D.G. v. Astrue

Filing 17

DECISION & ORDER granting Defendant's motion for judgment on the pleadings and denying plaintiff's motion for judgment on the pleadings. It is ORDERED that Defendant's decision denying disability benefits is AFFIRMED and it is further ORDERED that Plaintiff's complaint is dismissed. Signed by Judge Glenn T. Suddaby on 9/26/12. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
D.G., a minor, by JENNIFER E. GRIFFIN,
Plaintiff,

1:11-CV-0367
(GTS)

v.
MICHAEL J. ASTRUE, Comm’r of Soc. Sec.,
Defendant.
_______________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF STEPHEN J. MASTAITIS, JR.
Counsel for Plaintiff
1412 Route 9P
Saratoga Springs, NY 12866

STEPHEN J. MASTAITIS, JR., ESQ.

U.S. SOCIAL SECURITY ADMIN.
KAREN T. CALLAHAN, ESQ.
OFFICE OF REG’L GEN. COUNSEL–REGION II
Counsel for Defendant
26 Federal Plaza
New York, NY 10278
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Jennifer E. Griffin on
behalf of her son, D.G. (“Plaintiff”) against the Commissioner of Social Security (“Defendant”
or “the Commissioner”) pursuant to 42 U.S.C. § 405(g), are the parties’ cross-motions for
judgment on the pleadings. (Dkt. Nos. 12, 14.) For the reasons set forth below, Defendant’s
motion is granted, and Plaintiff’s motion is denied.

I.

RELEVANT BACKGROUND
A.

Factual Background

D.G. was born on April 25, 2000. At the time of his hearing, he was in the third grade.
D.G.’s alleged disability is attention deficit hyperactivity disorder (“ADHD”). Plaintiff also
claims that D.G. shows symptoms of bipolar disorder.
B.

Procedural History

On July 31, 2007, Plaintiff applied for Supplemental Security Income on D.G.’s behalf.
Plaintiff’s application was initially denied, after which she timely requested a hearing before an
Administrative Law Judge (“the ALJ”). On April 3, 2009, Plaintiff and D.G. appeared before
the ALJ. (T. 26-80.) The ALJ issued a written decision finding D.G. not disabled under the
Social Security Act on May 29, 2009 (T. 14-25.) On February 17, 2011, the Appeals Council
denied Plaintiff’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. (T. 1-5.) Thereafter, Plaintiff timely sought judicial review in this Court.
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 17-25.) First, the ALJ found that D.G. was a “school-age child”
pursuant to 20 C.F.R. § 416.926a(g)(2) on July 31, 2007 (the date the application for benefits
was filed), and on May 29, 2009 (the date of the ALJ’s decision). (T. 17.) Second, the ALJ
found that D.G. had not engaged in substantial gainful activity at any time. (Id.) Third, the ALJ
found that D.G. suffers from ADHD, a severe impairment pursuant to 20 C.F.R. § 416.924(c).
(Id.) Fourth, the ALJ found that D.G. does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,

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Subpart P, Appendix I (the “Listings”). (Id.) Fifth, the ALJ found that D.G. does not have an
impairment or combination of impairments that functionally equals an impairment set forth in
the Listings. (T. 17-24.) Sixth, and finally, the ALJ concluded that D.G. has not been disabled,
as defined by the Social Security Act, since July 31, 2007, the date his application was filed. (T.
25.)
II.

THE PARTIES’ BRIEFINGS
A.

Plaintiff’s Arguments

Generally, in support of her motion for judgment on the pleadings, Plaintiff makes two
interrelated arguments. First, Plaintiff argues that the ALJ erred in finding that D.G. had no
marked or extreme limitations. (Dkt. No. 12 at 1, 7-10 [Pl.’s Mem. of Law].) Second, Plaintiff
argues that the ALJ erred in failing to properly credit Plaintiff’s testimony and the treating
physician’s opinion. (Id.)
B.

Defendant’s Argument

Generally, in support of his cross-motion for judgment on the pleadings, Defendant
argues that the ALJ properly decided that D.G.’s ADHD did not meet, medically equal, or
functionally equal a Listing. (Dkt. No. 14 at 1, 14-19 [Def.’s Mem. of Law].)
III.

RELEVANT LEGAL STANDARD
A court reviewing a denial of disability benefits may not determine de novo whether

an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y of Health &
Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will
only be reversed if the correct legal standards were not applied, or it was not supported by
substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is

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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.”); see Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and
it has been defined as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971).
Where evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d
Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be sustained
“even where substantial evidence may support the plaintiff’s position and despite that the court’s
independent analysis of the evidence may differ from the [Commissioner’s].” Rosado v.
Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the
Commissioner’s determination considerable deference, and may not substitute “its own
judgment for that of the [Commissioner], even if it might justifiably have reached a different
result upon a de novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041
(2d Cir. 1984).
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An individual under the age of eighteen (18) is disabled, and thus eligible for SSI
benefits, if he or she 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.
See 42 U.S.C. § 1382c(a)(3)(C)(i). However, that definitional provision excludes from coverage
any “individual under the age of [eighteen] who engages in substantial gainful activity....” 42
U.S.C. § 1382c(a)(3)(C)(ii).
By regulation, the agency has prescribed a three-step evaluative process to be employed
in determining whether a child can meet the statutory definition of disability. See 20 C.F.R. §
416.924; Kittles v. Barnhart, 245 F. Supp. 2d 479, 487-88 (E.D.N.Y. 2003); Ramos v. Barnhart,
02 Civ.3127, 2003 WL 21032012, at *7 (S.D.N.Y. May 6, 2003).
The first step of the test, which bears some similarity to the familiar five-step analysis
employed in adult disability cases, requires a determination of whether the child has engaged in
substantial gainful activity. See 20 C.F.R. § 416.924(b); Kittles, 245 F. Supp. 2d at 488. If so,
then both statutorily and by regulation the child is ineligible for SSI benefits. See 42 U.S.C. §
1382c(a)(3)(C)(ii); 20 C.F.R. § 416.924(b).
If the claimant has not engaged in substantial gainful activity, the second step of the test
next requires examination of whether the child suffers from one or more medically determinable
impairments that, either singly or in combination, are properly regarded as severe, in that they
cause more than a minimal functional limitation. See 20 C.F.R. § 416.924(c); Kittles, 245 F.
Supp. 2d at 488; Ramos, 2003 WL 21032012, at *7. In essence, “a child is [disabled under the
Social Security Act] if his impairment is as severe as one that would prevent an adult from
working.” Zebley v. Sullivan, 493 U.S. 521, 529, 110 S. Ct. 885, 890 (1990).
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If the existence of a severe impairment is discerned, the agency must then determine, at
the third step, whether it meets or equals a presumptively disabling condition identified in the
listing of impairments set forth under 20 C.F.R. Pt. 404, Subpt. P., App. 1 (the “Listings”). Id.
Equivalence to a listing can be either medical or functional. See 20 C.F.R. § 416.924(d); Kittles,
245 F. Supp. 2d at 488; Ramos, 2003 WL 21032012, at *7. If an impairment is found to meet, or
qualify as medically or functionally equivalent to, a listed disability and the twelve-month
durational requirement is satisfied, the claimant will be deemed disabled. See 20 C.F.R. §
416.924(d)(1); Ramos, 2003 WL 21032012, at *8.
Analysis of functionality is informed by consideration of how a claimant functions in six
main areas referred to as “domains.” 20 C.F.R. § 416.926a(b)(1); Ramos, 2003 WL 21032012,
at *8. The domains are described as “broad areas of functioning intended to capture all of what a
child can or cannot do.” 20 C.F.R. § 416.926a(b)(1). Those domains include: (i) [a]cquiring and
using information; (ii) [a]ttending and completing tasks; (iii) [i]nteracting and relating with
others; (iv) [m]oving about and manipulating objects; (v) [c]aring for [oneself]; and (vi) [h]ealth
and physical well-being. See 20 C.F.R. § 416.926a(b)(1).
Functional equivalence is established in the event of a finding of an “extreme” limitation,
meaning “more than marked,” in a single domain. 20 C.F.R. § 416.926a(a); Ramos, 2003 WL
21032012, at *8. An “extreme limitation” is an impairment which “interferes very seriously
with [the claimant’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R.
§ 416.926a(e)(3)(I) (emphasis added).
Alternatively, a finding of disability is warranted if a “marked” limitation is found in any
two of the listed domains. 20 C.F.R. § 416.926a(a); Ramos, 2003 WL 21032012, at *8. A
“marked limitation” exists when the impairment “interferes seriously with [the claimant’s]
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ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i).
“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
ability to function (based upon age-appropriate expectations) independently, appropriately,
effectively, and on a sustained basis.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(C).
IV.

ANALYSIS
The primary issue before the Court is whether the ALJ’s conclusion that D.G.’s

impairment did not meet, medically equal, or functionally equal a listing is supported by
substantial evidence. After carefully considering the matter, the Court answers this question in
the affirmative for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 14 at 14-19
[Def.’s Mem. of Law].) The Court would only add the following analysis.
Plaintiff acknowledges that functional equivalence of a Listing is found where there is a
finding of an extreme limitation in one domain of functioning or a finding of a marked limitation
in two domains. See 20 C.F.R. § 926a(a). Plaintiff argues, though, that the regulations
recognize that an impairment may be of a “listing-level severity” even if it does not result in an
extreme limitation in one domain or a marked limitation in two. (Dkt. No. 12 at 8 [Pl.’s Mem. of
Law, citing 20 C.F.R. 416.925(b)(2)(ii)].) The cited regulation actually provides that an
impairment may be of a “listing-level severity” even if it does not result in an extreme limitation
in one domain or a marked limitation in two, “if the listing that we apply does not require such
limitations to establish that an impairment(s) is disabling.” 20 C.F.R. § 416.925(b)(2)(ii).
Here, the ALJ, after finding that D.G.’s ADHD is severe, decided that it does not meet
Listing 112.11, which requires marked inattention, marked impulsiveness, and marked
hyperactivity. Because the Listing applied by the ALJ does require marked limitations in order
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to establish that D.G.’s ADHD is disabling, the regulatory provision for functional equivalence
in 20 C.F.R. § 926a(a) applies.
Plaintiff next acknowledges that D.G.’s treating psychiatrist, Dr. Robert Harnick, found
moderate limitations “in three domains,” but argues that this opinion “should have been accorded
great, significant and/or controlling weight” as it is consistent with the opinions of D.G.’s
mother, step-father, step-grandmother and first grade teacher, as well as the opinion of Dr.
Thomas Osika. (Dkt. No. 12 at 8 [Pl.’s Mem. of Law].) To be sure, Dr. Harnick opined that
D.G. has moderate limitation in the personal/behavioral function and in concentration,
persistence and pace; moderate or less than moderate limitation in the social development
function, and less than moderate limitation in the functions of cognitive development,
communicative development and motor development. (T. 259-260.) Moreover, the ALJ stated
that he gave “great” and “controlling weight” to Dr. Harnick’s opinion, finding it to be “well
supported by the objective clinical and laboratory findings and consistent with all evidence in the
medical record.” (T. 20.)
Plaintiff goes on to argue that the ALJ erred in giving controlling weight to the opinion of
D.G.’s third grade teacher after “only” four months of observation, to the detriment of the
opinions of D.G.’s family members, whose opinions are consistent with those of Drs. Harnick
and Osika. However, it is clear that this argument also relies on Plaintiff’s misinterpretation of
the regulations to allow a finding of disability where a claimant has a moderate limitation in
multiple domains, which is not the case here. Accordingly, the ALJ’s decision is affirmed in its
entirety.

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ACCORDINGLY, it is
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 14) is
GRANTED; and it is further
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) is
DENIED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: September 26, 2012
Syracuse, New York

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