McKinnis v. Saul

Filing 22

MEMORANDUM-DECISION and ORDER. It is ORDERED, that Plaintiff's Motion for Judgment on the Pleadings (Dkt. No. 11 ) is GRANTED; and it is further ORDERED, that Defendant's Motion for Judgment on the Pleadings (Dkt. No. 14 ) is DENIED; and it is further ORDERED, that the decision of the Commissioner denying Plaintiff disability benefits is REVERSED and the matter is REMANDED for further proceedings pursuant to sentence four of section 405(g). Signed by Magistrate Judge Daniel J. Stewart on 7/14/2021. (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
KA’DEEF M.,
Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

3:20-CV-787
(DJS)

Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

LACHMAN & GORTON
Attorney for Plaintiff
1500 E. Main Street
P.O. Box 89
Endicott, New York 13761

PETER A. GORTON, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL
Attorney for Defendant
J.F.K. Federal Building - Room 625
15 New Sudbury Street
Boston, Massachusetts 02203

DANIEL TARABELLI, ESQ.

DANIEL J. STEWART
United States Magistrate Judge
MEMORANDUM-DECISION AND ORDER 1
Currently before the Court, in this Social Security action filed by Plaintiff
Ka’deef M. against the Commissioner of Social Security, are Plaintiff’s Motion for

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Upon Plaintiff’s consent, the United States’ general consent, and in accordance with this District’s General Order
18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73. See Dkt. No. 7 & General Order 18.

Judgment on the Pleadings and Defendant’s Motion for Judgment on the Pleadings. Dkt.
Nos. 11 & 14. For the reasons set forth below, Plaintiff’s Motion for Judgment on the
Pleadings is granted and Defendant’s Motion for Judgment on the Pleadings is denied.
The Commissioner’s decision denying Plaintiff disability benefits is reversed, and the
matter is remanded for further proceedings.
I. RELEVANT BACKGROUND
A. Factual Background
Plaintiff was born in 1994, making him 22 years old at the time of his
Supplemental Security Income (“SSI”) application and 24 years old on the date of
decision of the Administrative Law Judge (“ALJ”). Dkt. No. 10, Admin. Tr. (“Tr.”) at
p. 174. Plaintiff received special education assistance while in school due to emotional
difficulties, including a period of at-home instruction after a behavioral incident in the
classroom. Tr. at pp. 42, 198, 202. He left school before completing the eleventh grade,
reportedly being expelled “because of my disability, my anger mostly.” Tr. at pp. 40,
284. After leaving school, Plaintiff participated in a Job Corps vocational training
program but did not complete it. Tr. at pp. 41, 284. Since leaving the training program,
he has held a number of temporary positions on an irregular basis, including assembly
work at a facility that manufactured vacuum filters and janitorial work. 2 Tr. at pp. 52,
185, 188.

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The ALJ determined that none of this work rose to the level of substantial gainful activity. Tr. at p. 14.

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Plaintiff reported that he was unable to work due to post-traumatic stress disorder,
anger management issues, depression, and social anxiety. Tr. at p. 211. According to
Plaintiff, these conditions result in panic attacks, heart palpitations, sweating, difficulty
breathing, trembling, and chest pain, particularly when he is around large groups of
people. Tr. at pp. 285-286, 363. He also reported that concerns about the safety of
himself and loved ones due to past traumatic experiences make him hypervigilant, and
keep him awake at night. Id.
According to Plaintiff, he has been arrested at least fifteen times, most recently
for drug possession. Tr. at pp. 275, 287, 404. Plaintiff reported that he self-medicated
with marijuana because “[i]t helps me cope.” Tr. at pp. 286, 293. The record includes
a psychiatric hospitalization in November 2016 after Plaintiff threatened to kill himself
or make the police kill him following a domestic dispute. Tr. at pp. 266, 272, 284.
B. Procedural History
Plaintiff received SSI benefits as a child beginning in August 2010, when he was
fifteen years old. Tr. at p. 58. As required by law, plaintiff’s eligibility for these
disability benefits was redetermined under the rules for determining disability in adults
when Plaintiff turned eighteen. Id. On April 17, 2013, an initial determination was
made that Plaintiff was no longer disabled as of that date. Id. This determination was
upheld upon reconsideration after a disability hearing by a state agency disability
hearing officer on August 9, 2013. Id. Plaintiff requested a hearing before an ALJ and
appeared without counsel at a hearing on May 8, 2014. Id. On August 5, 2014, the ALJ
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determined that Plaintiff was not disabled as of April 17, 2013, and had not become
disabled again as of the date of the decision. Tr. at p. 66.
Plaintiff filed the new SSI application at issue in this case on December 6, 2016.
Tr. at pp. 174-180. Plaintiff’s application was initially denied on March 8, 2017, after
which he timely requested a hearing before an ALJ. Tr. at pp. 82-85, 88-90. ALJ
Elizabeth W. Koennecke held an administrative hearing on October 10, 2018, at which
Plaintiff testified. Tr. at pp. 36-54. The ALJ held a supplemental hearing on February
25, 2019 to hear the testimony of vocational expert (“VE”) Marian Marracco. Tr. at pp.
26-34.
On March 15, 2019, the ALJ issued a written decision finding that Plaintiff was
not disabled under the Social Security Act. Tr. at pp. 8-24. On June 2, 2020, the Appeals
Council denied Plaintiff’s request for review, making the ALJ’s decision the final
decision of the Commissioner. Tr. at pp. 1-5.
C. The ALJ’s Decision
In her decision, the ALJ made the following findings of fact and conclusions of
law. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since December 15, 2016, the amended alleged onset date. Tr. at p. 14. Next, the ALJ
found that Plaintiff had a severe mental impairment. Id. In light of the multiple
diagnoses in the record, the ALJ defined it as “all mental impairments as variously
characterized.” Id. The ALJ then found that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals one of the listed
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impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). Tr. at pp. 14-16.
The ALJ then found that Plaintiff’s residual functional capacity (“RFC”) allowed him
to perform a full range of work at all exertional levels but with certain nonexertional
limitations. Specifically, the ALJ found that Plaintiff retains the ability
to understand and follow simple instructions and directions; perform
simple tasks independently; maintain attention and concentration for
simple tasks; regularly attend to a routine and maintain a schedule; handle
simple, repetitive work-related stress in that the person can make
occasional decisions directly related to the performance of simple tasks in
a position with consistent job duties that does not require the claimant to
supervise or manage the work of others; should avoid work requiring more
complex interaction or joint effort to achieve work goals for example, and
can have no contact with the public.
Tr. at p. 16.
The ALJ next found that Plaintiff has no past relevant work. Tr. at p. 19. Relying
upon the VE testimony, and taking into account Plaintiff’s age, education, work
experience, and RFC, the ALJ found that there were jobs existing in significant numbers
in the national economy that Plaintiff could perform. Tr. at p. 19. The ALJ therefore
concluded that Plaintiff had not been under a disability since the application date of
November 16, 2016. Tr. at p. 20.
D. The Parties’ Positions
Plaintiff makes four arguments in support of reversal. First, he argues that the
ALJ’s RFC determination failed to account for Plaintiff’s functional limitations in social
interaction. Dkt. No. 11, Pl.’s Mem. of Law at pp. 6-8. Second, Plaintiff argues that the
ALJ erred in evaluating the medical opinion evidence, particularly with regard to
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functional limitations associated with attention and concentration. Id. at pp. 8-16, 1923. Third, Plaintiff argues that the ALJ erred by failing to consider his education
records, including his individualized education plan (“IEP”) that addressed his mental
impairments. Tr. at pp. 16-19. Finally, Plaintiff argues that the ALJ erred at step five.
Tr. at p. 23.
Defendant counters that the ALJ properly evaluated the record evidence and
made a disability determination that is supported by substantial evidence. 3 See generally
Dkt. No. 14, Def.’s Mem. of Law.
II. RELEVANT LEGAL STANDARDS
A. Standard of Review
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 &
Hum. 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

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Defendant’s brief devotes significant time to a policy argument encouraging the Court to adopt an expansive
approach to issue exhaustion in social security cases, including Plaintiff’s. Dkt. No. 14 at pp. 8-11. This prompted
Plaintiff to file a reply brief on the issue, and the Defendant to file a sur-reply on the same topic. Dkt. Nos. 17 &
20. Plaintiff also filed a letter brief updating the court on recent judicial developments in this area. Dkt. No. 21.
Because the Court is remanding for other reasons, it need not delve into the parties’ arguments, but notes that the
United States Supreme Court has adopted a narrow approach to issue exhaustion in such cases, due to the nonadversarial manner of social security administrative proceedings. See Carr v. Saul, 141 S. Ct. 1352, 1359 (2021);
Sims v. Apfel, 530 U.S. 103, 109 (2000).

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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 (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 an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the 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 & Hum. Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
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B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
404.1520, 416.920. The Supreme Court has recognized the validity of this sequential
evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step
process is as follows:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has an
impairment which is listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age, education,
and work experience; the [Commissioner] presumes that a claimant who
is afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s severe impairment, he
has the residual functional capacity to perform his past work. Finally, if
the claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Under the cases previously discussed, the claimant bears the burden of
proof as to the first four steps, while the [Commissioner] must prove the
final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758
F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or nondisability can
be made, the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S.
20, 24 (2003).

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III. ANALYSIS
A. Remand is Required due to the ALJ’s Failure to Consider the Young Adult
Plaintiff’s Educational Records
As part of her RFC determination, the ALJ stated “[t]here is little medical
evidence relating to his mental impairments. There is an IEP and school records,
however they date from well prior to the claimant’s eighteenth birthday and have little
applicability to his current situation at age twenty-two.” Tr. at p. 17.
The educational records available to the ALJ included an October 12, 2006
evaluation by school psychologist Dr. William J. Zoda when Plaintiff was almost twelve
years old and in the sixth grade. Tr. at pp. 258-260. Dr. Zoda noted that Plaintiff’s full
school records show that he had received special education assistance since pre-school,
and that he had already been enrolled in “several different districts throughout the
country” by the time that he was in sixth grade. Tr. at p. 258. Based on test results,
Plaintiff was “functioning within the low average range of intelligence when compared
to children at his age level and at this respect he is at the 13th percentile.” Tr. at p. 260.
Dr. Zoda noted that there was “some discrepancy between his verbal IQ of 92 and his
Performance IQ of 76, suggesting that he receives, processes, integrates and relates
information more easily through the auditory/verbal as opposed to the visual/visual
motor channel of learning.” Id. Although the report does not provide details, it
references a “suspension and possible change of placement” following “verbal threats”
that Plaintiff attributed to his anger. Id.
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The record also includes an IEP developed on October 6, 2011, when Plaintiff
was 16 years old and in the eleventh grade. Tr. at p. 195-209. This was the final year
of Plaintiff’s formal education, before he left school and attempted to join the workforce.
Tr. at pp. 40, 284. The IEP included January 2011 intelligence test results showing that
Plaintiff’s Composite IQ, Non Verbal IQ, and Verbal IQ were in the below average
range, but noted that it was likely a low estimate of Plaintiff’s cognitive ability because
“[h]e was very impulsive with his responses and often did not take in all of the necessary
information before answering a question.” Tr. at p. 198. The IEP reflected a diagnosis
of “emotional disturbance” and noted that Plaintiff had “been on home teaching since
mid December 2010 because of a behavioral incident involving a staff member.” Id. It
also referenced prior reports that Plaintiff “often tries to avoid work by antagonizing
other students or making inappropriate comments” and found that Plaintiff “needs a
small, highly structured, behavior focused educational setting to meet both his
educational needs and behavioral needs.” Tr. at pp. 198-199. Plaintiff was observed to
“not feel like he has a group of adults that he is able to consistently trust” and “uses
threatening language to peers and staff on a daily basis.” Tr. at p. 199.
The IEP notes that within the first few days of the 2011-2012 school year,
Plaintiff “was suspended for a behavioral incident” after being denied a request to leave
early and cautioned that “[a]lternate program options need to be discussed in order to
ensure the safety and well-being of [Plaintiff] and the students and staff in his program.”
Tr. at p. 200. It also warned that when Plaintiff “becomes agitated or frustrated and his
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behavior is escalating, it is very important to avoid physical contact. Even a soft touch
for proximity control or to ask if he is alright will almost certainly end in [Plaintiff]
becoming physically aggressive.” Id. The IEP also notes examples of “verbal and
physical aggression” toward other students. Id.
The Social Security Administration has promulgated specific guidance with
respect to the evaluation of disability in young adults, whom it defines as “people
between the ages of 18 to approximately 25.” SSR 11-2p, 2011 WL 4055665, at *1
(Sept. 12, 2011). As noted above, Plaintiff was twenty-two when he filed the SSI
application at issue in this case, and thus qualifies as a young adult. The same definition
of disability, rules, and five-step sequential evaluation process apply to young adults as
to older adults. SSR 11-2p, supra, 2011 WL 4055665 at *2; Coppola v. Berryhill, 2019
WL 1292848, at *20 (S.D.N.Y. Mar. 21, 2019) (collecting cases). SSR 11-2p “instructs
that ALJs consider evidence from other sources who are not medical sources, but who
know and have contact with the young adult, such as family members or educational
personnel[,] to assist in evaluating the severity and impact of a young adult’s
impairment(s).” Samuel v. Comm’r of Soc. Sec., 2015 WL 5774850, at *13 (E.D.N.Y.
Sept. 30, 2015) (internal quotation marks omitted); Hindsman v. Berryhill, 2018 WL
4568598, at *11 (E.D. Pa. Sept. 24, 2018) (when acceptable medical source establishes
existence of medically determinable impairment, ALJ will consider all evidence relevant
to disability determination, including school records).

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SSR 11-2p also addresses the task of extrapolating a young adult’s work-related
limitations from his performance in school. The SSR acknowledges that
The young adult’s ability to function in settings that are less demanding,
more structured, or more supportive than those in which people typically
work does not necessarily show how the young adult will be able to
function in a work setting. . . .The more extra help or support of any kind
that a young adult receives because of his or her impairment(s), the less
independent he or she is in functioning, and the more severe we will find
the limitation to be.
SSR 11-2p, 2011 WL 4055665, at *7-*8. SSR 11-2p also recognizes that “evidence
about a young adult’s functioning from school programs, including IEPs . . . may
indicate how well a young adult can use his or her physical or mental abilities to perform
work activities.” Id. at *7. SSR 11-2p identifies certain “examples of school-reported
difficulties [that] might indicate difficulty with work activities,” including
[d]ifficulty in understanding, remembering, and carrying out simple
instructions and work procedures during a school-sponsored work
experience; [d]ifficulty communicating spontaneously and appropriately
in the classroom; [d]ifficulty with maintaining attention for extended
periods in a classroom; [d]ifficulty relating to authority figures and
responding appropriately to correction or criticism during school or a
work-study experience; [and] [d]ifficulty using motor skills to move from
one classroom to another.
Id.
SSR 11-2p, requiring examination and discussion of a claimant’s school records,
is binding on the ALJ in this case. Heckler v. Edwards, 465 U.S. 870, 873 n. 3 (1984)
(Social Security Rulings are binding on all SSA decision-makers); Samuel v. Comm’r
of Soc. Sec., 2015 WL 5774850, at *13 (E.D.N.Y. Sept. 30, 2015) (remanding where
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ALJ failed to review school records, including school psychologist records, in conflict
with SSR 11-2p); Barrios v. Colvin, 2016 WL 756457, at *7 (C.D. Cal. Feb. 24, 2016)
(remanding for further administrative proceedings to conduct the analysis required by
SSR 11–2p).
The ALJ’s cursory rejection of Plaintiff’s school records disregarded the
Commissioner’s guidance as set forth in SSR 11-2p. Given Plaintiff’s limited mental
health treatment outside the educational context and the lack of any significant work
experience from which to draw comparisons, school records may provide the most
comprehensive insight into his level of functioning in the period preceding his SSI
application. Coppola v. Berryhill, 2019 WL 1292848, at *22. Plaintiff’s school records,
documenting a lengthy history of emotional disturbance and physical aggression that
required him to be removed from the classroom for individualized home education,
would appear directly relevant to the ALJ’s inquiry into Plaintiff’s ability to maintain
attention and concentration, meet attendance requirements, and interact with
supervisors, co-workers, and the general public. All of these factors influenced the
ALJ’s consideration of the medical opinion evidence from the state agency consultant,
Plaintiff’s treating psychiatrist, and the psychiatric consultative examiner in developing
her RFC determination, and impacted her examination of the VE at step five. See Tr. at
pp. 18-20. Thus, the ALJ’s error in labeling Plaintiff’s educational record as irrelevant
cannot be considered harmless.

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In reaching this conclusion, the Court is not finding that Plaintiff’s educational
records establish that he is disabled. Nor is it disturbing the August 5, 2014 decision
that Plaintiff was not disabled when he turned eighteen. Tr. at p. 58. The Court is only
finding that further administrative proceedings are necessary for the inquiry into
Plaintiff’s special education records that the Commissioner requires pursuant to SSA
11-2p. 4
B. Plaintiff’s Other Arguments
Because the Court is remanding for proper consideration of Plaintiff’s
educational records, the Court will not consider Plaintiff’s additional arguments
regarding the ALJ’s RFC analysis and Step Five determination, because those decisions
will necessarily be revisited upon remand. See, e.g., Emily B. v. Comm’r of Soc. Sec.,
2020 WL 2404762, at *11 (N.D.N.Y. May 12, 2020) (declining to address specific
challenges to RFC and step five determination while remanding for consideration of
newly submitted medical opinion evidence); Samantha D. v. Comm’r of Soc. Sec., 2020
WL 1163890, at *10 (N.D.N.Y. Mar. 11, 2020) (declining to reach arguments
concerning whether ALJ’s findings were supported by substantial evidence where the
court had already determined that remand was necessary); Raymond v. Comm’r of Soc.

Plaintiff’s requested relief includes a request that the Court determine that he is entitled to benefits. Dkt. No. 11
at p. 23. Such relief is not available at this stage of the proceeding. “When there are gaps in the administrative
record or the ALJ has applied an improper legal standard . . . remand[] to the Secretary for further development of
the evidence” is generally appropriate. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). This court cannot
conclude that “substantial evidence on the record as a whole indicates that the [plaintiff] is disabled[,]” and thus,
cannot recommend a remand solely for the determination of benefits. See Bush v. Shalala, 94 F.3d 40, 46 (2d Cir.
1996) (quoting Gilliland v. Heckler, 786 F.2d 178, 184 (3d Cir. 1986)).

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Sec., 357 F. Supp. 3d 232, 240 (W.D.N.Y. 2019) (declining to reach argument
concerning whether RFC was supported by substantial evidence where the court had
already determined that the ALJ had erred at step three analysis in evaluating whether
plaintiff had met the requirements under a listing). Because the Court has already
determined, for the reasons previously discussed, that remand of this matter for further
administrative proceedings is necessary, it declines to reach the other issues raised by
Plaintiff.
IV. CONCLUSION
ACCORDINGLY, it is
ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings (Dkt. No. 11)
is GRANTED; and it is further
ORDERED, that Defendant’s Motion for Judgment on the Pleadings (Dkt. No.
14) is DENIED; and it is further
ORDERED, that the decision of the Commissioner denying Plaintiff disability
benefits is REVERSED and the matter is REMANDED for further proceedings
pursuant to sentence four of section 405(g) as set forth above; and it is further
ORDERED, that the Clerk of the Court shall serve copies of this Memorandum-

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Decision and Order on the parties.
Dated: July 14, 2021
Albany, New York

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