Austin v. Commissioner of Social Security

Filing 21

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Austin's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 5/1/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
WANDA J. AUSTIN,
o/b/o R.M.B.,
Plaintiff,

6:12-cv-465
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

KAREN S. SOUTHWICK,
ESQ.

TOMASINA DIGRIGOLI
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Wanda J. Austin o/b/o R.M.B., challenges the Commissioner
of Social Security’s denial of Supplemental Security Income (SSI), seeking
judicial review under 42 U.S.C. § 405(g). (See Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering the
arguments, the court affirms the Commissioner’s decision and dismisses
the Complaint.
II. Background
On April 8, 2008, Austin protectively filed an application for SSI under
the Social Security Act on behalf of her daughter, a minor, alleging
disability since March 1, 2007. (See Tr.1 at 46, 85-88.) After the
application was denied, Austin requested a hearing before an
Administrative Law Judge (ALJ), which was held on March 26, 2010. (See
id. at 19-45, 47-52, 60-61.) On June 8, 2010, the ALJ issued a decision
denying the requested benefits, which became the Commissioner’s final
decision upon the Social Security Administration Appeals Council’s denial
of review. (See id. at 1-4, 5-18.)
1

Page references preceded by “Tr.” are to the Administrative Transcript. (See Dkt. No.

14.)
2

Austin commenced the present action by filing a complaint on March
15, 2012, seeking review of the Commissioner’s determination. (See
Compl.) The Commissioner filed an answer and a certified copy of the
administrative transcript. (See Dkt. Nos. 12, 14.) Each party, seeking
judgment on the pleadings, filed a brief. (See Dkt. Nos. 16, 18.)
III. Contentions
Austin avers that the Commissioner’s decision is not supported by
substantial evidence and was arrived at through the application of incorrect
legal standards. (See Dkt. No. 16 at 10-20.) Specifically, Austin contends
that the ALJ erred in: (1) developing the record; (2) assessing the
credibility of Austin and R.M.B.; and (3) deciding that R.M.B.’s impairments
did not functionally equal a listed impairment. (See id.) The Commissioner
counters that the appropriate legal standards were used by the ALJ and his
decision is supported by substantial evidence. (See Dkt. No. 18 at 8-17.)
IV. Facts
The evidence in this case is undisputed and the court adopts the
parties’ factual recitations. (See id. at 2-6; Dkt. No. 16 at 2-8.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
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42 U.S.C. § 405(g)2 is well established and will not be repeated here. For
a full discussion of the standard of review, the court refers the parties to its
previous opinion in Christiana v. Comm’r of Soc. Sec. Admin., No.
1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y. Mar. 19, 2008).
Similarly, for a full discussion of the three-step analysis used by the Social
Security Administration to determine whether individuals under the age of
eighteen are disabled, the court refers the parties to its previous opinion in
Shatraw ex rel. K.C.Y., III, v. Astrue, No. 7:11-cv-13, 2012 WL 589667, at
*1 (N.D.N.Y. Feb. 22, 2012).
VI. Discussion
A.

Developing the Record
Austin first contends that the ALJ erred by failing to properly develop

the record. (See Dkt. No. 16 at 10-12.) According to Austin, the ALJ erred
in failing to recontact R.M.B.’s treating physician Dr. Michael Kore and
treating psychiatrist Dr. Surendra Johri to obtain functional evaluations.
(See id.) The Commissioner argues, that, as the record was sufficiently
developed to enable the ALJ to make a decision, the ALJ did not err in

2

42 U.S.C. § 1383(c)(3) renders section 405(g) of Title 42 applicable to judicial review
of SSI claims.
4

failing to develop the record further. (See Dkt. No. 18 at 8-9.) The court
agrees with the Commissioner.
While the ALJ has an affirmative obligation to develop the
administrative record, his duty to do so is not without limit. See Guile v.
Barnhart, No. 5:07-cv-259, 2010 WL 2516586, at *3 (N.D.N.Y. June 14,
2010); see also 20 C.F.R. § 416.912(d) (stating that generally, a complete
record contains a “medical history for at least the [twelve] months
preceding the month in which” the claimant files her application). Indeed, if
all of the evidence received is consistent and sufficient to determine
whether a claimant is disabled, further development of the record is
unnecessary, and the ALJ may make his determination based upon that
evidence. See 20 C.F.R. § 416.920b(a). Consistent with that notion,
where there are no “obvious gaps” in the record, the ALJ is not required to
seek additional information. Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir.
1999). The ALJ must, however, “make reasonable efforts to obtain the
claimant’s treating physician report.” Streeter v. Comm’r of Soc. Sec., No.
5:07-CV-858, 2011 WL 1576959, at *3 (N.D.N.Y. Apr. 26, 2011) (internal
quotation marks and citations omitted). “[T]he lack of a medical source
statement will not make the record incomplete” though, so long as the
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ALJ’s decision is “based on sufficient and consistent evidence.” Id.
(internal quotation marks and citations omitted); see 20 C.F.R.
§ 416.913(b)(6); Pellam v. Astrue, No. 12-412, 2013 WL 309998, at *2 n.2
(2d Cir. Jan. 28, 2013).
Here, the record contains treatment notes from both Drs. Kore and
Johri. (See Tr. at 129-57.) Moreover, the record contains medical source
statements with respect to R.M.B.’s physical and mental functional abilities
from consultative examiners as well as the opinions of non-examining
psychological and pediatrics experts. (See id. at 158-62, 199-205, 21223.) Austin correctly points out that the ALJ has a “heightened duty” to
develop the record when a claimant proceeds pro se. Echevarria v. Sec’y
of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982); (see Dkt. No.
16 at 12). However, the ALJ fulfilled that duty by conducting an extensive
hearing, (see id. at 19-45), during which he permitted Austin to discuss any
issues that she felt were important, (see id. at 42), questioned Austin as to
whether there was any additional evidence to collect, (see id. at 26-27),
and, thereafter, obtained the opinion of an impartial medical expert, (see id.
at 127-28, 217-29).
Ultimately, as the ALJ had before him substantial evidence that
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enabled him to render a decision with respect to R.M.B.’s limitations, the
court is satisfied that further development of the record was unnecessary.
See Pellam, 2013 WL 309998, at *2.
B.

Credibility Assessment
Next, Austin argues that the ALJ’s credibility assessment is

unsupported by substantial evidence. (See Dkt. No. 16 at 12-14.)
Specifically, Austin claims that the ALJ failed to consider the factors
required by 20 C.F.R. § 416.929(c) and failed to determine whether
R.M.B.’s medically determinable impairments could reasonably be
expected to produce her symptoms. (See id. at 13.) The court disagrees.
In analyzing credibility, the ALJ must first determine whether the
claimant has medically determinable impairments, “which could reasonably
be expected to produce the pain or other symptoms alleged.” 20 C.F.R.
§ 416.929(a); see SSR 96-7p, 61 Fed. Reg. 34,483, 34,484 (July 2, 1996).
Second, if medically determinable impairments are shown, then the ALJ
must evaluate the intensity, persistence, and limiting effects of the
symptoms. See 20 C.F.R. § 416.929(c); SSR 96-7p, 61 Fed. Reg. at
34,485. Because “an individual’s symptoms can sometimes suggest a
greater level of severity of impairment than can be shown by the objective
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medical evidence alone,” an ALJ will consider the factors listed in 20
C.F.R. § 416.929(c)(3)(i)-(vii)3 in making his credibility determination. SSR
96-7p, 61 Fed. Reg. at 34,485. In performing this analysis, the ALJ “must
consider the entire case record and give specific reasons for the weight
given to the [claimant’s] statements.” SSR 96-7p, 61 Fed. Reg. at 34,485.
Here, the ALJ found that the medical evidence indicated that R.M.B.
suffered the symptoms alleged, but not to the level of severity alleged.
(See Tr. at 12.) The ALJ explained that, although Austin alleged that
R.M.B. fights with friends, her teacher reported no limitations in the domain
of interacting and relating with others. (See id. at 12, 167.) In addition,
Austin reported that R.M.B. needs to be prompted and is easily distracted,
but her teacher opined that R.M.B. suffered no limitations in the domain of
attending and completing tasks. (See id. at 12, 166.) Further, the ALJ
noted that R.M.B. responded well to her medications. (See id. at 12, 14754.) According to Austin, the ALJ failed to consider her testimony that
R.M.B. has severe tantrums, hurts herself, and, on one occasion, the
3

The listed factors are: (i) the claimant’s daily activities; (ii) the location, duration,
frequency, and intensity of the claimant’s symptoms; (iii) precipitating and aggravating factors;
(iv) the type, dosage, effectiveness, and side effects of any medication taken to relieve
symptoms; (v) other treatment received to relieve symptoms; (vi) any measures taken by the
claimant to relieve symptoms; and (vii) any other factors concerning the claimant’s functional
limitations and restrictions due to symptoms. See 20 C.F.R. § 416.929(c)(3)(i)-(vii).
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police had to be called and R.M.B. had to be taken to the emergency room.
(See Dkt. No. 16 at 13-14.) However, the ALJ specifically noted Austin’s
allegations that R.M.B. suffered “severe behavioral problems at home and
at school” where she “loses her temper and is defiant and aggressive.”
(Tr. at 12.) Although the ALJ did not explicitly mention Austin’s allegations
with respect to R.M.B.’s activities of daily living, the ALJ considered the
opinion of medical expert Dr. Sharon Grand, that R.M.B. suffered only mild
restrictions in her activities of daily living. (See id. at 12-13, 219.) Finally,
in making his credibility determination the ALJ considered R.M.B.’s medical
treatment records—in which Austin reported on R.M.B.’s progress—in
addition to her school records. (See id. at 12, 146-57.) Thus, Austin’s
argument that the ALJ failed to consider that R.M.B.’s behavior was
significantly worse at home is without merit. (See Dkt. No. 16 at 14.)
Although the ALJ did not undertake a step-by-step exposition of the
factors articulated in 20 C.F.R. § 416.929(c), “[f]ailure to expressly consider
every factor set forth in the regulations is not grounds for remand where
the reasons for the ALJ’s determination of credibility are sufficiently specific
to conclude that he considered the entire evidentiary record.” Judelsohn v.
Astrue, No. 11-CV-388S, 2012 WL 2401587, at *6 (W.D.N.Y. June 25,
9

2012) (internal quotation marks and citation omitted); see Oliphant v.
Astrue, No. 11-CV-2431, 2012 WL 3541820, at *22 (E.D.N.Y. Aug. 14,
2012) (explaining that the 20 C.F.R. § 416.929(c)(3) factors are included
as “‘examples of alternative evidence that may be useful [to the credibility
inquiry], and not as a rigid, seven-step prerequisite to the ALJ’s finding’”)
(quoting Snyder v. Barnhart, 323 F. Supp. 2d 542, 546 (S.D.N.Y. 2004)).
Here, the ALJ explicitly acknowledged consideration of 20 C.F.R.
§ 416.929, (see Tr. at 12), and it is evident from his thorough discussion
that his credibility determination was legally sound. See Britt v. Astrue,
486 F. App’x 161, 164 (2d Cir. 2012) (finding explicit mention of 20 C.F.R.
§ 404.1529 and SSR 96-7p as evidence that the ALJ used the proper legal
standard in assessing the claimant’s credibility). Further, the ALJ’s
determination that Austin’s allegations were not fully credible is supported
by substantial evidence. (See Tr. at 12.)
C.

Functional Equivalency
Austin contends that the ALJ erred in finding that R.M.B. did not have

marked limitations in five of the six functional domains. (See Dkt. No. 16 at

10

14-20.) In particular, Austin argues that R.M.B. had marked limitations4 in
the domains of acquiring and using information, attending and completing
tasks, interacting and relating with others, caring for oneself, and health
and physical well-being. (See id.) As the Commissioner argues, however,
the ALJ’s functional equivalency analysis is supported by substantial
evidence, and it will not be disturbed. (See Dkt. No. 18 at 11-17.)
1.

Acquiring and Using Information

This domain contemplates a child’s ability to “acquire or learn
information, and how well [he] use[s] the information [he has] learned.” 20
C.F.R. § 416.926a(g). Children in R.M.B.’s age range “should be able to
learn to read, write, and do math, and discuss history and science,” as well
as “use increasingly complex language (vocabulary and grammar) to share
information and ideas with individuals or groups, by asking questions and
expressing . . . ideas, and by understanding and responding to the
opinions of others.” Id. § 416.926a(g)(2)(iv). The ALJ found that R.M.B.
had less than a marked limitation in this domain, relying on the evaluations
of her teacher and the opinion of medical expert Dr. Sharon Grand. (See

4

Under the regulations, a claimant has a “marked” limitation in a given domain when
the impairment “interferes seriously with [the claimant’s] ability to independently initiate,
sustain, or complete activities” in that domain. 20 C.F.R. § 416.926a(e)(2)(i).
11

Tr. at 13-14.)
Austin argues that the ALJ erred in relying on Dr. Grand’s opinion
because she incorrectly reported that R.M.B.’s full scale IQ score was
eighty-five and that R.M.B. was only one grade behind in reading and at
grade level in writing. (See Dkt. No. 16 at 14-16.) Further, Austin argues
that the reports of R.M.B.’s teachers and school psychologist as well as
consultative examiner Annette Payne indicate that R.M.B. suffers a marked
limitation in this domain. (See id.)
In May 2008, R.M.B.’s teacher Theresa Ricci completed a
questionnaire co-signed by special education teacher Terrill Gregory. (See
Tr. at 164-71.) They evaluated R.M.B. in ten activities related to acquiring
and using information and opined that she suffered no problem in one
activity, an obvious problem in seven activities, and a serious problem in
two activities. (See id. at 165.) In their collective opinion, R.M.B. suffered
a serious problem in reading and comprehending written material and
expressing ideas in written form. (See id.) According to Ricci and
Gregory, R.M.B. was one grade behind in reading but was at grade level in
math and written language. (See id. at 164.) R.M.B. was receiving special
education services five days a week in reading and math, and two days a
12

week in writing. (See id.) In addition to this questionnaire, Committee on
Special Education chairperson Cristi Paragi completed a report stating that
R.M.B. had scored below average on IQ testing in reading, math, and
written language. (See id. at 172-73.) Further, a psychoeducational
evaluation completed by school psychologist Susan Keyser in November
2007 revealed R.M.B.’s full scale IQ score was seventy-five. (See id. at
179-83.) According to Keyser, R.M.B. was functioning intellectually within
borderline limits, however, she performed within average limits on tasks
assessing the ability to quickly and accurately process information, within
low average limits on tasks assessing the ability to hold information in short
term memory while performing some operation or manipulation with it, and
within below average limits on tasks assessing the ability to think and
reason utilizing words, and think and reason without utilizing words. (See
id. at 182-83.)
In June 2008, Dr. Payne examined R.M.B. and found her speech
fluent and clear and her expressive and receptive language skills
adequate. (See id. at 158-62.) R.M.B.’s attention and concentration were
mildly impaired and her recent and remote memory skills were intact. (See
id. at 160.) Dr. Payne opined that R.M.B.’s cognitive functioning was in the
13

low average range and noted that her general fund of information was
appropriate to experience. (See id. at 161.) Based on this exam, Dr.
Payne reported that R.M.B. could follow and understand simple directions
and instructions and perform simple tasks, but had difficulty learning new
tasks and performing complex tasks. (See id.) According to Dr. Payne, a
special education placement would benefit R.M.B. due to the greater
structure. (See id. at 162.)
Thus, even if Dr. Grand misstated R.M.B.’s full scale IQ score, (see
Dkt. No. 16 at 16), considering the reports of R.M.B.’s teachers, school
psychologist, and Dr. Payne, as well as the treatment notes of Dr.
Johri—who evaluated R.M.B. to be of normal intelligence and noted
Austin’s reports that R.M.B. was performing well in school—the ALJ’s
determination of less than marked limitation in this domain is supported by
substantial evidence. (See Tr. at 151-54, 157, 160-62, 164-71.)
2.

Attending and Completing Tasks

This domain contemplates a child’s ability to focus and maintain
attention, “begin, carry through, and finish . . . activities, including the pace
at which [the child] perform[s] activities and the ease with which [she]
change[s] them.” 20 C.F.R. § 416.926a(h). School-age children should be
14

able to focus “attention in a variety of situations in order to follow
directions, remember and organize . . . school materials, and complete
classroom and homework assignments.” Id. § 416.926a(h)(2)(iv). Children
of R.M.B.’s age should also “be able to concentrate on details and not
make careless mistakes,” change “activities or routines without
distract[ion,] . . . stay on task and in place when appropriate,” and
“complete a transition task . . . without extra reminders and
accommodation.” Id.
The ALJ noted Austin’s claims of limitation in this domain, but, relying
on the opinions of R.M.B.’s teachers and Drs. Grand and Payne, found that
R.M.B. had less than marked limitation. (See Tr. at 14.) Austin argues
that the ALJ’s determination with respect to this domain is unsupported by
substantial evidence because R.M.B.’s Individual Education Program (IEP)
noted that she misses up to thirty minutes a day for medical treatment,
requires extra assistance for independent reading or extensive writing, and
works best when seated in front of the teaching station. (See Dkt. No. 16
at 16-17; Tr. at 188.) Further, according to Austin, the opinion of Dr. Payne
indicates that R.M.B. suffers at least a marked limitation in this domain.
(See Dkt. No. 16 at 16-17.)
15

The ALJ’s determination that R.M.B. suffered a less than marked
limitation in the domain of attending and completing tasks is supported by
substantial evidence and will not be disturbed. R.M.B.’s teachers reported
that they had observed no problems in this domain and that R.M.B.’s
functioning appeared age-appropriate. (See Tr. at 166.) In addition, Dr.
Payne found that R.M.B.’s attention and concentration were only mildly
impaired. (See id. at 160.) Non-examining medical consultants R.
Mohanty and K. Prowda opined that R.M.B. suffered less than marked
limitation in this domain. (See id. at 200-01.) Finally, Dr. Grand opined
that R.M.B. suffered mild difficulties in maintaining concentration,
persistence or pace and a less than marked limitation in the domain of
attending and completing tasks. (See id. at 219, 222.)
3.

Interacting and Relating with Others

This domain contemplates a claimant’s ability to “initiate and sustain
emotional connections with others, develop and use the language of [her]
community, cooperate with others, comply with rules, respond to criticism,
and respect and take care of the possessions of others.” 20 C.F.R.
§ 416.926a(i). School-age children should be able to, among other things,
develop more lasting friendships with children who are the same age,
16

begin to understand how to work in groups, talk to people of all ages, and
to speak in a manner that both familiar and unfamiliar listeners readily
understand. See id. § 416.926a(i)(2)(iv).
Relying on the opinions of Drs. Payne and consultative examiner
Tomasito Virey, Austin claims that the ALJ’s decision—that R.M.B.
suffered less than marked limitation in this domain—is unsupported by
substantial evidence. (See Dkt. No. 16 at 17-18.) Austin further contends
that the ALJ failed to consider her testimony that R.M.B’s behavior at home
was worse than her behavior at school. (See id. at 18.)
As the ALJ noted, Dr. Grand opined that R.M.B. suffered less than
marked limitations in this domain. (See Tr. at 15.) Further, although Dr.
Virey noted that R.M.B. had difficulty pronouncing some words and
diagnosed her as suffering a speech and language problem, he opined that
R.M.B. was capable of participating “in age-appropriate educational, social,
recreational, and physical activities, as long as she follows up with
therapists and monitors for progress.” (Id. at 216; see id. at 214.) R.M.B.’s
teachers reported that she displayed no problems in this domain. (See id.
at 167.) Moreover, treatment notes reflect that, although she still has
anger outbursts, R.M.B.’s behavioral problems improved with medication
17

and she was “no longer aggressive and violent” and “follow[ed] the rules of
the house.” (Id. at 153-55; see id. at 147-52.) Finally, although Dr. Payne
opined that R.M.B. “has difficulties making appropriate decisions and
relating with others,” upon examination she noted that R.M.B.’s social skills
were fair, eye contact was appropriate, speech was fluent and clear, and
expressive and receptive language skills were adequate. (Id. at 160-61.)
Accordingly, the ALJ’s finding that R.M.B. suffered less than marked
limitation in her ability to interact and relate with others is supported by
substantial evidence.
4.

Caring for Self

This domain contemplates a claimant’s ability to “maintain a healthy
emotional and physical state.” 20 C.F.R. § 416.926a(k). This includes
how well the claimant gets her “physical and emotional wants and needs
met in appropriate ways; how [she] cope[s] with stress and changes in
[her] environment; and whether [she] take[s] care of [her] own health,
possessions, and living area.” Id. Noting the opinion of Dr. Grand and
considering the fact that R.M.B. is a fussy eater and had punched holes in
walls, the ALJ found less than marked limitations in this domain. (See Tr.
at 16-17.) Austin again relies unpersuasively on the opinion of Dr. Payne
18

for the proposition that R.M.B. had marked limitations in this domain. (Dkt.
No. 16 at 18-19.)
The ALJ’s determination that R.M.B. suffered less than marked
limitations in this domain is supported by substantial evidence.
Specifically, the report of R.M.B.’s teachers, as well as the opinion of Drs.
Grand, Prowda, and Mohanty all support the ALJ’s determination. (See id.
at 169, 202, 222.) Austin argues that her testimony regarding R.M.B.’s
aggressive and violent behavior indicates that R.M.B. had marked
limitations in this domain. (See Dkt. No. 16 at 18-19.) However, as noted
above, R.M.B.’s aggressive and violent behavior improved with medication.
(See Tr. at 147-55.) Further, Austin alleges that because R.M.B. needs
reminders to take a bath and ensure that she washes and requires help
doing her hair and keeping her nails clean, she suffers a marked limitation
in this domain. (See Dkt. No. 16 at 19.) However, Austin also reported
that R.M.B. uses zippers by herself, brushes her teeth, eats by herself
using utensils, picks up and puts away her toys, hangs up her clothes,
helps around the house, obeys safety rules, and gets to school on time.
(See id. at 97.)
5.

Health and Physical Well-being
19

In this domain, the ALJ considers “the cumulative physical effects of
physical or mental impairments and their associated treatments or
therapies ” on a child’s functioning that were not previously considered in
the domain evaluating the child’s ability to move about and manipulate
objects. 20 C.F.R. § 416.926a(l). Examples of limitations in this domain
include: “generalized symptoms, such as weakness, dizziness, agitation
. . . , lethargy . . . , or psychomotor retardation[;] somatic complaints related
to [the child’s] impairments[;] limitations in [the child’s] physical functioning
because of [her] treatment[; and] exacerbations from one impairment or a
combination of impairments that interfere with [the child’s] physical
functioning.” 20 C.F.R. § 416.926a(l)(4)(i)-(iv).
Here, the ALJ relied on the opinions of Drs. Grand and Virey in
determining that R.M.B. has less than marked limitations in this domain.
(See Tr. at 17-18.) The ALJ also noted that R.M.B’s sleep difficulty and
asthma were treated with medications and she has required no
hospitalizations. (See id.) Again, Austin argues that the ALJ’s
determination is unsupported by substantial evidence. (See Dkt. No. 16 at
19-20.) Austin points to the fact that R.M.B. still has behavioral issues
despite her medication, was diagnosed with insomnia, has a history of
20

bronchial asthma, and misses up to thirty minutes of school a day for
medical treatment. (See id.) However, the ALJ’s decision with respect to
this domain is supported by the opinions of Drs. Grand, Mohanty, Prowda,
and Virey. (See Tr. at 203, 216, 222.) Moreover, treatment records reveal
that R.M.B.’s behavioral problems improved with medication, upon
examination her lungs were clear, and spirometry tests were normal. (See
id. at 129, 139, 140, 142, 144, 147-55, 215.) In May 2008, Austin reported
that R.M.B.’s asthma was well controlled with medication, and she had not
had an asthma attack for over one year. (See id. at 114.) Accordingly, the
ALJ’s finding that R.M.B. suffered less than marked limitations in the
domain of health and physical well-being is supported by substantial
evidence.
C.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Austin’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
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ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
May 1, 2013
Albany, New York

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