Churchill v. Commissioner of Social Security

Filing 17

DECISION AND ORDER denying # 13 Plaintiff's motion for judgment on the pleadings; and granting # 14 Defendant's motion for judgment on the pleadings. Defendant's decision denying disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 1/27/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
JODI CHURCHILL,
on behalf of Z.W.C., a minor,
Plaintiff,
v.

1:15-CV-1186
(GTS)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
______________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF PETER M. MARGOLIUS
Counsel for Plaintiff
7 Howard Street
Catskill, NY 12414OLINSKY LAW GROUP

PETER M. MARGOLIUS, 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

KRISTINA D. COHN, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Jodi Churchill, on behalf
of her son, Z.W.C. (“Plaintiff”), against the Commissioner of Social Security (“Defendant” or
“the Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ crossmotions for judgment on the pleadings. (Dkt. Nos. 13, 14.) For the reasons set forth below,
Plaintiff’s motion for judgment on the pleadings is denied and Defendant’s motion for judgment
on the pleadings is granted.

I.

RELEVANT BACKGROUND
A.

Factual Background

At the time of the hearing, Plaintiff was in the tenth grade. Generally, Plaintiff’s alleged
impairments are syringomyelia,1 attention deficit hyperactivity disorder (“ADHD”), oppositional
defiant disorder, sleep disorder, migraines, bowel and bladder incontinence, and reflux.
B.

Procedural History

On June 8, 2012, Plaintiff’s mother filed an application for Supplemental Security Income
on behalf of Plaintiff, a minor. Plaintiff’s application was initially denied on September 19, 2012,
after which he timely requested a hearing before an Administrative Law Judge (“ALJ”). On
November 27, 2013, Plaintiff and his mother appeared in a hearing before the ALJ, Carl E.
Stephan. (T. 31-60.)2 On February 11, 2014, the ALJ issued a written decision finding Plaintiff
not disabled under the Social Security Act. (T. 9-30.) On July 30, 2015, 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. 19-29.) First, the ALJ found that Plaintiff was an “adolescent” pursuant
to 20 C.F.R. § 416.926a(g)(2) on June 8, 2012, the date that the application for benefits was filed.
(T. 19.) Second, the ALJ found that Plaintiff had not engaged in substantial gainful activity since

1

Syringomyelia is the development of a fluid-filled cyst on the spinal cord that may enlarge over
time, damaging the spinal cord and causing symptoms including pain, weakness, and stiffness. MAYO CLINIC,
http://www.mayoclinic.org/diseases-conditions/syringomyelia/home/ovc-20267736 (last visited Jan. 20, 2017).
2

Page citations refer to the page numbers used on CM/ECF rather than the page numbers contained
in the parties’ respective motion papers.

2

the application date. (Id.) Third, the ALJ found that Plaintiff’s ADHD, hydromyelia
(syringomyelia), and headaches were severe impairments. (T. 19.) Fourth, the ALJ found that
Plaintiff 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, Subpart P, Appendix 1 (the
“Listings”). (T. 19.) The ALJ considered Listings 112.11 and 111.00. (Id.) Fifth, the ALJ found
that Plaintiff does not have an impairment, or combination of impairments, that functionally
equals the severity of the Listings. (T. 19-29.) Sixth, and finally, the ALJ found that Plaintiff has
not been disabled, as defined by the Social Security Act, since June 8, 2012, the date his
application was filed. (T. 29.)
D.

The Parties’ Briefings on Their Cross-Motions

Plaintiff makes two arguments in support of his motion for judgment on the pleadings.
First, Plaintiff argues that the ALJ’s determination that Plaintiff has “less than marked” limitation
in the domain of attending and completing tasks is not supported by substantial evidence. (Dkt.
No. 13, at 1-4 [Pl.’s Mem. of Law].) Second, Plaintiff argues that the ALJ’s determination that
Plaintiff has “less than marked” limitation in the domain of health and physical well-being is not
supported by substantial evidence. (Id., at 4-5.)
Defendant makes two arguments in support of her motion for judgment on the pleadings.
First, Defendant argues that substantial evidence supports the ALJ’s determination that Plaintiff
has “less than marked” limitation in his ability to attend to and complete tasks. (Dkt. No. 14, at 610 [Def.’s Mem. of Law].) Second, Defendant argues that substantial evidence supports the
ALJ’s finding that Plaintiff has “less than marked” limitation in his health and physical wellbeing. (Id. at 8-13.)

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II.

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

an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only 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.”);
accord, 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 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. 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
4

(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 18 is disabled, and thus eligible for Social Security Income
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 twelve months.
42 U.S.C. § 1382c(a)(3)(C)(i). However, that definitional provision excludes from coverage any
“individual under the age of 18 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 determine
whether a child can meet the statutory definition of disability. 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 five-step analysis employed in adult disability cases, requires determining
whether the child has engaged in substantial gainful activity. 20 C.F.R. § 416.924(b); Kittles, 245
F. Supp. 2d at 488. If so, then the child is ineligible for Social Security Income benefits. 42
U.S.C. § 1382c(a)(3)(C)(ii); 20 C.F.R. § 416.924(b).
If the child has not engaged in substantial gainful activity, the second step of the test
requires examining whether the child suffers from one or more medically determinable
impairments that, either singly or in combination, are properly regarded as “severe” because they
cause more than minimal functional limitation. 20 C.F.R. § 416.924(c); Kittles, 245 F. Supp. 2d
5

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.”
Sullivan v. Zebley, 493 U.S. 521, 529, 110 S. Ct. 885, 890 (1990).
If a “severe” impairment exists, the third step requires determining whether the child’s
impairment(s) meet or medically equal the severity of a presumptively disabling condition
identified in the listings set forth under 20 C.F.R. Pt. 404, Subpt. P., App. 1. (the “Listings”). 20
C.F.R. § 416.924(d); Zebley, 493 U.S. at 526. Equivalence to a Listing can be either medical or
functional. 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
Listing and the 12-month durational requirement is satisfied, the claimant will be deemed
disabled. 20 C.F.R. § 416.924(d)(1); Ramos, 2003 WL 21032012, at *8.
Analysis of functionality considers 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 the following: (i) acquiring and using
information; (ii) attending and completing tasks; (iii) interacting and relating with others; (iv)
moving about and manipulating objects; (v) caring for oneself; and (vi) health and physical
well-being. 20 C.F.R. § 416.926a(b)(1). Functional equivalence is established if the child is
determined to have an “extreme,” or “more than marked,” limitation in a single domain. 20
C.F.R. § 416.926a(a); Ramos, 2003 WL 21032012, at *8. An extreme limitation is an impairment
that “interferes very seriously with [a claimant’s] ability to independently initiate, sustain, or
complete activities.” 20 C.F.R. § 416.926a(e)(3)(i).

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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 [a 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).
III.

ANALYSIS
For the ease of analysis, Plaintiff’s arguments will be reorganized and consolidated

below.
A.

Whether Substantial Evidence Supports the ALJ’s Determination that
Plaintiff’s Impairments Do Not Functionally Equal the Listings

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 6-13 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
i.

Attending and Completing Tasks

In assessing a child’s functioning in the domain of attending and completing tasks, the
ALJ considers how well a child is able to focus and maintain his 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. 20 C.F.R. § 416.926a(h); SSR 09-4p. Attending and
completing tasks also refers to a child’s ability to avoid impulsive thinking and his ability to
prioritize completing tasks and manage his time. 20 C.F.R. § 416.926a(h); SSR 09-4p.

7

The regulations provide that an adolescent (a child age 12 to attainment of age 18), in
later years of school, should be able to pay attention to increasingly longer presentations and
discussions, maintain concentration while reading textbooks, and independently plan and
complete long-range academic projects. 20 C.F.R. § 416.926a(h)(2)(v). The child should be
able to organize his materials and to plan his time in order to complete school tasks and
assignments. Id. In anticipation of entering the workplace, he should be able to maintain his
attention on a task for extended periods of time, and not be unduly distracted by his peers or
unduly distracting to them in a school or work setting. Id.
Some examples of limited functioning in this domain are when a child: (i) is easily
startled, distracted, or over-reactive to sounds, sights, movements, or touch; (ii) is slow to focus
on, or fails to complete, activities of interest (e.g., games or art projects); (iii) repeatedly
becomes side-tracked from activities or frequently interrupts others; (iv) is easily frustrated and
gives up on tasks, including ones he is capable of completing; or (v) requires extra supervision to
remain engaged in an activity. 20 C.F.R. § 416.926a(h)(3). These examples do not apply to a
particular age group, but cover a range of ages and developmental periods. Id. Additionally, the
examples do not necessarily describe a “marked” or “extreme” limitation in the domain. Id.
Here, the ALJ determined that Plaintiff has “less than marked” limitation in the domain
of attending and completing tasks. (T. 25.) The ALJ noted that consultative mental examiner
Leslie Helprin, Ph.D., observed that Plaintiff exhibited intact attention and concentration, and
Plaintiff’s doctors reported that he had improved attention with medication. (T. 22, 25.)
Moreover, Dr. Helprin opined that Plaintiff was able to attend to, follow, and understand ageappropriate directions and complete age-appropriate tasks. (T. 452.) The ALJ noted that, though

8

the Plaintiff has a 504 accommodation plan with his school district,3 he still remained on the
honor roll, which suggests that he can maintain attention and concentration. (T. 25.)
Additionally, elsewhere in the decision, the ALJ noted that consultative physical
examiner Mark Johnston, M.D., observed that Plaintiff had a normal attention span for his age.
(T. 22.) Dr. Johnston further noted that, while Plaintiff requires frequent reminders to sit still
during class, he had avoided disciplinary treatment or detention. (T. 445.) Additionally, the ALJ
noted that State agency consultants, D. Bostic, M.D., and J. Dambrocia, Ph.D., opined that
Plaintiff has “less than marked” limitation in the domain of attending and completing tasks. (T.
23.) In sum, the ALJ concluded that Plaintiff has a limitation in the domain of attention and
concentration, but his limitation does not “seriously interfere” with Plaintiff’s functioning in the
activities relevant to this area and therefore, a “less than marked” rating is appropriate. (Id.)
Plaintiff argues that the ALJ incorrectly stated that Plaintiff remained on the honor roll.
(Dkt. No. 13, at 3 [Pl.’s Mem. of Law].) In support of his argument, Plaintiff cited specific
evidence from April and May of 2011 indicating that Plaintiff had gone from the high honor roll
to the merit roll. (Id.) Notably, this evidence predated Plaintiff’s June 8, 2012, application and
therefore, was before Plaintiff’s period of eligibility for benefits under the regulations. 20 C.F.R.
§ 416.330, 416.335. Moreover, in August 2012, Dr. Johnston noted that Plaintiff made the high
honor roll for the previous two quarters despite missing about 15 days of school during the
previous year, and earned grades of 94 Technology, 99 in Spanish, 90 in English and Social
Studies, 89 in Math, and 86 in Science. (T. 449.) Additionally, both Plaintiff and his mother
testified that Plaintiff was on the honor roll as of the hearing on November 27, 2013. (T. 43, 60.)
3

The ALJ noted that Plaintiff’s Section 504 plan provided that he cannot engage in lifting and
carrying, requires additional books, needs visual cues, requires extra leeway with completion dates, needs movement
breaks, and is allowed extra breaks to complete tests and other class work. (T. 21.)

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In any event, the ALJ properly considered the evidence cited by Plaintiff and reasonably
found that Plaintiff’s ability to make the honor roll suggests that he can maintain attention and
concentration. (T. 25.) Moreover, the ALJ’s conclusion that Plaintiff has “less than marked”
limitation in the domain of attending and completing tasks is supported by substantial evidence,
including the opinions of consultative examiner Dr. Helprin and State agency medical
consultants Dr. Bostic and Dr. Dambrocia discussed above.
ii.

Health and Physical Well-Being

This domain considers the cumulative physical effects of a child’s physical and mental
impairments and associated treatments or therapies on the child’s functioning that were not
considered in the evaluation of the child’s ability to move about and manipulate objects. 20
C.F.R. § 416.926a(l), SSR 09-4p. In addition, this domain considers that the medications a child
takes (e.g., for asthma or depression) or treatments a child receives (e.g. chemotherapy or
multiple surgeries) may have physical effects that limit the child’s performance of activities.
C.F.R. § 416.926a(2), SSR 09-4p.
A child’s physical or mental disorder may have physical effects that vary in kind and
intensity, and may make it difficult for the child to perform his activities independently or
effectively. 20 C.F.R. § 416.926a(l)(1). Such effects may include generalized weakness,
dizziness, shortness of breath, reduced stamina, fatigue, psychomotor retardation, allergic
reactions, recurrent infection, poor growth, bladder or bowel incontinence, or local or
generalized pain. Id. Examples of limitations in this domain include (i) generalized symptoms,
such as weakness, dizziness, agitation, lethargy, or psychomotor retardation because of
impairment(s), (ii) somatic complaints relating to impairment(s) (e.g., seizure or convulsive
activity, headaches, incontinence, recurrent infections, allergies, changes in weight or eating

10

habits, stomach discomfort, nausea, or insomnia), (iii) limitations in physical functioning
because of treatment (e.g., chemotherapy, multiple surgeries, chelation, pulmonary cleansing, or
nebulizer treatments), (iv) exacerbations from one impairment or a combination of impairments
that interfere with physical functioning, or (v) being medically fragile and needing intensive
medical care to maintain health and physical well-being. 20 C.F.R. § 416.926a(l)(4).
In the domain and physical well-being, a “marked” limitation will be found “if the child’s
impairments cause episodes of illness or exacerbations that result in significant, documented
symptoms that occur on a regular basis.” Hamdallah ex rel. E.B. v. Astrue, 876 F. Supp. 2d 133,
151 (N.D.N.Y. June 25, 2012) (citing Surita ex rel. Cifuentes v. Astrue, 2008 WL 4998426, at *4
(S.D.N.Y. 2008); accord, 20 C.F.R. § 416.926a(e)(2)(iv) (stating that a “marked” limitation in
health and physical well being may be found if the child is frequently ill because of his
impairment(s) that result in “significant, documented, symptoms or signs”).4
Here, the ALJ determined that Plaintiff has a limitation in the domain of health and
physical well being, but his limitation does not “seriously interfere” with his functioning in the
activities relevant to this area and therefore, a “less than marked” rating is appropriate. (T. 2829.) The ALJ reasoned that, though Plaintiff has a history of syringomyelia, with headaches and
possible loss of sensation, he did not seek “recurrent treatment” throughout the period at issue.
(T. 28.) The ALJ stated that, instead, Plaintiff “maintained routine office visits and he has been
stable on medication.” (Id.)
Plaintiff objects to the ALJ’s statement that Plaintiff had not sought “recurrent treatment”
4

For purposes of this domain, “frequent” means that a child has episodes of illness that occur on an
average of three times a year, each lasting two weeks or more. 20 C.F.R. § 416.926a(e)(2)(iv). A marked limitation
may also be found if a child has episodes that (1) occur more often than three times in a year, but do not last for two
weeks, or (2) occur less often than an average of three times a year, but last longer than two weeks “if the overall
effect (based on the length of the episode(s) or its frequency) is equivalent in severity.” Id.

11

because Plaintiff sought treatment with a variety of medical providers throughout the period at
issue and was prescribed multiple medications. (Dkt. No. 13, at 4 [Pl.’s Mem. of Law].)
Plaintiff’s point is well taken. Notwithstanding, elsewhere in his decision the ALJ stated that
Plaintiff’s “history of continued treatment for ADHD and syringomyelia” support limitation in
the domains, but noted that Plaintiff’s symptoms had improved with treatment. (T. 23.)
Additionally, the ALJ’s decision thoroughly and accurately summarized Plaintiff’s reported
symptoms and treatment history during the relevant period. (T. 20-29.)
Plaintiff further argues that he has significant physical limitations as a result of
syringomyelia that are documented in the record. (Dkt. No. 13, at 4 [Pl.’s Mem. of Law].) For
example, Plaintiff cites his school district’s Section 504 accommodation plan which indicates
that Plaintiff has “severe limitations with any type of physical lifting, carrying, or participation
in physical education.” (Id., at 4-5.) Additionally, Plaintiff cites Dr. Bostic’s opinion that
Plaintiff has “marked” limitation in the domain of health and physical well-being. (Id.) Finally,
Plaintiff cites a function report from his mother (which he argues demonstrates his significant
physical limitations), and various examination and treatment notes regarding his migraine
headaches (which he argues improved, but were not resolved). (Id., at 4-5.)
First, a review of the ALJ’s complete decision indicates that the ALJ considered all of the
evidence that Plaintiff cited in support of his argument, except one treatment note that predated
the relevant time period. (T. 19-29.) Second, even if the ALJ erred in finding that Plaintiff had
“less than marked” limitation in the domain of health and well being, remand would not be
required on this basis alone. Remand for an error is not required when correction of the error
would only lead to the same conclusion. Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010);
Lamorey v. Barnhard, 158 F. App’x 361, 363 (2d Cir. 2006). Assuming arguendo that Plaintiff
has “marked” limitation in the domain of health and well being, “marked” limitation in one
12

domain only would not result in a finding of disability.5 20 C.F.R. § 416.926a(a); Ramos, 2003
WL 21032012, at *8. As discussed in Part III.A.i. of this Decision and Order, substantial
evidence supports the ALJ’s determination that Plaintiff has “less than marked” limitation in the
domain of attending and completing tasks. Moreover, the ALJ’s determination that Plaintiff has
“less than marked” limitation in the remaining domains is undisputed. (T. 24-29.) Therefore,
remand is not necessary on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 13) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 14) is
GRANTED; 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: January 27, 2017
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

5

Plaintiff expressly argues that he has a “marked” limitation in the domain of health and physical
well being. (Dkt. No. 13, at 5 [Pl.’s Mem. of Law].) Plaintiff does not appear to argue that he has “extreme”
limitation in any domain, and a review of the record evidence does not support such a finding.

13