Bryan v. Colvin
DECISION AND ORDER: It is ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 14 ) is DENIED. It is further ORDERED that Defendant's motion for judgment on the pleadings (Dkt. No. 16 ) is GRANTED. It is further ORDERED that Defendant's decision denying Claimant disability benefits is AFFIRMED. It is further ORDERED that Plaintiff's Complaint (Dkt. No. 1 ) is DISMISSED. Signed by Magistrate Judge Therese Wiley Dancks on 8/16/2017. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KIMBERLY BRYAN O/B/O L.J.P.,
COMM’R OF SOC. SEC.,
OLINSKY LAW GROUP
Counsel for Plaintiff
One Park Place
300 South State Street, Suite 420
Syracuse, New York 13202
HOWARD D. OLINSKY, 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
DAVID L. BROWN, ESQ.
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Kimberly Bryan
(“Plaintiff”) on behalf of her daughter L.J.P. (“Claimant” or “L.J.P.”) against the Commissioner
of Social Security (“Defendant” or “the Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3), are Plaintiff’s motion for judgment on the pleadings and Defendant’s motion for
judgment on the pleadings. (Dkt. Nos. 14, 16.) 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. The Commissioner’s decision denying Claimant disability benefits is
affirmed, and Plaintiff’s Complaint is dismissed.
L.J.P., the child for whom Plaintiff brings this action, was born in 2006, making her 4
years old at her alleged onset date and 10 years old at the date of the final Social Security
Administration (“SSA”) decision. (T. 20. 1) Generally, Plaintiff alleges L.J.P. suffers from
dyslexia, Attention Deficit Disorder (“ADD”), and bipolar disorder. (T. 106; Dkt. No. 14 at 3. 2)
At all relevant times L.J.P. was, and currently is, a school-age child. 20 C.F.R. §
416.926a(g)(2)(iv). L.J.P. is enrolled in the Syracuse City School District (the “school” or
“SCSD”). (T. 256-88, 308-17, 433-641.)
On June 23, 2013, Plaintiff protectively filed an application for Social Security Income
(“SSI”) benefits under the Social Security Act on behalf of her daughter L.J.P., who was 8 years
old at the time of the hearing. (T. 20.) Plaintiff alleges L.J.P. has suffered from dyslexia, ADD,
and bipolar disorder since October 1, 2010. (Dkt. No. 14 at 3.)
Plaintiff’s application for SSI benefits was denied on September 4, 2013. (T. 93-100.)
Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”). (T. 108-10.)
On January 14, 2015, both Plaintiff and Claimant appeared before ALJ Jennifer G. Smith. (T.
The Administrative Transcript is found at Dkt. No. 9. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
will be used rather than the page numbers assigned by the Court’s CM/ECF electronic filing
Page references to documents identified by docket number are to the numbers assigned by the
CM/ECF docketing system.
49.) On February 19, 2015, the ALJ issued a written decision finding L.J.P. was not disabled
under the Social Security Act. (T. 20-34.) On June 16, 2016, the Appeals Council denied
Plaintiff’s request for review, making the ALJ’s decision the final decision of the Commissioner.
(T. 1-3.) Plaintiff commenced this action on August 9, 2016. (Dkt. No. 1.)
The ALJ’s Decision
Generally, in her decision, the ALJ applied the three-step sequential evaluation process to
determine whether an individual under the age of eighteen is disabled. (T. 20-34.) The ALJ
made the following findings of fact and conclusions of law. Id.
Initially, the ALJ noted L.J.P. was born in 2006, and was therefore a school-age child on
the date her application was filed and at the time of her decision. (T. 23.) At step one, the ALJ
found Claimant has not engaged in substantial economic activity at any time relevant to her
decision. Id. At step two, the ALJ found Claimant had the following severe impairments:
speech delays, Oppositional Defiant Disorder (“ODD”), mild intellectual disability, a learning
disability in reading and math, and Attention Deficit Hyperactivity Disorder (“ADHD”). (T. 2324.) At step three, the ALJ found that L.J.P.’s impairments did not meet or medically equal any
impairments in 20 C.F.R. Pt. 404, Subpart P, App. 1 (the “Listings”), including 112.02
(neurocognitive disorder), 112.04 (depressive, bipolar and related disorders), 112.05 (intellectual
disorder), or 112.11 (neurodevelopmental disorder), and that her impairments were not
functionally equivalent to any listed impairment. (T. 24-33.) In making this determination, the
ALJ considered Claimant’s functioning in terms of the six domains: (i) acquiring and using
information; (ii) attending and completing tasks; (iii) interacting and relating to others; (iv)
moving about and manipulating objects; (v) caring for herself; and (iv) and health and physical
well-being. Id. Specifically, the ALJ found that L.J.P. had a marked limitation in acquiring and
using information, and a less than marked limitation in the other five domains. Id. The ALJ
therefore concluded that L.J.P. was not disabled. (T. 34.)
The Parties Briefing on Their Cross-Motions
Generally, Plaintiff asserts a singular argument in support of her motion for judgment on
the pleadings. (See generally Dkt. No. 14.) Plaintiff argues that the ALJ’s decision that
Claimant’s impairments are not functionally equivalent to the Listings is unsupported by
substantial evidence. Id. at 19. More specifically, Plaintiff argues the ALJ failed to provide
adequate reasoning for her findings in the domains of (i) acquiring and using information and (ii)
attending and completing tasks. Id. Plaintiff asserts that Claimant has an extreme limitation in
the domain of acquiring and using information and, therefore, meets the Listings. Id. at 19-23.
In the alternative, Plaintiff contends that Claimant has marked limitations in the two domains of
acquiring and using information, and attending and completing tasks and, therefore, meets the
Listings. Id. at 19-25.
The ALJ found that Claimant has a marked limitation in acquiring and using information.
(T. 28.) Plaintiff, however, argues Claimant has at least a marked, if not extreme limitation in
this domain. (Dkt. No. 14 at 19-23.) Plaintiff argues the record evidence shows Claimant’s
limitation in this domain is extreme and, therefore, L.J.P. functionally meets the Listings for
childhood disability. Id. at 19-20. To support her argument, Plaintiff relies heavily upon
Claimant’s education level and the opinion of L.J.P.’s third grade teacher, Lori S. Clark (“Ms.
Clark”). Id. at 20-23; see T. 320-26. Plaintiff argues Ms. Clark’s opinion, to which the ALJ
accorded significant weight (see T. 27), is consistent with the definition of an extreme limitation
as defined by 20 C.F.R. § 416.926a(e). (Dkt. No. 14 at 21.) Plaintiff argues the ALJ did not give
sufficient weight to Claimant’s inability to read, her grade level being three to four years behind
that of similarly aged peers, and her lack of understanding of addition and subtraction. Id. at 2021. According to Plaintiff, these factors indicate an extreme rather than marked limitation. Id. at
21. Plaintiff also argues the ALJ failed to consider an administered intelligence evaluation given
by consultative examiner Jeanne Shapiro, Ph.D., in 2013, and failed to properly use the “whole
child” approach mandated by 20 C.F.R. § 416.926a(e) and SSR 09-01p. Id. at 21-23.
In the alternative, Plaintiff argues Claimant has at least a marked limitation in attending
and completing tasks. Id. at 19; 23-25. Here, Plaintiff again relies on the opinion of Ms. Clark
to support this argument. Id. at 23-24. Specifically, Plaintiff relies on Ms. Clark’s opinion that
Claimant has a “very serious problem” refocusing to tasks when necessary and a “serious
problem” paying attention when spoken to directly and with completing homework assignments.
Id. at 24; see T. 321. Plaintiff also asserts that the ALJ failed to consider Claimant’s ability to
pay attention in a variety of settings, and instead focused only on Claimant’s ability to pay
attention in a one-on-one setting. Id. at 24.
Plaintiff also challenges the weight given by the ALJ to the opinion of non-examining
reviewing consultants L. Blackwell, Ph.D., and R. Gauthier, M.D., compared to that of Ms.
Clark. Id. at 25.
Defendant asserts two arguments in support of her motion for judgment on the pleadings.
(See generally Dkt. No. 16.) In response to Plaintiff’s argument, Defendant generally argues that
the ALJ’s determination was supported by substantial evidence. Id. at 7-18. More specifically,
Defendant first asserts there was substantial evidence supporting the ALJ’s determination that
L.J.P. had a marked but not extreme limitation in the domain of acquiring and using information.
Id. at 7. In support of this argument, Defendant argues the ALJ properly used the whole child
approach, considering evidence from Dr. Shapiro, Ms. Clark, Dr. Blackwell, and L.J.P.’s 2014-
2015 individualized education program (“IEP”). Id. at 9-13. Defendant argues that the ALJ
evaluated and weighed the record evidence before making her determination, and that her
determination was supported by such consideration. Id. at 13.
In response to Plaintiff’s argument that the ALJ failed to consider the results of the 2013
intelligence evaluation administered by Dr. Shapiro, Defendant asserts that such a claim is
patently false. Id. at 14. In support of her position, Defendant cites to the ALJ’s written decision
and her discussion of Dr. Shapiro’s findings therein. Id. Lastly, with regard to acquiring and
using information, Defendant argues that Plaintiff has failed to establish how the evidence in the
record supports a finding of an extreme rather than marked limitation. Id.
As to Plaintiff’s alternative argument, Defendant argues substantial evidence supports the
ALJ’s determination that Claimant had a “less than marked” limitation in the domain of
attending and completing tasks. Id. at 14. Again Defendant emphasizes the ALJ’s reliance on
Dr. Shapiro’s consultative examination, Dr. Blackwell’s opinions, and L.J.P’s 2014-2015 IEP.
Defendant contends such reliance demonstrated that the ALJ had substantial evidence to support
her determination. Id.
Defendant argues that the ALJ’s reliance on Ms. Clark’s opinion was consistent with the
ALJ’s determination as the ALJ considered all of the relevant record evidence. Id. In response
to Plaintiff’s argument that the ALJ failed to consider L.J.P. in a variety of settings, Defendant
contends such an argument is misplaced because the ALJ relied not only on medical and
examination records, but also educational records and testimony from Plaintiff about L.J.P.’s
behavior at home and in public. Id. at 16. Finally Defendant argues that the ALJ’s reliance on
non-examining medical sources is not improper when that opinion is based on review of the
complete case record. Id. at 17.
Claimant’s Medical and School Records
Marcellus Family Medicine
Since 2012, L.J.P. has treated with John A. Alley, M.D., of Marcellus Family Medicine.
(T. 351-74, 385-89.) Most of L.J.P.’s visits to Marcellus Family Medicine have been for routine
well child visits, acute onset illnesses, and follow up appointments. Id. Dr. Alley also has
treated L.J.P. for mild asthma. (T. 360, 362.)
On October 2, 2012, Dr. Alley noted that L.J.P. is “generally well behaved, both at home
and at school” and that her parents report she “has some difficulty with letters” and “difficulty
focusing at times.” (T. 355.) Dr. Alley’s notes reflect Plaintiff’s repeated concerns about
L.J.P.’s ability to concentrate, and her desire to have L.J.P. tested for ADD, ADHD, learning
disabilities, and anxiety, among other things. (T. 355, 360, 362.) L.J.P.’s parents brought these
concerns to Dr. Alley in October, November, and December of 2012. (T. 355, 360, 362.) On
December 3, 2012, specifically, Claimant’s parents sought help from Dr. Alley in getting
Claimant tested for the above mentioned impairments after claiming the School “won’t do
anything.” (T. 362.) On June 4, 2013, Plaintiff again sought out Dr. Alley’s assistance for a
referral to a psychologist for Claimant. (T. 372.)
St. Joseph’s Hospital Health Center
On June 26, 2013, at the referral of her School and Dr. Alley, Claimant received
outpatient counselling from Joanna Tompkins, LMSW (“Tompkins”) at St. Joseph’s Hospital
Health Center. (T. 342-50.) Upon examination, Tompkins noted Claimant had some articulation
problems but was able to be understood, and was not hyperactive but was somewhat inattentive.
(T. 344, 346.) While Tompkins noted that Claimant experienced functional limitations over the
previous year due to emotional disturbance, she found L.J.P.’s functional problems were never
more than mild and, therefore, did not constitute a serious emotional disturbance. (T. 348.)
Tompkins assigned Claimant a global assessment of functioning (“GAF”) score of 64,
which the ALJ notes is indicative of mild psychological symptoms. (T. 348, 26.) Tompkins
reported “it is [her] impression that this parent is seeking diagnostic evaluation around ADHD
symptoms at the prompting of school teachers, along with seeking to apply for SSI for this
child.” (T. 349.) In her assessment, Tompkins suggested language and learning disabilities may
be triggering Claimant’s avoidant and inattentive behavior at school. Id. Ultimately Tompkins
issued a “provisional or working [diagnosis] of inattentive type of ADHD” anticipating that
treatment would be short term with a focus on education, evaluation, and collaboration with the
school and Claimant’s parents. Id.
On August 19, 2013, Claimant was examined by Dr. Shapiro. (T. 375-84.) In the
psychiatric portion of the evaluation, Dr. Shapiro found that Claimant seemed to suffer from a
speech impediment, that she had trouble expressing herself, and that her “general level of
comprehension appeared to be below average.” (T. 377.) Dr. Shapiro estimated Claimant’s
intellectual functioning to be in a deficient range. Id. Dr. Shapiro opined that Claimant did not
appear to have limitations in understanding and following simple instructions, performing simple
tasks, or maintaining attention and concentration for tasks. (T. 377-78.) She did, however, find
that Claimant had mild limitations in her ability to make appropriate decisions, deal with stress,
and to relate to and interact well with others; mild-moderate limitations regarding her ability to
learn new tasks; and moderate limitations in performing complex tasks. (T. 378.) Overall, Dr.
Shapiro opined Claimant is mildly limited in her ability to behave in an age appropriate manner
and mild-moderately limited in her ability to perform age appropriate activities. Id. With
treatment, Dr. Shapiro stated Claimant’s prognosis was “good.” Id.
In the intellectual portion of the evaluation, after administering a standardized
intelligence measure (WISC-IV), Dr. Shapiro found Claimant to be functioning in the mild range
of intellectual disability. (T. 381.) Specifically, Dr. Shapiro found the same limitations as were
reported from the psychological portion of the examination, including mild limitations in
Claimant’s ability to make appropriate decisions, deal with stress, and to relate to and interact
well with others; mild-moderate limitations regarding her ability to learn new tasks; and
moderate limitations in performing complex tasks. (T. 383; c.f. T. 377-78.) Dr. Shapiro opined
Claimant had no limitations in understanding and following simple instructions, performing
simple tasks, or maintaining attention and concentration for tasks. (T. 377-78.)
Dr. Shapiro diagnosed Claimant with ODD and a mild intellectual disability, thus ruling
out a diagnosis of ADHD. (T. 383-84.)
L.J.P.’s school record includes a multitude of evaluations, reports, behavioral
assessments, and IEPs from teachers, school psychologists, physical therapists, occupational
therapists, and speech therapists associated with the SCSD. (T. 256-88, 308-16, 320-26.)
Claimant’s records from SCSD indicate Claimant received special education and related
services such as physical, occupational, and speech therapy from January 2011, through
February 2014. Id. An IEP from the 2013-2014 academic year shows Claimant was placed in a
12:1:1 classroom setting. 3 (T. 256-65.) An IEP from the 2014-2015 academic year shows
A 12:1:1 classroom setting indicates a classroom in which there are no more than 12 students,
and there is 1 teacher and 1 paraprofessional, such as a teacher’s assistant.
Claimant has since been placed in a 15:1 classroom setting as she aged out of the 12:1:1
placement. (T. 308-16.) In February 2014, due to improvement, Claimant was dismissed from
occupational and physical therapy. (T. 509, 520.) From the 2013-2014 academic year to the
2014-2015 academic year, Claimant’s educational classification changed from “speech or
language impairment” to “learning disabled.” (T. 256-65, 308-16.) The IEP from the 2014-2015
academic year indicates that Claimant was still receiving speech/language therapy twice weekly.
The educational record reflects that Claimant struggles with reading and mathematics.
Id. At all times relevant to this case, Claimant has read at the kindergarten level despite reaching
the third grade. Id. An IEP from the 2014-2015 academic year shows improvement in
Claimant’s ability to read, and development in her ability to understand mathematical concepts.
(T. 311.) The same IEP, however, states that distractibility continues to slow Claimant’s
progress in reading and mathematics. Id.
In a teacher/school questionnaire from December 2014, Ms. Clark reported that Claimant
has problems of an “obvious” or “very serious” nature in all areas of acquiring and using
information. (T. 320.) Ms. Clark also reported Claimant has at least a slight problem in all areas
of attending and completing tasks, finding she has a serious or very serious problem in several
areas such as paying attention when spoken to directly, refocusing to task when necessary,
waiting to take turns, and completing homework assignments. (T. 321.) Ms. Clark noted that
Claimant “takes her learning seriously and enjoys coming to school.” (T. 325.)
Psychological and Medical Consultants
After considering Claimant’s medical and educational records, reviewing consultants, Dr.
Blackwell, and Dr. Gauthier, (together, the “doctors”) determined Claimant was not disabled.
(T. 98.) In the domain of acquiring and using information, the doctors determined Claimant had
a “marked” limitation. (T. 96-97. 4) In the five remaining domains, however, they determined
Claimant had a “less than marked” limitation. (T. 97-98.) Though they determined that
Claimant’s impairment is severe, they determined it does not meet, medically equal, or
functionally equal any of the impairments in the Listings. (T. 96.)
RELEVANT LEGAL STANDARD
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 & 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.”); see also 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) (internal quotation and
citation omitted). Where evidence is deemed susceptible to more than one rational
The six domains of function include acquiring and using information; attending and
completing tasks; interacting and relating with others; moving about and manipulating objects;
caring for yourself; and health and physical well-being. 20 C.F.R. §§ 416.926a(g)-(l).
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 ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If
supported by substantial evidence, the Commissioner’s finding must be sustained “even where
substantial evidence may support the plaintiff’s position and despite that the court’s independent
analysis of the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F.
Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s
determination considerable deference, and “may not substitute its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
Standard to Determine Disability
An individual under the age of 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.” 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. . . .” Id. § 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. § 416.9249(a)-(d);
accord Kittles ex rel. Lawton v. Barnhart, 245 F. Supp. 2d 479, 487-88 (E.D.N.Y. 2003); Ramos
v. Barnhart, No. 02-CV-3127 (LAP/GWG), 2003 WL 21032012, at *7 (S.D.N.Y. May 6, 2003).
First, the ALJ must consider whether the child is engaged in “substantial gainful activity.” 20
C.F.R. § 416.924(b). If so, the child is not disabled. Id.
Next, the ALJ must determine whether the child has a “medically determinable
impairment[ ] that is severe.” Id. § 416.924(c). If not, or if the impairment is a “slight
abnormality or a combination of slight abnormalities that causes no more than minimal
functional limitations,” then the child is not disabled. Id.
Third, if the impairment is severe, the ALJ must determine whether the impairment meets
or is medically or functionally equal to a disability in the Listings. Id. § 416.924(d). “An
impairment meets the severity of a Listing if it matches the precise definition in the listings,”
while an impairment is “medically equivalent to a listed impairment if it is ‘at least equal in
severity and duration to the listed findings.”’ McCaskill v. Massanari, 152 F. Supp. 2d 270, 273
(E.D.N.Y. 2001) (quoting 20 C.F.R. § 416.926(a)).
Functional limitations are evaluated in six “domains:” (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 wellbeing. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). An impairment will functionally equal a listed
impairment if it results in a “marked” limitation in two of the domains or an “extreme” limitation
in one domain. Id. § 416.926a(d). A “marked” limitation is found where the impairment
“interferes seriously with [the claimant’s] ability to independently initiate, sustain, or complete
activities.” Id. § 416.926a(e)(2)(i). “An ‘extreme’ limitation—which means ‘more than marked’
and is given only to the worst limitations—signifies the impairment ‘interferes very seriously
with [the claimant’s] ability to independently initiate, sustain, or complete activities.’” Ramos,
2003 WL 21032012, at *8 (quoting 20 C.F.R. § 416.926a(e)(3)(i)).
If the impairment meets (or is medically or functionally equal to) a disability in the
Listings and satisfies the twelve-month duration requirement, the claimant will be deemed
disabled. 20 C.F.R. § 416.924(d)(1). 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 (1990).
Whether Substantial Evidence Supports the ALJ’s Determination that
Claimant Has a Marked, but Not Extreme, Limitation in Acquiring and
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons set forth in Defendant’s memorandum of law. (See Dkt. No. 16 at 5-12.) To
those reasons, the Court adds the following analysis.
As noted above, Plaintiff argues that the ALJ erred in her determination that Claimant’s
impairments do not functionally meet the Listings. (Dkt. No. 14 at 19.) Specifically, Plaintiff
argues the record evidence reveals Claimant has at least a marked, if not extreme, limitation in
acquiring and using information. Id.
In assessing this domain, the ALJ must consider how well a child acquires or learns
information, and how well she can use the information she has learned. Edmond v. Barnhart,
No. 04-CV-6515 (CJS), 2006 WL 2769922, at *9 (W.D.N.Y. 2006). The Regulations provide
that a claimant of L.J.P.’s age:
should be able to learn to read, write, and do math, and discuss
history and science. You will need to use these skills in academic
situations to demonstrate what you have learned; e.g., by reading
about various subjects and producing oral and written projects,
solving mathematical problems, taking achievement tests, doing
group work, and entering into class discussions. You will also need
to use these skills in daily living situations at home and in the
community (e.g., reading street signs, telling time, and making
change). You should be able to use increasingly complex language
(vocabulary and grammar) to share information and ideas with
individuals or groups, by asking questions and expressing your own
ideas, and by understanding and responding to the opinions of
20 C.F.R. § 416.926a(g)(2)(iv).
With respect to the domain of acquiring and using information, the ALJ determined,
relying on both medical and educational evidence, that Claimant has a marked limitation. (T.
28.) The ALJ particularly relied on the opinions of Dr. Shapiro, Ms. Clark, and Dr. Blackwell,
as well as the IEP from the 2014-2015 academic year. Id.; see T. 93-100, 308-17, 320-26, 37584.
In her decision, the ALJ noted that in the 2013 consultative examination of Claimant, Dr.
Shapiro opined that “[C]laimant has no limitations in the ability to understand and follow simple
instructions and directions, and mild-to-moderate limitations in the ability to learn new tasks.”
(T. 28; see T. 377-78.) The ALJ recognized that an IEP from the 2013-2014 school year noted
Claimant’s ability to follow one-step instructions, as well as her slow progress with math skills,
and that she had not yet acquired an understanding of addition. (T. 28; see T. 258-59.) Despite
this IEP, a more recent IEP from the 2014-2015 school year shows Claimant’s progress in both
reading and mathematical skills. (T. 28; see T. 308-17.) The 2014-2015 IEP noted that Claimant
was beginning to recognize and read some sight words, and was beginning to show an
understanding of addition and subtraction. (T. 28; see T. 311.)
The ALJ also took specific note of the record opinions of Ms. Clark. (T. 28; see T. 32026.) In her report, Ms. Clark opined that Claimant “has several ‘very serious’ problems in the
domain of acquiring and using information.” (T. 320-21.) As such, Plaintiff argues that the
ALJ’s decision is contradicted by the record evidence, specifically by Ms. Clark’s opinion,
which the ALJ accorded significant weight. (See Dkt. No. 14 at 19-22; T. 27.)
“When reviewing a child’s impairments for functional equivalence, adjudicators must
consider ‘all of the relevant evidence,’ and employ a ‘whole child’ approach.’” Carrera v.
Colvin, No. 1:13-cv-1414 (GLS/ESH), 2015 WL 1126014, at *3 (N.D.N.Y. Mar. 12, 2015).
“‘All of the relevant evidence’ includes objective medical evidence and other relevant evidence
from medical sources; information from other sources, such as school teacher, family members,
or friends; the claimant’s statement (including statements from the claimant’s parent(s) or other
caregivers); and any other relevant evidence in the case record, including how the claimant
functions over time and in all setting[s] (i.e., at home, at school, and in the community).” Id. at
*3 n.8 (citing SSR 09-2P, 2009 WL 396032, at *11 (SSA Feb. 18, 2009)). The “whole child”
approach requires the ALJ to “to consider a child’s everyday activities, determine all domains
involved in performing them, consider whether that child's medically determinable impairment
accounts for limitations in activities, and determine what degree such impairment limits that
child’s ability to function age-appropriately in each domain.” Id. at *3 (citing SSR 09-1P, 2009
WL 396031, at *2-3 (SSA Feb. 18, 2009)).
In this case, Plaintiff contends that ALJ failed to consider “all of the relevant evidence”
and failed to employ the “whole child” approach. Specifically, Plaintiff argues the ALJ did not
give sufficient weight to Claimant’s inability to read and do math. (Dkt. No. 14 at 20-21.)
However, the ALJ’s decision explicitly discussed Claimant’s aptitude in these areas of study. (T.
28.) The ALJ specifically noted “the claimant’s most recent IEP stated claimant was beginning
to recognize and read some sight words and was beginning to understand the meaning of
addition and subtraction.” (T. 28; see T. 311.) Though the use of non-medical evidence
provided by a teacher is encouraged when determining a child’s functioning, the ALJ must
consider such evidence in light of the entire record. Edmond, 2006 WL 2769922, at *10; Schaal,
134 F.3d at 501. “It is well established, moreover, that a reviewing court must consider the
record as a whole, not seize upon ‘a specific quantum’ of evidence that, taken in isolation, might
sustain the administrative decision.” Grey, 721 F.2d at 46.
Here, the ALJ considered Ms. Clark’s opinions, and accorded them significant weight,
but she also considered Dr. Shapiro’s examination of Claimant, Claimant’s IEPs, and the
consultative opinions from Dr. Blackwell in making a function determination with regard to the
domain of acquiring and using information. (T. 27-28; see T. 93-100, 256-88, 308-17, 375-84.)
Specifically, though Ms. Clark opined that Claimant has problems of an “obvious” or “very
serious” nature in acquiring and using information, Dr. Shapiro found Claimant “appears to have
no limitations in understanding and following simple instructions and directions . . . no
limitations performing simple tasks . . . [and] no limitations maintaining attention and
concentrations for tasks.” (T. 320, 377-78.) Though Dr. Shapiro did find Claimant has mildmoderate limitations regarding her ability to learn new tasks, a comparison of Claimant’s IEPs
from 2013-2014 to 2014-2015 shows Claimant’s progress learning to read and understand
mathematical concepts, such as addition and subtraction. (T. 378, 256-65, 308-317.)
Furthermore, after reviewing Claimant’s record, Dr. Blackwell opined Claimant has a marked
limitation in attending and completing tasks. (T. at 96-97.) As such, the ALJ’s decision was
supported by substantial evidence even though her determination did not align with the opinions
of Ms. Clark.
Plaintiff also contends the ALJ failed to properly use the “whole child” approach
mandated by 20 C.F.R. § 416.926a(e) and SSR 09-01p. (Dkt. No. 14 at 22-23.) As set forth
above, this requires an ALJ to consider a child’s everyday activities, determine all domains
involved in performing them, consider whether that child’s medically determinable impairment
accounts for limitations in activities, and determine to what degree such impairment limits that
child’s ability to function age-appropriately in each domain. SSR 09-01p, 2009 WL 396031, at
Specifically, Plaintiff takes issue with the ALJ’s use of the “whole child” approach,
highlighting that the ALJ failed to discuss a series of questions as set forth in SSR 09-1p. (Dkt.
No. 14 at 22.) SSR 09-1p, however, provides that an ALJ is not required to discuss all
considerations provided therein. SSR 09-1p, 2009 WL 396031, at *3. Instead, an ALJ needs
“only to provide sufficient detail so that any subsequent reviewers can understand how they
made their findings.” Id.
Here, where the ALJ discussed evidence from medical, consultative examinations, and
school records and considered Claimant’s functioning in a variety of settings, she assessed the
whole child. Plaintiff is correct that the ALJ considered L.J.P. in several one-on-one settings,
however, the ALJ’s inquiry did not stop there. Medical records from Dr. Shapiro, Dr. Alley, and
Tompkins, do report on Claimant’s behavior in a one-on-one setting. (T. at 375-84, 385-89, 35174, 342-50.) School records, however, describe Claimant in large and small group settings.
Claimant’s 2013-2014 IEP describes L.J.P.’s behavior and functioning in a classroom setting of
roughly twelve students, and her 2014-2015 IEP describes Claimant’s functioning in a classroom
of around fifteen students. Additionally, the ALJ considered Plaintiff’s testimony which
described Claimant’s activity and function at home and in public. (See T. 49-92.)
The Court concludes that the ALJ’s determination that Claimant has a marked, but not
extreme, limitation in acquiring and using information, is supported by substantial evidence,
including the evidence discussed above and the opinions of medical consultants, Dr. Blackwell
and Dr. Gauthier.
Whether Substantial Evidence Supports the ALJ’s Determination that
Claimant Has a Less Than Marked Limitation in Attending and Completing
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons set forth in Defendant’s memorandum of law. (See Dkt. No. 16 at 14-18.) To
those reasons, the Court adds the following analysis.
In this domain, the ALJ is required to consider how well the child is able to focus and
maintain her attention and how well she begins, carries through, and completes her activities. 20
C.F.R. § 416.926a(h). The ALJ is also required to consider the pace at which the child performs
her activities and the ease with which she changes them. Id. School-age children—such as
L.J.P.—should be able to change routines without distraction, stay on task when appropriate, and
be able to complete a transition task without extra reminders and accommodation. Id. §
Plaintiff argues that in finding that L.J.P. had less than marked limitations in this domain,
the ALJ ignored evidence establishing a marked limitation. (Dkt. No. 14 at 17, 21.)
Specifically, Plaintiff claims that the ALJ failed to adequately rely on Ms. Clark’s opinion. Id. at
21-22; referring to T. 320-26. Plaintiff argues the ALJ erred in determining that L.J.P. had a less
than marked limitation in the domain of attending and completing tasks when Ms. Clark, whose
opinion the ALJ afforded significant weight, opined L.J.P. had several “obvious” and “serious”
problems in this domain. Id.; see T. 321-22.
In her decision, the ALJ discussed Ms. Clark’s opinion that Claimant has some problems
functioning in the domain of attending and completing tasks. (T. 29; see T. 321-22.) Ms. Clark
opined that L.J.P. generally has “obvious” and some “serious” problems in this domain. Id.
However, a teacher’s assessment of “serious” problems in the domain of attending and
completing tasks may not indicate “marked” limitations in light of other medical evidence in the
record. See, e.g., Frye ex rel. A.O. v. Comm’r of Soc. Sec., No. 5:10-CV-98 (GTS/ATB), 2010
WL 6426346, at *11-12 (N.D.N.Y. Nov. 12, 2010) (upholding the ALJ’s determination that
Claimant had a less than marked limitation attending and completing tasks, despite teacher and
school opinions that the claimant was easily distracted by his surroundings, has trouble listening
to and following teacher instructions, and was disruptive in class, because the finding was
supported by substantial medical and educational evidence); Hudson ex rel. S.G. v. Astrue, No.
1:06-CV-1342 (LEK/VEB), 2009 WL 1212114, at *8-9 (N.D.N.Y. Apr. 30, 2009) (upholding
the ALJ’s finding that the claimant’s limitations in attending and completing tasks were less than
marked, despite observations about some “serious” problems in related areas by teachers,
because the finding was supported by substantial evidence, including the opinion of the treating
psychiatrist that the claimant’s attention span was “fine” on the current medication). In L.J.P.’s
case, the ALJ considered the evidence provided by Ms. Clark in light of the entire record,
including evidence provided by Dr. Shapiro, Claimant’s mother, and Dr. Blackwell. (See T. 4992, 93-100, 375-84.) The ALJ relied on the results of a mental status examination administered
by Dr. Shapiro which revealed the Claimant had intact attention and concentration skills, and
mildly impaired memory skills. (T. 29; 377-78.) Dr. Shapiro also opined that Claimant has no
limitations in the ability to perform simple tasks, and that she has moderate limitations in the
ability to perform complex tasks. (T. at 377-78.) The ALJ further relied on Dr. Blackwell’s
opinion that Claimant has a less than marked limitation in this domain. (T. 29, 97.)
Finally, Plaintiff argues that the ALJ failed to consider L.J.P. in a variety of settings.
(Dkt. No. 14 at 16.) To be sure, an ALJ must consider a child’s ability to sustain attention in a
variety of settings. SSR 09-4p, 2009 WL 396033 (Feb. 18, 2009). Here, the Court finds
Plaintiff’s arguments unfounded as the ALJ did consider L.J.P. in a variety of settings. As
discussed above, the ALJ relied on medical examinations, school records, and the testimony of
Claimant’s mother, all of which describe and provide information about Claimant’s behavior in a
multitude of settings including one-on-one, at home, and in school. (T. 29; referring to T. 49-92,
93-100, 320-26, 375-84, 505-17.) Ms. Clark’s opinion, for example, described Claimant in a
classroom setting, where there were as many as fifteen other students. (T. 320-26.)
Additionally, Plaintiff’s testimony from the hearing before the ALJ describes Claimant’s
function and behavior at home and in public. (T. 49-92.) Plaintiff testified that at home
Claimant does the chores asked of her, and generally finishes her tasks, though she sometimes
needs to be asked multiple times. (T. 59.) Plaintiff also testified that L.J.P. is “an active kid,”
that she loves the library, and she thinks everyone is her friend. (T. 61, 78.) Finally, Dr.
Shapiro, Dr. Alley, and Tompkins all examined Claimant in one-on-one situations. (See T. 34250, 351-74, 375-84, 385-89.) Given such a discussion in the ALJ’s decision and the evidence on
which the ALJ relied, the Court finds Plaintiff’s argument without merit.
The Court concludes that the ALJ’s determination, that Claimant has a less than marked
limitation in attending and completing tasks. For the abovementioned reasons, the Court
concludes that the ALJ’s determination was supported by substantial evidence with respect to
both the domain of acquiring and using information, and the domain of attending and completing
ACCORDINGLY, based on the finding above, it is hereby
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 14) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 16) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying Claimant disability benefits is
AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: August 16, 2017
Syracuse, New York
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