. (Id.) Both of
these findings are supported by the biopsychological reports submitted in connection with the
application. (R. 273, 279.) The ALJ concluded that, although the record contained prescription
pad notations indicating that R.G. suffered from obesity and hyperlipidemia, those impairments
were not “severe” because there was no medical evidence that either condition resulted in
anything more than minimal impact on her ability to function, and she took no medications for
those impairments. (R. 32.) These findings, too, are supported by the record. (See R. 55-56,
207.) The ALJ further concluded that, although Plaintiff testified that R.G. suffered from asthma
and reduced hearing in one ear, there was no medical evidence in the file to support either of
these assertions. (R. 32.) Again, neither Plaintiff nor Plaintiff’s counsel who appeared with her
at the hearing submitted any medical records regarding these impairments and their severity.
Thus, the ALJ properly excluded these purported impairments from his analysis.
At the third step, the ALJ concluded that R.G.’s impairments did not meet or medically
equal one of the Listings, finding that neither the attention deficit hyperactivity disorder nor
mood disorder resulted in marked impairments. (R. 32-33.) These findings were supported by
the substantial evidence in the record as the biopsychologic reports, the only evidence in the
record as to these impairments, demonstrate that R.G.’s impairments did not rise to the level of
severity required for Listings 112.04 (Mood Disorders) and 112.11 (Attention Deficit Disorder).
(R. 268-74, 275-80.) For example, with respect to Mood Disorders, a claimant must demonstrate
that she suffers from at least five of the symptoms of major depressive syndrome (depressed or
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irritable mood, markedly diminished interest or pleasure in almost all activities, sleep
disturbance, psychomotor agitation or retardation, fatigue or loss of energy, feelings of
worthlessness or guilt, difficulty thinking or concentration, suicidal thoughts or acts, or
hallucinations, delusions, or paranoid thinking) or three of the symptoms of manic syndrome
(increased activity or psychomotor agitation, increased talkativeness, flight of ideas or
subjectively experienced racing thoughts, inflated self-esteem or grandiosity, decreased need for
sleep, or easy distractibility).
See Listing 112.04(A).
With respect to major depressive
syndrome, the biopsychological reports support a finding of difficulty thinking or concentrating
and perhaps, irritable mood, but none of the other factors. (R. 271, 278.) With respect to manic
syndrome, the biopsychological reports support a finding of easy distractibility and perhaps
flight of ideas, but none of the other factors. (Id.) Likewise, the record does not support a
finding that R.G.’s attention deficit disorder medically equaled the criteria found in Listing
112.11. (Compare Listing 112.11 with R. 271, 278.)
The ALJ’s conclusions as to the severity of these two impairments are further supported
by Dr. McWilliams, the state agency review psychologist. (R. 415-21.) She diagnosed R.G.
with a “Learning Disorder” not otherwise specified, of mild to moderate severity. (R. 416.) The
ALJ gave “significant probative weight” because Dr. McWilliams’ opinion was consistent with
the record and notably, Mr. Slawinski did not opine as to the severity of R.G.’s impairments. (R.
36.) The ALJ was entitled to rely on Dr. McWilliams’ opinion as it is acceptable to assign such
weight to the opinion of a medical expert who has reviewed all of the medical evidence and
issued an opinion consistent with the substantial evidence. See Diaz v. Shalala, 59 F. 3d 307,
313 n.5 (2d Cir. 1995) (explaining that the regulations allow, among other things, “the opinions
of nonexamining sources to override treating sources’ opinions provided they are supported by
13
evidence in the record”); Oliphant v. Astrue, 2012 WL 3541820, at *15 (E.D.N.Y. Aug. 14,
2012) (“[Under the Regulations, opinions of non-treating and non-examining doctors can
override those of treating doctors as long as they are supported by evidence in the record.”)
(citing Schisler v. Sullivan, 3 F. 3d 563, 568 (2d Cir. 1993)).
Additionally, the ALJ concluded that R.G.’s impairments did not functionally equal the
listed impairments. (R. 33-41.) In reaching this conclusion, the ALJ reviewed the testimonial
and self-reported evidence in the record (R. 33-36) and evaluated R.G.’s abilities with respect to
the six functional equivalence domains (R. 36-41). The ALJ found that Plaintiff had: less than
marked limitation in acquiring and using information (R. 37); less than marked limitation in
attending and completing tasks (R. 38); less than marked limitation in interacting and relating
with others (R. 39); no limitation in moving about and manipulating objects (R. 40); less than
marked limitation in the ability to care for herself (R. 41); and no limitation in health and
physical well-being (R. 41).
Each of these findings is supported by substantial evidence in the record. First, due to the
limited medical evidence found in the record regarding the severity of R.G.’s impairments, the
ALJ was required to evaluate the intensity, persistence, and limiting effects of R.G.’s symptoms
as reported by Plaintiff. The ALJ accurately pointed to several instances in which Plaintiff’s
testimony concerning R.G.’s symptoms was contradicted by Plaintiff, R.G. or various employees
of 10th & Penn and Antietam. (R. 34.) Second, the ALJ reviewed the assessments of 10th &
Penn and Antietam as well as the biopsychological reports. (R.34-36.) The ALJ accurately
summarized the findings contained in those reports, which, as he noted, do not support a finding
that R.G.’s impairments functionally equaled the impairments in the Listings. Finally, the ALJ
evaluated the criteria for each of the domains and referred to various portions of the record that
14
address those criteria. (R. 36-41.) The Court has reviewed each of his findings as well as the
records cited in support of his findings, all of which was supported by substantial evidence in the
record.
Accordingly, the ALJ properly determined that R.G. was not disabled within the
meaning of the Act.
CONCLUSION
For the reasons set forth above, the Commissioner’s motion is granted and this action is
dismissed in its entirety.
SO ORDERED.
Dated: Brooklyn, New York
March 27, 2014
/s/
DORA L. IRIZARRY
United States District Judge
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