Ruff v. Colvin

Filing 21

OPINION re: 17 MOTION for Judgment on the Pleadings . filed by Carolyn W. Colvin, 15 MOTION for Judgment on the Pleadings . filed by Samantha Ruff. Based on the conclusions set forth above, the motion of the Plaintiff is denied and the motion of the Commissioner for judgment on the pleadings is granted and her decision is affirmed. It is so ordered. (See Opinion.) (Signed by Judge Robert W. Sweet on 2/16/2015) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------------x
SAMANTHA RUFF on behalf of LMF,
Plaintiff,
14 Civ. 2433

-against-

OPINION

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

------------------------------------------x
A P P E A R A N C E S;

Attorney for Plaintiff
OLINKSY LAW GROUP
Olinsky Law Group
300 South State Street, Suite 420
Syracuse, NY 13202
By:
Howard D. Olinsky, Esq.

Attorneys for Defendant
United States Attorney Office, SDNY
Southern District of New York
26 Federal Plaza
New York, NY 10278-0004
By:
Dennis J. Canning, Esq.
Leslie A. Ramirez-Fisher, Esq.

"USDC SONY
11
DOCUMENT
ELECTRONICALLY FILEn.

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DOC#:
DATE FILED: ·z; l~.. I

Sweet, D.J.

Plaintiff Samantha Ruff ("Ruff" or the "Plaintiff") on
behalf of minor L.M.F.

("LMF") has moved pursuant to Rule 12(c)

of the Federal Rules of Civil Procedure for judgment of
disability of LMF and the grant of Supplemental Security Income
("SSI") benefits, reversing the decision of the Defendant
Carolyn W. Colvin, Acting Commissioner of Social Security (the
"Commissioner" or the "Defendant") .

The Commissioner has moved

for judgment affirmed denying eligibility under the Social
Security Act

(the "Act"), as amended by the Personal

Responsibility and Work Opportunity Reconciliation Act of 1996
("PRWORA" or the "1996 Act"),

Public Law 104-193.

Disability

turns on whether or not the record contains substantial evidence
that a medically determinable impairment or combination of
impairments of LMF functionally equals a listed impairment
resulting in "marked" limitations in two domains of functioning
or an "extreme" limitation in one domain.
§

416. 926a (a).

20 C.F.R.

Based on the conclusions set forth below, the

motion of the Plaintiff is denied, the motion of the
Commissioner is granted and her decision is affirmed.

1

Prior Proceedings

Plaintiff filed an SSI application on behalf of LMF on
August 4, 2010 alleging that LMF became disabled on February 5,
2010.

The claim was denied initially on December 3, 2010.

Plaintiff then requested a hearing before an Administrative Law
Judge.

On August 22, 2012, Plaintiff and LMF appeared and

testified before ALJ Robert Lebron (the "ALJ"), with her
representative was also present for the video hearing.

On

November 8, 2012, the ALJ issued a decision finding LMF was not
disabled.
2014.

The Appeals Council denied review on January 15,

The Appeals Council granted Plaintiff an extension of

time to file a civil action on March 13, 2014.
followed on April 7, 2014.

This action

The instant motion was marked fully

submitted on January 14, 2015.

The Evidence Presented

A.

Evidence Prior to August 4, 2010

LMF was born in 1999 and was ten years old on the SSI
filing date and thirteen years old on the date of the ALJ
decision (see Tr. 26).

2

Records from LMF's pediatrician's clinic, Liberty
Pediatric, reveal that she was seen for generally routine care
or minor complaints on two occasions in 2003, twice in 2009, and
twice in 2010 (Tr. 345-50).

On January 26, 2010, Dr. Darshan

Trivedi ("Dr. Trivedi"), LMF's pediatrician at Liberty
Pediatrics saw LMF regarding concerns about mood problems (Tr.
346).

He noted that one of LMF's girlfriends (GF) had committed

suicide (Tr. 346).
(Tr. 346).

Physical clinical findings were unremarkable

The doctor assessed adjustment disorder with

depression (Tr. 346).

Livingston Manor Central School District (LM Schools)
psychologist Sherry Strassman ("Ms. Strassman") did a behavioral
assessment report about LMF on March 8, 2010 (Tr. 214-16).

LMF

and her sister had moved to the district at the beginning of the
school year (Tr. 214).

LMF was generally a C student (Tr. 214).

Math seemed to be her weakest area, and social development and
work habits were well-developed (Tr. 214).

Mrs. Julia Rosner,

LMF's teacher, described her as getting along well with others,
using time wisely, making a good effort, and needing practice in
math and writing (Tr. 214).
normal

(Tr. 214).

Her recent physical examination was

The Behavioral Assessment System for Children

3

Assessment 2nd ed.
Tr. 380-83).

(BASC-2) was administered (Tr. 214-16; see

Plaintiff rated LMF's behavior and Mrs. Rosner

also rated her behavior (Tr. 215).

Overall, Mrs. Rosner's

ratings showed an average level of behavioral difficulty, except
symptoms of somatization, which was clinically significant (Tr.
215-16).

LMF complained about health and pain, and was

evaluated as "at risk" overall in this area (Tr. 215-16).

Her

adaptive abilities in school were average, but she had
difficulty at home (Tr. 216).

LMF had experienced significant

changes in living arrangements that school year, and might be
having difficulty adjusting (Tr. 216).

B.

Evidence On and After August 4, 2010

Dr. Trivedi completed part of a report to SSA on
September 20, 2010, and indicated LMF's sole diagnosis was
adjustment disorder with depression (Tr. 335-44).

The doctor

did not respond to questions regarding clinical findings, test
results, symptoms, behavior, or functioning (Tr. 335-44).

On November 15, 2010, Dr. Leslie Helprin ("Dr.
Helprin"), a psychologist, consultatively examined LMF (Tr. 35559).

LMF lived with her mother and the mother's boyfriend (Tr.

4

355).

She was able to dress, bathe, and groom herself

independently (Tr. 358).
home (Tr. 358).

LMF traveled independently near their

LMF assisted by washing dishes, doing laundry,

cleaning her room, cleaning the bathroom, cleaning the table,
and serving food (Tr. 358).
358).

LMF did homework with help (Tr.

Plaintiff said that LMF had good family relationships and

adequate peer relationships

(Tr. 358).

LMF enjoyed drawing,

soccer, jump rope, basketball, football, listening to music, and
watching television (Tr. 358).

She played basketball on

weekends with school groups (Tr. 358).

Dr. Helprin noted that LMF was in the 5th grade in
regular classes, received extra help in math and writing, and
had failed language arts, but earned B's and C's in other
subjects (Tr. 355).

LMF had never been hospitalized nor had

prior outpatient psychiatric treatment (Tr. 355).

She started

treatment at Synergy in Monticello, New York, in the Spring of
2009, and saw a psychiatrist monthly and a therapist weekly (Tr.
355).

She was prescribed Vyvanse and Lamictal (Tr. 355).

LMF

sometimes had problems falling asleep, and got up at night for a
drink (Tr. 355).

Plaintiff asserted that LMF had behavioral

problems at home, such as sometimes throwing things at home or
"stomp[ing] off" when told to do something she did not want to

5

do (Tr. 355).

Plaintiff stated that LMF twice "had an attitude"

with her reading teacher (Tr. 355).

She also claimed that LMF

did things for attention, but she was unable to provide any
examples (Tr. 356).

Plaintiff said LMF had no problems focusing

when playing, only on required tasks

(Tr. 356).

psychologist asked about anxiety and depression,

When the
she stated that

LMF had fits and would withdraw; and that, before she started
medication, LMF sometimes said she wished she were dead (Tr.
356).

LMF, however, denied any actual suicidal thoughts, and

clarified that she had said this only in anger (Tr. 356).

Both

LMF and Plaintiff agreed that she never attempted suicide (Tr.
356).

Plaintiff said a doctor mentioned somatization based upon

LMF often going to the school nurse complaining of (Tr. 356).
Dr. Helprin noted that neither Plaintiff nor LMF described any
symptoms of thought disorder (Tr. 356).

Dr. Helprin conducted a

mental status examination and found LMF to be cooperative with
age-appropriate social skills, manner of relating, and overall
presentation (Tr. 357).
dressed (Tr. 357)
normal

(Tr. 357).

(Tr. 357).

She was well-groomed and appropriately

Her gait, posture, and motor behavior were
Speech was clear, fluent, and age-appropriate

Thought processes were coherent and there was no

evidence of delusion, hallucinations, or paranoia (Tr. 357).
Affect was full range and appropriate, and mood was positive

6

(Tr. 357).
357).

LMF was fully oriented and sensorium was clear (Tr.

Attention and concentration were mildly impaired as she

could not do simple calculations, but could count and do serial
3s (Tr. 357).
(Tr. 357).

Recent and remote memory were mildly impaired

Intellectual skills were in the below average range

and fund of information was age-appropriate (Tr. 357).

Judgment

and insight were age-appropriate (Tr. 357).

Dr. Helprin opined that LMF was able to attend to,
follow,

and understand age-appropriate directions and complete

several age-appropriate tasks

(Tr. 358).

She was generally able

to maintain appropriate social behavior with some occasional
difficulties (Tr. 358).

LMF was able to respond appropriately

to changes in her environment, having behaved appropriately
throughout the evaluation (Tr. 358).
adequately with peers and adults

She generally interacted

(Tr. 358).

Diagnoses were:

bipolar II disorder, generally controlled with medication and
rule out borderline intellectual functioning

(Tr. 358-59).

Dr.

Helprin assessed that exam findings appeared consistent with
some emotional difficulties, but did not appear significant
enough to interfere with LMF's ability to function on a daily
basis

(Tr. 358).

7

Dr. Howard Ferrin ("Dr. Ferrin"), a State agency
physician, reviewed the record on December 2, 2010, and opined
that LMF was not disabled (Tr. 90, 361-68).

The doctor

specifically considered the report from LMF's teacher regarding
her school performance and behavior (see Tr. 206-13) and the
report from Dr. Helprin (see Tr. 355-59)

(Tr. 368).

Dr. Ferrin

opined that LMR's impairments did not meet, medical equal, or
functionally equal the Listings of Impairments contained in 20
C.F.R. Part 404, subpart P, App'x 1 (Tr. 90, 363).

In the

domain of acquiring and using information, LMF had a less than
marked limitation (Tr. 365).

The doctor assessed that LMF had

no limitations in the domains of attending and completing tasks,
interacting and relating with others, moving about and
manipulating objects, caring for herself, and health and
physical well-being (Tr. 365-66).

In January 2011, LMF was given the Wechsler
Intelligence Scale for Children-IV (WISC-IV) and it revealed
that LMF's full scale IQ was 107

(68th percentile (average)),

with scores of 110 in perceptual reasoning (75th percentile
(high average)), 112 in processing speed (79th percentile (high
average)), 102 in verbal comprehension (55th percentile

8

(average)), and 94 in working memory (34th percentile (average))
(see Tr. 376-77, 436-37).

In March 2011, LMF took the Wechsler Individual
Achievement Test III
87

(WIAT-III) and her basic reading score was

(19th percentile), reading comprehension and fluency score

was 83 (13th percentile), and total reading score was 84
percentile)

(14th

(see Tr. 377-80, 385).

On March 20, 2011, Ms. Strassman evaluated LMF again
(Tr. 374-84).

She noted absences and a lack of focus and that

LMF's grade average had declined to 64 in the fourth quarter of
the 2009-10 school year, from 75-81 the first three quarters
(Tr. 374).

Ms. Strassman noted that she was a very serious test

taker and thinker (Tr. 376).

She considered the results from

LMF's earlier WISC-IV, WIAT-III, and BASC 2 testing as well as
information from reports, school records, and teachers
376).

Mrs. Davis, her English language arts

(Tr. 375,

(ELA) teacher,

described her as average in dealing with teachers and peers,
although she was moderately submissive and introverted (Tr.
375).

Learning behavior was average, except for being

moderately high in persistence, organization, and stability (Tr.
375).

Mrs. Davis stated that LMF gave good effort, but had

9

problems catching up if she fell behind (Tr. 375).
friends, but told of being bullied (Tr. 375).

LMF had

Her math teacher,

Mr. Hicks, described LMF as extremely cooperative and obedient
and otherwise average or moderate, with some tendencies to
daydream (Tr. 375).

LMF was a hard worker, but sometimes forgot

simple steps (Tr. 375-76).

Mr. Hicks observed that LMF was

always quiet and polite, and did not talk much with her peers
(Tr. 376).

Ms. Strassman observed a discrepancy between LMF's

abilities and her performance in the areas of reading and total
achievement (Tr. 383-84).

She recommended that LMF be

designated emotionally disabled or learning disabled in the area
of reading, and that she receive special education and
counseling services (Tr. 384).

On July 12, 2011, Dr. Trivedi completed an assessment
form for the ALJ (Tr. 388-94).

The doctor indicated that the

LMF had no significant physical limitations and did not note any
physical ailments (Tr. 388-94)

The doctor indicated that she

had difficulty counting money (Tr. 394).

An undated and

unsigned adult form, probably from Dr. Trivedi, indicated
moderate limitations, addressed an adult's work-related
functioning,

and failed to set forth any supporting clinical

10

·-·----------

----------~-

findings or test results in support of the assessment

(Tr. 396-

97) .

In an undated medical report to SSA, completed
sometime around August 29, 2012, Dr. Irving Stillman ("Dr.
Stillman"), a psychiatrist, indicated that he had seen LMF
monthly for the past year (Tr. 468; see Tr. 463).

The doctor

confirmed LMF had no history of psychiatric hospitalizations
(Tr. 469).
4 68) .

Diagnoses were dysthymia and learning disorder (Tr.

In response to a question seeking clinical findings and

diagnostic test results to support the diagnosis, he responded
only that no lab tests are appropriate for the diagnoses
468).

(Tr.

LMF's complaints and symptoms were anger, anxiety, and

depression, treated with individual therapy two to four times
per month and monthly medication management (Tr. 469).

Current

prescriptions were for Lexapro, Vyvanse, and Clonodin (Tr. 469).
LMF did not report any medication side effects (Tr. 469).
was progressing towards her goals (Tr. 469).

She

With respect to

the domain of acquiring and using information, the doctor stated
that LMF's processing "can be a little slow at times" and she
had a hard time understanding certain things

(Tr. 470).

With

respect to attending and completing tasks, he wrote that she had
some limitations in a social setting and had difficulty staying

11

on track and focusing

(Tr. 470).

Dr. Stillman opined that LMF

had no limitations in any other domains of functioning
(interacting and relating with others, moving about and
manipulating objects, caring for herself, and health and
physical well-being)

(Tr. 470-71).

About the same time, he

completed an undated assessment form (Tr. 463-67).

He marked

boxes to indicate that LMF had: marked limitations in the
domains of acquiring and using information, and attending and
completing tasks; less than marked limitations in the domains of
caring for herself and health and physical well-being; and no
limitations in the domains of interacting and relating with
others, and moving about and manipulating objects (Tr. 465-66).

C.

School Records and Teacher Reports

Mrs. Rosner, LMF's 4th grade teacher, completed a
report for SSA in September 2010 (Tr. 206-13).

Mrs. Rosner

described LMF as a very sweet girl who tried most of the time
(Tr. 213).

LMF's problems were academic and her frequent

absences towards the end of the school year affected her
learning (Tr. 213; see Tr. 206).

LMF was in a class with a

student teacher ratio of 15:1 and her instructions levels were
low (Tr. 206).

She was provided special education services in

12

math and writing (Tr. 206).

In the domain of acquiring and

using information, LMF had obvious problems in three areas
(comprehending oral instructions, understanding school and
content vocabulary, and providing organized oral explanations
and adequate descriptions), serious problems in six areas
(reading and comprehending written material, understanding and
participating in class discussions, expressing ideas in writing,
learning new material, recalling and applying previously learned
material, and applying problem-solving skills in class
discussion), and a very serious problem in one area
(comprehending and doing math problems)

(Tr. 207).

LMF was

independent, but she did not do the work correctly and would ask
for help only rarely (Tr. 207).

In the domain of attending and

completing tasks, LMF had a slight problem in five areas and no
problem in eight areas (Tr. 208).

Mrs. Rosner assessed that LMF

had no problems in the domain of interacting and relating with
others (Tr. 209-10).

LMF also had no problem in the domain of

moving about and manipulating objects or in the domain of caring
for herself (Tr. 210-11).

Mrs. Rosner knew LMF started

medication towards the end of the school year, but was unaware
of any medical conditions or problems with health and physical
well-being (Tr. 212).

13

An individualized education program (IEP) for LMF was
crafted in April 2011 (Tr. 434-39).

The IEP noted Ms.

Strassman's findings and LMF's performances on the WISC-IV and
WIAT-III

(Tr. 435-37; see Tr. 385).

In the area of social

development, LMF's problems with internalizing, causing anxiety,
depression, and somatization, but it was also noted that she got
along well with peers (Tr. 437).

LMF's physical development was

age-appropriate and there were no concerns with physical or
motor skills (Tr. 437).

LMF was assessed with a learning

disability and mental health concerns, needing special services
(Tr. 437-38).

The IEP provided for a 15:1 student teacher ratio

and that LMF would have a consultant teacher each weekday for 45
minutes and weekly counseling services (Tr. 434).

LMF would be

provided additional time on all tests, she would take tests in a
special location, there would be checks for understanding during
testing as allowed, and test directions and questions would be
rephrased as needed (Tr. 435).

LMF passed fifth grade with grades of between 66
(literature) and 86 (writing)

(Tr. 420).

On August 8, 2011,

Richard Hemmer, LMF's 5th grade teacher in math all year and for
half the year in writing during the 2010-11 school year,
completed a form (Tr. 400-07).

In the domain of acquiring and

14

using information, LMF had no serious or very serious problems
(Tr. 401)

She had obvious problems in five areas

(comprehending oral instructions, understanding school and
content vocabulary, providing organized oral explanations and
adequate descriptions, recalling and applying previously learned
material, and applying problem-solving skills in class
discussion), and slight problems in five areas

(reading and

comprehending written material, comprehending and doing math
problems, understanding and participating in class discussions,
expressing ideas in written form, and learning new material (Tr.
401) .

In the domain of attending and completing tasks, LMF had

no problem in four areas and a slight problem in the other nine
areas

(Tr. 402).

Mr. Hammer assessed that LMF had no problems

in eight areas in the domain of interacting and relating with
others and slight problems in five areas

(Tr. 403).

LMF also

had no problem in the domain of moving about and manipulating
objects (Tr. 404).

The teacher indicated LMF had no problems in

two areas of the domain of caring for herself and only slight
problems in the other eight areas

(Tr. 405).

Mr. Hammer was

unable to respond to questions about the domain of health and
physical well-being and reported that LMF did not have an
unusual number of absences

(Tr. 400, 406).

15

An IEP for the 2011-12 school year noted Ms.
Strassman's findings

(Tr. 293-94; see Tr. 215-16).

The IEP

noted the WISC-IV results from January 2011 and the March 2011
WIAT-III results

(Tr. 294).

Her academic performance was

documented, as well as her difficulty with reading comprehension
and using context clues
and being with friends

(Tr. 294-95, 385).
(Tr. 295).

LMF enjoyed sports

In the area of social

development, LMF's problems with internalization, causing
anxiety, depression, and somatization were noted, but it was
explained that she got along well with peers, and counseling was
recommended (Tr. 295).

Her physical development was age-

appropriate and there were no concerns with physical or motor
skills (Tr. 295).

LMF was assessed with a learning disability

and mental health concerns and needed special services (Tr.
295) .

In June 2012 Liberty Schools recommended that LMF
attend a summer school program in a 15:1:1 special education
setting to prevent regression (Tr. 452-62).

D.

Testimony and Plaintiff's Reports to SSA

16

Shortly after the SSI application, Plaintiff completed
a disability report and a function report about LMF (Tr. 178-87,
196-202).

Plaintiff indicated that LMF had no physical

limitations and had no problems seeing, hearing, talking, or
communicating (Tr. 179-81, 183).

She stated that LMF's

impairments affected her behavior with others and stated that
medication affected LMF's personality (Tr. 184).

Plaintiff

indicated that LMF had friends her own age, could make new
friends, generally got along with adults and teachers, and
played sports (Tr. 184).

She was unsure whether LMF's abilities

to progress in learning was limited (Tr. 182).

Plaintiff noted

LMF could not tell time; she could read, but not at the expected
level, and she did not understand what she read (Tr. 182).
Plaintiff indicated on the form that LMF did not understand
money, but then stated that LMF just needed a little help with
money (Tr. 182).

Plaintiff was also not sure whether LMF's

impairment affected her abilities to care for her personal needs
(Tr. 185).

LMF did not help around the house, did not wash her

hair by herself, had trouble cutting her food, and did not
accept criticism or correction (Tr. 185).
told most of the time "with a fight"

She did what she was

(Tr. 185).

LMF was able to

use buttons, zippers, tie shoes, brush teeth, comb hair, choose
clothes, hang up her clothes, put away toys, obey safety rules,

17

get to school on time, eat using utensils, and take a bath or
shower without help (Tr. 185).

Plaintiff was unsure whether

LMF's ability to pay attention and stick with a task was limited
(Tr. 186).
186).

She indicated that LMF did not finish things (Tr.

LMF started and completed homework if Plaintiff was

helping her (Tr. 186).

LMF kept busy on her own, worked on arts

and crafts, and completed chores most of the time (Tr. 186).
Plaintiff stated that when LMF did not take her medication, she
got very depressed and did nothing (Tr. 187, 197).

In another report to SSA, Plaintiff stated that LMF
was very shy and took time to warm up to others (Tr. 203).
had no problems in personal care activities (Tr. 203).

LMF

She was

able to play with others and by herself, and preferred to play
by herself (Tr. 203).

Plaintiff said LMF's behavior was

worsening, she threw tantrums when she did not get her way, and
she pinched herself or hit her head when frustrated (Tr. 20304).

LMF's homework was not improving, she was falling behind

in school, and she was failing writing (Tr. 203-04).

In a medical treatment form,

Plaintiff stated that Dr.

Trivedi recently described her as doing well so long as
medication was maintained (Tr. 300).

Another form given to the

18

"--------~----~-------·-

ALJ indicated that LMF's prescribed medications consisted of
Vyanse and Lamictal (Tr. 302).

LMF testified that she was born in 1999 (Tr. 71).

She

was in regular classes in school, and had extra help with tests
and had an aide (Tr. 81-83).

LMF attended summer school in

order to retain material needed to advance and was going to
start 7th grade in September 2012, and liked school (Tr. 72, 78,
79, 81).

She sometimes missed school due to illness and other

times was afraid to go because she was getting "picked onu (Tr.
82).

LMF's grades were "fairly decentu (Tr. 72).

LMF had been seen by Dr. Stillman for about one year
(Tr. 74).

The doctor prescribed medication (Lexapro, Vyvanse,

and Clonidine as needed) and she took the medication daily (Tr.
75-76).

LMF later said that it was when she failed to take her

medication that she got mad, frustrated, and avoided others (Tr.
80).

The medicine also helped her concentrate (Tr. 80).

LMF

told the ALJ that the medicine enabled her to play and be normal
(Tr. 80).

LMF also saw Dr. Trivedi when she felt ill (Tr. 75).
LMF had complained that her stomach hurt, but tests found no

19

medical problem (Tr. 87).

Plaintiff said the doctor explained

to LMF that just because you did not feel good inside did not
mean you were physically ill (Tr. 87).

When the ALJ asked whether LMF had school friends,
stated that she had two friends,

she

and that other students were

mean to her (Tr. 78-79).

Plaintiff stated that LMF's IEP seemed to be working
for her, and she was not moved to a special education classroom
(Tr. 85).

In addition to learning problems, Plaintiff said LMF

had depression, but the medications were helping (Tr. 85-86).
LMF did not have many friends, and was picked on because she was
slower than other schoolchildren (Tr. 86).

Plaintiff stated

that when LMF was being bullied, she became very depressed (Tr.
86).

However, she now had episodes of slight depression and the

medication did not let her get as low as before (Tr. 86).

In deciding LMF's SSI claim, the ALJ applied the
three-step sequential evaluation analysis set forth at 20 C.F.R.
§

416.924(a)-(d).

At step 1, the ALJ found that LMF (a school-

age child when the application was filed and an adolescent at
the time of the hearing) , had not engaged in substantial gainful

20

activity (Tr. 27).

At step 2, the ALJ found that LMF's bipolar

disorder and learning disorder were severe impairments within
the meaning of the Act (Tr. 27).

At step 3, the ALJ found that

LMF's impairments did not meet or medically equal any impairment
in the Listings (Tr. 27).

Then, the ALJ evaluated her

impairments and determined that they were not "functionally
equivalent" to a listed impairment (Tr. 27-37).

Specifically,

the ALJ found that LMF's only limitation was a less than marked
limitation in the domain of acquiring and using information (Tr.
28-30).

The ALJ found that LMF had no limitations in the

domains of attending and completing tasks

(Tr. 30-31),

interacting and relating with others (Tr. 31-33), moving about
and manipulating objects (Tr. 33-34), caring for herself (Tr.
34-35), and health and physical well-being (Tr. 35-37).

The ALJ

found that LMF was not disabled (Tr. 37).

The Standard of Review

This Court reviews the Commissioner's decision by
determining whether it is supported by substantial evidence and
whether the Commissioner applied the correct legal standard.
See Machadio v. Apfel, 276 F.3d 103, 108-09 (2d Cir. 2002).
Act provides that the "findings of the Commissioner as to any

21

The

fact,

if supported by substantial evidence, shall be

conclusive."

42 U.S.C.

46 (2d Cir. 1996).

§

405(g); Perez v. Chater, 77 F.3d 41,

As the Second Circuit held in a child's SSI

disability case, "[w]here an administrative record supports
disparate findings," the reviewing court "must accept the ALJ's
factual determinations."

Quinones o/b/o Quinones v. Chater, 117

F.3d 29, 36 (2d Cir. 1997).

Thus, if the Court finds that there

is substantial evidence supporting the Commissioner's decision,
the Commissioner's decision must be upheld, even if there is
also substantial evidence for the plaintiff's position.

See

Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Schauer v.
Schweiker, 675 F.2d 55, 57

(2d Cir. 1982).

Substantial evidence has been defined as "more than a
mere scintilla .

[and] such relevant evidence as a

reasonable mind might accept as adequate to support a
conclusion."

Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

In

short, the reviewing court is not to decide the case de novo.
Schaal, 134 F.3d at 501; Jones v. Sullivan, 949 F.2d 57, 59 (2d
Cir. 1991).

22

The SSI program, 42 U.S.C.

§

1381 et seq., is a

federal program providing benefits to needy aged, blind, or
disabled individuals who meet the statutory income and resource
limitations.

The Social Security Act provides:
(i)
An individual under the age of 18 shall be
considered disabled for the purpose of this title
if that individual 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.
(ii) Notwithstanding clause (I), no individual
under the age of 18 who engages in substantial
gainful activity . . . may be considered
disabled.

42 U.S.C.

§

1382c(a) (3) (C).

Under the Commissioner's regulations, a sequential
analysis is utilized to determine whether a child is disabled.
20 C.F.R.
to show:

§

416.924(a)-(d).

The 3-step process requires a child

(1) that she was not working;

(2) that she had a

"severe" impairment or combination of impairments; and (3) that
her impairment or combination of impairments was of listinglevel severity, i.e., the impairment(s) met, medically equaled,
or functionally equaled the severity of an impairment in the
23

·--------"-- - -----

Listings.

See 20 C.F.R.

§

416.924.

In addition, the

regulations provide for a single method for determining
functional equivalence based on domains of functioning.
C.F.R.

§

416.926a(b) (1).

See 20

A child's functional limitations are

evaluated in 6 domains:
(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 yourself; and
(vi) Health and physical well-being.

20 C.F.R.

§

416.926a(b) (1) (i-vi).

Substantial Evidence Supports the Decision of the Commissioner

The Commissioner's regulations provide that when there
is sufficient evidence for to decide whether an applicant is
disabled, the Commissioner will make a determination or decision
based on that evidence.

See 20 C.F.R.

§

416.927.

Here, the

State agency acted to develop the record (Tr. 370-73).

The ALJ

also acted to develop the record (see Tr. 245, 248, 262, 276,
303, 306, 308, 320).

The ALJ found that LMF did not have a marked or
extreme limitation in any of the 6 domains of functioning

24

(Tr.

27-37).

In making these findings, the ALJ considered the

relevant medical and educational evidence concerning LMF's
functioning

(Tr. 27-37).

To establish disability, there must be

more than subjective complaints.

In particular, there must be

an underlying physical or mental impairment, demonstrable by
medically acceptable clinical and laboratory diagnostic
techniques, which could reasonably be expected to produce the
symptoms alleged.
Schweiker,

20 C.F.R.

697 F.2d 82, 84

§

416.929(b); accord Gallagher v.

(2d Cir. 1983).

Here, for the

reasons articulated by the ALJ, most notably the school reports
from the educational professionals most familiar with LMF's day
to day functioning in a challenging setting, constitute
substantial evidence that LMF was not disabled as defined by the
regulations.

The ALJ is "not required to specifically mention each
piece of evidence in detail, and failure to do so does not
require remand where, as here, the court can glean the ALJ's
rationale from the rest of the decision."
11-755-S, 2012 WL 3096428, *7

Cichocki v. Astrue,

(W.D.N.Y. July 30, 2012), aff'd,

729 F.3d 172 (2d Cir. 2013)

(citing Mongeur v. Heckler, 722 F.2d

1033, 1040 (2d Cir. 1983).

The ALJ's evaluated the functional

equivalence domains according appropriate weight to reports from

25

·---------·--·---·

LMF's teacher and school, such as the report from Mr. Hammer,
one of LMF's teachers, who indicated that she had no more than
slight to obvious problems in any domain of functioning
see Tr. 400-07).

See Social Security Ruling ("SSR")

(Tr. 28,

06-3 (it is

appropriate to assign substantial weight to other sources such
as teachers).

Notably, LMF's performance in Mr. Hammer's classes
occurred after she was started on medication (Tr. 469).

In the

aggregate, the ALJ determined that the evidence of record
demonstrated functional limitations in one of the six functional
equivalence domains, but not to the disabling extent alleged
(see Tr. 27-37).

The ALJ considered, but did not find persuasive, Dr.
Stillman's undated assessment form (Tr. 463-67).

In that form,

he marked boxes to indicate that LMF had marked limitations in
the domains of acquiring and using information, and attending
and completing tasks; less than marked limitations in the
domains of caring for herself and health and physical wellbeing; and no limitations in the domains of interacting and
relating with others, and moving about and manipulating objects
(Tr. 465-66).

The ALJ noted that such limitations were

26

inconsistent with the doctor's clinical notes that confirmed LMF
had no history of psychiatric hospitalizations that diagnoses
were dysthymia and learning disorder (Tr. 468-69) and that
treatment consisted only of individual therapy, two to four
times per month, and monthly medication management, and LMF was
progressing towards her goals (Tr. 469).

Dr. Stillman stated,

with respect to acquiring and using information, only that LMF's
processing "can be a little slow at times" and she had a hard
time understanding certain things

(Tr. 470).

Similarly, the

doctor stated in the domain of attending and completing tasks,
she had some limitations in a social setting and difficulty
staying on track and focusing, not an indication of marked
limitations in that domain (Tr. 470).

Moreover, LMF's teachers

contradicted his assessments in these domains

(Tr. 207, 208,

214, 401, 402) and the school psychologist, Ms. Strassman,
reported that LMF functioned in the average range regarding her
attentiveness (Tr. 215-16).

See 20 C.F.R.

§

416.927(c) (2)-(4)

(treating source's opinion entitled to less weight when
unsupported and/or inconsistent with other evidence of record)

The record also contains an undated and unsigned
report

(Tr. 396-98).

While it seems that Dr. Trivedi was sent

an adult assessment form,

rather than one for children, this

27

check box report indicated that LMF had disabling functional
limitations.
the doctor,

However, that form,

as well as other forms from

failed to identify any supporting clinical findings

or test results

(Tr. 396-97; see Tr. 335-44).

The doctor was

contacted by the Commissioner, who did provide records
e.g. Tr. 306, 346).
professional.

(see,

The doctor was not a mental health

The ALJ noted that the form was inconsistent with

reports from LMF's teachers, Dr. Helprin's consultative report,
and Ms. Strassman's reports

(Tr. 36).

The Plaintiff stated that

Dr. Trivedi had described LMF as doing well so long as
medication was maintained (Tr. 300).

If evidence in a claimant's case record is
inconsistent with other evidence or is internally inconsistent,
the ALJ is required to obtain additional evidence (including by
recontacting medical sources) only if the ALJ cannot decide
whether a claimant is disabled based on the existing evidence.
20 C.F.R. § 416.927(c).

Here, substantial evidence existed to

show that LMF was not disabled.
to obtain additional evidence.
Alston,

Thus, the ALJ was not obligated
20 C.F.R. § 416.927(c); see

904 F.2d at 126 (if substantial evidence supports the

Commissioner's decision, the decision must be upheld even if

28

there is also substantial evidence in support of plaintiff's
position) .

The Commissioner noted that the ALJ's evaluation of
the functional equivalence domains is supported by the
assessments of consultative examiner Dr. Helprin who, after
examining LMF, opined that LMF was able to attend to, follow,
and understand age-appropriate directions and complete several
age-appropriate tasks

(Tr. 358).

She was generally able to

maintain appropriate social behavior with some occasional
difficulties

(Tr. 358).

LMF was able to respond appropriately

to changes in her environment, and the psychologist observed
that LMF behaved appropriately throughout the evaluation (Tr.
358) .

She generally interacted adequately with peers and adults

(Tr. 358).

Dr. Helprin assessed that examination findings

appeared consistent with some emotional difficulties, but those
difficulties themselves, particularly with current treatment,
did not appear to be significant enough to interfere with LMF's
ability to function on a daily basis

(Tr. 358).

The ALJ's decision comports with the findings of State
agency psychiatrist Dr. Ferrin, who evaluated the available
evidence of record and assessed LMF's degree of functional

29

limitation (see Tr. 361-68).

Dr. Ferrin considered reports from

one of LMF's teachers and the consultative examination report
from Dr. Helprin (Tr. 368).

Dr. Ferrin assessed that LMF had

severe impairments, but that they did not meet, medical equal,
or functionally equal the Listings of Impairments contained in
20 C.F.R. Part 404, subpart P, App'x 1 (Tr.

90, 363).

In the

domain of acquiring and using information, LMF had a less than
marked limitation (Tr. 365).

The doctor assessed no limitations

in the domains of attending and completing tasks, interacting
and relating with others, moving about and manipulating objects,
caring for herself, and health and physical well-being (Tr. 36566).

The ALJ was entitled to rely upon the State agency

consultant.

See 20 C.F.R.

§§

416.912(b) (6), 416.927(e) (2)

Non-examining sources, such as Dr. Ferrin, may override treating
sources' opinions, provided their opinions are supported by
record evidence.

20 C.F.R.

Sullivan, 3 F.3d 563, 568
851 F.2d 43, 47

§

416.927(e); see Schisler v.

(2d Cir. 1993); cf. Schisler v. Bowen,

(2d Cir. 1988)

("Where the opinion of a treating

source is being rejected or overridden, there must be a
discussion documented in the file of the opinion(s) and medical
findings provided by the medical sources, an explanation of how
SSA evaluates the reports, a description of any unsuccessful
efforts to obtain information from a source(s), the pertinent

30

nonmedical findings, and an explanation as to why the
substantial medical evidence of record contradicts the
opinion(s) of a treating source(s). This discussion must be set
out in a determination or decision rationale.")

Genuine conflicts in the evidence are for the
Commissioner to resolve.

The ALJ properly exercised his

discretion in this case.

See Veino v. Barnhart, 312 F.3d 578,

588

(2d Cir. 2002); 42 U.S.C.

§

405(g)

(providing that the

Commissioner's findings "as to any fact,

if supported by

substantial evidence, shall be conclusive"); see also Schaal,
134 F.3d at 504

("It is for the SSA, and not this court, to

weigh the conflicting evidence in the record").

Here, the ALJ

evaluated the educational evidence and the medical record, and
assessed only a "less than marked" limitation in one of the
functional equivalence domains

(see Tr. 27-37).

The domain of Acquiring and Using Information focuses
on how well the child acquires, learns, and uses information.
20 C.F.R.

§

416.926a(g).

Based on all of the evidence of

record, the ALJ found that LMF had a "less than marked"
limitation in this area (Tr. 28-30).
Strassman's behavioral assessment

31

The ALJ noted Ms.

(BASC 2) in March 2010 that

indicated LMF's reported problems were mostly at home, not in
school (Tr. 215-16).

Mrs. Rosner, LMF's teacher, described her

as getting along well with others, using time wisely, and making
a good effort (Tr. 214).
were average (Tr. 216).

LMF's adaptive abilities in school
Ms. Strassman attributed LMF's

difficulties to adjusting to new living arrangements

(Tr. 216).

Although Dr. Helprin assessed LMF's cognitive function as "below
average," IQ testing in fact showed that her abilities were in
the average range (see Tr. 357, 376-77, 436-37).

Moreover, with

respect to this domain, Dr. Stillman stated only that LMF's
processing "can be a little slow at times" and that she had a
hard time understanding certain things

(Tr. 470).

The IEP for

2011-12 noted she had some problems in reading comprehension and
use of context clues, but could solve math problems (Tr. 29495).

Teacher questionnaires indicated that LMF had some

problems in acquiring and using information (Tr. 207, 401)
Mrs. Rosner noted that LMF did not always do her work correctly,
but described LMF a student who tried most of the time and was
independent (Tr. 207, 213).

Mr. Hicks, another teacher,

described LMF as extremely cooperative and obedient and
otherwise average or moderate (Tr. 375).

Notably, LMF passed

fifth grade with scores of between 66 (literature) and 86

32

(writing)

(Tr. 420).

Accordingly, the ALJ found a less than

marked limitation in Acquiring and Using Information.

The domain of Attending and Completing Tasks considers
how well the child focuses and maintains her attention, and how
well she begins, carries through, and finishes activities,
including the pace at which she performs activities and her ease
in changing activities.

20 C.F.R.

§

416.926a(h).

The ALJ found

that LMF had no limitation, which the record supports (Tr. 3031).

The ALJ noted that Ms. Strassman reported that, despite

her problems, LMF functioned in the average range regarding her
attentiveness

(Tr. 215-16).

In the domain of Attending and

Completing tasks, both Mrs. Rosner and Mr. Hammer assessed that
LMF had no more than slight problems (Tr. 208, 402).

Similarly,

Dr. Stillman assessed only some limitations in a social setting
and had difficulty (but not serious difficulty)
and focusing

(Tr. 470).

staying on track

Dr. Helprin found LMF's attention and

concentration were only mildly impaired (Tr. 357).

Plaintiff

herself was unsure whether LMF's ability to pay attention and
stick with a task was limited (Tr. 186) and LMF passed 5th and
6th grade (Tr. 72,

420).

Consequently, the ALJ properly

assessed no limitation in Attending and Completing Tasks.
if the few,

Even

slight limitations in some reports were adopted,

33

there would be no more than a "less than marked" limitation, and
the finding of "no limitation" would amount to harmless error.
The Supreme Court has held that, in judicial review of
administrative proceedings, the burden of showing harmful error
normally falls upon the party attacking the agency's
determination.

Shinseki v. Sanders, 556 U.S. 396, 410-11

(2009) .

The domain of Interacting and Relating with Others
considers how well the child initiates and sustains emotional
connections with others, develops and uses the language of her
community, cooperates with others, complies with rules, responds
to criticism, and respects and takes care of the possessions of
others.

20 C.F.R.

§

416.926a(i).

Here, the ALJ correctly found

that LMF had no limitation in Interacting and Relating with
Others (Tr. 31-33).

Mrs. Rosner described LMF as getting along

well with others and reported that LMF had no problems in this
domain (Tr. 209-10, 214).

Mr. Hammer assessed that LMF had no

more than a slight problem in the domain of Interacting and
Relating with Others (Tr. 403).

Plaintiff indicated that LMF

had friends her own age, could make new friends, generally got
along with adults and teachers, and played sports (Tr. 184).
Plaintiff told Dr. Helprin that LMF had good family

34

relationships and adequate peer relationships (Tr. 358).

The

2011-12 IEP also indicated LMF enjoyed sports and being with
friends

(Tr. 295).

The ALJ's finding of no limitation in

Interacting and Relating with Others was well supported.

The domain of Moving About and Manipulating Objects is
concerned with how well the child moves her body from one place
to another and how well she moves and manipulates things.
C.F.R. § 416.926a(j).

20

The ALJ found that LMF had no limitation

in this domain (Tr. 33-34).

The ALJ noted, there was no

evidence that LMF had any motor or physical limitations (Tr.
33).

Records from Liberty Pediatrics did not show any

significant abnormalities.

Dr. Stillman and Dr. Trivedi did not

diagnose LMF with any physical impairment or limitation (Tr.
270-71, 335-346, 347-50, 388-94).

Similarly, her teachers did

not indicate any such limitations in their reports (Tr. 201,
404).

Moreover, Plaintiff alleged no difficulty with LMF's

physical abilities and stated that LMF assisted with chores (Tr.
358).

She played basketball with school groups (Tr. 358).

ALJ properly assessed no limitation in Moving About and
Manipulating Objects.

35

The

The domain of Caring for Self considers how well the
child maintains a healthy emotional and physical state,
including how well her physical and emotional needs met in
appropriate ways, how she copes with stress and changes in her
environment, and whether she cares for her own health,
possessions, and living area.

20 C.F.R.

§

416.926a(k).

Here,

the ALJ's finding that LMF had no limitation in this domain is
supported by substantial evidence (Tr. 34-35).

The ALJ noted

that the record demonstrates that LMF could dress, bathe, and
groom herself, was capable of traveling in the neighborhood
independently, and assisted with some chores at home (Tr. 358)
Further, her teachers reported no limitations in this domain
(Tr. 211, 405).

The record supports the ALJ's finding that LMF

had no limitation in Caring for Herself.

The domain of Health and Physical Well-Being concerns
the cumulative effects of physical or mental impairments and
treatments or therapies on the child's functioning that were not
considered under the domain of Moving About and Manipulating
objects.

20 C.F.R.

§

416.926(1).

The ALJ determined that LMF

had no limitation in this domain (Tr. 35-37).

As the ALJ

stated, the record documents LMF's mental problem, but shows
that she was never hospitalized and treatment consisted only of

36

therapy and monthly visits to a psychiatrist (Tr. 355).

Dr.

Helprin opined that LMF's difficulties did not appear
significant enough to interfere with her daily functioning (Tr.
358).

Both Dr. Ferrin and Dr. Stillman assessed that LMF had no

limitations in this domain (Tr. 366, 471).

Thus, the ALJ's

conclusion that of no limitation in this area is well supported
(Tr. 35-36).

Because the evidence established that LMF did not have
an extreme limitation in any single area of functioning, or
marked limitations in any two areas, her impairments were not
functionally equivalent to a listed impairment.

The Plaintiff has asserted that the ALJ did not
adequately explain the credibility finding.

However, the ALJ

decides issues of credibility and is "not require[d] to accept
the claimant's subjective complaints without question."
v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).

Genier

Deference should be

given his judgment since he heard the witnesses testify and
observed their demeanor.

Gernavage v. Shalala, 882 F. Supp.

1413, 1419 n.6 (S.D.N.Y. 1995); Serra v. Sullivan, 762 F. Supp.
1030, 1034

(W.D.N.Y. 1991).

An ALJ need not blindly accept a

37

plaintiff's allegations of disability.
F. Supp. 212, 217

Fuller v. Shalala, 898

(S.D.N.Y. 1995).

The ALJ, in assessing LMF's functioning under the six
domains, considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the
objective medical and other evidence, based on the requirements
of "20 C.F.R.

[§] 416.929 and SSRs 96-4p and 96-7p" (Tr. 28).

The regulations and rulings to which the ALJ referred govern the
credibility analysis.

The ALJ explicitly considered many of the

factors outlined in the regulations, including but not limited
to objective findings, medical and non-medical treatment,
teacher's reports, activities of daily living, and the testimony
of LMF and her mother (see Tr. 27-37).

See 20 C.F.R.

§

416.929;

SSR 96-7p ("One strong indication of the credibility of an
individual's statements is their consistency, both internally
and with other information in the case record").

Here, the allegations of disabling limitations alleged
by the Plaintiff are contradicted by teacher's reports that
revealed some limitations, but not near disabling severity, and
by substantially normal clinical findings by treating and
examining sources.

Moreover, the Plaintiff herself indicated

38

that LMF had no physical limitations and had no problems seeing,
hearing, talking, or communicating (Tr. 179-81, 183).

The

Plaintiff stated that Dr. Trivedi had described LMF as doing
well, so long as medication was maintained (Tr. 300).

LMF

herself stated that her medication calmed her down and helped
her sleep and concentration (Tr. 80, 81).

Further, she

testified that it was only when she failed to take her
medication that she got mad, frustrated, and avoided others (Tr.
80).
normal

LMF told the ALJ that when she took her medicine, she was
(Tr. 80).

"The ALJ's rationale for his adverse credibility
decision is evident from his references to the

. record

. as well as to opinions from two state agency medical
consultants.

This was substantial evidence supporting the

ALJ's decision not to credit [other evidence]."

Lowry v.

Astrue, 474 Fed. Appx. 801, 805 (2d Cir. 2012).

The ALJ correctly determined that the evidence of
record demonstrated functional limitations only in one of the
six functional equivalence domains, but not to the disabling
extent alleged (see Tr. 27-37).

39

Conclusion

Based on the conclusions set forth above, the motion
of the Plaintiff is denied and the motion of the Commissioner
for judgment on the pleadings is granted and her decision is
affirmed.

It is so ordered.

New York, NY
February 1

b,

2015

7
U.S.D.J.

40