Rimmer v. Commissioner of Social Security

Filing 13

DECISION AND ORDER denying # 10 Plaintiff's motion for judgment on the pleadings; and granting # 11 Defendant's motion for judgment on the pleadings. Defendant's decision denying disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 11/30/15. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
CAROL N. RIMMER,
on behalf of J.A.R., III, a minor,
Plaintiff,
v.

Case No. 6:14-CV-1062 (GTS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________________
APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
Counsel for Plaintiff
300 S. State Street, Suite 420
Syracuse, NY 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

JASON P. PECK, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Carol N. Rimmer
(“Plaintiff”) on behalf of her son, J.A.R., III, against the Commissioner of Social Security
(“Defendant” or “the Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the
parties’ cross-motions for judgment on the pleadings. (Dkt. Nos. 10-11.) 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.

I.

RELEVANT BACKGROUND
A.

Factual Background

J.A.R., III was born on June 28, 1998. At the time of the hearing, J.A.R., III was in the
ninth grade. Generally, J.A.R., III’s alleged impairments are muscular dystrophy, hereditary
neuropathy with tendency to pressure palsies (“HNPP”), right carpal tunnel syndrome, recurrent
strep throat, recurrent ear infections, and headaches.
B.

Procedural History

On August 30, 2011, Plaintiff filed an application for Supplemental Security Income on
behalf of J.A.R., III. Plaintiff’s application was initially denied on October 25, 2011, after which
she timely requested a hearing before an Administrative Law Judge (“ALJ”). Plaintiff’s hearing
was originally scheduled for February 27, 2013, but neither Plaintiff nor her attorney appeared.
On May 24, 2013, Plaintiff and J.A.R., III appeared by video in a rescheduled hearing before the
ALJ, Bruce S. Fein. (T. 39-61.) On June 17, 2013, the ALJ issued a written decision finding
J.A.R., III not disabled under the Social Security Act. (T. 16-38.) On June 10, 2014, the Appeals
Council 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 his decision, the ALJ made the following six findings of fact and conclusions
of law. (T. 16-38.) First, the ALJ found that J.A.R., III was “an adolescent” pursuant to 20 C.F.R.
§ 416.926a(g)(2) on August 30, 2011, the date the application for benefits was filed, and on June
17, 2013, the date of the ALJ’s decision. (T. 22.) Second, the ALJ found that J.A.R., III had not
engaged in substantial gainful activity since the date the application for benefits was filed. (Id.)

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Third, the ALJ found that J.A.R., III’s right carpal tunnel syndrome and HNPP were severe
impairments, but that J.A.R., III’s muscular dystrophy, recurrent strep throat, recurrent ear
infections, and headaches were not severe impairments. (T. 22-23.) Fourth, the ALJ found that
J.A.R., III’s severe impairments, alone or in combination, did not meet or medically equal one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). (T. 23.)
Fifth, the ALJ found that J.A.R., III’s severe impairments, alone or in combination, did not
functionally equal an impairment set forth in the Listings. (T. 23-34.) Sixth, and finally, the ALJ
found that J.A.R., III has not been disabled, as defined by the Social Security Act, since August
30, 2011, the date his application was filed. (T. 34.)
D.

The Parties’ Briefings on Their Cross-Motions

Plaintiff makes three arguments in support of her motion for judgment on the pleadings.
First, Plaintiff argues that the ALJ’s determination that J.A.R., III’s impairments were not
functionally equivalent to the Listings was unsupported by substantial evidence. (Dkt. No. 10, at
9-16 [Pl.’s Mem. of Law].) Second, as part of her Listings argument, Plaintiff argues that the ALJ
erred in assessing the medical opinions of record. (Id.) Third, and finally, Plaintiff argues that the
ALJ’s credibility determination was unsupported by substantial evidence. (Id. at 16-17.)
Defendant makes three arguments in support of her motion for judgment on the pleadings.
First, Defendant argues that substantial evidence supports the ALJ’s decision that J.A.R., III’s
impairments were not functionally equivalent to the Listings. (Dkt. No. 11, at 5-15 [Def.’s Mem.
of Law].) Second, Defendant argues that the ALJ properly assessed the medical opinions of
record. (Id.) Third, and finally, Defendant argues that substantial evidence supports the ALJ’s
finding that J.A.R., III’s subjective complaints were not credible to the extent alleged. (Id.)

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II.

RELEVANT LEGAL STANDARD
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.”);
accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d
Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has
been defined as “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971). Where
evidence is deemed susceptible to more than one rational interpretation, the Commissioner’s
conclusion must be upheld. 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).
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,
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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 18 is disabled, and thus eligible for Social Security Income
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 twelve 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 . . . .” 42 U.S.C. §
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. § 416.924; Kittles v.
Barnhart, 245 F. Supp. 2d 479, 487-88 (E.D.N.Y. 2003); Ramos v. Barnhart, 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 five-step analysis employed in adult disability cases, requires determining
whether the child has engaged in substantial gainful activity. 20 C.F.R. § 416.924(b); Kittles, 245
F. Supp. 2d at 488. If so, then the child is ineligible for Social Security Income benefits. 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
requires examining whether the child suffers from one or more medically determinable
impairments that, either singly or in combination, are properly regarded as severe because they
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cause more than a minimal functional limitation. 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.”
Sullivan v. Zebley, 493 U.S. 521, 529, 110 S. Ct. 885, 890 (1990).
If a severe impairment exists, the third step requires determining whether the child meets
or equals a presumptively disabling condition identified in the Listings set forth under 20 C.F.R.
Pt. 404, Subpt. P., App. 1. 20 C.F.R. § 416.924(d); Zebley, 493 U.S. at 526. Equivalence to a
Listing can be either medical or functional. 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 12-month durational
requirement is satisfied, the claimant will be deemed disabled. 20 C.F.R. § 416.924(d)(1);
Ramos, 2003 WL 21032012, at *8.
Analysis of functionality considers how a claimant 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 domains include the following: (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
well-being. 20 C.F.R. § 416.926a(b)(1).
Functional equivalence is established if the child is determined to have an “extreme,” or
“more than marked,” limitation in a single domain. 20 C.F.R. § 416.926a(a); Ramos, 2003 WL
21032012, at *8. An “extreme limitation” is an impairment that “interferes very seriously with [a
claimant’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(3)(i).
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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 [a claimant’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).
III.

ANALYSIS
For ease of analysis, Plaintiff’s arguments have been reorganized and renumbered.
A.

Whether the ALJ Erred in Weighing the Medical Opinions of Record

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 11, at 5-17 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
In assessing J.A.R., III’s impairments and the resulting limitations, the ALJ afforded
substantial weight to the joint opinion of consultative examining neurologists, Dr. David
Herrmann, M.D., and Dr. Adam Juersivich, M.D., significant weight to State agency pediatrician,
Dr. D. SanJose-Santos, M.D., and some weight to the opinion of treating neurologist, Dr. Ahmed
Shatla, M.D. (T. 26-27.)
On August 4, 2011, Dr. Herrmann and Dr. Juersivich examined J.A.R., III and assessed
him with right carpal tunnel syndrome and HNPP. (T. 267-69.) Dr. Herrmann and Dr.
Juersivich jointly opined that J.A.R., III should avoid activities that could place him at increased

7

risk for compression neuropathies, specifically, crossing his legs when seated, prolonged
squatting, excessive nerve stretching or performing highly repetitive, forceful activities. (T.
269.) Dr. Hermann and Dr. Juersivich opined that J.A.R., III should be careful about leaning on
his elbows and should periodically change position when seated. (Id.) Finally, Dr. Hermann and
Dr. Juersivich opined that J.A.R., III should “remain active.” (Id.)
On October 25, 2011, Dr. SanJose-Santos reviewed J.A.R., III’s medical history and
opined that he should avoid activities that could place him at risk for compression neuropathy.
(T. 292.) Dr. SanJose-Santo opined that J.A.R., III had less than marked limitations in moving
about and manipulating objects, and in health and physical well-being.
On February 20, 2013, Dr. Shatla diagnosed J.A.R., III with HNPP and opined that he had
limitations on movements and activities. (T. 296.) Plaintiff argues that the ALJ violated the
treating physician rule in affording less than controlling weight to the opinion of Dr. Shatla in
determining J.A.R., III’s impairments and his resulting limitations. (Dkt. No. 10, at 11-12 [Pl.’s
Mem. of Law].) Specifically, Plaintiff argues that the ALJ (1) failed to provide “good reasons”
for not assigning greater weight to Dr. Shatla’s opinion in accordance with the regulatory factors1
and (2) erred in relying on the joint opinion of Dr. Hermann and Dr. Juersivich, as well as the
opinion of Dr. SanJose-Santos. (Id. at 11-12.)
The Court finds that the ALJ properly assessed Dr. Shatla’s opinion for the following four
reasons. First, the ALJ noted that Dr. Shatla only examined J.A.R., III twice, on February 20,

1

These factors include, among others, (1) the examining relationship, (2) the treating
relationship, including the length of the relationship, the frequency of examination, and the nature and
extent of the treatment relationship, (3) the supportability of the source’s opinion, (4) the consistency of
the source’s opinion with the record as a whole, and (5) the specialty of the source. 20 C.F.R. §
416.927(c).

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2013, the date of his opinion, and on May 21, 2013. (T. 27.) Second, the ALJ cited Dr. Shatla’s
examination notes that did not support his opinion of J.A.R., III’s limitations. For example, the
ALJ noted that Dr. Shatla observed that J.A.R., III’s cerebellar function was intact and that his
HNPP had been stable since he was first diagnosed with the condition in August 2011. (T. 25.)
The ALJ noted that Dr. Shatla observed that J.A.R., III exhibited a steady gait, normal posture
and posture reflex, normal tandem and heel to toe walking, and a negative Romberg’s test. The
ALJ noted that, when J.A.R., III returned to Dr. Shatla on May 21, 2013, Dr. Shatla stated that
J.A.R., III should be watched very carefully in the next few months, but did not opine that he had
any limitation on movements and activities and did not place any restriction on his activities. (T.
27.) The ALJ further noted that, despite J.A.R., III’s improved clinical findings on May 21,
2013, Dr. Shatla “nonetheless stated that the claimant’s condition was getting worse.”
Third, the ALJ cited medical opinions and evidence from other treating and examining
sources that was inconsistent with Dr. Shatla’s opinion. (T. 22-34.) For example, the ALJ noted
that Dr. Herrmann and Dr. Juersivich opined that, although J.A.R., III should avoid activities that
could place him at increased risk for compression neuropathies, he should also remain active. (T.
31.) The ALJ noted that neurological exams of J.A.R., III performed by treating primary care
physician, Dr. Matthew Mittiga, D.O., during the period at issue were “uniformly . . . within
normal limits,” and that Dr. Mittiga consistently noted that J.A.R., III was functionally capable of
performing normal activities of daily living. (T. 26.)
The ALJ further noted that, upon exam by Dr. Herrmann and Dr. Juersivich on August 4,
2011, J.A.R., III did not report any difficulties, had a normal casual gait, and was able to heel and
toe walk, run, hop, and stand on one limb with his eyes open and closed. (T. 24-25.) The ALJ

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noted that Dr. Herrmann and Dr. Juersivich observed no strength or balance deficits, and
observed that J.A.R., III had normal bulk and tone, and exhibited five out of five strength in
shoulder abduction, elbow flexion/extension, wrist flexion/extension, finger flexion/extension,
intrinsics, abductor pollicis brevis, knee flexion/extension, dorsi and plantar flexion, and toe
dorsification. (T. 25.) The ALJ noted that Dr. Herrmann and Dr. Juersivich observed that
J.A.R., III exhibited normal finger to nose and heel to shin coordination, normal pinprick
sensation, except for a minor decrement in sensation at the right middle finger, and that Tinel’s
was present at the wrists. (T. 24-25.)
Where, as here, an ALJ’s reasoning and adherence to the Regulations are clear, the ALJ is
not required to review explicitly each and every factor of the Regulation. See Atwater v. Astrue,
512 F. App'x 67, 70 (2d Cir. 2013) (holding that, where plaintiff challenged ALJ’s failure to
review explicitly each factor provided for in 20 C.F.R. § 404.1527[c], “no such slavish recitation
of each and every factor [was required] where the ALJ's reasoning and adherence to the
regulation [was] clear”).
Moreover, an ALJ is entitled to rely upon the opinions of both examining and
non-examining State agency medical consultants, because those consultants are deemed to be
qualified experts in the field of social security disability. 20 C.F.R. §§ 404.1512(b)(6),
404.1513(c), 404.1527(e), 416.912(b)(6), 416.913(c), 416.927(e); see also Little v. Colvin, 14CV-63, 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) (“State agency physicians are
qualified as experts in the evaluation of medical issues in disability claims. As such, their
opinions may constitute substantial evidence if they are consistent with the record as a whole.”)
Accordingly, the ALJ did not err in assessing the medical opinions of record.

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B.

Whether the ALJ’s Determination that J.A.R., III’s Impairments Were Not
Functionally Equivalent to the Listings Was Supported by Substantial
Evidence

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 11, at 5-17 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
The ALJ found that J.A.R., III does not have an impairment or combination of
impairments that functionally equals an impairment set forth in the Listings. (T. 23-34.)
Functional equivalence to a Listing is established where there is a finding of an extreme
limitation in one domain of functioning or a finding of a marked limitation in two domains. 20
C.F.R. § 926a(a). Here, Plaintiff argues that J.A.R., III has (1) an extreme limitation in moving
about and manipulating objects, and (2) a marked limitation in health and physical well-being.
The Court will examine the evidence with respect to J.A.R., III’s functioning in both of these
domains.
1.

Moving About and Manipulating Objects

This domain concerns how well a claimant moves his body from one place to another and
how a claimant moves and manipulates things. 20 C.F.R. § 926a(j). These are called gross and
fine motor skills. Id. The Regulations state that an adolescent
should be able to use . . . [his] motor skills freely and easily to get
about . . . [his] school, the neighborhood, and the community. . . .
[He] should be able to participate in a full range of individual and
group physical fitness activities . . . . [He] should show mature
skills in activities requiring eye-hand coordination, and should
have the fine motor skills needed to write efficiently or type on a
keyboard.
20 C.F.R. § 926a(j)(2)(v). Some examples of limited functioning in moving about and

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manipulating objects include (i) muscle weakness, joint stiffness, or sensory loss (e.g., spasticity,
hypotonia, neuropathy, or paresthesia) that interferes with motor activities, (ii) trouble climbing
up and down stairs, or jerky or disorganized locomotion, or difficulty with balance, (iii) difficulty
coordinating gross motor movements (e.g., bending, kneeling, crawling, running, jumping rope,
or riding a bike), (iv) difficulty with sequencing hand or finger movements (e.g., using utensils or
manipulating buttons), (v) difficulty with fine motor movement (e.g., gripping or grasping
objects), and (vi) poor eye-hand coordination when using a pencil or scissors. 20 C.F.R. §
926a(j)(3)(i)-(vi). A claimant will have a “marked” limitation in this domain if his impairment
“interferes seriously” with . . . [his] ability to independently initiate, sustain, or complete
activities.” 20 C.F.R. § 926a(e)(2)(i). A claimant will have an “extreme” limitation in this
domain if his impairment “interferes very seriously with . . . [his] ability to independently
initiate, sustain, or complete activities.” 20 C.F.R. § 926a(e)(3)(i).
Here, the ALJ determined that J.A.R., III has marked limitation in this area. (T. 31.) In
arriving at this determination, the ALJ considered the testimony of Plaintiff and J.A.R., III, the
joint opinion of Dr. Herrmann and Dr. Juersivich, the opinion of Dr. SanJose-Santos, treatment
notes from Dr. Mittiga, and J.A.R., III’s grades. (Id.)
First, the ALJ thoroughly and accurately summarized J.A.R., III’s hearing testimony
regarding his limitation in this domain. (Id.) For example, the ALJ noted that J.A.R., III testified
that he has problems with his hands and fingers, including numbness and pain. (T. 31.) The ALJ
noted that J.A.R., III reported problems with his hands during activities including writing at
school and playing video games. (Id.) The ALJ noted that J.A.R., III testified that he has
difficulty grasping things with his hands, tying his shoes, fastening or unfastening buttons and
zippers while dressing, and attending to his personal hygiene. (Id.) The ALJ noted that J.A.R.,
III testified that he drops things while eating, that his hands bother him when he is cutting
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something or carrying binders, and that he has difficulty using his locker and using the bathroom
at school. (Id.) The ALJ also cited testimony from J.A.R., III’s mother reporting that J.A.R., III
asks for assistance in pouring drinks. (T. 31.)
The ALJ noted that J.A.R., III testified that he has difficulty walking because he trips over
his feet and legs on a daily basis, that he has balance issues, that he bumps into things and drops
objects that he is carrying, that he has numbness in his arms and legs after walking for a short
distance, and that he seldom participates in gym class. (Id.) However, the ALJ also noted that
J.A.R., III testified that he is able to cook, that he found a tool to help him use buttons and
zippers, that he can open shampoo bottles and brush his teeth on his own, that he can catch his
balance most of the time when he trips, that he can walk up one flight of stairs, and that he can go
from classroom to classroom at school. (Id.)
Second, the ALJ cited opinion evidence and examination notes from treating and
examining sources regarding J.A.R., III’s abilities in this domain. The ALJ noted that Dr.
Herrmann and Dr. Juersivich opined that, although J.A.R., III should avoid activities that could
place him at increased risk for compression neuropathies, he should also remain active. (T. 31.)
The ALJ noted that Dr. SanJose-Santos opined that J.A.R., III’s limitation in this domain was
less than marked. (Id.) The ALJ further noted that Dr. Mittiga observed that J.A.R., III had been
swimming and approved him for physical education and school sports for one year. (Id.) The
ALJ noted that, during the relevant time period, Dr. Mittiga consistently noted that J.A.R., III
was functionally capable of performing normal activities of daily living. (Id.)
Third, the ALJ noted that, while J.A.R., III testified that he seldom participates in gym
class, he still received a passing grade in the course. (Id.) Finally, the ALJ concluded that “the
evidence of record indicates that the claimant’s ability to move about and manipulate objects is
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clearly less than age-appropriate; as a result, I have concluded that the claimant has a marked, but
not extreme, limitation in his ability to function in this domain.” (Id.)
Accordingly, the Court finds that the ALJ’s conclusion as to this domain is supported by
substantial evidence.
2.

Health and Physical Well-Being

This domain considers the cumulative physical effects of physical and mental
impairments and associated treatments or therapies on a child’s functioning that were not
considered in the evaluation of the child’s ability to move about and manipulate objects. 20
C.F.R. § 926a(l). Where a child’s impairments have physical effects that cause extreme
limitation in functioning, the child will generally have an impairment that meets or equals a
Listing. Id.
A child’s physical or mental disorder may have physical effects that vary in kind and
intensity, and may make it difficult for the child to perform his activities independently or
effectively. 20 C.F.R. § 926a(l)(1). Such effects may include generalized weakness, dizziness,
shortness of breath, reduced stamina, fatigue, psychomotor retardation, allergic reactions,
recurrent infection, poor growth, bladder or bowel incontinence, or local or generalized pain. Id.
Examples of limitations in this domain include (i) generalized symptoms, such as weakness,
dizziness, agitation, lethargy, or psychomotor retardation because of impairment(s), (ii) somatic
complaints relating to impairment(s), (iii) limitations in physical functioning because of
treatment, (iv) exacerbations from one impairment or a combination of impairments that interfere
with physical functioning, or (v) being medically fragile and needing intensive medical care to
maintain health and physical well-being. 20 C.F.R. § 926a(l)(4).

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Here, the ALJ determined that J.A.R., III has less than marked limitation in this domain.
(T. 33.) In arriving at this decision, the ALJ noted that J.A.R., III was diagnosed with right
carpal tunnel syndrome and HNPP in August 2011. (Id.) The ALJ noted that, at the hearing,
J.A.R., III also complained of daily headaches, recurrent strep throat, and recurrent ear infections.
(Id.) The ALJ noted that J.A.R., III sought “very little” treatment for headaches, that J.A.R., III’s
temporomandibular joint problems had been resolved with treatment, and that J.A.R., III has had
fewer ear and strep throat infections. (Id.) The ALJ further noted that J.A.R., III’s attendance at
school improved during the most recent school year. (Id.) The ALJ noted that Dr. SanJoseSantos opined that J.A.R., III’s limitation in this domain was less than marked. (Id.) Finally, the
ALJ concluded that, because there was no evidence of any significant interference in J.A.R., III’s
ability to function due to the physical effects of his health problems, his limitation in this domain
of functioning is less than marked. (T. 33.)
Accordingly, the Court finds that the ALJ’s conclusion as to this domain is supported by
substantial evidence.
B.

Whether the ALJ’s Credibility Determination Was Supported by Substantial
Evidence

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 11, at 5-17 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
As a fact finder, the ALJ is free to accept or reject the testimony of a claimant’s parent.
Williams on behalf of Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988). However, an ALJ’s
finding that a witness lacks credibility must be “set forth with sufficient specificity to permit
intelligible plenary review of the record.” Williams, 859 F.2d at 261. “If the child claimant is

15

unable adequately to describe his symptoms, the ALJ must accept the description provided by
testimony of the person most familiar with the child’s condition, such as a parent.” Hamedallah
ex rel. E.B. v. Astrue, 876 F. Supp. 2d 133, 151-52 (N.D.N.Y. 2012) (citing Jefferson v.
Barnhart, 64 F. App’x 136, 140 [10th Cir. 2003]). “In such a case, the ALJ must make specific
findings concerning the credibility of the parent’s testimony, just as he would if the child was
testifying.” Hamedallah, F. Supp. 2d at 152.
A plaintiff’s allegation of pain is “entitled to great weight where . . . it is supported by
objective medical evidence.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 270 (N.D.N.Y. 2009)
(quoting Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 [2d Cir. 1992]). However, the ALJ “is
not required to accept [a plaintiff’s] subjective complaints without question; he may exercise
discretion in weighing the credibility of the [plaintiff’s] testimony in light of the other evidence
in the record.” Montaldo v. Astrue, 10-CV-6163, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15
2012). “When rejecting subjective complaints, an ALJ must do so explicitly and with sufficient
specificity to enable the Court to decide whether there are legitimate reasons for the ALJ’s
disbelief.” Rockwood, 614 F. Supp. 2d at 270.
“The ALJ’s credibility assessment must be based on a two step analysis of pertinent
evidence in the record. First, the ALJ must determine whether the claimant has medically
determinable impairments, which could reasonably be expected to produce the pain or other
symptoms alleged.” Id. at 271.
Second, if medically determinable impairments are shown, then the
ALJ must evaluate the intensity, persistence, and limiting effects of
the symptoms to determine the extent to which they limit the
claimant’s capacity to work. Because an individual’s symptoms can
sometimes suggest a greater level of severity of impairment than can
be shown by the objective medical evidence alone, an ALJ will
consider the following factors in assessing a claimant’s credibility: (1)
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claimant’s daily activities; (2) location, duration, frequency, and
intensity of claimant’s symptoms; (3) precipitating and aggravating
factors; (4) type, dosage, effectiveness, and side effects of any
medication taken to relieve symptoms; (5) other treatment received
to relieve symptoms; (6) any measures taken by the claimant to
relieve symptoms; and (7) any other factors concerning claimant’s
functional limitations and restrictions due to symptoms.
Id. Further, “[i]t is the role of the Commissioner, not the reviewing court, ‘to resolve evidentiary
conflicts and to appraise the credibility of witnesses,’ including with respect to the severity of a
claimant’s symptoms.” Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. 2013) (quoting Carroll
v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 [2d Cir. 1983]).
Here, the ALJ determined the following:
After considering the evidence of record, I find that the claimant’s
medically determinable impairments could reasonably be expected
to produce the symptoms that have been alleged on behalf of the
claimant. Nevertheless, for the reasons explained below, the
statements concerning the intensity, persistence, and limiting
effects of the claimant’s symptoms are not fully credible.
(T. 26.) Having reviewed the Administrative Transcript in its entirety, the Court finds that the
ALJ correctly applied the standard, enumerated in 20 C.F.R. § 404.1529(c)(3)(i)-(vii), in
assessing allegations of J.A.R., III’s disabling symptoms and their limiting effects. Throughout
the decision, the ALJ articulated the inconsistencies he considered in assessing the allegations of
J.A.R., III’s symptoms and in determining that J.A.R., III is not as limited as alleged.
First, the ALJ cited inconsistencies in J.A.R., III’s testimony regarding his symptoms and
the resulting limitations in his daily activities. (T. 31.) For example, the ALJ noted that J.A.R.,
III testified that he has difficulty attending to his personal hygiene, but also testified and that he
can open shampoo bottles and brush his teeth on his own. (Id.) Additionally, the ALJ noted that
J.A.R., III testified that he has difficulty walking because he trips over his feet and legs on a daily

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basis, that he has balance issues, and that he has numbness in his arms and legs after walking for
a short distances. (Id.) Yet, the ALJ noted, J.A.R., III testified that he can catch his balance most
of the time when he trips, that he can walk up one flight of stairs, and that he can go from
classroom to classroom at school. (T. 31.) The ALJ further noted that J.A.R., III testified that he
has difficulty using buttons and zippers while dressing, but that he has a tool to help him fasten
and unfasten buttons and zippers. (Id.) Finally, the ALJ noted that, while J.A.R., III testified that
he seldom participates in gym class, he still received a passing grade in the course. (T. 31.)
Second, the ALJ cited medical evidence from treating and examining sources that is
inconsistent with allegations of J.A.R., III’s disabling symptoms. (T. 24-27.) The ALJ noted
that, on May 21, 2013, treating neurologist, Dr. Shatla, observed that J.A.R., III’s cerebellar
function was intact and that his HNPP had been stable since he was first diagnosed with the
condition in August 2011. (T. 25-26.) The ALJ noted that Dr. Shatla further observed that
J.A.R., III exhibited a steady gait, normal posture, normal posture reflex, normal tandem and heel
to toe walking, negative Romberg’s sign, and no arthralgias or joint swell. (T. 26.)
The ALJ cited evidence suggesting that J.A.R., III had exaggerated his symptoms. (T.
24.) For example, the ALJ noted that consultative examiners, Dr. Herrmann and Dr. Juersivich,
observed that J.A.R., III complained of pain in his shins while running that he initially described
as weakness, but indicated that he did not have a loss of strength, numbness, or paresthesias
when this occurred. (Id.) The ALJ further noted that Dr. Herrmann and Dr. Juersivich observed
that J.A.R., III had a normal casual gait, and was able to heel and toe walk, run, hop, and stand on
one limb with his eyes open and closed. (T. 24-25.) The ALJ noted that Dr. Herrmann and Dr.
Juersivich observed no strength or balance deficits, and observed that J.A.R., III had normal bulk
and tone, and exhibited a score of five out of five regarding his strength in his shoulder
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abduction, elbow flexion/extension, wrist flexion/extension, finger flexion/extension, intrinsics,
abductor pollicis brevis, knee flexion/extension, dorsi and plantar flexion, and toe dorsification.
(T. 25.) The ALJ noted that Dr. Herrmann and Dr. Juersivich observed that J.A.R., III exhibited
normal finger to nose and heel to shin coordination, normal pinprick sensation, except for a
minor decrement in sensation at the right middle finger, and that Tinel’s was present at the
wrists. (T. 24-25.)
Third, and finally, the ALJ cited J.A.R., III’s limited treatment record for his symptoms.
(T. 25.) The ALJ observed that, while Dr. Hermann and Dr. Juersivich J.A.R. assessed J.A.R.,
III with HNPP on August 4, 2011, J.A.R., III “did not seek any further medical treatment for his
carpal tunnel syndrome or HNPP until February 20, 2013, when he visited a neurologist one
week before the date on which his first hearing was scheduled.” (T. 25.)
Accordingly, the Court finds that the ALJ’s credibility assessment is supported by
substantial evidence. When the evidence of record “permits us to glean the rationale of an ALJ’s
decision, we do not require that he have mentioned every item of testimony presented to him or
have explained why he considered particular evidence unpersuasive or insufficient to lead him to
a conclusion of disability.” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983). Here, the
ALJ complied with the Regulations and articulated the inconsistencies upon which he relied in
discrediting the testimony of J.A.R., III’s disabling impairments.
For these reasons, the ALJ’s credibility assessment was supported by substantial
evidence, and remand is not necessary on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 10) is
DENIED; and it is further
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ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 11) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
is further is
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: November 30, 2015
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief, U.S. District Judge

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