LaValley v. Astrue

Filing 20

MEMORANDUM-DECISION AND ORDER adopting Report and Recommendations re 17 Report and Recommendations: ORDERED that the Report-Recommendation (Dkt. No. 17) is hereby ADOPTED in its entirety; it is further ORDERED that the decision denying disability benefits be REVERSED and this matter be REMANDED to the Commissioner solely for the calculation and payment of benefits; and it is further ORDERED that the Clerk of Court enter judgment in this case. Signed by U.S. District Judge Mae A. D'Agostino on 6/5/13. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
TAMMY LAVALLEY o/b/o A.W.,
Plaintiff,
v.

7:12-CV-771
(MAD/VEB)

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.
________________________________________________

APPEARANCES:

OF COUNSEL:

Legal Aid Society of Northeastern
New York, Inc. - Canton
17 Hodskin Street
P.O. Box 648
Canton, New York 13617
Attorney for Plaintiff

Victoria M. Esposito. Esq.

Social Security Administration
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, NY 10278
Attorney for Defendant

Monika Proctor, Esq.

MAE A. D’AGOSTINO, U. S. DISTRICT JUDGE
MEMORANDUM-DECISION AND ORDER
INTRODUCTION
Plaintiff Tammy Lavalley brings the above-captioned action on behalf of the minor child,
A.W., pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking a review of the
Commissioner of Social Security’s decision to A.W.’s application for Supplemental Security
Income (“SSI”). This matter was referred to United States Magistrate Judge Victor E. Bianchini

for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B) and Local Rule 72.3(d).
Magistrate Judge Bianchini recommended that this Court remand the matter solely for the
calculation of benefits. (Dkt. No. 17). Presently before the Court is defendant’s objection to the
Report and Recommendation (Dkt. No. 18). Plaintiff has responded to the objection. (Dkt. No.
19).
DISCUSSION
The Social Security Act (the “Act”) authorizes payment of disability insurance benefits to
individuals with “disabilities.” An individual under the age of eighteen is disabled, and thus
eligible for SSI benefits, if he
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). That definitional provision goes on to exclude from coverage any
“individual under the age of 18 who engages in substantial gainful activity. . . .” 42 U.S.C. §
1382c(a)(3)(C)(ii). The agency has prescribed a three-step evaluative process to be employed in
determining whether a child can meet the statutory definition of disability. 20 C.F.R. § 416.924;
Kittles ex rel. Lawton v. Barnhart, 245 F. Supp.2d 479, 487-88 (E.D.N.Y. 2003); Ramos v.
Barnhart, 2003 WL 21032012, at *7 (S.D.N.Y. 2003). The first step of the test, which bears
some similarity to the familiar, five-step analysis employed in adult disability cases, requires a
determination of whether the child has engaged in substantial gainful activity. 20 C.F.R. §
416.924(b); Kittles, 245 F. Supp.2d at 488. If so, then both statutorily 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).

2

If the child has not engaged in substantial gainful activity, then the second step requires
examination of whether the child suffers from one or more medically determinable impairments
that, either singly or in combination, are severe – that is, which causes more than a minimal
functional limitation. 20 C.F.R. § 416.924; Kittles, 245 F. Supp.2d at 488; Ramos, 2003 WL
21032012, at *7. If the existence of a severe impairment is discerned, at the third step, the agency
must next determine whether it meets or equals a presumptively disabling condition identified in
the listing of impairments set forth by regulation, 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the
“Listings”). 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 disability, and the
twelve month durational requirement is satisfied, the child will be deemed disabled. 20 C.F.R. §
416.924(d)(1); Ramos, 2003 WL 21032012, at *8.
Under the Social Security Regulations (the “Regulations”), analysis of functionality is
performed by consideration of how a claimant functions in six areas which are denominated as
“domains,” and 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); Ramos, 2003 WL 21032012, at *8. Those
prescribed domains include:
(i) [a]cquiring and using information;
(ii) [a]ttending and completing tasks;
(iii) [i]nteracting and relating with others;
(iv) [m]oving about and manipulating objects;
(v) [c]aring for [oneself]; and
(vi) [h]ealth and physical well-being.
20 C.F.R. § 416.926a(b)(1). A finding of disability is warranted if a “marked” limitation, defined
as 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), is found in two of the
3

listed domains. 20 C.F.R. § 416.926a(a); Ramos, 2003 WL 21032012, at *8. Functional
equivalence also exists in the event of a finding of an “extreme” limitation, meaning “more than
marked,” representing an impairment which “interferes very seriously with [the claimant’s]
ability to independently initiate, sustain, or complete activities,” and this rating is only “give[n] to
the worst limitations”. 20 C.F.R. § 416.926a(e)(3)(i); see also Morgan v. Barnhart, 2005 WL
925594, at *11 (S.D.N.Y. 2005).
Using the three-step disability evaluation, the ALJ found at step one that A.W. has never
engaged in any substantial gainful activity. (T. 6). At step two, the ALJ concluded that A.W. has
severe impairments consisting of speech and language delays. (T. 26). At the third step of the
analysis, the ALJ found that none of A.W.’s severe impairments meet, medically equal, or
functionally equal any of the listed, presumptively disabling conditions set forth in Appendix 1 of
the Regulations. (T. 28). The ALJ evaluated A.W.’s functional abilities in the six domains
established by 20 C.F.R. § 416.926a and found that A.W.’s limitations were “marked” in the areas
of interacting with and relating to others. The ALJ also found that A.W.’s limitations were “less
than marked” with respect to acquiring and using information and in his ability to care for
himself. The ALJ found that A.W. had no limitation with in the domains of attending and
completing tasks, moving about and manipulating objects and with regard to health and physical
well-being. (T. 30-35) . Consequently, the ALJ concluded that A.W. was not disabled. (T. 36).
In seeking federal judicial review of the Commissioner’s decision, plaintiff argues that:
(1) the ALJ did not properly weigh the evidence; (2) the ALJ erred when he failed to find that
plaintiff’s impairments met or equaled a Listing; and (3) the ALJ erred when he failed to find that
plaintiff’s impairments were not functionally equivalent to a Listing.

4

I.

Report and Recommendation
In the Report and Recommendation, Magistrate Judge Bianchini concluded that plaintiff

had a marked limitation in at least two of the domains identified under 20 C.F.R. § 416.926a and
further, that there was persuasive proof and substantial evidence supporting that conclusion. The
Magistrate Judge also concluded that remand for further proceedings “would serve no productive
findings” and would only cause further delay. recommended that the matter be remanded solely
for a calculation of benefits.
II.

Standard of Review
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does

not determine de novo whether plaintiff is disabled. Rather, the Court must examine the
Administrative Transcript to ascertain whether the correct legal standards were applied, and
whether the decision is supported by substantial evidence. See Shaw v. Chater, 221 F.3d 126,
131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (citing Richardson v. Perales, 402
U.S. 389, 401 (1971)). Pursuant to 28 U.S.C. § 636(b)(1), this Court engages in a de novo review
of any part of a Magistrate’s Report and Recommendation to which a party specifically objects.
Failure to object timely to any portion of a Magistrate's Report and Recommendation operates as
a waiver of further judicial review of those matters. See Roland v. Racette, 984 F.2d 85, 89 (2d
Cir. 1993); Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).

After the

appropriate review, “the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)

5

Defendant objects to the Magistrate Judge’s recommendation for remand solely for a
calculation of benefits and argues that the Commissioner should have an opportunity to remedy
the legal errors and clarify the decision. To the extent that defendant failed to file specific
objections to the Report–Recommendation, the Court reviews those portions of the
Report–Recommendation for clear error or manifest injustice. See Brown v. Peters, 1997 WL
599355, at *2–3 (N.D.N.Y.) aff'd without op., 175 F.3d 1007 (2d Cir.1999).
III.

Remand for Calculation of Benefits
The court has the power to affirm, modify, or reverse the decision of the Commissioner

upon the pleadings and transcript of the record, “with or without remanding the cause for a
rehearing”. 42 U.S.C. § 405(g); Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2004). Reversal for
payment of benefits is appropriate “[w]here the existing record contains persuasive proof of
disability and a remand for further proceedings would serve no further purpose”. Martinez v.
Barnhart, 262 F.Supp.2d 40, 49 (W.D.N.Y. 2003) (quoting Parker v. Harris, 626 F.2d 225, 235
(2d Cir. 1980)). The Second Circuit has held that “where application of the correct legal
principles . . . could lead to only one conclusion, there is no need to require agency
reconsideration.” Matovic v. Chater, 1996 WL 11791, at *6 (S.D.N.Y. 1996) (quoting Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir.1987)).
In this matter, the Magistrate Judge found that, “the record contains persuasive proof of
claimant’s marked limitation in functioning in at least two of the domains identified under 20
C.F.R. § 416.926a. Defendant objects to remand for a calculation of benefits but fails to cite to
any evidence that would warrant remand for further proceedings. Defendant cites to Bush v.
Shalala, 94 F.3d 40 (2d Cir. 1996) and the Second Circuit’s holding that delay alone is an
insufficient basis on which to remand for benefits. While that proposition is correct, in the Bush
6

case, the Court held that remand for further proceedings was necessary because the record did not
contain conclusive, substantial evidence that claimant was disabled. Id. at 46. In this matter, the
Magistrate Judge concluded that the record provides persuasive proof and substantial evidence of
plaintiff’s disability. In the Commissioner's objection, defendant failed to cite to any portion of
the record that contradicts that conclusion and fails to establish that the ALJ's decision is
supported by substantial evidence. Because the record provides proof of disability, a new hearing
would serve no useful purpose.
In addition, Bush is factually distinguishable from the matter at hand because the case did
not involve a minor claimant. “Substantial delay in awarding benefits is particularly detrimental
in the case of disabled children who require rehabilitative services during their formative years in
order to become independent adults.” McClain v. Barnhart, 299 F.Supp.2d 309, 331 (S.D.N.Y.
2004) (citations omitted) (minor claimant was five when his mother first filed his claim, “[t]hus,
nine years of his childhood—the time when he was most in need of benefits—have already
passed”). “The purpose of providing SSI benefits to children is to assist them while they are
children.” Morales ex rel. Morales v. Barnhart, 218 F.Supp.2d 450, 463 (S.D.N.Y. 2002).
In this Circuit, courts have consistently held that prolonged delays in the resolution of social
security disputes, involving benefits for children, are particularly harmful. See Nieves ex rel.
Nieves v. Barnhart, 2004 WL 2569488 (S.D.N.Y. 2004) (delays involving “benefits for children
which are not to replace lost income, but to enable low-income families to afford special
education, medical treatment, physical rehabilitation, early intervention services, and personal
needs assistance for the child” are not tolerated); see also Archer ex rel. J.J.P. v. Astrue, 2012
WL 6630147, at *13 (N.D.N.Y. 2012) (five years have passed since plaintiff initially filed for SSI
benefits on behalf of minor) (collecting cases).
7

A.W. was born on April 5, 2006. At the time plaintiff filed an application on A.W.’s
behalf, on July 17, 2009, A.W. was three years old. Nearly four years have passed since the
application was filed. A remand for further consideration, if followed by another appeal, is likely
to delay benefits to the minor claimant for several years. Remand for calculation of benefits is
necessary in this matter based not only upon the four year delay but also the Magistrate Judge’s
conclusion that there is “persuasive proof of disability” and defendant’s failure to cite to any
portion of the record that contradicts the Magistrate’s recommendation or requires further
development. See Carroll v. Sec'y of Health and Human Serv., 705 F.2d 638, 644 (2d Cir.1983)
(four year gap between filing for benefits and decision); see also Balsamo v. Chater, 142 F.3d 75,
82 (2d Cir.1998) (remanding for a calculation of benefits where Plaintiff had filed for disabilities
more than four years prior to the court's ruling).
CONCLUSION
It is hereby
ORDERED that the Report-Recommendation (Dkt. No. 17) is hereby ADOPTED in its
entirety; it is further
ORDERED that the decision denying disability benefits be REVERSED and this matter
be REMANDED to the Commissioner solely for the calculation and payment of benefits; and it
is further
ORDERED that the Clerk of Court enter judgment in this case.
IT IS SO ORDERED.
Dated: June 5, 2013
Albany, New York

8