Vazquez v. Commissioner of Social Security

Filing 16

ORDER AND OPINION re: 9 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. For the reasons set forth above, the Court GRANTS the Commissioner's motion for judgment on the pleadings. The Clerk of Court is directed to enter judgment for the Commissioner and to terminate this case. (Signed by Magistrate Judge Ronald L. Ellis on 3/31/2017) Copies Mailed By Chambers.(cla)

1'

UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MELISSA E. VAZQUEZ, as Natural Guardian
o/b/o B.E.E., an Infant,
Plaintiff,

ORDER AND OPINION
15 Civ. 6546 (RLE)

- against CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

.

~~~~~~~~~~~~~~~~~~~~!
RONALD L. ELLIS, United States Magistrate Judge:
I. INTRODUCTION
Prose Plaintiff Melissa E. Vazquez ("Vazquez"), on behalf of her daughter B.E.E.,

commenced this action under the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking
judicial review of a final decision of the Commissioner of Social Security ("Commissioner")
denying her application for Supplemental Security Income ("SSI") benefits. Vazquez asks the
Court to modify the Commissioner's decision to grant her maximum monthly SSI benefits
retroactive to the date of the initial disability, or, in the alternative, to remand the case for
reconsideration of the evidence. (Doc. No. 2.) Vazquez argues that the decision of the
Administrative Law Judge ("ALJ") was erroneous, not supported by substantial evidence in the
record, and not supported by law. (Id.)
On January 5, 2016, the Commissioner filed a motion for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, asking the Court to dismiss the
Complaint. (Doc. No. 9.) Vazquez asked the Court to deny the Commissioner's motion. (Doc.
No. 11.) For the reasons set forth below, the Commissioner's motion is GRANTED.

II. BACKGROUND

A.

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On May 25, 2012, Vazquez filed an application for Supplemental Security Income
("SSI") on behalf of B.E.E. with the Social Security Administration (the "SSA"). (Admin.
Record ("A.R.") at 159-67.) The application was denied on August 9, 2012. (A.R. at 59-65.)
On March 18, 2014, a hearing was held before Administrative Law Judge Eric W. Borda ("the
ALJ" or "ALJ Borda"), at which Vazquez appeared without counsel. (Id. at 50-57.) B.E.E. did
not appear in person. (Id. at 52.) The ALJ issued an unfavorable decision on April 23, 2014.
(Id. at 3 1-44.)

Proceeding prose, Vazquez requested review by the Appeals Council on May 2, 2014.
(Id. at 22.) The Appeals Council denied Vazquez's request for review on July 24, 2014, making

the ALJ's decision the final decision of the Commissioner. (Id. at 1-4.) On August 19, 2015,
Vazquez filed the present Complaint. (Doc. No. 2.) The Commissioner answered on January 5,
2016. (Doc. No. 7.) On May 20, 2016, both Parties consented to the jurisdiction of the
undersigned pursuant to 28 U.S.C. § 636(c). (Doc. No. 14.)
B. ALJ Hearing and Decision
1. Testimony by Vazquez at the Hearing

On March 18, 2004, a hearing was held before the ALJ, at which Vazquez was the only
witness. (A.R. at 52-57.) Vazquez testified that at the time of the hearing, her daughter was
seven years old and in first grade. (Id. at 55.) Vazquez testified that B.E.E. was doing "bad[ly]"
in school and that she receives "zero['s]" on "all the exams." "She doesn't want to sit down and
read" and sometimes she forgets to write. (Id. at 56.)

2

Vazquez testified that B.E.E. takes medicine for her attention deficit hyperactivity

rl1MrrlM ("fl nun"l 1n thP mmn1nrr hPfmP crhf\f\l hnt th~t thti rtf\rtm h~rt rernnvert her ~fternnnn
dose because no one at school was available to give her the medication. (Id.) She also testified
that the medicine helps B.E.E. "a little," and that B.E.E. behaves well when she is under her
medication. (Id.) Vazquez testified that when B.E.E. is not in school, she is "okay" when her
medication is working until 3:00 p.m., at which point "she wants to play and she's misbehaving."
(Id at 57.) B.E.E. does not follow Vasquez's repeated instructions of what to do. (Id.)

2. Evidence of B.E.E.'s Impairments
a. Attention Deficit Hyperactivity Disorder
B.E.E. was born on February 4, 2007. (Id. at 180.) Vazquez alleges that B.E.E.'s
disability began on April 24, 2012. (Id. at 159.) According to Vazquez, B.E.E. gets bored easily.
(Id. at 185.) She is not affectionate towards her parents, does not share toys, does not take turns,

and does not play games like tag or board games. (Id.) B.E.E. has a short attention span of about
two minutes, limiting her ability to stick with a limited task. (Id. at 186.)
Vazquez attested that B.E.E. has seen doctors at Lincoln Medical and Mental Health
Center ("Lincoln Medical Center") since February 7, 2007, for pediatric visits, sessions with the
child psychologist, check-ups, and prescriptions. (Id. at 196.) On November 17, 2011, at a
pediatric visit, Vazquez complained that B.E.E. was very disruptive, aggressive, and hyperactive
in school. (Id. at 270.) She also told the doctor that B.E.E. tries to hit her and "back answers a
lot." Dr. Sridevi Pinnamaneni gave B.E.E. "a rule out diagnosis of ADHD." (Id. at 36 and 271.)
Vazquez reported that at some unspecified time B.E.E. has taken Methylphenidate Smg,
Ritalin 1Omg, Adderall 1Omg, and Amphetamine 1Omg for her ADHD, and Proventil for her

3

Asthma. (Id. at 197, 224, and 229.) She has also taken Guanfacine at an unspecified date. (Id. at

117)
b. Asthma

When B.E.E. was fifteen months old she was hospitalized at Bronx-Lebanon Hospital
Center ("Bronx-Lebanon") for pneumonia in her left upper lobe for May 16-18, 2008. (Id. 251.)
On December 9, 2008, B.E.E. was hospitalized at Bronx-Lebanon and diagnosed with an upper
respiratory infection. (Id. at 257.) She also went to the emergency room at Bronx-Lebanon on
December 11, 2008, for a fever and was diagnosed with pneumonia and an acute exacerbation of
asthma. (Id. at 254.)
Dr. Jose Tavarez examined B.E.E. when she was three years old for an asthma follow up
on August 19, 2010. (Id. at 286-88.) Vazquez informed the doctor that B.E.E. takes Singulair
daily and Albuterol as needed. (Id.) Dr. Taraverz assessed her as having intermittent asthma
which was "well controlled with no cough but frequent albuterol." (Id. at 288.) He also noted
that she had no wheezing. (Id.)
At some point in 2011, B.E.E. suffered an asthma attack which required a trip to the
emergency room. (Id. at 248.) She was hospitalized for a week. (Id.) As of the hearing, she had
not had any asthma attacks for a year. (Id.) During her appointment at Lincoln Medical on
November 17, 2011, Dr. Pinnamaneni noted that her respiratory system was unremarkable. (Id.
at 270.)
c. Other medical issues

On September 8, 2009, B.E.E. received emergency room care because she swallowed
nineteen birth control pills. (Id. at 306.) Registered Nurse Elizabeth Torres noted a normal
examination. (Id. at 308.) B.E.E. also received a psychosocial screening by caseworker Sylvia
4

Estrella ("Estrella"). (Id. at 321-325.) The caseworker noted that during the assessment, B.E.E.
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11

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referred B.E.E. to her primary care doctor for follow up. (Id. at 324.) At the follow-up
appointment on September 11, 2009, Dr. Pinnamaneni determined that B.E.E. was well. (Id. at
300-02.)
On September 11, 2009, and later on December 6, 2010, B.E.E.'s had a blood lead level
of 3mcg/dL, which was under the level associated with adverse health effects in children under
the age of six. (Id. at 263 and 266.)
d. Rehan Khan, MD, SSA Pediatric Consultative Examiner

On July 18, 2012, SSA consultative pediatric physician Rehan Khan examined B.E.E.
(Id. at 371-76.) Vazquez brought B.E.E.'s medications to the appointment (one lOmg dose of

methylphenidate in the morning, 1mg of Guanfacine for hypertension, and two puffs of 90mcg of
Ventolin as needed). (Id. at 372.) Dr. Khan observed that B.E.E. was "quiet and shy," and "did
not converse that much with the examiner." (Id. at 373.) Dr. Khan also noted that B.E.E. had
"displayed mild inattention," and "had to be redirected several times," but that there was no
"significant hyperactivity or impulsivity." (Id.) Dr. Khan characterized B.E.E.'s attention span
as "slightly-less-than-normal" for her age. (Id.) Dr. Khan gave B.E.E. a fair prognosis, noting
that although B.E.E. did not demonstrate hyperactivity, it could be attributable "to the fact that
[B.E.E.] is responding effectively to the medication that she is on, or that her hyperactivity and
inattention are mild in nature." (Id.) Dr. Khan further noted that B.E.E. "[did] not seem to have
any gross cognitive or behavioral limitations to participating in educational, social, and
recreational activities." (Id.) Vazquez reported to Dr. Khan that B.E.E. has been suspended
several times from school for biting other children. (Id. at 371.)
5

Dr. Khan also noted B.E.E.' s history of asthma. (Id. 371.) She diagnosed B.E.E. as

hauing ~H:!thma and d11t11rmin11d that R.hil R.hould h!luil !lCC!lC!.C!. to h11r inh!ller !lt !lll timPR. (Tri !lt ~71)
During the physical examination, B.E.E.'s lungs sounded clear. (Id. at 374.)
3. Findings of the State Disability Agency
Consultative Pediatric Doctor J. Randall assessed B.E.E.' s functionality on August 7,
2012. (Id. at 377-82.) Dr. Randall determined that B.E.E did not have an impairment or
combination of impairments that functionally equaled the Listings. (Id. at 3 81-82.) In the
domains of acquiring and using information, moving about and manipulating objects, caring for
yourself, and health and physical well-being, Dr. Randall found that there was "no limitation."
(Id. at 379-80.) Dr. Randall found "less than marked" limitations in the domains of attending
and completing tasks and interacting and relating with others. (Id.)
4. The Decision of ALJ Borda
On April 23, 2014, ALJ Borda determined that B.E.E. was "not disabled" under the Act.
(Id. at 9-20.) He made six findings in his opinion. (Id. at 34, 43.) First, ALJ Borda found that
"B.E.E. was a preschooler on May 24, 2012, the date the application was filed" and a "schoolage child" at the time of the hearing. (Id. at 34.) Second, he found that B.E.E. had "not engaged
in substantial gainful activity" since the application date. (Id.) Third, he found that B.E.E. had a
severe impairment of attention deficit-hyperactivity disorder and that her asthma was a nonsevere medically determinable impairment. (Id.) Fourth, he found that B.E.E. "does not have an
impairment or combination of impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and
416.926)." (Id.) Fifth, ALJ Borda found that B.E.E. "does not have an impairment or
combination of impairments that functionally equals the severity of the listings." (Id.) Sixth,
6

because B.E.E. did not have "marked" limitations in two or more of the functional domains or an

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disabled under the Act. (Id. at 43.)
With respect to the fifth finding, ALJ Borda found that B.E.E. had "less than marked
limitation" in the domains of attending and completing tasks and interacting and relating with
others. (Id. at 38-40). He found B.E.E. had "no limitation" in the areas of acquiring and using
information, moving about and manipulating objects, caring for yourself, or health and physical
well-being. (Id. at 37-38, 40-43.)
C. Plaintiff's Request for Review by the Appeals Council

On May 2, 2014, Vazquez requested review by the SSA Appeals Council. (Id. at 22.)
She submitted additional evidence to the Appeals Council, including: medical evidence dated
May 5, 2015, from Dr. Christian Gonzalez; an individualized education plan dated December 15,
2014; and a notice of the New York City Department of Education's recommendation regarding
the provision of special education services for B.E.E., which was also dated December 15, 2014.
(Id. at 2) Because the new evidence related to a later time period than the relevant period for
which benefits were denied by the ALJ, "it [did] not affect the decision about whether [B.E.E.]
was disabled beginning on or before of April 23, 2014." (Id.) The Appeals Council denied
review on July 24, 2015, making the ALJ's decision the final determination of the
Commissioner. (Id. at 1-4.)
D. New Evidence Submitted to the Court

Vazquez attached multiple exhibits containing new evidence to her Complaint. The
Court notes here only those which concern the relevant time period here. In a letter to the New
York City Administration for Children's Services dated June 12, 2013, Psychologist Anna
7

Abenis-Cintr6n stated that B.E.E. had been treated by Lincoln Medical Center's Child and
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(Doc. No. 2 at 11.) B.E.E. had participated in individual and group sessions to address her
symptoms and Dr. Abenis-Cintr6n noted that "[ s]he has made progress in obtaining her goals in
therapy."
Vazquez also submitted B.E.E.' s Master Treatment Plan which was signed by Dr.
Abenis-Cintr6n and dated May 18, 2012. (Id. at 12-13.) The Master Treatment Plan notes that
B.E.E. has problems of "hyperactive, short attention span" and "poor impulse control." (The
plan also notes that B.E.E's asthma was "stable." (Id. at 12.) There is also an updated Master
Treatment Plan dated August 17, 2012, which contains the note that "Ms. Vazquez reported her
daughter's ADHD symptoms are managed effectively with current medication regimen. [B.E.E.]
however continues to exhibit oppositional behavior at home." (Id. at 14.) The updated plan also
notes that there was "improvement in impulse control reported with current medication." (Id.)
B.E.E. had "past history of difficulties with peer social interactions at school" and had been
suspended four times last year for biting. (Id.) The updated plan states that B.E.E. had been seen
five times individually and that her medication regimen was 5mg of Ritalin in the morning and
lmg of Tenex at bedtime. (Id. at 14.) Dr. Abenis-Cintr6n recommended that B.E.E. participate
in biweekly individual cognitive-behavioral therapy with collateral sessions for her parents until
a group session becomes available, and a monthly pharmacotherapy session. (Id. at 14.)
Vazquez also submitted several school reports that were completed by B.E.E.'s teachers
and submitted to B.E.E.'s physicians at Lincoln Medical Center. (Id. at 18-37.) Only one of these
reports related to the relevant time period of the ALJ's decision. (Id. at 18-23.) In the report
dated March 25, 2014, B.E.E.'s first grade teacher noted that her main concern for B.E.E. was
8

academic achievement. (Id. at 18.) When assessing B.E.E.' s grade level she assigned an

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and an approximate second grade level for word recognition skills, numerical skills, and
handwriting skills. (Id at 19.)
The teacher noted that B.E.E. did not have attention problems or impulse control
difficulties. (Id. at 19.) She stated that B.E.E. interacted well with peers, that she followed
direction and showed respect to her teachers, had a normal reaction to discipline and affection,
and had an average level of activity in the classroom. (Id. at 20.) On a NICHQ Vanderbilt
Assessment Scale, the teacher provided her assessment of B.E.E.'s ADHD. (Id. at 22-23.) She
marked "never" for thirty, and "occasionally" for five, out of thirty-five behaviors associated
with ADHD. (Id) The five behaviors marked "occasionally" included: "fails to give attention to
details or makes careless mistakes in schoolwork," "does not seem to listen when spoken to
directly," "has difficulty organizing tasks and activities," "avoids, dislikes, or is reluctant to
engage in tasks that require sustained mental effort," and "is afraid to try new things for fear of
making mistakes." In academic performance, the teacher assessed B.E.E. as having "somewhat
of a problem" in reading, mathematics, and written expression. (Id. at 23.) She also marked
B.E.E. as "average" for all five indicators of "classroom behavioral performance," which
included: "relationship with peers," "following directions," disrupting class," assignment
completion," and "organizational skills." (Id.)
Vazquez also submitted a report of a psychoeducational evaluation conducted by the
school psychologist on December 2, 2013, when B.E.E. was in first grade. (Doc. No. 2-2 at 913.) The psychologist noted that B.E.E. "maintained a cooperative and respectful quality and
remained seated and focused throughout the evaluation process." (Id at 10.) B.E.E. was
9

administered the Weschsler Intelligence Scale for Children-Fourth Edition ("WISC-IV")

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situates her in the "Borderline" range of general thinking and reasoning skills. (Id.) Her verbal
comprehension score was 63, meaning her ability to understand verbal information, think with
words, and express thoughts is "extremely low." (Id.) B.E.E.'s perceptional reasoning score of
88 evidenced a "low average" ability to solve nonverbal problems quickly and efficiently with
visual information. (Id.) Her ability to solve nonverbal problems was noted to be "much better
developed than her skills in solving verbal problems." (Id.) B.E.E. 's working memory score was
86, placing her "skills in attention, concentration, and mental reasoning ... in the low average
range." (Id.). Her processing speed score was 103 placing her in average range for "mental
problem-solving, attention, and eye-hand coordination." (Id.)
Duarte noted that B.E.E. "follows class rules/routines and gets along well with her peers
and teachers." (Id. at 13.) She also concluded that B.E.E. "benefits from ample time to process
and complete tasks, repetition of instructions, paraphrasing, simplifications of directions and
close monitoring to address her needs." (Id. at 13.)
An Individualized Education Plan ("IEP") dated December 5, 2013, is also attached to
the Complaint. (Doc. No. 2-2 at 14-25.) The IEP classifies B.E.E. as having an "other health
impairment" and incorporates many of the findings of the psychoeducational evaluation report.
(Id.) Beginning December 12, 2013, the IEP recommends special education teacher support

services in English language arts three times a week for one period in a separate room and
special education teacher support services in Math twice a week for one class period in a special
location. (Id. at 19-20.)

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III. DISCUSSION

Upon judicial review, "[t ]he of findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive[.]" 42 U.S.C. §§ 405(g),
1383(c)(3). Therefore, a reviewing court does not determine de nova whether a claimant is
disabled. Brault v. Soc. Sec. Admin. Comm 'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam)
(citing Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)); accord Mathews v. Eldridge, 424 U.S.
319, 339 n.21 (1976) (citing 42 U.S.C. § 405(g)). Rather, the court is limited to "two levels of
inquiry." Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). First, the court must determine
whether the Commissioner applied the correct legal principles in reaching a decision. 42 U.S.C.
§ 405(g); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999) (citing Johnson, 817 F.2d at 986);

accord Brault, 683 F.3d at 447. Second, the court must decide whether the Commissioner's
decision is supported by substantial evidence in the record. 42 U.S.C. § 405(g). If the
Commissioner's decision meets both of these requirements, the reviewing court must affirm; if
not, the court may modify or reverse the Commissioner's decision, with or without remand. Id.
An ALJ's failure to apply the correct legal standard constitutes reversible error, provided
that the failure "might have affected the disposition of the case." Pollard v. Halter, 377 F.3d
183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)); accord

Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). This applies to an ALJ's failure to follow an
applicable statutory provision, regulation, or Social Security Ruling ("SSR"). See, e.g., Kohler,
546 F.3d at 265 (regulation); Schaal v. Callahan, 933 F. Supp. 85, 93 (D. Conn. 1997) (SSR). In
such a case, the court may remand the matter to the Commissioner under sentence four of 42
U.S.C. § 405(g), especially if deemed necessary to allow the ALJ to develop a full and fair
11

record to explain his reasoning. Crysler v. Astrue, 563 F. Supp. 2d 418, 428 (N.D.N.Y. 2008)
(l'ittt\g A!mf11w1" Arfol, 7n P \.'.n~~ 1d lLlS, L1R (N nN V 1000))

If the reviewing court is satisfied that the ALJ applied correct legal standards, then the
court must "conduct a plenary review of the administrative record to determine if there is
substantial evidence, considering the record as a whole, to support the Commissioner's
decision." Brault, 683 F.3d at 447 (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)).
The Supreme Court has defined substantial evidence as requiring "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)); accord Brault, 683 F.3d at 447-48. The substantial evidence
standard means once an ALJ finds facts, a reviewing court may reject those facts "only if a
reasonable factfinder would have to conclude otherwise." Brault, 683 F.3d at 448 (quoting

Warren v. Shala/a, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted).
To be supported by substantial evidence, the ALJ's decision must be based on
consideration of "all evidence available in [the claimant]'s case record." 42 U.S.C.
§§ 423(d)(5)(B), 1382c(a)(3)(H)(i). The Act requires the ALJ to set forth "a discussion of the
evidence" and the "reasons upon which it is based." 42 U.S.C. §§ 405(b)(l). While the ALJ's
decision need not "mention[] every item of testimony presented," Mongeur v. Heckler, 722 F.2d
1033, 1040 (2d Cir. 1983) (per curiam), or "reconcile explicitly every conflicting shred of
medical testimony," Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v.

Heckler, 725 F.2d 174, 176 (2d Cir. 1983)), the ALJ may not ignore or mischaracterize evidence
of a person's alleged disability. See Ericksson v. Comm 'r of Soc. Sec., 557 F.3d 79, 82-84 (2d
Cir. 2009) (mischaracterizing evidence); Kohler v. Astrue, 546 F.3d 260, 269 (2d Cir. 2008)
12

(overlooking and mischaracterizing evidence); Ruiz v. Barnhart, No. 01 Civ. 1120 (DC), 2002

UTT 21h21'J nt *h {~ n NV Mau 1 JOnJI fionMino llUtrlllnN1)• coo nlcn lnhnln 'Q' F ~ct ~t llOQ
(reconsideration of improperly excluded evidence typically requires remand). Eschewing rote
analysis and conclusory explanations, the ALJ must discuss the "the crucial factors in any
determination ... with sufficient specificity to enable the reviewing court to decide whether the
determination is supported by substantial evidence." Calzada v. Astrue, 753 F. Supp. 2d 250,
269 (S.D.N.Y. 2010) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)).
New evidence that is submitted to the Appeals Council becomes part of the
administrative record for judicial review when the Appeals Council denies review of the ALJ's
decision, provided the evidence is new and material and relates to the period before the ALJ' s
decision. Perez v. Chater, 77 F .3d 41, 45 (2d Cir. 1996).
B. Legal Standards for Determining Childhood Disability

Under the Act, every individual who is considered to have a "disability" is entitled to
disability insurance benefits. 42 U.S.C. § 423(a)(l). Disability is defined as an "inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve months." Id. at§ 423(d)(l)(A).
The disability must be of "such severity that [the claimant] is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy." Id. at § 423( d)(2)(A).
The SSI program, codified under 42 U.S.C. § 138lc(a)(3)(C)(i), allows children under
age eighteen to be considered medically disabled if the child has medically determinable

13

physical or mental impairments that result in marked and severe functional limitations that can

lMt nf\ t" ot lMCTt tmnlun ml\nthc.i
To determine whether an individual under the age of eighteen qualifies for SSI, the
Commissioner must conduct a three-step inquiry: (1) determine whether the claimant is engaged
in any substantial gainful activity; (2) determine whether the claimant has a "severe impairment"
which significantly limits his ability to work; (3) if so, determine whether the impairment is one
of the listings in the "Listing oflmpairments" provided in 20 C.F.R. Part 404, Subpart P,
Appendix 1, for which the Commissioner presumes disability. See 20 C.F.R. §§ 416.920(d),
416.925, and 416.926. To determine whether an impairment or combination of impairments
equals the listings, the Commissioner must consider the claimant's ability in six domains: (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. See 20 C.F.R. §§ 416.926(a)-(d). A medically determinable
impairment functionally equals a listed impairment if it results in "marked" or "severe"
limitation in two domains of functioning or an "extreme" limitation in one domain. See 20
C.F.R. § 416.926(a). Limitations will be considered "marked" when the impairment "interferes
seriously with the child's ability to independently initiate, sustain, or complete activities." 20
C.F.R. § 416.926(a)(e)(2)(i).
C. Issues on Appeal

In her Motion for Judgment on the Pleadings, the Commissioner argues that substantial
evidence supports ALJ Borda' s findings. (Id. at 11.) The Court agrees.

14

1. The ALJ had substantial evidence for his conclusion that B.E.E. had a less than
marked limitation in the domain of attending and completing tasks.
In the domain of attending and completing tasks, the Commissioner considers how well a
child is able to focus and maintain attention and how well the child can begin, carry through, and
finish activities, including the pace at which the child performs the activities and the ease with
which the child changes them. 20 C.F.R. § 416.926a(h). Generally, preschool children should
have the ability to: pay attention when spoken to directly; sustain attention to their play and
learning activities; concentrate on activities like putting puzzles together or completing art
projects; focus long enough to do things by themselves, such as dressing themselves or putting
away their toys; wait their turn; and change their activity when instructed to by a caregiver or
teachers. 20 C.F.R. § 416.926a(h)(2)(iii).
School-age children should be able to: focus their attention in a variety of situations to
follow directions; remember and organize their school materials; complete classroom and
homework assignments; concentrate on details and not make careless mistakes in their work;
change their activities or routines without distracting themselves or others; stay on task and in
place when appropriate; sustain their attention well enough to participate in group sports; read by
themselves; complete family chores; and complete a transition task without extra reminders and
accommodation. 20 C.F.R. § 416.926a(h)(2)(iv).
The ALJ found that the "record does not demonstrate the existence of any hyperfocus
symptoms." (A.R at 39.) ALJ Borda considered Vazquez's testimony on B.E.E.'s "difficulty
paying attention for more than a few minutes at a time" and B.E.E.' s "poor grades in school."
(Id.) The ALJ noted, however, that during the consultative examination, Dr. Khan observed that

B.E.E. "was only mildly inattentive" and that there was no "significant evidence of hyperactivity
or impulsivity." (Id.) The ALJ found that Dr. Khan's observations were consistent with
15

Vazquez's testimony that B.E.E.' s hyperactivity and attention deficits significantly improved
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Because Vazquez's reports and the consultative examiner's observations and conclusions
were consistent, the ALJ had substantial evidence for his finding that B.E.E. had less than a
marked limitation in the domain of attending and completing tasks.
In some cases, new evidence may require the Court to remand a case to the
Commissioner for further consideration. See Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988).
In these situations (1) the new evidence must be new and not cumulative (2) the new evidence
must be material and (3) there must be good cause for the claimant's failure to present the
evidence earlier. (Id.) For evidence to be material it (a) must be relevant to the claimant's
condition during the time period for which benefits were denied, (b) must be probative, and (c)
would have influenced the Secretary to make a different decision. (Id.) In this case remand is
unnecessary because the new evidence submitted to the Court provides further support for ALJ
Borda's conclusions.
Vazquez submitted a letter from Dr. Abenis-Cint6n dated June 12, 2013, in which the
doctor notes that B.E.E. "ha[d] made progress in obtaining her goals in therapy." (Doc. No. 2 at
11.) Although Dr. Abenis-Cint6n' s notes that assessment forms submitted by B.E.E.' s school
indicate that B.E.E. had continued to demonstrate ADHD symptoms (Id. at 11 ), the letter did not
specify the intensity persistence, or functionally limiting effects such that the ALJ could find that
B.E.E. had marked limitations.
The school report attached to the Complaint provides further support for the conclusion
that, although B.E.E struggled to some degree at school, she did not suffer from a marked
limitation. At the time of the report, B.E.E's teacher assessed that she performed at or above
16

grade level in every area of academic achievement. (Doc. No. 2 at 19.) The teacher also
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Further, she did not indicate "often" or "very often" for any of the behaviors associated with
ADHD on the NICHQ Vanderbilt Assessment Scale, which measures ADHD symptoms. (Doc.
No. 2 at 22.) Further, she again assessed B.E.E.'s academic performance in reading,
mathematics, and written expression, and determined these areas to present "somewhat of a
problem" for B.E.E. as opposed to the most severe measurement of "problematic." (Id. at 23.)
B.E.E.' s IEP provides additional evidence that she does not require exceptional
circumstances to participate effectively in school. B.E.E's IEP indicates that she spends most of
her time at school in the general education environment, spending only five periods a week in a
separate education setting. (Doc. No 2-2. at 19-20.)
B.E.E.' s "borderline" performance on the WISC-IV in general thinking and reasoning
skills is possible evidence of a severe medical impairment attributable to B.E.E.' s ADHD
diagnosis. (Doc. 2-2 at 10.) Notably, her lowest score was in verbal comprehension, in which it
was determined that she had an "extremely low" ability to "understand[] verbal information,
think[] and reason[] with words, and express[] thoughts as words." (Id.) Test scores alone,
however, cannot establish a "marked" limitation. 20 C.F.R. § 416.926a(e)(4)(i). Scores must be
considered in the context of the entire record, "including reports of classroom performance and
the observations of school personnel and others." Vazquez's reports and testimony on B.E.E.'s
behavior, the teacher's report, and B.E.E. 's IEP outweigh any potential conclusion that can be
drawn from B.E.E.'s WISC-IV score that she suffers from a marked limitation. Thus, remand to
the Commissioner to consider the new evidence proffered by Vazquez is unnecessary.

17

2. The ALJ had substantial evidence for his conclusion that B.E.E. had a less than
marked limitation in the domain of interacting and relating with others.
In the domain of interacting and relating with others, the Commissioner considers how
well a child is able to initiate and sustain emotional connections with others, develop and use the
language of the community, cooperate with others, comply with rules, respond to criticism, and
respect and take care of the possessions of others. 20 C.F.R. § 416.926a(i).
Generally, preschool-age children should be able to: socialize with children as well as
adults; begin to prefer playmates and start to develop friendships with children of the same age;
be able to use words instead of actions to express themselves; share, show affection, and offer
help; relate to caregivers with increasing independence; choose their own friends and play
cooperatively with other children without continual adult supervision; initiate and participate in
conversations, using increasingly complex vocabulary and grammar; and speak clearly enough
that both familiar and unfamiliar listeners can understand what they say most of the time. 20
C.F.R. § 416.926a(i)(2)(iii).
School-age children should be able to: develop more lasting friendships with children of
the same age; begin to understand how to work in groups to create projects and solve problems;
have an increasing ability to understand another's point of view and to tolerate differences; talk
to people of all ages; share ideas; tell stories; and speak in a manner that both familiar and
unfamiliar listeners readily understand. 20 C.F.R. § 416.926a(i)(2)(iv).
ALJ Borda found that B.E.E. had a less than marked limitation in the domain of
interacting and relating with others. (A.R. at 40.) The ALJ considered Vazquez's statements in
the child function report that B.E.E. is not affectionate, does not share toys, and does not take
turns. (Id.) The ALJ also noted Vazquez's report to the consultative examiner that B.E.E. plays
with her siblings and friends but also bites children despite medication. (Id.) ALJ Borda
18

considered Dr. Khan's notes about her observation ofB.E.E.'s "mild" shyness and "appropriate

mnnnM Af rPl!lttna" tl\ hM rlnr1na thP Mncmlt!lttuP PV!lm Utf !lt Ll.n) ThP 11 Tl !llM nl\tlld that thll
record lacked evidence of difficulties interacting with others such as disciplinary issues at school,
communication impairments, hearing deficits, or "difficulty being accepted into peer groups."
(Id.)

The Court finds that ALJ Borda's consideration of these varied sources of evidence
provides sufficient support for his determination that B.E.E. had less than a marked limitation in
this domain. Further, Vazquez's newly proffered evidence does not justify a remand to the
Commissioner, as none of the new evidence supports a different conclusion than the one reached
by the ALJ.
In the Master Treatment Plan dated August 17, 2012, Dr. Abenis-Cintr6n's notes that
Vazuez had "reported continued problems at home with compliance." (Doc. No. 2 at 14.)
Support for the conclusion that there may have been improvement in B.E.E.'s relationships with
others may be found in the school report submitted by B.E.E.'s teacher on March 25, 2014. (Id.
at 18-23.) The teacher indicated that B.E.E. "interacts well" with her peers, "follow[s] directions
and show[ s] respect" to her teachers and had a "normal" reaction to discipline and affection.
(Doc. No. 2 at 20.) This description is also consistent with the note of the school psychologist in
the psychoeducational evaluation that B.E.E. "follows class rules/routines and gets along well
with her peers and teachers." (Doc. No. 2-2 at 13.)
The information provided by Vazquez and the observations and conclusions of Dr. Khan,
Dr. Abenis-Cintr6n, and the school's psychologist are sufficiently consistent to provide support
for ALJ Borda's determination. Thus, for the reasons here and the reasons addressed supra, in

19

part (C)(2), the newly-proffered evidence does not require remand to the Commissioner for

3. The ALJ had substantial evidence for his conclusion that B.E.E. had no limitation
in the domain of health and physical well-being.

When evaluating whether a child has an impairment in the domain of health and physical
well-being the Commissioner considers the cumulative effects of physical or mental impairments
and their associated treatments or therapies on a child's functioning that were not considered
when determining the child's ability to move about and manipulate objects. 20 C.F.R. §
416.926a(l).
The regulations provide some examples of limitations that the Commissioner may
consider, though the examples do not necessarily describe a "marked" or "extreme" limitation.
20 C.F.R. § 416.926a(l)(4). A child may have an impairment in the domain of health and
physical well-being if: there are generalized symptoms such as weakness, dizziness, agitation,
lethargy, or psychomotor retardation because of the impairment; there are somatic complaints
related to the impairment such as seizure, convulsive activity, headaches, incontinence, recurrent
infections, allergies, changes in weight or eating habits, stomach discomfort, nausea, headaches,
or insomnia; there are limitations in the child's physical function because of the child's
treatment; there is an exacerbation from one impairment or a combination of impairments that
interferes with the child's physical functioning; or the child is medically fragile and needs
intensive medical care to maintain the child's level of health and physical well-being. 20 C.F.R.
§ 416.926a(l)(4)(i)-(v).
B.E.E.' s history of asthma was most relevant to the ALJ' s assessment under this domain
and the ALJ determined that B.E.E. had no limitation. (A.R. at 43.) In making this
determination, ALJ Borda considered Vazquez's testimony and reports to the consultative
20

examiner that asthma no longer caused B.E.E. problems and that B.E.E. had not suffered an

m:thm!l. !l.tt!l.rk in the f\!l.Rt ye!l.r (Id !l.t 4~ ) Th~ ALJ further noted th!lt !lt the time cf the heuring,
B.E.E. did not take medication to treat asthma. (Id.) ALJ Borda incorrectly noted that the "state
agency child disability consultant found evidence ofless than marked limitations in this area."
(Id. at 43.) A review of the record indicates that although the consultant made note of B.E.E. 's

history with asthma, the consultant also found that B.E.E. had "no limitation" in the domain of
health and physical well-being.
Because, even according to Vazquez, B.E.E. had no complications from asthma and had
not used medication to treat it for over a year, the ALJ's finding that B.E.E. had no limitation in
health and physical well-being has substantial support in the record.
4. ALJ Borda's conclusions that B.E.E. had no limitations in the remaining
functional equivalence domains are supported by substantial evidence.

For the remaining domains of functioning, including acquiring and using information,
moving about and manipulating objects, and caring for yourself, ALJ Borda found that B.E.E.
had no limitation. (Id. at 37-38, and 40-42.) The administrative record contains no evidence of
any limitation in these domains from either the medical records from the Lincoln Medical Center
or from the consultative examiner. Moreover, Vazquez denied that B.E.E. had any limitations in
these areas. The Court finds, therefore, that the ALJ had substantial evidence for his conclusions
that B.E.E. had no limitations in these domains.
Because there is no substantial evidence in the record that demonstrates that B.E.E. has at
least marked limitations at least two functional domains as required by 20 C.F.R. § 416.926a and
42 U.S.C. § 1381c(a)(3)(C)(i), the ALJ properly determined that B.E.E. was not disabled.

21

IV. CONCLUSION
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Ccurt CIU..NT~ the CommiMioner's. motion for

judgment on the pleadings. The Clerk of Court is directed to enter judgment for the
Commissioner and to terminate this case.

SO ORDERED this 31st day of March 2017
New York, New York

The Honorable Ronald L. Ellis
United States Magistrate Judge

MAJLED BY CHAMBERS

22