Wordan v. Commissioner of Social Security

Filing 13

MEMORANDUM DECISION AND ORDER. ORDERED that the Commissioner's final decision is AFFIRMED, and the complaint DISMISSED. It is ORDERED that the Clerk enter judgment for DEFENDANT. Signed by US Magistrate Judge Andrew T. Baxter on 2/24/2017. [Sent copy of Order to pro se plaintiff via regular and certified mail.] (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

TAMMY M. WORDAN,
o/b/o C.W.,
v.

Plaintiff,
6:16-CV-628
(ATB)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

TAMMY M. WORDAN, Plaintiff pro se
PETER W. JEWETT, SPECIAL ASS’T. U.S. ATTORNEY for Defendant
ANDREW T. BAXTER, 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.G.O. # 18, 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. 2, 5).
I.

PROCEDURAL HISTORY
Plaintiff Tammy M. Wordan protectively filed an application for Supplemental

Security Income (“SSI”) payments on behalf of her grandson, C.W.,1 on August 30,
2013, claiming a disability onset date of August 1, 1013. (Administrative Transcript
(“T.”) at 106-109). Plaintiff’s application was initially denied on October 28, 2013. (T.
53-58), and she made a timely request for a hearing before an Administrative Law
Judge (“ALJ”). (T. 59-61). The hearing, at which plaintiff appeared with C.W., was
1

Throughout this Report, the child on whose behalf this action was brought will be generally
referred to as “the claimant” or by his initials “C.W.” Tammy Wordan, who commenced this action
on behalf of her grandson, will generally be referred to as “plaintiff.”

conducted by video conference before ALJ William M. Manico on October 8, 2014. (T.
33-42). In a decision dated October 22, 2014, the ALJ found that C.W. was not
disabled. (T. 11-27). The ALJ’s decision became the final decision of the
Commissioner when the Appeals Council denied plaintiff’s request for review on May
16, 2016. (T. 1-3).
II.

APPLICABLE LAW
A.

Disability Standard

An individual under the age of eighteen is disabled, and thus eligible for SSI
benefits, if he or she has a medically determinable physical or mental impairment,
which results in marked and severe functional limitations, and which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of
not less than 12 months. 42 U.S.C. § 1382c(a)(3)(C)(i). See Hudson v. Astrue,
1:06-CV-1342 (LEK/VEB), 2009 WL 1212114, at *3-4 (N.D.N.Y. Apr. 30, 2009)
(discussing the standard for children’s disability benefits). 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).
The agency has developed a three-step process to be employed in determining
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 Civ. 3127, 2003 WL 21032012, at *7 (S.D.N.Y. May 6, 2003). The first step of the
test requires a determination of 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 by statute

2

and by regulation, the child is ineligible for SSI 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 examination of whether he or she suffers from one or more medically
determinable impairments that, either alone or in combination, are properly regarded as
“severe,” in that they 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. If the
child is found to have a severe impairment, the Commissioner must then determine, at
the third step, whether the impairment meets or equals a presumptively disabling
condition identified in the listing of impairments set forth in 20 C.F.R. Pt. 404, Subpt.
P., App. 1. Id. 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 impairment, and the twelve-month durational requirement is satisfied, the
claimant will be found to be disabled. 20 C.F.R. § 416.924(d)(1); Ramos, 2003 WL
21032012, at *8.
“Functional” equivalence must be examined only if it is determined that the
claimant’s impairment does not meet or medically equal the criteria for a listed
impairment. Analysis of functionality involves considering 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

3

domains include: (1) acquiring and using information; (2) attending and completing
tasks; (3) interacting and relating with others; (4) moving about and manipulating
objects; (5) caring for oneself; and (6) health and physical well-being. 20 C.F.R. §
416.926a(b)(1).
Functional equivalence is established by finding 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 claimant’s] ability to independently initiate, sustain, or
complete activities.” 20 C.F.R. § 416.926a(e)(3)(i) (emphasis added).
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 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).
B.

Scope of Review

In reviewing a final decision of the Commissioner, a court must determine
whether the correct legal standards were applied and whether substantial evidence
supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting

4

Talavera v. Astrue, 697 F3d 145, 151 (2d Cir. 2012)); Brault v. Soc. Sec. Admin,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). A reviewing court
may not affirm an ALJ’s decision if it reasonably doubts whether the proper legal
standards were applied, even if the decision appears to be supported by substantial
evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Talavera, 697 F.3d at 151 (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). It must be “more than a scintilla” of
evidence scattered throughout the administrative record. Id. However, this standard is
a very deferential standard of review “ – even more so than the ‘clearly erroneous
standard.’” Brault, 683 F.3d at 448.
An ALJ must set forth the crucial factors justifying his findings with sufficient
specificity to allow a court to determine whether substantial evidence supports the
decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). “To determine on
appeal whether an ALJ’s findings are supported by substantial evidence, a reviewing
court considers the whole record, examining the evidence from both sides, because an
analysis of the substantiality of the evidence must also include that which detracts from
its weight.” Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.
1988). However, a reviewing court may not substitute its interpretation of the
administrative record for that of the Commissioner, if the record contains substantial
support for the ALJ’s decision. Id. See also Rutherford v. Schweiker, 685 F.2d 60, 62
(2d Cir. 1982).

5

An ALJ is not required to explicitly analyze every piece of conflicting evidence
in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ
explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ
cannot “‘pick and choose’ evidence in the record that supports his conclusions.” Cruz
v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.
09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
III.

ISSUES IN CONTENTION
The plaintiff in this case has filed her federal action pro se on behalf of her

grandson.2 Ms. Wordan did not file a brief in support of her position by the deadline
set pursuant to G.O. 18, notwithstanding a reminder notice from the court on June 21,
2016. Because the pro se plaintiff failed to file a brief, the court ordered defense
counsel to file his brief first, and then gave plaintiff an opportunity to file a responsive
brief. (Dkt. No. 11). Defendant’s brief was filed on December 22, 2016, and plaintiff
was sent a Text Notice advising her that, if she chose to file a brief, it would be due on
or before February 6, 2017. (Text Notice Dated 12/22/16).
Plaintiff has failed to file any brief opposing defendant’s arguments. However,
in a Social Security action, the court has a duty to review the administrative record and
2

While generally, non-attorneys may not represent other individuals in a court action, an
exception has been made in Social Security cases where the court has determined that the non-attorney
parent had a “significant stake in the outcome of the litigation,” then the parent may bring an action in
federal court on behalf of their child without an attorney. Thomas v. Astrue, 674 F. Supp. 2d 507,
511-12 (S.D.N.Y. 2009) (citation omitted). In Thomas, the court found that because any benefits
received by the child would be paid to the pro se plaintiff as the child’s “representative payee,” the
plaintiff had a sufficient interest to represent her child pro se in federal court. Id. The same is true in
this case, and the court finds that plaintiff may represent C.W. pro se.
6

to determine whether the Commissioner’s determination is supported by substantial
evidence regardless of the parties’ arguments. See Marquez o/b/o Infante v. Shalala,
898 F. Supp. 238, 241 (S.D.N.Y. 1995) (citing Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir.
1990)). Therefore, the issue for this court to determine is whether the Commissioner’s
determination that C.W. is not disabled is supported by substantial evidence.3 For the
following reasons, this court finds that the Commissioner’s decision is supported by
substantial evidence and will dismiss plaintiff’s complaint.
IV.

FACTS
Defense counsel has carefully and completely outlined the facts and medical

evidence in his brief. (Def.’s Br. at 2-11). The ALJ has also included a detailed
statement of facts in his discussion of plaintiff’s case. (T. 17-20). Rather than reciting
this evidence at the outset, the court will incorporate the facts as summarized by the
defendant and the ALJ and will discuss the relevant details below, as necessary to
address the issues.
IV.

THE ALJ’S DECISION
The ALJ found that C.W. was born on November 29, 2009, and was therefore, an

“older infant” on August 30, 2013, the date that plaintiff filed the application on his
behalf. The ALJ also determined that C.W. had not engaged in substantial gainful
activity since that date. (T. 14). The ALJ found that C.W. had the following “severe”
impairments: Attention Deficit Hyperactivity Disorder (“ADHD”); Cognitive

3

In making this evaluation, the court also has a duty to ensure that the Commissioner has
applied the correct legal standards. Rodriguez v. Colvin, No. 14-CV-727, 2015 WL 5794269, at *9
(E.D.N.Y. Sept. 30, 2015) (citing Pollard v. Halter, 377 F.3d 183, 188-89 (2d Cir. 2004)).
7

Impairment, NOS;4 and Adjustment Disorder, NOS. (Id.) The ALJ found that C.W.’s
allergies, separation anxiety, ear pain, and viral asthma were not severe. (T. 15). The
ALJ found that, even though plaintiff alleged that C.W. also suffered from autism and
autism spectrum disorder, the record did not support a diagnosis for either impairment.
(Id.) C.W. was evaluated for autism, but there were no symptoms of autism noted
during the examination, and two doctors ruled out these diagnoses. The ALJ found that
C.W.’s alleged autism and autism spectrum disorder were not “medically determinable
impairments.” (Id.)
The ALJ reviewed C.W.’s severe impairments under the standards articulated in
the Listing of Impairments to determine whether C.W. had an impairment or
combination of impairment that met or medically equaled the severity of a Listed
Impairment. (T. 15). The ALJ considered Listing 112.11 (ADHD); 112.02 (Organic
Mental Disorder); 112.05 (Intellectual Disability); and 112.00 (Mental Disorders). 20
C.F.R. Pt. 404, Subpt. P, App. 1, §§ 112.11, 112.02, 112.05, 112.00. The ALJ found
that C.W. did not meet the standard for any of these Listed Impairments. (T. 15).
Next, the ALJ considered whether plaintiff’s had an impairment or combination
of impairments that “functionally” equaled the severity of the Listings. (T. 15-27). The
ALJ considered C.W.’s limitations under each of the six domains and determined that
even though C.W.’s impairments could reasonably be expected to produce the
symptoms that plaintiff was alleging, “the statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible.” (T. 17).
4

N.O.S. stands for “Not Otherwise Specified.” http://medical-dictionary.thefreedictionary.
com/NOS.
8

The ALJ reviewed plaintiff’s testimony and analyzed the reports of plaintiff’s teachers,
social workers, psychologists, and medical doctors in making his determination. (T. 1727).
Based upon C.W.’s test scores, his teacher’s evaluations, and Dr. J. Meyer’s5
report, the ALJ determined that C.W. had “less than marked” limitations in acquiring
and using information (T. 21-22), in attending and completing tasks (T. 22-23), in
interacting and relating with others (T. 23-24), in moving about and manipulating
objects (T. 24-25), and in caring for himself (T.25-26). The ALJ found that C.W. had
no limitations in the domain of health and physical well being. (T. 26-27). Because
C.W. did not have two marked or one extreme limitation in the six domains of
functioning, the ALJ concluded that C.W. was not disabled as defined in the Social
Security Act. (T. 27).
V.

ANALYSIS
A.

Substantial Evidence

C.W. was referred for an evaluation by his daycare and his grandmother, due to
concerns with following directions and attention. (T. 257). He was referred through the
Committee on Preschool Special Education (“CPSE”). (T. 245). The evaluation was
conducted to determine C.W.’s eligibility for special education services at the preschool
level. (T. 257). He evaluated during October and November of 2012, by four

5

Dr. J. Meyer is a State Agency non-examining pediatrician. (T. 45-51). Although Dr. Meyer
did not examine C.W., the doctor reviewed many of the medical/educational reports which were
prepared prior to Dr. Meyer’s October 25, 2013 opinion. (T. 46-47).
9

professionals when he was two years and ten months old.6 (T. 18, 239-46, 257). Each
examination was conducted on a different date. (T. 257). He was evaluated at his day
care facility and at home. (T. 239). The combined report was authored by the four
examiners: Lisa Mixon, MS, CAS, school psychologist; Erica Hagan, MS. Ed., special
education teacher; Erica Shaw, CCC-SLP, Speech/Language Pathologist; and Cynthia
Fahey, Licenced Occupational Therapist. (Id.) A variety of tests were administered. (T.
239).
The report summary indicated that C.W. exhibited cognitive ability in the low
range, while his adaptive skills were adequate. (T. 245). C.W. exhibited difficulty with
fine motor tasks during the assessment process. (Id.) Expressive and receptive
language skills were below average, but he had age-appropriate language
communication skills, and his speech intelligibility was judged to be very good. (Id.)
After the above testing, the CPSE met on December 11, 2013 to review the
results of the evaluation and issued its own report. (T. 247-54). The CPSE determined
that C.W. qualified only for occupational therapy services as the result of this testing.
(T. 247). The CPSE stated that “[C.W.] scored within average range on Psychoeducational and Speech/Language Evaluations. However, he demonstrated delays in
fine motor skills. [C.W.] meets the eligibility criteria to be classified as a Preschool
Student with a Disability due to fine motor delays.” (T. 247). He was given an
Individual Educational Plan (“IEP”) based only upon his fine motor delays, and not
based upon any cognitive or speech/language difficulty. (Id.) Occupational therapy
6

(T. 257) lists the reason for the referral, four types of evaluations completed, the date on
which they were completed, and the examiner who completed each evaluation.
10

three times per week was recommended. (Id.) The ALJ discussed this report at length
and gave Dr. Mixon, and Ms. Shaw “significant weight.”7 (T. 18-19).
The CPSE report noted that C.W.’s learning might be slightly slower than his
typical peers. (T. 249). He scored in the adequate range for socialization, demonstrated
friend-seeking behavior, played near others, apologized for unintended mistakes, did
not bully, and played with other children. (Id.) In fact, although testing showed a
moderate delay in fine motor functioning, and a severe delay in sensory processing, the
CPSE report noted that, if given time and the sensory input he needs, C.W. might be
able to do many tasks that he was unable to perform during testing. (Id.)
On February 19, 2013, C.W.’s pediatrician, Dr. William Fuchs, M.D., stated that
C.W.’s gross and fine motor skills were “normal.” (T. 18, 171). Dr. Fuchs stated that
C.W. could dump raisins from a small bottle, and copied a circle and a cross (fine motor
skills). (Id.) Dr. Fuchs also stated that C.W. could pedal a tricycle, jump in place,
balance on one foot, and alternated feet when going up stairs (gross motor skills). (Id.)
His language development was listed as “normal” as was his “social development.”
(Id.)
In an April 5, 2013 update, the occupational therapist noted that C.W. was
seeking out oral/sensory input by mouthing inappropriate objects, but a “chewy tube”
was provided to assist with this problem. (T. 255). The occupational therapist also
stated that C.W. required assistance with grasping writing utensils and in copying
circles. (T. 256). He needed verbal cues to imitate block patterns, horizontal, and
7

The ALJ also gave “significant” weight to the reports by Dr. Meyer and plaintiff’s teachers.

(T. 19).
11

vertical lines. (Id.) The therapist also stated that although his “eating” skills were not
being addressed, C.W. had been engaging in strengthening activities to assist in
developing the strength needed for developing the appropriate grasp on eating
utensiles. (Id.) The update concluded that C.W. was “tolerating OT treatment well.” (T.
255). The court notes that, on October 15, 2013, C.W.’s teacher stated that he had “no
problems” in the domain of moving about and manipulating objects.” (T. 144).
C.W. was evaluated on August 13, 20138 by Dr. Erik Jacobsen, Ph.D., a
psychologist at the Kelberman Center for Autism Services. (T. 225-28). C.W. was
three years and nine months old, and he was referred for a “diagnostic consultation to
provide clinical impressions,” based on plaintiff’s concerns about C.W.’s attention,
activity level, communication, and disruptive or oppositional behavior. (T. 225). Dr.
Jacobsen used a variety of diagnostic tools, including a parent interview, a Family and
Medical History Questionnaire, the Behavior Scale Assessment for Children, select
items from the Autism Diagnosis Observation Schedule (“ADOS”), the Autism
Symptom Rating Scale, and structured observation of the child. (T. 225). Dr. Jacobsen
listed the plaintiff’s concerns and noted her description of C.W.’s behavior at home. (T.
225-26). Dr. Jacobsen concluded that C.W. met the criteria for “unspecified [ADHD] combined type,” but did not meet the full diagnosis due to lack of symptoms at school.
(T. 227). Although he met some of the criteria consistent with Autism Spectrum
Disorder, they were “not present during the evaluation and at school.” (Id.) Dr.

8

The ALJ states that Dr. Jacobsen’s evaluation was conducted on September 21, 2013. (T. 17).
However, September 21, 2013 is the date of Dr. Jacobsen’s report. (T. 228). The examination was
actually conducted on August 13, 2013. (T. 225).
12

Jacobsen also stated that, given C.W.’s age, the ADHD diagnosis should be considered
provisional, and that if the symptoms should emerge at school, the plaintiff should
follow up with C.W.’s primary care provider for a possible change in diagnosis. (Id.)
Dr. Jacobsen noted that plaintiff made the transition from playing loudly in the
hallway to the examination without difficulty, and that his play skills were adequate. (T.
226). Dr. Jacobsen expressed “mild concerns” with C.W.’s gait, but he gave good
effort throughout the examination, even though he had some trouble with instructions.
(T. 227). Significant concerns were noted with his attention, impulsivity, and
hyperactivity. Expressive and receptive language skills appeared appropriate, even
though mild articulation delays were evident. (Id.) C.W. was responsive to social
gestures, he initiated a number of appropriate interactions, play skills were appropriate,
and no significant stereotypical behaviors were noted. (Id.)
Dr. Jacobsen stated that C.W.’s daycare teacher, Ms. Luvera, reported that C.W.
was doing “extremely well” since he entered school at the beginning of the summer.
She reported no concerns with inattention, activity level, or impulse control. (T. 226).
C.W. got along well with other students and was making academic progress. However,
it does not appear that he reviewed any school psychological evaluations at that time.
Dr. Jacobsen noted that C.W. was receiving occupational therapy three times per week
to address his sensory issues. (Id.)
The ALJ cited a subsequent evaluation, dated July 30, 2014, signed by Carrie
Corby, Licenced Master Social Worker and Andy Lopez-Williams, Licensed Clinical
Psychologist. (T. 262-66). This report diagnosed C.W. with ADHD - combined type;

13

Cognitive Disorder (NOS); Separation Anxiety; and Adjustment Disorder. (T. 263).
The reports stated that an additional diagnosis of Oppositional Defiant Disorder would
have to be “ruled out.” (Id,) However, the report also stated that C.W.’s grandmother
indicated that he was exhibiting “clinically significant” emotional reactivity, sleep
problems, attention problems, and aggressive behavior, while the report from C.W.’s
teacher “indicated he is functioning within the normative range in all areas.” (Id.) With
respect to autism, although plaintiff reported that C.W.’s overall responsiveness was
“moderately impaired,” his teachers noted only a “mild” impairment. (Id.) Testing was
not suggestive of autism spectrum disorder. (Id.) Medication was not recommended at
that time because it was possible that C.W.’s functioning could be improved with
behavioral treatments. (T. 264).
The ALJ discussed each domain individually, relying on Dr. J. Meyer’s
assessment of C.W.’s abilities. (T. 47-51). Although Dr. Meyer was a non-examining
state consultant, this opinion was consistent with the opinion of C.W.’s teacher and
with C.W.’s standardized testing scores. In a teacher questionnaire, dated October 15,
2013, C.W.’s teacher, Glorianne Keefe, noted some “obvious” problems in the domains
of function; however, many of the problems cited were either mild or none. (T. 137-44).
Ms. Keefe stated that C.W. continued to have difficulty acquiring new skills and
retaining old ones. (T. 138). He also had difficulty processing information, particularly
when given multiple directions, and he still needed assistance in becoming more
independent. (Id.) Ms. Keefe also stated that C.W. could be independent if he chose to,
but that he liked to have other people do things for him, and he could be uncooperative

14

when told to do things for himself. (T. 142). While it is clear that C.W. has difficulties,
there is substantial evidence in the record supporting the ALJ’s conclusion that C.W.
does not have two “marked” limitations or one “extreme” limitation in the six domains
of functioning.
B.

Credibility
1.

Legal Standards

“An [ALJ] may properly reject [subjective complaints] after weighing the
objective medical evidence in the record, the claimant’s demeanor, and other indicia of
credibility, but must set forth his or her reasons ‘with sufficient specificity to enable us
to decide whether the determination is supported by substantial evidence.’” Lewis v.
Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999) (citation omitted). To satisfy the
substantial evidence rule, the ALJ’s credibility assessment must be based on a two-step
analysis of pertinent evidence in the record. See 20 C.F.R. §§ 404.1529, 416.929; see
also Foster v. Callahan, No. 96-CV-1858 (RSP/GJD), 1998 WL 106231, at *5
(N.D.N.Y. Mar. 3, 1998).
First, the ALJ must determine, based upon the claimant’s objective medical
evidence, whether the medical impairments “could reasonably be expected to produce
the pain or other symptoms alleged . . . .” 20 C.F.R. §§ 404.1529(a), (b); 416.929(a),
(b). Second, if the medical evidence alone establishes the existence of such
impairments, then the ALJ need only evaluate the intensity, persistence, and limiting
effects of a claimant’s symptoms to determine the extent to which they limit the
claimant’s capacity to work. 20 C.F.R. §§ 404.1529(c), 416.929(c). When the

15

objective evidence alone does not substantiate the intensity, persistence, or limiting
effects of the claimant’s symptoms, the ALJ must assess the credibility of the
claimant’s subjective complaints by considering the record in light of the following
symptom-related factors: (1) 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. 20 C.F.R. §§
404.1529(c)(3), 416.929(c)(3).
2.

Application

The ALJ found that plaintiff was only partially credible in her description of the
intensity and severity of C.W.’s limitations. The ALJ agreed that the evidence
supported plaintiff’s contention that C.W. experienced cognitive difficulties as the
result of his ADHD. (T. 20). However, the ALJ correctly noted that plaintiff’s
description of C.W.’s behavior was more severe than what was seen by most of the
examining professionals, including C.W.’s teachers.9 (T. 20). The ALJ also stated that
plaintiff’s assertions were call[ed] into question because even though she complained
on February 19, 2013 that C.W.’s behavior made it difficult to take him out in public,

9

As discussed below, the only examiner who noted a behavior problem was the occupational
therapist, Cynthia Fahey, who evaluated C.W. at home.
16

he was always cooperative at every treatment visit, and he had no issues at school.10 (T.
18). While C.W. had some “obvious” problems in several of the activities listed in the
teacher questionnaire dated October 15, 2013, there were no activities in which C.W.
had “serious” or “very serious” problems, many were listed only as “slight” problems,
and some were listed as “no problem.”11 (T. 138-42).
In his August 13, 2013 evaluation, Dr. Jacobsen stated that “concerns were
indicated with inattention and hyperactivity at home and during his occupational
therapy sessions.” (T. 235). Plaintiff reported that C.W. could be aggressive with
adults when limits were set and that he had “significant tantrums when not getting his
way.” (Id.) She also reported that C.W. would bang his head on hard surfaces when
frustrated. (Id.) However, Dr. Jacobsen noted that “according to his teacher, Ms. Chris
Luvera, [C.W.] has been doing extrememly well since entering the school at the
beginning of the summer. She reported no concerns with inattention, activity level, or
impulse control. He gets along well with other students and [is] making adequate
academic progress.” (Id.)

10

The ALJ then cited Dr. Fuchs’s February 19, 2013 examination as support for this assertion.
(T. 18, 171).
11

The categories of “making and keeping friends,” “using language appropriate to the situation
and listener, sustaining attention during play/sports, focusing long enough to finish assigned task,
refocusing to a task when necessary, carrying out one-step instructions, waiting to take turns, changing
activities without being disruptive, and working without distracting others, were all listed as “no
problem.” (T. 139). In the domain of attending and completing tasks, C.W.’s teacher did not even
assign any “obvious problems.” (Id.) The limitations in this domain were either “none” or “slight.” In
the domain of acquiring and using information, plaintiff had more “obvious problems,” but the
limitations in comprehending oral instructions, comprehending and doing math problems,
understanding and participating in class discussions, and learning new material, were all listed as
“slight.” (T. 138).
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In a section entitled “Clinical Observation,” Dr. Jacobsen reported that C.W.
transitioned well from play to testing, and gave good effort throughout the evaluation,
although he had “some” difficulty following directions. (T. 235-36). Dr. Jacobsen did
note “significant concerns” with respect to inattention, impulsivity, and hyperactivity.
However, C.W. was responsive to his name, his expressive and receptive language
skills appeared appropriate, and only mild articulation delays were evident. (T. 236).
C.W. was responsive to social gestures, initiated a number of appropriate interactions,
his play skills were appropriate, and there were no significant stereotypical behaviors
observed. (Id.) As stated above, Dr. Jacobsen concluded that C.W. did not meet the full
diagnosis for ADHD “given the lack of symptoms at school,” and there were no
symptoms of autism spectrum disorder. (T. 236).
Erica Hagan observed C.W. at daycare. (T. 241). He was “eager” to engage with
her, was able to play appropriately and functionally, and he made nice eye contact.
C.W. was able to make smooth transitions from one activity to another, and he was able
to follow directions with cues. His attention to task seemed adequate, and he used
gestures and approximations to make his needs known. (Id.)
Speech-Language Pathologist, Erica Shaw stated that C.W. “easily transitioned
away from his daycare providers and showed immediate interest with presented tasks.”
(T. 241). He attended to all evaluation tasks, including picture stimuli, with minimal
cues. His speech was easy to understand and contained few errors. (Id.) There was “no
delay” in his auditory comprehension. (Id.)
Cynthia Fahey, an Occupational Therapist, evaluated C.W. at home and noted

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that his attention span was poor. However, after some time, his attention to task
improved briefly. C.W.’s behavior during the testing was poor – he threw blocks and
beads, and he refused to do some of the requested tasks. When the testing was finished,
and plaintiff was answering questions, C.W. had “several melt downs.” (T. 242). C.W.
would “tantrum, calm, and within a minute or two was in another tantrum, screaming,
kicking, hitting, throwing himself to the floor, and rolling around the room.” (T. 24243). Plaintiff reported that C.W. was “very controlling” with plaintiff’s time and her
“interactions with anyone other than him” may have been the problem. (T. 242).
C.W.’s teachers did not notice this behavior, and the results were directly opposed to
the speech pathologist’s examination which appears in the same report. (T. 241-45). As
a result of the testing, as stated above, C.W. was deemed eligible only for occupational
therapy services based on the delay in his motor skills. (T. 247).
Conflicts in the evidence are for the fact finder to resolve. Richardson v. Perales,
402 U.S. 389, 399 (1971) (the trier of fact has the duty to resolve conflicting evidence);
Goodale v. Astrue, 32 F. Supp. 3d 345, 355 (N.D.N.Y. 2012) (citing White v. Comm'r,
No. 06–CV–0564, 2008 WL 3884355, at *11 (N.D.N.Y. Aug. 18, 2008) (citing
Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir.1983)). The record in this case contains
some conflicting evidence, and the ALJ correctly resolved conflicting evidence to
determine that plaintiff’s testimony regarding the severity of C.W.’s limitations was not
entirely credible. It is clear that C.W. has severe impairments, but that the severity is
not sufficient to meet the definition of disability for Social Security purposes.
WHEREFORE, based on the findings above, it is

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ORDERED, that the Commissioner’s final decision is AFFIRMED, and the
complaint DISMISSED, and it is
ORDERED, that the Clerk enter judgment for DEFENDANT.
Dated: February 24, 2017

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