Johnson v. Colvin

Filing 16

MEMORANDUM-DECISION and ORDER - ORDERED that Magistrate Judge Andrew T. Baxter's January 19, 2016 Report-Recommendation (Dkt. No. 14) is ADOPTED in its entirety; and it is further ORDERED that the decision of the Commissioner is AFFIRMED and Johnson's complaint (Dkt. No. 1) is DISMISSED; and it is further ORDERED that the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 9/27/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
LARRY D. JOHNSON, o/b/o
C.S.G.,
Plaintiff,

6:15-cv-179
(GLS/ATB)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Legal Aid Society of Northeast New
York
55 Colvin Avenue
Albany, NY 12206
New York State School Boards
Association
24 Century Hill Drive
Suite 200
Latham, NY 12110
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel

MICHAEL J. TELFER, ESQ.

SHUBH NIGAM MCTAGUE, ESQ.

JASON P. PECK
Special Assistant U.S. Attorney

Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Larry D. Johnson o/b/o C.S.G. challenges defendant
Commissioner of Social Security’s denial of Supplemental Security Income
(SSI), seeking review under 42 U.S.C. §§ 405(g) and 1383(c)(3).1 (Compl.,
Dkt. No. 1.) In a Report-Recommendation (R&R) filed January 19, 2016,
Magistrate Judge Andrew T. Baxter recommended that the
Commissioner’s decision be affirmed. (Dkt. No. 14.) Pending are
Johnson’s objections to the R&R. (Dkt. No. 15.) For the reasons that
follow, the court adopts the R&R in its entirety.
II. Background2
On June 8, 2010, Johnson filed an application for SSI under the

1

42 U.S.C. § 1383(c)(3) renders section 405(g) of Title 42 applicable to judicial review
of SSI claims.
2

The court incorporates the factual recitations of the parties and Judge Baxter. (See
generally Dkt. Nos. 11, 13, 14.)

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Social Security Act (“the Act”) on behalf of his minor foster son. (Tr.3 at
113, 176-82.) After his application was denied, Johnson requested a
hearing before an Administrative Law Judge (ALJ), which was held on
June 5, 2012. (Id. at 67-92, 115-21.) On July 20, 2012, the ALJ issued a
decision denying the requested benefits, which became the
Commissioner’s final determination upon the Social Security Administration
Appeals Council’s denial of review. (Id. at 1-4, 20-45.)
Johnson commenced the present action by filing a complaint on
February 17, 2015, seeking judicial review of the Commissioner’s
determination. (Compl.) After receiving the parties’ briefs, Judge Baxter
issued an R&R recommending the Commissioner’s decision be affirmed.
(See generally Dkt. No. 14.)
III. Standard of Review
By statute and rule, district courts are authorized to refer social
security appeals to magistrate judges for proposed findings and
recommendations as to disposition. See 28 U.S.C. § 636(b)(1)(A), (B);
N.D.N.Y. L.R. 40.1, 72.3(d); General Order No. 18. Before entering final
judgment, this court reviews report and recommendation orders in cases it
3

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 10.)

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has referred to a magistrate judge. If a party properly objects to a specific
element of the magistrate judge’s findings and recommendations, this court
reviews those findings and recommendations de novo. See Almonte v.
N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3,
*5 (N.D.N.Y. Jan. 18, 2006). In cases where no party has filed an
objection, only vague or general objections are made, or a party resubmits
the same papers and arguments already considered by the magistrate
judge, this court reviews the findings and recommendations of the
magistrate judge for clear error. See id. at *4-5.
IV. Discussion
Johnson purports to object to the R&R on three grounds. (Dkt. No.
15 at 1-6.) Specifically, he asserts that Judge Baxter erred in
recommending this court affirm the ALJ’s findings concerning C.S.G.’s
functioning in three of the six broad areas of functioning, or domains. (Id.)
He contends that C.S.G. has at least marked limitations in the domains
acquiring and using information, attending and completing tasks, and
caring for oneself, contrary to the ALJ’s holdings. (Id.) The substance of
Johnson’s argument with respect to the domain acquiring and using
information, however, was previously raised in his brief and considered and
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rejected by Judge Baxter. (Dkt. No. 11 at 16-17; Dkt. No. 15 at 2-3.) This
“objection,” therefore, is general and does not warrant de novo review.
See Almonte, 2006 WL 149049 at *4.
With respect to the domain attending and completing tasks Johnson
argues that Judge Baxter erred in concluding that the ALJ properly
considered the January 2012 opinion of C.S.G.’s teacher, Margaret Fagel.
(Dkt. No. 15 at 4.) According to Johnson, contrary to Judge Baxter’s
observation, the ALJ failed to consider Fagel’s opinion that C.S.G. suffered
a “very serious” problem in focusing long enough to finish assigned
activities and a “serious” problem working without distracting himself or
others and working at a reasonable pace. (Id.) Despite Johnson’s
protestations, a de novo review of the record reveals that the ALJ’s
determination with respect to this domain is legally sound and supported by
substantial evidence. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990) (“Substantial evidence is defined as more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept to
support a conclusion.” (internal quotation marks and citations omitted));
see also McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence
is susceptible to more than one rational interpretation, the Commissioner’s
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conclusion must be upheld.”). The ALJ considered the treatment notes of
nurse practitioner Frances LoCascio, C.S.G.’s counselor at The Family
Counseling Center, Inc., which indicate that, in December 2010 and April
and May 2011, medication adjustments had improved C.S.G.’s ability to
concentrate and he was doing very well both at school and home. (Tr. at
30, 35, 434, 436, 444.) The ALJ also considered the opinion of
psychologist M. Martin and pediatrician D. Bostic, who reviewed C.S.G.’s
psychiatric progress notes and concluded that he suffered a less than
marked limitation in this domain. (Id. at 34, 392.) The ALJ explicitly
considered the January 2012 opinion of Fagel and noted some of her
specific concerns with respect to C.S.G.’s ability to focus and need for
redirection. (Id. at 35, 491.) As Johnson himself points out, an ALJ has
the discretion to weigh the opinions of non-medical sources, such as
teachers, against other evidence of record. (Dkt. No. 15 at 5.) While the
ALJ did not recite the entirety of Fagel’s opinion, it is clear that she
considered it in its entirety, and found it less persuasive than other
evidence of record. (Tr. at 35); cf. Baez ex rel. D.J. v. Colvin, No.
6:13-CV-142, 2014 WL 1311998, at *10 (N.D.N.Y. Mar. 31, 2014) (holding
that remand was required where the ALJ failed to “even acknowledge that
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[a teacher’s] opinion was in the record); see also Petrie v. Astrue, 412 F.
App’x 401, 407 (2d Cir. 2011) (explaining that, where ‘the evidence of
record permits [the court] to glean the rationale of an ALJ’s decision,’” it is
not necessary that the ALJ “‘have mentioned every item of testimony
presented to h[er] or have explained why [s]he considered particular
evidence unpersuasive or insufficient to lead h[er] to a conclusion of
disability’” (citations omitted)). Accordingly, and for the reasons articulated
by Judge Baxter, (Dkt. No. 14 at 15-18), the court finds that this portion of
the Commissioner’s decision should be affirmed.
Finally, Johnson argues that Judge Baxter misinterpreted the
testimony of C.S.G.’s foster mother in upholding the ALJ’s finding that
C.S.G. suffered no limitation in the domain caring for oneself. (Dkt. No. 15
at 6.) When discussing the testimony of C.S.G.’s foster mother, the ALJ
noted her explanation that when C.S.G. comes home from weekend visits
with his mother, he has often not bathed nor changed his clothes. (Id. at
29.) Judge Baxter concluded that, while this could evince a limitation in the
domain caring for onself, in this case, it evinces the mother’s own
difficulties with mental illness. (Dkt. No. 14 at 22.) Johnson objects to this
conclusion and asserts that C.S.G. should be independent in his ability to
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care for his personal hygiene. (Dkt. No. 15 at 6.) Again, the court has
reviewed the evidence of record with respect to this domain de novo and
concludes that the ALJ’s decision is supported by substantial evidence.
Particularly, the ALJ relied upon the opinion of Fagel that C.S.G. has no
problems caring for himself. (Tr. at 39, 494.) Moreover, the function report
completed by C.S.G.’s case coordinator in June 2010 indicates that he
suffers no limitations in his ability to help himself and cooperate with others
in taking care of personal needs. (Id. at 196.) With respect to the
testimony of C.S.G.’s foster mother, the court concludes that the difficulties
she described indicate that, while C.S.G. cared for himself in her home, he
failed to do so when in the care of his mother who was “not capable of
carrying out the role of a parent” because she suffered from cognitive and
mental limitations. (Id. at 83.) Assuming, arguendo, that this
demonstrated some limitation in the domain caring for onself, it is
inconsistent with the above mentioned evidence. See Bonet ex rel. T.B. v.
Colvin, 523 F. App’x 58, 59 (2d. Cir. 2013) (“[W]hether there is substantial
evidence supporting the appellant’s view is not the question,” instead, the
court must “decide whether substantial evidence supports the ALJ’s
decision.”). Moreover, the testimony of C.S.G.’s mother, does not, in and
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of itself, evince a marked limitation in this domain.4 Thus, even if the ALJ
erred in finding no limitation in this domain, remand is not required on this
basis. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (“Where
application of the correct legal standard could lead to only one conclusion,
we need not remand.” (citation omitted)).
Having addressed Johnson’s specific objections de novo, and
otherwise finding no clear error in the R&R, the court accepts and adopts
Judge Baxter’s R&R in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Andrew T. Baxter’s January 19,
2016 Report-Recommendation (Dkt. No. 14) is ADOPTED in its entirety;
and it is further
ORDERED that the decision of the Commissioner is AFFIRMED and
Johnson’s complaint (Dkt. No. 1) is DISMISSED; and it is further

4

A “marked” limitation is one that “interferes seriously” with the claimant’s “ability to
ndependently initiate, sustain, or complete activities” within the given domain, while an
extreme” limitation “interferes very seriously” with those abilities. 20 C.F.R.
§ 416.926a(e)(2)(i), (3)(i). A child’s impairment or combination of impairments functionally
equals the listings, and therefore entitles him to benefits, see 20 C.F.R. § 416.924(a), (d), when
he suffers “marked” limitations in two, or an “extreme” limitation in one, of the six “domains” of
unctioning. Id. § 416.926a(a), (b)(1)(i)-(vi).

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ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
September 27, 2016
Albany, New York

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