Fowler v. Commissioner of Social Security

Filing 11

ORDER adopting Report and Recommendations re 9 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Baxter's November 23, 2015 Report-Recommendation (Dkt. No. 9) is ADOPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Plaintiff's motion for judgment on the pleadings (Dkt. No. 7) is DENIED; and the Court further ORDERS that Defendant's motion for judgment on the pleadings (Dkt. No. 8) isGRANTED; and the Court further ORDE RS that the Commissioner's decision denying disability benefits is AFFIRMED; and the Court further ORDERS that the Clerk shall enter judgment in Defendant's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 3/29/2016. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TAMMY L. FOWLER
o/b/o E.J.A.,
Plaintiff,
vs.

5:14-cv-01390
(MAD/ATB)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

CONBOY, MCKAY, BACHMAN
& KENDALL, LLP
407 Sherman Street
Watertown, New York 13601-9990
Attorneys for Plaintiff

PETER L. WALTON, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza, Room 3904
New York, New York 10278
Attorneys for Defendant

SIXTINA FERNANDEZ, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
I. INTRODUCTION
Plaintiff Tammy L. Fowler ("Plaintiff") brought this action on behalf of her son, E.J.A.1
("claimant"), pursuant to 42 U.S.C. §§ 405(g) and 1383(c), seeking a review of the Commissioner
of Social Security's (the "Commissioner") decision to deny E.J.A.'s application for Supplemental

Throughout this decision, the minor on whose behalf this action was brought by Plaintiff
will be referred to by his initials or as "claimant."
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Security Income ("SSI") payments under the Social Security Act, 42 U.S.C. § 401 et seq. See
Dkt. No. 1. The matter was referred to United States Magistrate Judge Andrew T. Baxter for a
Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). Magistrate
Judge Baxter recommended that this Court affirm the decision of the Commissioner, denying
Plaintiff's application for benefits, and dismiss Plaintiff's complaint. See Dkt. No. 9. Presently
before the Court are Magistrate Judge Baxter's November 23, 2015 Report-Recommendation and
Plaintiff's objections thereto. See Dkt. Nos. 9, 21.

II. BACKGROUND
This Court adopts the facts set forth in Magistrate Judge Baxter's Report-Recommendation
as complete and accurate. For a complete recitation of the facts, see Dkt. No. 9. Plaintiff filed an
application for SSI on behalf of her son, E.J.A., on March 29, 2007. See Dkt. No. 6,
Administrative Transcript ("T.") at 127-33. After Plaintiff's application was denied on June 18,
2007, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). See id. at 59-63,
64-66. Following the hearing, the ALJ found that E.J.A. was not disabled in a decision dated
January 8, 2010, and the Appeals Council denied Plaintiff's request for review on July 18, 2011,
rendering the ALJ's decision the Commissioner's final decision. See id. at 1-6, 10-30.
On September 14, 2011, Plaintiff commenced an action challenging the decision, and the
case was remanded for additional administrative action. See id. at 470-73, 503. On September 5,
2012, the Appeals Council vacated the January 8, 2010 ALJ decision and remanded the case for a
supplemental hearing and redetermination of disability. See id. at 379, 506-10. On April 11,
2013, Plaintiff and E.J.A. appeared and testified at a supplemental hearing. See id. at 411-42.
Thereafter, the ALJ issued a decision on April 25, 2013, finding that E.J.A. was not disabled from
the date of his application for disability through the date of the ALJ decision. See id. at 376-410.
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This became the Commissioner's final decision when Plaintiff's request for review was denied by
the Appeals Council on September 18, 2014. See id. at 367-69. Plaintiff commenced this action
on November 17, 2014, challenging the ALJ's April 25, 2013 decision. See Dkt. No. 1. Both
parties have moved for judgment. See Dkt. Nos. 7, 8. In her brief, Plaintiff raised the following
arguments: (1) the ALJ erred in finding that E.J.A. did not have marked limitations in two or
more domains of functioning; (2) the ALJ's credibility findings regarding Plaintiff and E.J.A.
were not supported by substantial evidence; and (3) the ALJ failed to properly consider the effects
of E.J.A.'s structured or supportive setting. See Dkt. No. 7 at 13-27. Defendant maintains that the
ALJ applied the correct legal standards in determining that Plaintiff is not disabled and that the
decision is supported by substantial evidence. See Dkt. No. 8. Magistrate Judge Baxter issued a
Report-Recommendation on November 23, 2015 recommending that the ALJ's decision be
affirmed. See Dkt. No. 9.

III. DISCUSSION
In a judicial review of a final decision by the Commissioner under 42 U.S.C. § 405, the
Court does not determine anew whether a plaintiff 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 Court must examine the administrative transcript to ascertain whether the correct legal
standards were applied and whether the decision is supported by substantial evidence. See Lamay
v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009); Schaal v. Apfel, 134 F.3d 496, 500-01
(2d Cir. 1998). "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 (1971) (citations and
quotations omitted).
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"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. See Rosado v. Sullivan, 805 F. Supp.
147, 153 (S.D.N.Y. 1992). This Court must afford the Commissioner's determination
considerable deference, and may not substitute its own judgment, even if a different result could
be justifiably reached by the Court if it engaged in its own analysis. Valente v. Sec'y of Health
and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
In reviewing a report and recommendation, a district court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(1)(C). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307;
Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004). "To the
extent . . . that [a] party makes only conclusory or general arguments, or simply reiterates the
original arguments, the Court will review the Report strictly for clear error." Watson v. Astrue,
No. 08 Civ. 1523, 2010 WL 1645060, *1 (S.D.N.Y. Apr. 22, 2010) (quotation omitted).
Plaintiff objects to the Report-Recommendation on numerous grounds. First, Plaintiff
contends that the ALJ's conclusion that E.J.A. had a less than marked limitation in the domains of
attending and completing tasks and interacting and relating with others is not supported by
substantial evidence. See Dkt. No. 10. Plaintiff does not provide any specific reasons for her
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objection to the ALJ's findings regarding the domain of interacting and relating with others, nor
does Plaintiff identify any specific deficiencies within the ALJ's findings in this domain. See id.
Rather, Plaintiff points to various references in the record in reaching the conclusion that E.J.A.
suffers from a marked limitation in interacting and relating with others. See id. at 4-5. Further,
Plaintiff argues that the ALJ's credibility findings regarding Plaintiff and E.J.A. are legally
insufficient and lack specificity, and that the ALJ erred in failing to properly consider the effects
of E.J.A.'s structured or supportive setting. See id. The Court finds that Plaintiff's objections are
abbreviated reiterations of her original arguments. Accordingly, the Court will review the
Report-Recommendation for clear error.
In his Report-Recommendation, Magistrate Judge Baxter recommended that the ALJ's
findings be affirmed because they were supported by substantial evidence in the record and that
Plaintiff's complaint should be dismissed. See Dkt. No. 9. Specifically, Magistrate Judge Baxter
found that the ALJ's determinations that E.J.A. suffered from a less than marked impairment in
the domains of attending and completing tasks, interacting and relating with others, and caring for
oneself were supported by substantial evidence. See id. at 17, 22, 25. Magistrate Judge Baxter
found that the ALJ's credibility assessments regarding Plaintiff and E.J.A. were supported by
substantial evidence. See id. at 10-25. As Magistrate Judge Baxter correctly noted, the ALJ's
credibility assessment of Plaintiff's testimony revealed numerous inconsistencies with the record
evidence, including: (1) the effectiveness of E.J.A.'s medication; (2) E.J.A.'s school performance;
(3) E.J.A.'s ability to dress and care for himself at an age appropriate level; and (4) the impacts of
E.J.A.'s speech limitation. See id. at 25. Similarly, in regard to E.J.A., Magistrate Judge Baxter
found that the ALJ weighed E.J.A.'s testimony at the supplemental hearing against the school
records and medical records in concluding that E.J.A. did not qualify as disabled. See id. at 255

28; T. at 386-392. Further, Magistrate Judge Baxter found that the ALJ satisfied his obligation to
consider E.J.A.'s functioning outside of the structured setting of his special education classroom
and other educational accommodations provided by his individual education plan ("IEP"). Id. at
28-30. Magistrate Judge Baxter specifically found that the ALJ satisfied this obligation by
considering an evaluation by E.J.A.'s eighth grade teacher, reviewing E.J.A.'s most recent report
card, and conducting a broad review of E.J.A.'s ability to function in a variety of structured and
non-structured settings as well as special education and non-modified classrooms, among other
evidence. See id. at 29.
The Court has reviewed the findings of the Report-Recommendation and the
Administrative Transcript in its entirety. The Court finds that Magistrate Judge Baxter correctly
concluded that the ALJ's determination that E.J.A. does not have an impairment or combination
of impairments that functionally equals the severity of the listings pursuant to 20 C.F.R. §
416.926a, properly assessed Plaintiff's and E.J.A.'s credibility, and properly considered E.J.A.'s
functioning outside of his supportive setting.

IV. CONCLUSION
After carefully reviewing the record in this matter, the parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Baxter's November 23, 2015 Report-Recommendation
(Dkt. No. 9) is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Plaintiff's motion for judgment on the pleadings (Dkt. No. 7) is DENIED;
and the Court further

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ORDERS that Defendant's motion for judgment on the pleadings (Dkt. No. 8) is
GRANTED; and the Court further
ORDERS that the Commissioner's decision denying disability benefits is AFFIRMED;
and the Court further
ORDERS that the Clerk shall enter judgment in Defendant's favor and close this case; and
the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 29, 2016
Albany, New York

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