German v. Berryhill

Filing 11

MEMORANDUM-DECISION and ORDER: that Plaintiff's motion for judgment on the pleadings (Dkt. No. 9 ) is Granted; to the extent it seeks remand under Sentence Four of 42 U.S.C. 405(g); that Defendant's motion for judgment on the pleadings (Dkt. No. 10 ) is Denied and that this matter is Remanded to Defendant, pursuant to 42 U.S.C. 405(g), for further proceedings consistent with this Decision and Order. Signed by Magistrate Judge William B. Carter on 07/16/2018. (hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
C.X.A. a minor, by K. German,
Plaintiff,

5:17-CV-0879
(WBC)

v.
COMMISSIONER OF SOCIAL SECURITY
Defendant.
_______________________________________
APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
Counsel for Plaintiff
300 S. State St., Ste. 410
Syracuse, NY 13202

HOWARD 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

JASON PECK, ESQ.

William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local
Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 6.)
Currently before the Court, in this Social Security action filed by K. German
(“Plaintiff”) on behalf of her minor son, C.X.A. (“Claimant”) against the Commissioner of
Social Security (“Defendant” or “the Commissioner”) pursuant to 42 U.S.C. § 405(g), are

the parties’ cross-motions for judgment on the pleadings. (Dkt. Nos. 9, 10.) For the
reasons set forth below, Plaintiff’s motion is granted, to the extent that it seeks remand
for further proceeding under Sentence Four of 42 U.S.C. § 405(g), and Defendant’s
motion is denied.
I.

RELEVANT BACKGROUND
A.

Factual Background

At the time of filing Claimant was a school aged child and at the time of his
hearing Claimant was an adolescent. (T. 13); 20 C.F.R. § 416.926a(g)(2). Claimant’s
alleged disability consists attention deficit hyperactivity disorder (“ADHD”), adjustment
disorder with emotion reaction, and developmental disorders. (T. 237.)
B.

Procedural History

On March 20, 2014, Plaintiff applied for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act on Claimant’s behalf. (T. 109.) Plaintiff’s
application was initially denied, after which she timely requested a hearing before an
Administrative Law Judge (“the ALJ”). On January 26, 2016, Plaintiff appeared before
the ALJ, Elizabeth W. Koennecke. (T. 51-65.) On March 31, 2016, ALJ Koennecke
issued a written decision finding Claimant not disabled under the Social Security Act.
(T. 7-39.) On June 12, 2017, the Appeals Council (“AC”) denied Plaintiff’s request for
review, rendering the ALJ’s decision the final decision of the Commissioner. (T. 1-6.)
Thereafter, Plaintiff timely sought judicial review in this Court.
C.

The ALJ’s Decision

Generally, in her decision, the ALJ made the following findings of fact and
conclusions of law. First, the ALJ found Claimant was a “school aged child” at the time

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of filing and an “adolescent” the time of the hearing pursuant to 20 C.F.R. §
416.926a(g)(2). (T. 13.) Second, the ALJ found Claimant had not engaged in
substantial gainful activity since the application date. (Id.) Third, the ALJ found
Claimant suffered from the severe impairments of a mental impairment variously
characterized as ADHD, oppositional defiant disorder (“ODD”), and learning disorder.
(Id.) Fourth, the ALJ found Claimant did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix I (“the Listings”). (T. 16.) Fifth, the ALJ found Claimant
did not have an impairment or combination of impairments that functionally equaled an
impairment set forth in the Listings. (T. 18-35.) Sixth, and finally, the ALJ concluded
Claimant had not been disabled, as defined by the Social Security Act, since March 20,
2014, the date his application was filed. (T. 35.)
II.

THE PARTIES’ BRIEFINGS
A.

Plaintiff’s Arguments

Generally, in support of her motion for judgment on the pleadings, Plaintiff makes
one argument. Plaintiff argues the ALJ’s determination, that Claimant had less than a
marked limitation in the domain of acquiring and using information, is not supported by
substantial evidence. (Dkt. No. 9 at 10-19 [Pl.’s Mem. of Law].)
B.

Defendant’s Argument

Generally, in support of her cross-motion for judgment on the pleadings,
Defendant makes one argument. Defendant argues substantial evidence supported the
ALJ’s finding that Claimant had a less than marked limitations in the domain of acquiring
and using information. (Dkt. No. 10 at 8-12 [Def.’s Mem. of Law].)

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III.

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

whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will only be reversed if the correct legal standards were
not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the substantial evidence standard
to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct
legal principles.”); see Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,”
and it has been defined as “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.
Ct. 1420, 1427 (1971). Where evidence is deemed susceptible to more than one
rational interpretation, the Commissioner’s conclusion must be upheld. See Rutherford
v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

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If supported by substantial evidence, the Commissioner’s finding must be
sustained “even where substantial evidence may support the plaintiff’s position and
despite that the court’s independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In
other words, this Court must afford the Commissioner’s determination considerable
deference, and may not substitute “its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review.”
Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
An individual under the age of eighteen (18) is disabled, and thus eligible for SSI
benefits, if he or she has a medically determinable physical or mental impairment, which
results in marked and severe functional limitations, and which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months. See 42 U.S.C. § 1382c(a)(3)(C)(i). However, that definitional
provision excludes from coverage any “individual under the age of [eighteen] who
engages in substantial gainful activity....” 42 U.S.C. § 1382c(a)(3)(C)(ii).
By regulation, the agency has prescribed a three-step evaluative process to be
employed in determining whether a child can meet the statutory definition of disability.
See 20 C.F.R. § 416.924; Kittles v. Barnhart, 245 F. Supp. 2d 479, 487-88 (E.D.N.Y.
2003); Ramos v. Barnhart, No. 02-CV-3127, 2003 WL 21032012, at *7 (S.D.N.Y. May
6, 2003).
The first step of the test, which bears some similarity to the familiar five-step
analysis employed in adult disability cases, requires a determination of whether the
child has engaged in substantial gainful activity. See 20 C.F.R. § 416.924(b); Kittles,

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245 F. Supp. 2d at 488. If so, then both statutorily and by regulation the child is
ineligible for SSI benefits. See 42 U.S.C. § 1382c(a)(3)(C)(ii); 20 C.F.R. § 416.924(b).
If the child has not engaged in substantial gainful activity, the second step of the
test next requires examination of whether the child suffers from one or more medically
determinable impairments that, either singly or in combination, are properly regarded as
severe, in that they cause more than a minimal functional limitation. See 20 C.F.R. §
416.924(c); Kittles, 245 F. Supp. 2d at 488; Ramos, 2003 WL 21032012, at *7. In
essence, “a child is [disabled under the Social Security Act] if his impairment is as
severe as one that would prevent an adult from working.” Zebley v. Sullivan, 493 U.S.
521, 529, 110 S. Ct. 885, 890 (1990).
If the existence of a severe impairment is discerned, the agency must then
determine, at the third step, whether it meets or equals a presumptively disabling
condition identified in the listing of impairments set forth under 20 C.F.R. Pt. 404, Subpt.
P., App. 1 (the “Listings”). Id. Equivalence to a listing can be either medical or
functional. See 20 C.F.R. § 416.924(d); Kittles, 245 F. Supp. 2d at 488; Ramos, 2003
WL 21032012, at *7. If an impairment is found to meet, or qualify as medically or
functionally equivalent to, a listed disability and the twelve-month durational requirement
is satisfied, the child will be deemed disabled. See 20 C.F.R. § 416.924(d)(1); Ramos,
2003 WL 21032012, at *8.
Analysis of functionality is informed by consideration of how a child 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

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domains include: (i) [a]cquiring and using information; (ii) [a]ttending and completing
tasks; (iii) [i]nteracting and relating with others; (iv) [m]oving about and manipulating
objects; (v) [c]aring for [oneself]; and (vi) [h]ealth and physical well-being. See id.
Functional equivalence is established in the event of a finding of an “extreme”
limitation, meaning “more than marked,” in a single domain. 20 C.F.R. § 416.926a(a);
Ramos, 2003 WL 21032012, at *8. An “extreme limitation” is an impairment which
“interferes very seriously with [the child’s] ability to independently initiate, sustain, or
complete activities.” 20 C.F.R. § 416.926a(e)(3)(I).
Alternatively, a finding of disability is warranted if a “marked” limitation is found in
any two of the listed domains. 20 C.F.R. § 416.926a(a); Ramos, 2003 WL 21032012, at
*8. A “marked limitation” exists when the impairment “interferes seriously with [the
child’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(2)(i). “A marked limitation may arise when several activities or functions
are impaired, or even when only one is impaired, as long as the degree of limitation is
such as to interfere seriously with the ability to function (based upon age-appropriate
expectations) independently, appropriately, effectively, and on a sustained basis.” 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(C).
IV.

ANALYSIS
In the domain of acquiring and using information, the ALJ considers how well

Claimant acquires or learns information, and how well Claimant uses the information he
has learned. 20 C.F.R. § 416.926a(g); SSR 09-3p. A school-aged child, like Claimant
at the time of filing, should be able to learn to read, write, and do math, and discuss
history and science. 20 C.F.R. § 416.926a(g )(iv). A school aged child needs to use

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these skills in academic situations to demonstrate what he has learned and should also
use these skills in daily living situations at home and in the community. Id. A school
aged child should be able to use increasingly complex language to share information
and ideas with individuals or groups, by asking questions and expressing her ideas, and
by understanding and responding to the opinions of others. Id. An adolescent, like
Claimant at the time of the hearing, should be able to use what he has learned in daily
living situations without assistance, comprehend and express both simple and complex
ideas, and should learn to apply these skills in practical ways that will help him enter the
workplace after he finishes school. 20 C.F.R. § 416.926a(g)(v); SSR 09-3p.
On May 6, 2014, non-examining State agency medical consultant P. Ude,
reviewed the record and provided an opinion. (T. 110-117.)1 In the domain of acquiring
and using information, Dr. Ude opined Claimant had a marked limitation. (T. 113.) Dr.
Ude stated his opinion was based on Claimant’s classification as “other health impaired”
by the school district, he received resource room assistance, and IQ scores of 75 and
69. (Id.)
On February 10, 2016, Claimant’s reading teacher, Andrew Davis, completed a
questionnaire. (T. 321-327.) In the domain of acquiring and using information Mr.
Davis indicated Claimant had “a very serious problem” reading and comprehending
written material. (T. 321.) He opined Claimant had “an obvious problem”:
understanding school and content vocabulary; providing organized oral explanations
and adequate descriptions; expressing ideas in written form; learning new material;
recalling and applying previously learned material; and applying problem-solving skills in

1

P. Ude’s signature contains the medical code “32” which corresponds to the specialty
pediatrics. POMS DI 24501.004 Medical Specialty Codes.

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class discussions. (T. 321-322.) Mr. Davis wrote “[i]t is difficult to get an accurate idea
of [Claimant’s] deficits as he spends much of the class time either listening to music,
fighting with other students, or skipping class. I believe his reading level would be
higher if he would stay in reading intervention class.” (T. 322.)
School records indicated Claimant’s reading level was well below grade level.
New York State test results for the school year 2013/2014 showed Claimant was “not
meeting learning standards” in English, math, and science. (T. 312.) In 2014, when
Claimant was in 5th grade, testing indicated he read at a 2.25 grade level. (T. 299.) The
teacher questionnaire completed during Claimant’s 7th grade year indicated Claimant
was reading at a 2.2 grade level. (T. 321.) Claimant’s IEP for school year 2014/2015
stated Claimant’s reading was “significantly below level.” (T. 259.)
A Psychological Report completed by psychologist Carrie Yaus in May of 2015
indicated Claimant was performing well below grade level in all subject areas. (T. 372.)
Specifically, Claimant was reading at a 2.4 grade level. (Id.) Ms. Yaus stated
Claimant’s “reading skills are estimated to fall at the mid-2nd grade level, currently, with
little or no growth suggested when 2012 and current scores are compared.” (Id.) Ms.
Yaus stated Claimant had “weak visual scanning skills” and “struggles to understand 1st2nd grade level material, primarily due to limited word recognition skills which impact
both fluency and comprehension.” (Id.) She further stated Claimant’s attention to tasks,
impulsivity and weak visual recall and analysis abilities were believed to contribute to
his reading difficulties. (Id.)
On May 1, 2014, consultative examiner, Jeanne Shapiro, Ph.D. performed a
psychiatric examination, an intelligence evaluation, and provided a medical source

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statement. (T. 334-344.) Dr. Shapiro opined Claimant had no limitations understanding
and following simple instructions and directions; he had no limitations performing simple
tasks; he had mild-moderate limitations performing age appropriate complex tasks; he
had mild limitations maintaining attention and concentration; he had mild limitations in
his ability to learn new tasks; he had mild-moderate limitation in his ability to make age
appropriate decisions; he had mild-moderate limitations in his ability to consistently
relate to and interact well with others; and he had mild-moderate limitations regarding
his ability to deal with stress. (T. 337, 343.) Dr. Shapiro administered a standardized
intelligence test (WISC-IV). (T. 341.) Dr. Shapiro noted Claimant had taken his
medication on the day of the evaluation. (Id.) Claimant’s full scale IQ was 69. (Id.)
Reading testing showed Claimant read at a 1.7 grade level. (T. 343.)
The ALJ determined Claimant had a “less than marked” limitation in the domain
of acquiring and using information. (T. 23.) Although the State agency medical
consultant determined Claimant had a marked limitation in this domain, the ALJ
concluded the evidence in the record did not support this finding. (Id.) The ALJ
discussed Claimant’s academic record, but concluded Claimant’s lack of academic
success was due to poor medication management and not serious intellectual deficits.
(T. 24.) The ALJ further noted Claimant did not have to repeat any grades; Claimant’s
mother indicated he could read simple words, identify letters, print his name, print some
letters, and identify the days of the week/months; and Claimant was able to understand
instructions to complete a spirometry and sleep study testing. (Id.) The ALJ further
reasoned Claimant did not have speech or language delays; was able to partake in
many activities of daily living; and could care for his own hygiene. (Id.)

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The ALJ afforded the opinion of consultative examiner, Jeanne Shapiro, Ph.D.,
“great weight.” (T. 24.) Namely, the ALJ relied on Dr. Shapiro’s opinion that Claimant
had mild-moderate limitations performing age-appropriate activities and had no more
than mild limitations regarding his ability to learn new tasks and no limitation in
understanding simple instructions and directions. (T. 24-25.) The ALJ afforded “little
weight” to the statement provided by Mr. Davis. (T. 25.) The ALJ stated Mr. Davis’s
conclusions were not well supported by “the few chronically positive clinical findings
noted on mental status exams of the claimant by the treating and examining sources.”
(Id.)
Here, remand is necessary for the ALJ to assess Claimant’s limitations in the
domain of acquiring and using information. Overall, the ALJ improperly reasoned
Claimant’s deficits in this area were due solely to symptoms of ADHD and poor medical
compliance and the ALJ failed to discuss relevant evidence in the record concerning
this domain. (T. 24.)
First, the ALJ erred in her evaluation of Mr. Davis’s statement. The ALJ
discounted Mr. Davis’s assessment of Claimant’s serious and very serious problems in
this domain because they were not supported by the chronically positive clinical findings
of treating providers and Dr. Shapiro. (T. 21.) However, it is unclear how Mr. Davis’s
statement, that Claimant had a “very serious problem in reading and comprehending
written material” was undermined by “positive clinical findings.” The objective medical
evidence in the record, as outlined above, consistently indicated Claimant’s reading
level was significantly below grade level despite such “positive clinical findings.”

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Second, the ALJ improperly concluded Claimant’s testing results were due to
ADHD symptomology and not intellectual limitations. The ALJ relied heavily on Mr.
Davis’s statement that it was difficult to get an accurate picture of Claimant’s deficits
because of behavioral issues. (T. 24.) The ALJ further stated Claimant’s low IQ scores
“appear widely variable and are more consistent with limitations related to ADHD that
has responded to appropriate levels of medication versus any significant intellectual
deficits.” (T. 24.) Although Claimant’s IQ testing results may be skewed due to
inattentive behavior, the record, as outlined above, indicated Claimant was reading well
below read level since he was first tested. As of the 7th grade, Claimant’s reading level
was still around 2nd grade. In addition, Ms. Yaus specifically stated most of Claimant’s
behavioral issues were related to his skill deficit. (T. 370.) Ms. Yaus also noted that
“[t]he impact of behaviors associated with ADHD is evident in current test results but
achievement test results are felt to accurately estimate [Claimant’s] functional skill
level.” (T. 371.) In making her determination, the ALJ failed to discuss Ms. Yaus’s
opinion that despite ADHD symptomology, Claimant’s test results were an accurate
estimate of his skill level.
To be sure, the ALJ is “not required to discuss in depth every piece of evidence
contained in the record, so long [as] the evidence of record permits the Court to glean
the rationale of an ALJ’s decision.” LaRock ex. rel. M.K. v. Astrue, No. 10–CV–1019,
2011 WL 1882292, *7 (N.D.N.Y. Apr. 29, 2011) (citing Mongeur v. Heckler, 722 F.2d
1033, 1040 (2d Cir.1983) (internal quotation marks omitted)). However, the ALJ did not
discuss Ms. Yaus’s statements in concluding Claimant had a less than marked limitation
in this domain. Ms. Yaus’s statements regarding the impact of Claimant’s ADHD

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symptoms and overall testing results directly contradicts the ALJ’s assertion. Therefore,
remand is necessary for the ALJ to assess Ms. Yaus’s statements in context of
Claimant’s testing results.
Further, the ALJ relied heavily on Claimant’s lack of medication compliance in
making her determination that Claimant had less than marked limitations in this domain.
To be sure, the record contains treatment notations indicating Claimant was not
adhering to his medication routine. For example, treatment notations dated April 3,
2014 stated Claimant had not been seen since August 2014 and although Plaintiff
stated she had been giving Claimant his medication “the math [did not] add up.” (T.
400.) Notations dated October 22, 2014, stated Claimant’s ADHD was “poorly
controlled . . . likely because he has largely not received the medication over the past
six months.” (T. 388.) However, treatment notations dated July 22, 2015, indicated
Claimant has “been following up more frequently” with his medication. (T. 375.)
The ALJ stated Claimant had a “gap” in treatment between August 2015 and
January 2016, the hearing date. (T. 22.) The ALJ stated Mr. Davis’s statement was
provided during this gap, thus implying Claimant was not receiving treatment and/or
medication at that time. (Id.) Treatment notes from July 22, 2015 were the last
treatment notations in the record pertaining to Claimant’s ADHD. (T. 375.) There was
no indication from the July 2015 treatment notations that Claimant was being
discharged from treatment. (Id.) 2 The July 2015 notation stated Claimant was going
out of town for the summer and Plaintiff planned to continue with medication. (Id.) At
the hearing in January 2016, Plaintiff testified that Claimant was on medication for his

2

Of note, the treatment notes provided by Claimant’s treating sources were stamped “generated
on December 28, 2015” which indicates the notations were updated through that date. (T. 375-377.)

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ADHD, that the current dose was not working, and she spoke to Claimant’s doctors
about changing the dosage. (T. 77.) Remand is necessary to clarify whether or not
there was a gap in treatment and/or medication or if the record was simply not updated.
Overall, remand for further proceedings is necessary for an evaluation of
Claimant’s limitation in the domain of acquiring and using information. The ALJ erred in
her assessment of the opinion evidence in the record, specifically Mr. Davis’s statement
and Ms. Yaus’s testing and result analysis, and the record requires clarification
regarding Claimant’s treatment and medication.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is
GRANTED; to the extent it seeks remand under Sentence Four of 42 U.S.C. § 405(g)
and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 10)
is DENIED; and it is further
ORDERED that this matter is REMANDED to Defendant, pursuant to 42 U.S.C. §
405(g), for further proceedings consistent with this Decision and Order.
Dated:

July 16, 2018

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