Pollard v. Colvin

Filing 20

ORDER denying 13 Motion for Judgment on the Pleadings; granting 15 Motion for Judgment on the Pleadings: Plaintiff's motion for judgment on the pleadings is denied and Defendant's cross-motion is granted and the decision of the Commissioner is affirmed. The Clerk of the Court is directed to enter judgment accordingly and to close this case. See attached Memorandum & Order. Ordered by Judge Denis R. Hurley on 11/7/2017. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------X
NATHANIEL D. POLLARD, on behalf of
N.M.P.
Plaintiff,

MEMORANDUM & ORDER

-againstCivil Action No. 16-2700 (DRH)
NANCY A. BERRYHILL,1 ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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APPEARANCES:
For Plaintiff:
Nassau/Suffolk Law Services Committee, Inc.
1 Helen Keller Way, 5th Floor
Hempstead, NY 11550
By:
Rezwanul Islam, Esq.
James M. Denson, Esq.
For Defendant:
Bridget M. Rohde
Acting United States Attorney, Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
By:
Jason P. Peck, Special Assistant AUSA

HURLEY, Senior District Judge:
Plaintiff Nathaniel D. Pollard commenced this action on behalf of N.M.P. a minor
(“NMP”), seeking judicial review of the determination of the Commissioner of Social Security,
following a hearing before an Administrative Law Judge (“ALJ”), that NMP was not under a
1

Nancy A. Berryhill is substituted pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure.

disability as defined in the Social Security Act and therefore is not entitled to disability benefits.
Presently before the Court is plaintiff’s motion and defendant’s cross-motion for judgment on the
pleadings. For the reasons set forth below, plaintiff’s motion is denied and defendant’s motion is
granted.
BACKGROUND2
I.

Summary of Testimonial Evidence
NMP lives with her father, brother, and paternal grandmother. At the time of the hearing

she was 12 years old and in seventh grade, attending multiple classes with multiple teachers. Her
best friend is her cousin Kyra; she likes Social Studies and finds Math and English hard.
According to her father, NMP is disabled because of incidents that began in the third grade which
required her to receive counseling and psychiatric help because she could not keep up and was
depressed. NMP began weekly mental-health counseling and monthly psychiatric treatment at
Catholic Charities. She takes Risperdal daily which has helped her “a great deal” and results in
her “rarely shut[ting] down” or having tantrums. She does not fight with her father since she
began taking Risperdal. She continues to have memory problems and requires extra help in
school. NMP does not have many friends and stays close to home. She does chores such as
making her bed, washing dishes, taking out the garbage and can dress herself (but needs help
tying her shoes), use a cell phone and computer, and bathe herself (but needs help setting the
water temperature). She wants to try out to play lacrosse and basketball at school. When she was
in sixth grade she got detention a lot and had many problems at school, including not wanting to
2

Having carefully reviewed the administrative record, the Court finds that the factual
backgrounds presented by the parties accurately represent the record. As such, the following
background is taken substantially from the statements of facts in their briefs.
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do school work and having problems with other kids and her brother but since taking medication
these problems have dissipated.
II.

Summary of Medical and Psychological Evidence
Dr. Vikhta Gurevich, a psychiatrist at Catholic Charities Rockaway Mental Health Center

began treating NMP in July 2012 for “symptoms of impulsivity, inattentiveness, aggressive
behaviors and low tolerance for frustration.” He diagnosed Oppositional Defiant Disorder and
prescribed Risperdal, which is typically used to treat schizophrenia and bi-polar disorder. Dr.
Gurevich noted that NMP “appears to struggle at times in regards to conflict resolution and will
often have outbursts or become aggressive when frustrated” and often experienced “interpersonal
conflict with others and appears to have poor conflict resolution skills.” She “was irritable and
verbally aggressive at times during psychiatric assessment” and her “judgment is poor at times
and client can be extremely impulsive.” Her speech was clear, coherent, and spontaneous and her
thought process was goal-directed and logical. Her mood was “mostly euthymic” (a normal
non-depressed, reasonably positive mood), and was “irritable at times.” Her “affect was full and
congruent with mood and thought process.” NMP was alert, had fair concentration, was oriented
times three (person, place, and time), and had unimpaired memory with fair information. Her
ability to perform calculations, serial sevens, etc., was “fair for stated age.” Regarding her
learning ability, on July 16, 2012, Dr. Gurevich stated: “Client has been evaluated for speech
issues, learning disabilities, etc. [She] has never been held back, but has struggled academically
and attends summer school almost every year. [She] appears to become very frustrated and will
cry, get upset, or shut down, when she does not understand the school material. [She] passed the
4th grade and will be starting at Lawrence Middle School in 5th grade next year. [She] does well
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in math, but struggles with reading comprehension.” He further stated that since beginning
Risperdal (with no reported side effects), NMP “appears less impulsive and better able to tolerate
frustration since beginning Risperdal. She does however continue to exhibit some impulsivity,
aggression and oppositional/defiant behaviors.”
On July 9, 2012, a psychological assessment was completed by a licensed social worker
of Rockaway Mental Health Center at which time NMP was between fourth and fifth grade.
NMP was bullied at school and she threatened to kill a boy in her class when he was bothering
her, but said she only made the threat because she was angry: she had also stated that she wanted
to kill herself and cut her wrists, but denied actually wanting to carry those acts out. NMP had
been aggressive towards her peers at school and at home. She had “seemingly fair AOL skills,”
“was appropriately dressed in a sundress at time of intake and appeared well groomed,” and “was
engageable and extremely talkative throughout assessment, speaking spontaneously about school
and home;” her “affect appeared congruent with mood and thought process.” She appeared “to
relate fairly well to others” and “displayed good insight for her age, appearing able to articulate
her feelings well to worker.” Her judgment appeared fair and she appeared motivated to begin
treatment. An August 12, 2013 psychological assessment noted a normal evaluation except
impaired impulse control and NMP’s “behavior is better while on medications.”
On September 11, 2013, Dr. Khanam, NMP’s pediatrician, completed an assessment form
at the request of the agency. Dr. Khanam noted NMP was a well-child with behavioral problems,
for which she had been prescribed Risperdal. Tr. 350-51. Dr. Khanam stated that NMP had not
displayed any behavior indicating a psychiatric disorder and referred the agency to her treating
psychiatrist for details of her psychiatric treatment.
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On August 2, 2014, Daryl P. DiDio, Ph.D., diplomat, clinical psychology, completed a
“Medical Interrogatory – Child” form, in his role as a medical expert, at the request of the ALJ.
Dr. DiDio noted that the materials presented to him provided “sufficient objective medical and
other evidence to allow [him] to form opinions about the nature and severity of the child’s
impairment(s) during the relevant time period” (since the May 5, 2012 alleged onset date). He
stated “the clinical record suggests the presence of a learning disability associated with some
behavioral disturbances and oppositional/aggressive behavior. [Exhibits] 1F, 4F, 5F.” He also
noted that “client has exhibited some learning and social difficulties for which she has been
placed in an inclusion class at school (low level intervention), and is being treated by a
psychiatrist for a diagnosis of oppositional defiant disorder” and that these
“limitations/difficulties are mild and with proper parental intervention and support will not pose
any serious limitations on client’s functioning.” Dr. DiDio opined that NMP’s impairments did
not meet or medically equal the requirements of any of the listings as described in the Listing of
Impairments and assessed her ability to function was less than marked in the domains of
acquiring and using information, attending and completing tasks, and interacting and relating
with others; he assessed no limitations in the domains of moving about and manipulating objects,
caring for self, and health and physical well-being.
On August 13, 2014, Allan M. Rothenberg, M.D., a non-examining state agency doctor,
reviewed the available medical and other evidence (which he called sufficient) and answered
interrogatories, in which he included a diagnosis of Oppositional Defiant Disorder. Although Dr.
Rothenberg opined that NMP’s “impairments, either individually or in combination, [did not]
meet or medically equal the requirements of any of the listings as described in the Listing of

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Impairments,” he concluded that she functionally equals a listing. Dr. Rothenberg stated that
NMP’s “impairments are speech and language delays, attentional delays, Oppositional defiant
disorder, and depression.” He assessed that NMP had a less than marked limitation in the domain
of acquiring and using information, a marked limitation in the domains of attending and
completing tasks, interacting and relating with others, and caring for herself and no limitation in
the domains of moving about and manipulating as well as health and physical well-being.
III.

Summary of School Evidence
A.

Plaintiff’s Individual Education Plans (IEP’s)

NMP was referred to her school district’s Committee on Special Education near the end
of the 2011-12 school year at her father’s request. The following tests were administered to her:
Weschler-Intelligence Scale for Children Test (“WISC-IV), the Behavior Assessment System for
Children - Second Edition, Teacher Report Scale (BASC-2, TRSC), the Behavior Assessment
System for Children - Second Edition, Self Report Scale (BASC-2, SRSC) and clinical interview.
The Confidential Psychological Evaluation prepared as a result to these tests indicated that she is
currently functioning in the average range of intellectual ability, her then present emotional
adjustment ranged from good to fair with many of her difficulties appearing related to a
somewhat passive interpersonal style. She was in the at-risk range for aggression, depression,
adaptability, functional communication, learning problems and leadership but average in study
and social skills. NMP’s rating for hyperactivity, conduct problems, anxiety, attention problems
atypicality and withdrawal were all within normal limits.
Plaintiff first had an IEP for the 2012-13 school year at which time she was in fifth grade.
The IEP referenced education reports, the WISC-IV, the Clinical Evaluation of Language

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Fundamentals 4th Edition (“CELF-4 test”) and the Woodcock-Johnson III Achievement test
(cited as Woodloch-Johnson-III ACH Tests). It indicated that NMP’s social/emotional levels and
abilities are within age appropriate expectations, that she gets along with her peers and that she
needs to seek out appropriate people to ask for help when under stress and she also needs to
utilize effective coping strategies when faced with conflict situations. The IEP recommended the
following Special Education Programs and Services: integrated co-teaching services in English,
math, science and social studies once a week, speech/language therapy in a small group twice a
week, and counseling once a week. Additionally, directions would have to be repeated and the
teacher would have to check for understanding daily. NMP’s end of year progress report for her
2012-13 IEP goals states that she did not achieve any of her study skill goals, but achieved all of
her speech and social/emotional/behavioral goals; she met 1 of 2 writing goals but not her math
goal.
NMP’s IEP continued into the next school year (2013-14) at which time she was in sixth
grade. The IEP referenced new education reports but the results of the Wechsler Intelligence
Scale for Children, CELF-4, and Woodcock-Johnson-III Ach Test were reused. The IEP
indicated that NMP does not demonstrate age appropriate study skills and therefore suffers
academically. She does not follow oral directions well and that those directions are often
rephrased or repeated for her. She is better working in small groups than large groups but in both
her frustration may set in and she "shuts down," can be sensitive to criticism from adults and
lacks confidence academically. The IEP indicated that she needs to demonstrate grade
appropriate study skills, hand in completed assignments consistently on time, improve her ability
to analyze the things she reads, improve her spelling, “communicate frustration with academic

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tasks in an appropriate manner, [and] be more accepting of criticism." Also she must improve her
attendance, attention to task, and her frustration tolerance, and seek help appropriately when
needed. Additionally, it stated that NMP has significant delays in reading comprehension,
language and written expression, and attentional skills which inhibit participation in age
appropriate educational activities. The IEP continued the recommendations made in her first
IEP in regards to special education programs and services, but added that she would need to
have directions repeated, be checked for understanding daily, and receive positive reinforcement
from teachers. The mid-year progress report on NMP’s IEP goals stated that she demonstrated
improvement in the areas of math, reading, listening skills, written and oral expression,
social/emotional, and organization/study skills but still needed remediation in the areas of
reading comprehension, math, written organization, and study skills. Among the teacher’s
comments was a note that NMP is “cooperative when things are going well for her. She has
difficulty excepting [sic] constructive criticism. When she starts the period without her
homework she tend to shut down and become withdrawn. She needs to be brought to tasks when
she becomes distracted.” The record does not contain NMP’s 2013-14 year end IEP progress
report.
An IEP for NMP was prepared for seventh grade, the 2014-15 school year. New teacher
reports were relied upon but test result were reused. The IEP indicates that NMP comes to class
on time but does not always have her homework and other supplies with her and does not
demonstrate grade appropriate organizational and study skills. Further, her classroom behavior
moderately interferes with instruction, she has difficulty accepting criticism from adults, she has
good relationships with most of her peers, and needs to use positive strategies to deal with social

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conflict. The IEP stated that she needs to improve attention to task, preparedness to learn, and
frustration tolerance, and to decrease distractability in class lessons. The IEP continued the
previous year 's IEP in regards to special education programs and services.
B.

Teacher Reports

NMP’s fourth grade teacher completed a teacher report. The teacher stated that NMP
functioned below grade level in academic areas. She gets along with other, although there are
times she has words with other students and she needs adults to help mediate situations between
her and other students. NMP also often needed help completing tasks and relied on that; she had
some friends.
In September 2013, NMP's fifth grade teacher completed a teacher questionnaire that
presented questions in terms of the domains used by the Social Security Administration. In
considering NMP's ability to ability to acquire and use information, the teacher found that she
had either an obvious or serious problem in all areas of the subdomains. With respect to
attending and completing tasks, the teacher opined that (1) NMP has an obvious problem
focusing long enough to finish an assigned activity or task on a weekly basis and in carrying out
multi-step instructions on a daily basis; (2) a serious problem paying attention when spoken to
directly on a weekly basis, refocusing to task when necessary on a weekly basis, completing
class/homework assignments on a weekly basis, completing work accurately without careless
mistakes on a daily basis, working without distracting self or others on a daily basis, and working
at reasonable pace/finishing on time on a daily basis; and (3) a slight problem carrying out single
step instructions on a daily basis, waiting to take turns on a daily basis, and changing from one
activity to another without being disruptive on a weekly basis. In interacting and relating with

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others, the teacher evaluated NMP as having a very serious problem expressing anger
appropriately on a daily basis; a serious problem in the areas of keeping friends on a monthly
basis, seeking attention appropriately, asking permission appropriately on a daily basis,
introducing and maintaining relevant and appropriate topics of conversation on a weekly basis,
and interpreting the meaning of facial expressions, body language, hints, and sarcasm on a daily
basis. In the area of caring for self, the teacher opined that NMP has a very serious problem
handling frustration appropriately on a daily basis; a serious problem being patient when
necessary on a daily basis, identifying and appropriately asserting emotional needs on a daily
basis, responding appropriately to changes in own mood on a daily basis, responding
appropriately to changes in own mood on a daily basis, and using appropriate coping skills to
meet daily demands of school environment on a daily basis; an obvious problem knowing when
to ask for help on a daily basis; and a slight problem using good judgment regarding personal
safety and dangerous circumstances on a weekly basis.
In January 2014 (approximately mid-way through the school year), NMP’s sixth grade
math and science teacher completed a teacher reports, stating NMP was functioning below grade
level. With respect to her social/emotional functioning level the teacher wrote that she can be
kind and respectful to teachers and peers but if she is upset about something she shuts down and
will not participate and that she is functioning as an average 6th grader socially and emotionally.
C.

Report Cards

On NMP’s fifth-grade report card her teachers reported that she was a pleasure to have in
class; however, in math, science, and social studies, more effort was needed. Also she was
missing homework and class work, and she was unprepared in science class.

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NMP’s sixth-grade report cards show NMP mostly was a pleasure to have in class and
had enthusiastic participation, but her English, science, math and social studies teacher(s)
reported that she needed to show more effort. Her science teacher reported she exhibited
disruptive behavior, and had issues completing homework. NMP’s final grades were between
70.00 and 72.00 in her main courses (English, math, science and social studies).
D.

School Disciplinary Reports

By letter dated October 17, 2014, NMP’s parent was advised that she was receiving an in
school suspension because she was insubordinate and disrespectful to teachers and
administrators. By letter dated October 21, 2014, her parent was notified that she was receiving a
five day out of school suspension for threatening the safety of the school and on October 22,
2017 her parent was notified that a superintendent’s hearing had been scheduled.3
DISCUSSION
I.

Standards
A.

Standard of Review

When reviewing a Social Security claim, a district court does not determine de novo
whether the plaintiff is disabled and therefore entitled to disability benefits. See Schaal v. Apfel,
134 F.3d 496, 501 (2d Cir. 1998). Rather, the reviewing court determines only “whether the
Commissioner's conclusions ‘are supported by substantial evidence in the record as a whole or
are based on an erroneous legal standard.’” Id. (quoting Beauvoir v. Chater, 104 F.3d 1432, 1433
(2d Cir. 1997)); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (a court will only

3

Given that a superintendent’s hearing is required for any suspension in excess of five
days, see N.Y. Educ. Law § 3214(3)(c), it appears that the five-day out of school suspension and
the superintendents hearings are related to the same conduct.
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overturn the ALJ's decision if it is “based upon legal error” or “not supported by substantial
evidence”) (internal quotation marks omitted).
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.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (internal citation and quotation marks omitted). However, “[i]n conducting
[its] review ... [the Court] will not substitute [its] own judgment for that of the Commissioner,
even if [it] ‘might justifiably have reached a different result upon de novo review.’ ” Campbell v.
Astrue, 465 Fed. App’x 4, 5 (2d Cir. 2012) (summary order) (quoting Valente v. Sec'y of Health
& Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). “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.” Genier
v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (quoting Schauer v. Schweiker, 675 F.2d
55, 57 (2d Cir. 1982)).
B.

Eligibility Standard for Minors

The requirements for a child to be eligible for SSI benefits based on disability are set
forth in 42 U.S.C. § 1382(a)(3)(C). That section provides:
(i) An individual under the age of 18 shall be considered disabled
for purposes of [SSI] 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.
(ii) Notwithstanding clause (i), no individual under the age of 18
who engages in substantial gainful activity . . . may be considered
disabled.
42 U.S.C. § 1382(a)(3)(C).
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The regulations set forth a three step analysis for determining disability in children. First,
the Commissioner determines if the child is working and engaged in substantial gainful
employment; if so the claim is denied. If not, then the Commissioner determines if the child has a
medically determinable impairment that is severe, i.e. limits the child’s ability to do physical or
mental work-related activities. If not, the claim is denied. If the child has a severe impairment,
then the third step is to determine whether the impairment or combination of impairments meets,
medically equals, or is functionally equivalent to the criteria in the Listing of Impairments in
Appendix 1. If not the claim is denied. 20 C.F.R. § 416.924; see Encarnacion ex rel. George v.
Astrue, 568 F.3d 72, 74-75 (2d Cir. 2009); Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004).
In determining functional equivalence, the child’s functioning in six areas, referred to as
domains, is assessed. The six domains 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 self; and (6) health and physical well-being. 20 C.F.R. § 416.926a. For an
impairment(s) to functionally equal the Listings, there must be an extreme limitation in one
domain or marked limitations in two domains. Id. “Extreme” means the impairment very
seriously interferes with his/her ability to independently initiate, sustain, and complete activities
and “marked” means the impairment seriously interferes with his/her ability to independently
initiate, sustain, and complete activities. Id. at §§ 416.926a(e)(2) & (3).
C.

The ALJ’s Decision
In her decision dated October 17, 2014, the ALJ followed the three step-procedure

outlined above to determine that NMP is not disabled. At the first step, the ALJ found that
plaintiff has not engaged in substantial gainful activity since the application date. At the second

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step, the ALJ determined that NMP had the following severe impairments: oppositional defiance
disorder and speech impairment. At step three the ALJ found that NMP’s do not meet or
medically equal the criteria of a listed impairment. The ALJ based this conclusion on the opinion
of Dr. DiDio, the absence of the requisite criteria in the medical records, and the absence of
findings by any physician that would satisfy the requirements of any listed impairment. As for
functionally equaling an impairment in the Listing, the ALJ determined that NMP had (1) less
than marked limitations in the domains of acquiring and using information, attending and
completing tasks, interacting and relating with others, and caring for self and (2) no limitations in
the domains of moving about and manipulating objects, and health and physical well-being. As
the ALJ determined that NMP’s impairments were not the functional equivalent of an
impairment in the Listing, she denied benefits.
D.

The Parties’ Contentions
Plaintiff moves for judgment on the pleadings arguing the (1) the ALJ’s failure to specify

the weight given to treating psychiatric evidence constitutes an error of law; (2) the record
reflects that NMP meets the definition of having a severe impairment; and (3) the finding that
NMP’s impairments are not functionally equal to a listed impairment are not supported by the
record as a whole and NMP has marked limitations in attending and completing tasks, interacting
and relating with others, and caring for self. The Commissioner cross-moves asking this Court to
affirm the denial of benefits on the grounds that the ALJ applied the correct legal standard to find
that NMP was not disabled and that the factual findings were supported by the evidence.
Having reviewed the record, the Court finds that the ALJ’s rejection of Plaintiff’s claim
is supported by substantial evidence and that there was no legal error.

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E.

Analysis
1.

Treating Psychiatric Evidence

Contrary to Plaintiff’s assertions, the ALJ did consider the notes of NMP’s treating
psychiatrist and did discuss his treatment of her. Among other things, the ALJ specifically noted
that Dr. Gurevich stated that medication (i.e. Risperdal) had reduced NMP’s hyperactivity and
impulsivity and his notes reflect that she made improvements in coping skills and behavior and
her insight and judgment were good.
Nor was there any error in the ALJ not assigning a specific weight to that evidence
because that requirement only applies to opinion evidence. See Social Security Ruling 96-2p,
1996 WL 374188 *2 (“The opinion must be a ‘medical opinion.’ Under 20 C.F.R. §§
404.1527(a) and 416.927(a), ‘medical opinions’ are opinions about the nature and severity of an
individual’s impairment(s) and are the only opinions that may be entitled to controlling weight.”)
Here, Dr. Gurevich did not express any opinion as to severity of NMP’s impairment. Any error in
not assigning weight to his opinion about the nature of NMP’s impairment is harmless as the ALJ
concurred with Dr. Gurevich’s diagnosis of oppositional defiant behavior.
2.

Whether NMP’s Impairment was Severe

Plaintiff’s second argument is that NMP meets the definition of having a severe
impairment and that the ALJ erroneously relied upon the opinion of Dr. Didio that NMP’s
impairment do not meet or medically equal the requirements of any Listed Impairment. (Pl.’s
Mem. at 15-16.) Plaintiff’s argument conflates steps two and three of the three-step analysis
described above, as well as the distinct analyses of whether an impairment meets or medically
equals a listing as distinct from whether the functional limitations of the impairment are

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equivalent to the disabling functional limitations of a listed impairment.
First, the ALJ did find, at step two, that NMP had the severe impairments of oppositional
defiance disorder and speech impairment. (Tr. at 59.)
Turning to the first part of the step three analysis, i.e., whether NMP had an impairment
or combination of impairments that meets or medically equals the severity of one of the Listed
Impairments, the ALJ wrote:
Listed impairments under section 112.08 (personality disorder) was
considered. However, the requisite criteria for the relevant listing
was absent from the medical records. Further, no treating or
examining physician has indicated findings that would satisfy the
requirements of any listed impairment.
Dr. DiDio opined that [NMP’s] impairments alone or in
combination do not meet or medically equal the requirements of
any of the listings . . . .
(Tr. at 59-60.) Plaintiff does not attempt to correlate any of the criteria for section 112.08 with
the evidence in the record and the Court does not discern a basis for any such correlation. Rather,
Plaintiff argues that the ALJ should have adopted the opinion of Dr. Rothenberg rather than Dr.
Didio. However, both doctors concluded that NMP’s impairments did not meet or medically
equal the requirements of any listing. Their opinion differed in whether the functional limitations
of her impairments are equivalent to the disabling functional limitations of a listed impairment.
To the extent Plaintiff ascribes error in the ALJ’s affording little weight to Dr. Rothenberg’s
opinion and greater weight to that of Dr. Didio on the issue of equivalency, that argument is
addressed in the following section.
The Court finds no error in the ALJ’s finding that NMP has the severe impairments of
oppositional defiance disorder and speech impairment and that those impairments do not meet or
medically equal the requirements of any of the Listed Impairments.
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3.

Functional Equivalence

Plaintiff asserts that the ALJ’s finding that NMP’s impairments are not functionally equal
to a listed impairment is not supported by the record as a whole. Specifically, it is argued that the
ALJ should not have afforded the opinion of Dr. DiDio great weight as it is not support by the
record as whole; rather the record as a whole supports Dr. Rothenberg’s that conclusion that
NMP has marked limitations in (a) attending and completing tasks, (b) interacting and relating
with others, and (c) caring for self.4
In affording great weight to Dr. DiDio’s opinion, the ALJ reasoned that his findings were
consistent with the medical evidence and the testimony at the hearing, as well as the fact that he
is a specialist in the mental health field. In giving little weight to Dr. Rothenberg’s opinion, the
ALJ noted first that it was incompatible with the teacher reports. She then stated:
I also note that while Dr. Rothenberg is a pediatrician, he is not a
specialist in the mental health field. He did not have the benefit of
the hearing testimony, indicating that claimant is doing much better
with medication, His findings that the claimant has marked
limitations in attending and completing tasks and interacting and
relating with others, are not well supported. The claimant appears
to get along well with friends, does well peer conferencing,
although she has some difficulty accepting criticism frm adults.
Additionally there is little basis for a marked limitation in caring
for self as she does chores at home, dresses herself, feeds herself
and is planning on trying out for sports teams at school.
The record evidence discussed by the ALJ prior to the weight assigned to the opinions of
Dr. Didio and Rothenberg provides additional support for the weight assigned. Cichocki v.
Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) (An “ALJ need not recite every piece of evidence

4

Plaintiff does not challenge the ALJ’s conclusions that NMP has no limitations in the
domains of moving about and manipulating objects and health and physical well-being and the
Court finds that these conclusions are supported by substantial evidence in the record as a whole.
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that contributed to the decision, so long as the record ‘permits us to glean the rationale of an
ALJ's decision.’ ” ) For example, at the hearing NMP’s father testified than since taking
Risperdal NMP rarely argues with people or shuts down and has not had any problems with
violent behavior, and she has friends in and out of school, texts and uses Facebook. Moreover,
she does chores, can shower herself, chooses her own clothes and picks up after herself. NMP
testified that she goes to the park, stores and movies. Dr. Gurevich’s noted that NMP has made
improvements in coping skills and reducing her symptoms; progress notes indicate that NMP’s
behavior has improved and her insight and judgment are good. Intelligence testing of NMP
indicates she has the ability to solve problems requiring straightforward visual-motor processing
skills and nonverbal reasoning skills; a clinical behavioral assessment shows NMP has
difficulties in aggressive behavior but her hyperactivity, conduct problems, anxiety, attention
problems and withdrawal were all within normal limits. School records show that NMP has
shown improvement in receptive language, expressive language and oral expression, is
cooperative in her speech group and has made gains in using coping strategies in dealing with
frustration and other negative emotions.
Although the ALJ was faced with conflicting opinions, it is precisely the role of the ALJ
to resolve these conflicting opinions. See Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 112 (2d
Cir. 2012).
The Court now turns to the three domains in dispute.

a.

Attending and Completing Tasks

In assessing whether a child has a marked limitation in the domain of attending and

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completing tasks, an ALJ considers how well the child is able to focus and maintain attention,
and how well he begins, carries through and finishes activities, including the pace at which he
performs activities and the ease with which he changes them. See 20 C.F.R. § 416.926a(h).
The ALJ's conclusion is reasonable based upon evidence in the record. The ALJ
recognized that NMP certainly has some limitations in this domain but concluded it was less than
marked. According to NMP’s treating psychiatrist, NMP has fair concentration, goal-directed and
logical thought processes, and unimpaired memory with fair information. Similarly, the teacher
questionnaire completed by NMP’s fifth grade teacher noted that many of her attention problems
occurred on a weekly and not daily basis and NMP’s IEP progress report indicates demonstrated
improvement in listening and study skills. Finally, NMP’s IEP does not provide for any
accommodation regarding NMP’s participation in standardized tests and a clinical behavior
assessment rated her attention problems within normal limits.
While is this domain, as in the domains discussed below, there is conflicting evidence as
to the severity of NMP’s limitations, it is the province of the ALJ to weigh the evidence and the
record contains substantial evidence to support her determination.
b.

Interacting and Relating with Others

In the domain of interacting and relating with others, the ALJ should consider
how well the child initiates and sustains emotional connections with others, develops and uses
the language of his community, cooperates with others, complies with rules, responds to
criticism, and respects and takes care of the possessions of others. See 20 C.F.R. §
416.926a(i)(1). Examples of marked or extreme limitations in this domain include: having no
close friends, withdrawing from people or being overly anxious or fearful of meeting new people,

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difficulty communicating with others, difficulty speaking intelligibly or with adequate fluency.
These examples, however, can vary on a case-by-case basis and depend on the child's age and
developmental stage. Id. § 416.926a(i)(3).
In determining that NMP’s limitations in this domain were less than marked, the ALJ
noted some difficulties in this area but found those difficulties counterbalanced by the evidence
that NMP has friends, gets along with family and peers, and Dr. Didio’s opinion that he
oppositional defiant behavior is not severe. Other evidence discussed by the ALJ that supports
this determination includes school records that note that NMP is cooperative in speech class, has
shown improvement in language and oral expression, uses strategies to deal with negative
emotions, and teacher evaluations that NMP is functioning as an average 6th grader socially and
emotionally and is a pleasure to have in class.
Once again, Plaintiff is essentially asking this Court to second guess the weighing of the
evidence undertaken by the ALJ – which is not this Court's role.
c.

Caring for Self

This domain considers “how well you maintain a healthy emotional and physical state,
including how well you get your physical and emotional wants and needs met in appropriate
ways; how you cope with stress and changes in your environment; and whether you take care of
your own health, possessions and living areas. 20 C.F.R. § 416.926a(k). Regulations provide the
following age group descriptors:
(iv) School-age children (age 6 to attainment of age 12). You
should be independent in most day-to-day activities (e.g., dressing
yourself, bathing yourself), although you may still need to be
reminded sometimes to do these routinely. You should begin to
recognize that you are competent in doing some activities and that
you have difficulty with others. You should be able to identify
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those circumstances when you feel good about yourself and when
you feel bad. You should begin to develop understanding of what
is right and wrong, and what is acceptable and unacceptable
behavior. You should begin to demonstrate consistent control over
your behavior, and you should be able to avoid behaviors that are
unsafe or otherwise not good for you. You should begin to imitate
more of the behavior of adults you know.
(v) Adolescents (age 12 to attainment of age 18). You should feel
more independent from others and should be increasingly
independent in all of your day-to-day activities. You may
sometimes experience confusion in the way you feel about
yourself. You should begin to notice significant changes in your
body's development, and this can result in anxiety or worrying
about yourself and your body. Sometimes these worries can make
you feel angry or frustrated. You should begin to discover
appropriate ways to express your feelings, both good and bad (e.g.,
keeping a diary to sort out angry feelings or listening to music to
calm yourself down). You should begin to think seriously about
your future plans, and what you will do when you finish school.
20 C.F.R. § 416.926a(k)(2)(iv), (v). Examples of limited functioning include not dressing or
bathing yourself appropriately for your age, engaged in self-injurious behavior such as not taking
medication and not pursuing enjoyable activities or interests. Id. at § 416.926a(k)(3).
The ALJ’s determination that NMP’s limitations in this domain are less than marked is
supported by substantial evidence. The evidence of record demonstrates that NMP takes her
medication, dresses, feeds herself and performs chores. She goes to the movies, Facebooks with
friends, and intends to try out for school sports teams. Her medication has greatly reduced her
mental problems. While NMP has some residual behavioral problems, the ALJ determination
that NMP has less than marked limitations in this domain was reasonable.
In sum the Court concludes that the ALJ did not commit any legal error and her
determination is supported by substantial evidence.

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CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings is denied and
Defendant's cross-motion is granted and the decision of the Commissioner is affirmed. The
Clerk of the Court is directed to enter judgment accordingly and to close this case.
Dated: Central Islip, New York
November 7, 2017

/s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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