Graves v. Colvin
Filing
14
DECISION AND ORDER denying Plaintiff's # 11 motion for judgment on the pleadings; granting Defendant's # 12 motion for judgment on the pleadings; and Defendant's decision denying disability benefits is AFFIRMED. Plaintiff's complaint is dismissed. Signed by Judge Glenn T. Suddaby on 6/25/15. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
LANCE GRAVES, on behalf of W.G., a minor,
Plaintiff,
1:14-CV-0378
(GTS)
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
_______________________________________
APPEARANCES:
OF COUNSEL:
MARY M. WITHINGTON
Counsel for Plaintiff
Legal Aid Society of Northeaster NY
112 Spring Street, Ste. 109
Saratoga Springs, NY 12866
MARY M. WITHINGTON, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL-REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, NY 10278
BENIL ABRAHAM, ESQ.
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Lance Graves on
behalf of his minor son, W.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. 11, 12.) For the reasons set
forth below, Defendant’s motion is granted, and Plaintiff’s motion is denied.
I.
RELEVANT BACKGROUND
A.
Factual Background
Plaintiff was born on October 31, 2006. (T. 89) At the time of his hearing, he was
a preschooler. (T. 30.) Plaintiff’s alleged disability consists of eczema, speech delays,
developmental delays and “leg problems.” (T.121.)
B.
Procedural History
On April 19, 2011, Plaintiff applied for Supplemental Security Income on W.G.’s
behalf. (T. 96.) Plaintiff’s application was initially denied, after which he timely
requested a hearing before an Administrative Law Judge (“the ALJ”). On June 15,
2012, Plaintiff appeared before ALJ Robert Wright. (T. 44-62.) On June 25, 2012, ALJ
Wright issued a written decision finding W.G. not disabled under the Social Security Act.
(T. 24-43.) On February 1, 2014, the Appeals Council denied Plaintiff’s request for
review, rendering the ALJ’s decision the final decision of the Commissioner. (T. 1-6.)
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. First, the ALJ found that W.G. was a “preschooler” at the time of
filing and a “preschooler” at the time of the hearing pursuant to 20 C.F.R. §
416.926a(g)(2). (T. 30.) Second, the ALJ found that W.G. had not engaged in
substantial gainful activity since the application date. (Id.) Third, the ALJ found that
W.G. suffered from the severe impairments of borderline intellectual functioning, speech
and language delays, and developmental delays pursuant to 20 C.F.R. § 416.924(c).
(Id.) The ALJ determined that W.G.’s eczema and “leg problems” were not severe. (Id.)
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Fourth, the ALJ found W.G. did 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,
Subpart P, Appendix I (“the Listings”). (T. 30-31.) Fifth, the ALJ found W.G. did not
have an impairment or combination of impairments that functionally equals an
impairment set forth in the Listings. (T. 31-39.) Sixth, and finally, the ALJ concluded
W.G. has not been disabled, as defined by the Social Security Act, since April 19, 2011,
the date his application was filed. (T. 39.)
II.
THE PARTIES’ BRIEFINGS
A.
Plaintiff’s Arguments
Generally, in support of his motion for judgment on the pleadings, Plaintiff makes
two arguments. First, Plaintiff argues the ALJ committed reversible error in failing to
find Plaintiff had a marked impairment in the domains of acquiring and using language;
attending and completing tasks; interacting and relating with others; moving and
manipulating objects; and caring for himself. (Dkt. No. 11 at 14-18 [Pl.’s Mem. of Law].)
Second, Plaintiff argues the decision of the ALJ is against substantial weight of the
evidence and is incorrect as a matter of law. (Id. at 18-22 [Pl.’s Mem. of Law].)
Specifically, the Plaintiff argues the ALJ ignored evidence in the record and the ALJ
failed to consider Plaintiff’s testimony. (Id. at 20, 21 [Pl.’s Mem. of Law].)
B.
Defendant’s Argument
Generally, in support of her cross-motion for judgment on the pleadings,
Defendant makes one argument. Defendant argues the substantial evidence supports
the ALJ’s decision in each of the domain categories. (Dkt. No. 12 at 2-12 [Def.’s Mem.
of Law].)
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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 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).
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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).
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-CV-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,
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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).
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).
6
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).
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] 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
A.
Whether Substantial Evidence Supports the ALJ’s Determination that
the Plaintiff Did Not Have an Impairment or Combination of
Impairments that Functionally Equaled the Listing
After carefully considering the matter, the Court answers this question in the
affirmative, in part for the reasons set forth in Defendant’s memorandum of law. (Dkt.
7
No. 12 at 5-7 [Def.’s Mem. of Law].) The Court adds the following analysis. For the ease
of analysis, we will address each domain in which the Plaintiff asserts the ALJ’s
decision is not supported by substantial evidence.
1.
Acquiring and Using Information
The ALJ determined Plaintiff had a “less than marked limitation” in this domain.
(T. 34.) Plaintiff argues the ALJ erred in his determination finding Plaintiff’s speech and
language delays did not cause “marked” limitation in the domain of acquiring and using
information. Plaintiff asserts the ALJ failed to take into consideration testing results,
Plaintiff’s learning environment, and Plaintiff’s IQ. (Dkt. No. 11 at 15-16 [Pl.’s Mem. of
Law].)
For children W.G.'s age, the Regulations provide:
When [the plaintiff is] old enough to go to preschool or kindergarten, [he]
should begin to learn and use the skills that will help [him] to read and
write and do arithmetic when [he] are older. For example, listening to
stories, rhyming words, and matching letters are skills needed for learning
to read. Counting, sorting shapes, and building with blocks are skills
needed to learn math. Painting, coloring, copying shapes, and using
scissors are some of the skills needed in learning to write. Using words to
ask questions, give answers, follow directions, describe things, explain
what [he] mean[s], and tell stories allows [him] to acquire and share
knowledge and experience of the world around [him]. All of these are
called “readiness skills,” and [he] should have them by the time [he]
begin[s] first grade.
20 C.F.R. § 416.926a(g)(2)(iii).
On February 15, 2011, Plaintiff underwent a preschool developmental evaluation
conducted by John C. Braico, M.D. Dr. Braico administered the Preschool Language
Scale-4 (“PLS-4”) test. (T. 318.) Plaintiff scored 61 in the auditory comprehension
portion, which was -2.75 standard deviations from the norm. (Id.) Plaintiff scored 64 in
the expressive communication portion, which was -2.5 standard deviations from the
8
norm. (Id.) Dr. Braico opined Plaintiff had a “severe articulation disorder and a severe
receptive and expressive language delay.” (T. 326.) Dr. Braico also administered
cognitive testing. Plaintiff had a full scale IQ score of 75 which indicated borderline
cognitive ability. (T. 322.)
Elizabeth Lahan completed a teacher questionnaire in June of 2011. (T. 131138.) In the area of acquiring and using information, she observed Plaintiff had a “very
serious problem” providing organized oral explanations and adequate descriptions. (T.
132.) She observed Plaintiff had an “obvious problem” understanding and participating
in class discussions. (Id.) She specifically noted Plaintiff needed directions repeated and
had challenges expressing his needs. (Id.) However, Ms. Lahan also opined that W.G.
had only a “slight problem” comprehending oral instructions; understanding school and
content vocabulary; learning new material; and, recalling and applying previously
learned material. (Id.)
A student progress report completed by Plaintiff’s speech therapist in June 2011,
indicated Plaintiff was able to follow one and two-step directions; comprehended
concepts such as on/off; demonstrated comprehension of part/whole relationships; and
had an inclusive vocabulary. (T. 344.) She noted the majority of Plaintiff’s speech was
difficult to understand. (Id.) She observed Plaintiff attempts to imitate correct sounds
and although his ability to participate were limited, he was improving. (Id.) W.G. made
satisfactory progress in his auditory discrimination and producing “target sound one
word;” however, he did not make satisfactory progress in producing “target sound
phrases” and producing “target sound conversation.” (T. 342.) He made satisfactory
progress to excellent progress in answering “wh” questions (who, what, where, why,
9
when); following directions; identifying/utilizing linguistic concepts; and, utilizing
pronouns, noun, verbs and adjective. (T. 342.)
W.B.’s Individual Education Program (“EIP”) report for school year 2012-2013
classified his disability as a speech or language impairment. (T. 243.) Testing indicated
average scores in the Kaufman Test of Educational Achievement, 2nd Edition (“Kaufman
Test”); however, W.G. scored in the 2nd percentile in the Goldman Fristoe Test of
Articulation. (Id.) W.G. scored very low in the Clinical Evaluation of Language
Fundamentals IV test, for example, W.G. scored in the 1st percentile in the area of
“expressive language.” (T. 244.)The EIP indicated that W.G.’s speech intelligibility was
“fair” for single words and “poor” for spontaneous speech. (T. 245.) However, the EIP
stated W.G. showed growth in reading and math between September and January. (T.
244, 245.) Overall, the EIP recommended language and speech services (T. 245) and a
12:1:1 classroom setting (T. 251.)
In determining W.G. had “less than marked” limitations in the acquiring and using
information domain, the ALJ relied on teacher evaluations, medical opinion evidence
and the IEP reports. Ms. Lahan’s stated W.G. had no significant difficulty
comprehending oral instructions, understanding school content and vocabulary, learning
new material, and recalling and applying previously learned material. (T. 34.) The ALJ
assigned Ms. Lahan’s opinion “great weight.” (T.32.) The ALJ relied on the opinions of
State agency medical consultants, M. Marks, Psychology and D. Bostic, Pediatrics,
whom he also afforded “great weight,” that W.G. had “less than marked” limitations in
this domain. (T. 33.)
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Contrary to Plaintiff’s assertion, the ALJ’s decision included a discussion of the
speech therapist’s report of June 2011 (T. 32) and W.G.’s IQ score (T. 30). (Dkt. No. 11
at 20 [Pl.’s Mem. of Law].) The Regulations require an ALJ to consider a claimant's “test
scores together with the other information [they] have about [claimant's] functioning,
including reports of classroom performance and the observations of school personnel
and others.” 20 C.F.R. § 416.926a(e)(4)(ii). Here, the ALJ discussed W.G.’s testing
scores in accordance with the regulations. (T. 32, 33, 34.) Further, he relied on the
State medical examiners, who also relied on the IQ scores and test scores in assessing
W.G.’s limitations. (T. 362.) The ALJ concluded that despite W.G.’s low score in
articulation, overall testing only indicated a “moderate delay” in language skills. (T. 3233.) Therefore, the ALJ’s conclusion that W.G. had “less than marked” limitations in the
domain of acquiring and using information is supported by substantial evidence
including teacher and school evaluations, and medical evidence and testing scores.
2.
Attending and Completing Tasks
The ALJ determined Plaintiff had a “less than marked” limitation in the domain of
attending and completing tasks. (T. 34-35.) Plaintiff argues the ALJ erred in his
determination finding Plaintiff’s speech and language delays did not cause a “marked”
limitation in the domain of acquiring and using information. Plaintiff asserts the ALJ
failed to take into consideration evidence of W.G.’s distractibility and difficulty
transitioning. (Dkt. No. 11 at 16 [Pl.’s Mem. of Law].)
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 finish ... activities.” 20 C.F.R. § 416.926a(h). According to the
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Regulations, a normally functioning preschool-age child should be able to hold his
attention in play and educational settings, dress himself, feed himself, put away his
possessions, and refrain from interrupting others. Id. § 416.926a(h)(2)(iii). Evidence of
limited functioning in the domain of attending and completing tasks includes being easily
distracted by environmental stimuli, frequently interrupting others, and requiring
substantial adult supervision. Id. § 416.926a(h)(3)(i)-(iii),(v).
The ALJ concluded W.G. had a “less than marked” limitation in attending and
completing tasks based on Ms. Lahan’s observations and the IEP report. (T. 35.)
Ms. Lahan did not report any “serious” or “very serious” problems in the domain
of attending and completing tasks. (T. 133.) Ms. Lahan observed that W.G. had an
“obvious” problem carrying out multi-step instructions on a daily basis and an “obvious”
problem changing from one activity to another without being disruptive on a weekly
basis. (Id.) She noted W.G. had a “slight” problem paying attention when spoken to
directly (daily); focusing long enough to finish assigned activity or task (weekly);
refocusing to task when necessary (daily); carrying out single-step instructions (weekly);
and waiting to take turns (weekly). (Id.) She noted he had no problem sustaining
attention during play activities. (Id.)
The IEP indicated W.G. “sometimes has difficulty staying on task and complying
with directives;” however, he “has shown much growth . . . [and] is able to follow the
classroom routine and is more easily redirected.” (T. 246.) Therefore, the ALJ’s
conclusion that W.G. had “less than a marked” limitations in this area is supported by
substantial evidence.
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3.
Interacting and Relating With Others
The ALJ determined W.G. had a “less than marked” limitation in interacting and
relating with others. (T. 36.) Plaintiff argues the ALJ’s determination in this area is not
supported by substantial evidence. (Dkt. No. 11 at 18 [Pl.’s Mem. of Law].)
The domain of interacting and relating with others is focused principally on
assessing the degree to which a child can “initiate and sustain emotional connections
with others, develop and use the language of [his] community, cooperate with others,
comply with rules, respond to criticism, and respect and take care of the possessions of
others.” 20 C.F.R. § 416.926a(i). According to the Regulations, a normally functioning
preschool-age child should be able to interact with peers and adults, foster friendships,
and use relatively complex language. Id. § 416.926a(i)(2)(iii).
Ms. Lahan observed a “very serious problem” in W.G.’s ability to “relate[]
experiences and tell[] stories” and in his ability to “use[] adequate vocabulary and
grammar to express thoughts/ideas in general, everyday conversation.” (T. 134.) She
observed an “obvious problem” in his ability to use language appropriately to the
situation and listener, and in his ability to introduce and maintain relevant and
appropriate topics of conversation. However, W.G. had only a “slight problem” or “no
problem” in playing cooperatively with other children; making and keeping friends;
seeking attention appropriately; expressing anger appropriately; asking for permission
appropriately; following rules; respecting/obeying adults in authority; taking turns in
conversation; and interpreting meaning of facial expression, body language, hints and
sarcasm. (Id.)
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The IEP report stated W.G. “enjoy[ed] interacting with peer and adults,” and was
“willing to please . . . happy and pleasant and [could] be very helpful to teachers and
peers.” (T. 246.) Although W.G. had language delays, substantial evidence in the record
supports the ALJ’s conclusion that W.G. had a “less than marked” limitations in this area
as he was able to interact and relate to others despite his language limitations.
4.
Moving About and Manipulating Objects
The ALJ determined W.G. had a less than marked limitation in moving and
manipulating objects. (T. 36.) Plaintiff argues the ALJ’s determination in this area is not
supported by substantial evidence. (Dkt. No. 11 at 16-17 [Pl.’s Mem. of Law].)
The domain of moving about and manipulating objects considers how well a child
can move his body from “one place to another” and how a child “move[s] and
manipulate[s] things.” 20 C.F.R. § 416.926a(j). The Regulations state that a preschoolage child, “should be able to walk and run with ease. . . gross motor skills should let
[him] climb stairs and playground equipment with little supervision, and let [him] play
more independently. . . [his] fine motor skills should also be developing. . . [he] should
be able to complete puzzles easily, string beads, and build with an assortment of
blocks. . . [he] should be showing increasing control of crayons, markers, and small
pieces in board games, and should be able to cut with scissors independently and
manipulate buttons and other fasteners. Id. § 416.926a.
The ALJ concluded W.G. had a “less than marked” limitation in this area. The
ALJ reasoned that although W.G. was recommended for occupational and physical
therapy, he was able to dress himself, use utensils, walk independently, walk on his
toes and jump. (T. 32.) The IEP report for school year 2012-2013 indicated W.G.’s
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gross motor skills were below average. (T. 246.) Specifically, the report noted W.G.’s
difficulties in his gross motor skills “affect [his] ability to adequately participate in school
related gross motor activities with his classmates.” (T. 246.) The record also indicated
that W.G. struggles with forming upper and lower case letters, but can color and cut and
print his name. (T. 265.) Further, although W.G.’s gross motor skills were below
average, he was progressing. (Id.) An earlier IEP report indicated that W.G.’s gross
motor skills were “below average,” but he could run, dance, jump, climb, and propel a
tricycle. (T. 189.) The report also stated he was independent with toileting, dressing and
feeding. (Id.)
Ms. Lahan noted W.G. had no problem managing pace of physical activities or
tasks, or showing a sense of body’s location and movement in space. (T. 135.) She
noted W.G. had a “slight problem” moving his body from one place to another; moving
and manipulating things; demonstrating strength, coordination, dexterity in activities;
integrating sensory input with motor output; and planning, remembering, executing
controlled motor movements. (Id.) Therefore, although the record indicated that W.G.
required physical and occupational therapy to assist him with his gross and fine
manipulation, the record supports the ALJ’s finding of a “less than marked” limitation in
this area.
5.
Caring for Yourself
The ALJ determined W.G. had a “less than marked” limitation in caring for
yourself domain. (T. 37.) Plaintiff argues the ALJ’s determination in this area is not
supported by substantial evidence, specifically W.G.’s impairments with gross and fine
motor skills impact his ability to care for himself. (Dkt. No. 11 at 17 [Pl.’s Mem. of Law].)
15
The domain caring for yourself contemplates a child's ability to “respond to
changes in [his] emotions and the daily demands of [his] environment to help [himself]
and cooperate with others in taking care of [his] personal needs, health and safety. It is
characterized by a sense of independence and competence.” 20 C.F.R. §
416.926a(k)(1)(i). The Regulations provide that a preschool-age child, “should want to
take care of many of [his] physical needs by [himself] . . . and also want to try doing
some things that [he] cannot do fully.” Id. § 416.926a.
The ALJ determined that W.G. had less than marked limitations in this area as
Plaintiff indicated W.G. is able to dress himself and Ms. Lahan indicated W.G. had no
problem taking care of personal hygiene, caring for his physical needs (dressing, eating,
etc.), and knowing when to ask for help. (T. 38.) Ms. Lahan did state W.G. had an
“obvious problem” identifying and appropriately asserting emotional needs and
responding appropriately to changes in own mood; however, she further stated that he
was starting to use more “feelings” words. (T. 136.) Therefore, the ALJ’s conclusion in
this area is also supported by substantial evidence.
Plaintiff argues the ALJ failed to properly assess the effects of W.G.’s structured
setting in his determination. (Dkt. No. 11 at 18 [Pl.’s Mem. of Law].) While the ALJ must
consider how a child would function outside of a supportive setting, “[t]he regulation
does not command the ALJ to explicitly discuss his consideration of these factors in the
decision ....” Watson ex rel. K.L.W. v. Astrue, 07-CV-6417, 2008 WL 3200240, at *5
(W.D.N.Y. Aug. 5, 2008) citing Turner v. Barnhart, 2006 WL 2460876, *2 (E.D.Penn.,
August, 21, 2006)(remanding case to Commissioner on other grounds).
16
Although the ALJ did not explicitly discuss W.G.’s educational setting, the ALJ
thoroughly discussed W.G.’s IEP reports, preschool developmental evaluation, teacher
evaluations, physical therapy evaluations, and medical evidence in the record. The ALJ
also discussed in detail testimony from Plaintiff concerning W.G.’s functioning outside
the school setting. As the ALJ’s decision was supported by substantial evidence, failure
to specifically discuss the effects of W.G.’s structured educational setting is not in error.
Plaintiff argues the ALJ failed to properly consider Plaintiff’s testimony regarding
the severity of W.G.’s impairments. (Dkt. No. 11 at 21 [Pl.’s Mem. of Law].) The ALJ
properly assessed the credibility of the father. The ALJ determined that W.G.’s
medically determinable impairments “could reasonably be expected to produce the
alleged symptoms; however, the statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible . . . for the reasons explained below.”
(T. 32.) The ALJ discussed Plaintiff’s testimony throughout his decision, and specifically
within each domain. The ALJ discussed in detail the medical evidence, educational
testing and evaluations, and other relevant information in the record as it related to
Plaintiff’s testimony. (T. 32.) Therefore, the ALJ did not err in his credibility assessment
of W.G.’s father.
Therefore, the ALJ’s conclusion that W.G. had “less than marked” limitations in
each domain is supported by substantial evidence and the ALJ properly evaluated the
evidence in the record as well as Plaintiff’s testimony.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) is
DENIED; and it is further
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ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12)
is GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED;
and it is further is
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated:
June 25, 2015
Syracuse, NY
18
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