Juarez v. Berryhill
Filing
21
DECISION AND ORDER denying 15 Motion for Judgment on the Pleadings; granting 17 Motion for Judgment on the Pleadings. For the reasons stated above, Plaintiffs motion for judgment on the pleadings (Docket # 15) is denied, the Commissioner's cross-motion for judgment on the pleadings (Docket # 17) is granted, and the case is dismissed. SO ORDERED. (Signed by Magistrate Judge Lisa Margaret Smith on 5/16/2019) (ks) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Walter H. Ruano Juarez, Sr. o/b/o R.R.O., a minor,
Plaintiff,
- against -
18CV189 (LMS)
DECISION AND ORDER
Nancy Berryhill,
Acting Commissioner of Social Security,
Defendant.
LISA MARGARET SMITH, U.SM.J.
Plaintiff Walter H. Ruano Juarez, Sr. ("Plaintiff") brings this action on behalf of his
daughter, R.R.O. ("Claimant"), pursuant to 42 U.S.C. § 405(g), seeking judicial review of the
Commissioner's decision to deny his daughter supplemental security income ("SSI"). Plaintiff
has filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking to
have the Commissioner's decision reversed and the case remanded for a calculation and award of
benefits or, in the alternative, remanded for further proceedings so that the record may be further
developed and/or the ALJ may explain the rationale for his decision. Docket # 15. The
Commissioner has cross-moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c),
claiming that the denial of benefits should be upheld as legally correct and supported by
substantial evidence. Docket # 17. For the reasons that follow, Plaintiff's motion is denied, the
Commissioner's cross-motion is granted, and the case is dismissed.
1
I.
BACKGROUND
A.
Procedural History
Plaintiff filed an application for SSI on behalf of Claimant on June 13, 2014, 1 with an
alleged disability onset date of February 1, 2014. AR 66-73, 122-31. Claimant was alleged to be
disabled due to a learning disability, speech delay, and thyroid condition. AR 66, 69. The claim
was initially denied on September 12, 2014. AR 100-04. Thereafter, Plaintiff filed a written
request for a hearing. AR 106-18. Plaintiff, Claimant, and Claimant's mother appeared,
unrepresented, before the ALJ and testified at a hearing held on July 20, 2016. AR 54-65. On
October 13, 2016, the ALJ issued a decision finding that Claimant was not disabled. AR 75-99.
The ALJ's decision became the final decision of the Commissioner when the Appeals Council
denied Plaintiff's request for review on November 15, 2017. AR 1-7. This action was
commenced on January 10, 2018. Docket # 1.
B.
Factual Background
Overall, both parties accurately state the contents of the administrative record, although
they have highlighted different aspects thereof in their respective recitations of the facts. Their
disputes center around whether the ALJ's decision is supported by substantial evidence, or
whether, in the alternative, the case should be remanded for either the calculation and award of
benefits or further proceedings. Accordingly, rather than provide a lengthy recitation of the facts
based on the ample administrative record, the Court adopts the factual background as set forth in
The Disability Determination Explanation dated September 10, 2014, notes that the initial claim
for disability was filed on June 13, 2014, Administrative Record ("AR") 66, but the Application
Summary for Supplemental Security Income included in the administrative record states that
Plaintiff applied for SSI on behalf of Claimant on July 8, 2014. AR 122.
1
2
the parties' briefs and discusses the evidence in the record to the extent necessary to a
determination of the issues raised herein.
II.
APPLICABLE LEGAL PRINCIPLES
A.
Standard of Review
The scope of review in an appeal from a social security disability determination involves
two levels of inquiry. First, the court must review the Commissioner's decision to determine
whether the Commissioner applied the correct legal standard when determining that the plaintiff
was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). Failure to apply the correct
legal standard is grounds for reversal of the ruling. Townley v. Heckler, 748 F.2d 109, 112 (2d
Cir. 1984). Second, the court must decide whether the Commissioner's decision was supported
by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
"Substantial evidence means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Id. at 106 (internal quotation marks and citations omitted).
When determining whether substantial evidence supports the Commissioner's decision, it is
important that the court "carefully consider[] the whole record, examining evidence from both
sides." Tejada, 167 F.3d at 774 (citing Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997)). "It
is not the function of a reviewing court to decide de novo whether a claimant was disabled."
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (citation omitted). If the "decision rests on
adequate findings supported by evidence having rational probative force, [the court] will not
substitute [its own] judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578,
586 (2d Cir. 2002).
3
B.
Determining Disability
The SSI program provides benefits to "needy aged, blind, or disabled individuals" who
meet certain statutory income and resource limitations. Ruff ex rel. LMF v. Colvin, No. 14-Civ2433 (RWS), 2015 WL 694918, at *8 (S.D.N.Y. Feb. 18, 2015) (citing 42 U.S.C. § 1381 et seq.).
A child under the age of 18 is "disabled" for purposes of SSI eligibility if he or she "has a
medically determinable physical or mental impairment, which results in marked and severe
functional limitations, and which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months." 42 U.S.C. §
1382c(a)(3)(C)(i).
Pursuant to Social Security regulations, an ALJ applies a three-step analysis to determine
whether a particular child claimant is disabled. 20 C.F.R. § 416.924. First, the ALJ determines
whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). If the
claimant is not, the ALJ proceeds to the second step, where he or she considers whether the
claimant has a medically determinable impairment which is severe. 20 C.F.R. § 416.924(c). An
impairment is "severe" if it results in more than a "slight abnormality" or if it constitutes a
"combination of slight abnormalities that causes . . . more than minimal functional limitations."
20 C.F.R. § 416.924(c).
At the third and final step, the ALJ determines whether the claimant's impairment(s)
meets, medically equals, or functionally equals the criteria of an impairment found in 20 C.F.R.
Pt. 404 Subpt. P., App. 1 (the "Listings"). 20 C.F.R. § 416.924(d). To "functionally equal" a
Listing, the claimant must demonstrate that his or her impairments "result in 'marked' limitations
4
in two domains of functioning or an 'extreme' limitation in one domain." 20 C.F.R. § 416.926a. 2
There are six domains of functioning: (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 yourself; and (6) health and physical well-being. 20 C.F.R. §
416.926a(b)(1). A "marked" limitation is one which "interferes seriously" with a child's ability
to independently initiate, sustain, or complete activities and is "more than moderate" but "less
than extreme." 20 C.F.R. § 416.926a(e)(2)(i). An "extreme" limitation is one which "interferes
very seriously" with a child's ability to independently initiate, sustain, or complete activities; it is
a rating reserved for the worst limitations. 20 C.F.R. § 416.926(e)(3)(i).
III.
DISCUSSION
In his motion for judgment on the pleadings, Plaintiff seeks to have the Commissioner's
decision denying SSI benefits reversed and the case remanded for the calculation and award of
benefits or, in the alternative, for further administrative proceedings. Plaintiff contends that (1)
the ALJ overlooked evidence that Claimant had marked limitations in the domains of acquiring
and using information and interacting and relating with others, i.e., the ALJ's decision is not
supported by substantial evidence (because the evidence in the record establishes disability); (2)
the ALJ failed to develop the record; and (3) the ALJ failed to issue an intelligible decision.
Mem. of Law in Supp. (Docket # 16). In contrast, in her cross-motion for judgment on the
pleadings, the Commissioner contends that the ALJ's decision is legally correct, supported by
substantial evidence, and should be affirmed. Mem. of Law in Opp'n (Docket # 18).
2
Subsection (b)(3) of this regulation was amended effective March 27, 2017, but the amendment
is immaterial to the issues in this case.
5
A.
The ALJ's Decision
On October 13, 2016, the ALJ issued a written decision denying Plaintiff's application for
SSI benefits on behalf of Claimant. AR 75-99. Performing the three-step analysis set forth
above, the ALJ first noted that Claimant, who was born on February 12, 2007, was a school-age
child on June 13, 2014, the date that her SSI application was filed, and was a school-age child on
the date of the decision. AR 84. The ALJ found that Claimant had not engaged in substantial
gainful activity since June 13, 2014. Id. At step two, the ALJ stated that Claimant suffered from
the severe impairments of separation anxiety disorder, anxiety, and attention deficit hyperactivity
disorder (ADHD). Id. The ALJ found that Claimant also had the nonsevere impairments of
obesity and hypothyroidism, but he noted that records from Claimant's teacher, as well as
treatment records and the consultative examination, all showed that Claimant had no physical
limitations. Id. At step three, the ALJ found that Claimant's impairments, whether considered
singly or in combination, neither met nor medically equaled the severity of a Listing. Id. The
ALJ also found that Claimant's impairments, whether considered singly or in combination, did
not functionally equal the severity of a Listing. Id. In reaching his conclusion as to functional
equivalence, the ALJ found that Claimant did not have marked limitations in two domains of
functioning or extreme limitations in one domain of functioning. AR 89-93. Rather, the ALJ
determined that Claimant had no limitations in the domains of moving about and manipulating
objects and health and physical well-being, and had less than marked limitations in the domains
of acquiring and using information, attending and completing tasks, interacting and relating with
others, and caring for yourself. Id. Consequently, the ALJ determined that Claimant was not
disabled. AR 94.
6
B.
Evidence of Limitations in the Domains of Functioning
1.
Acquiring and Using Information and
Interacting and Relating with Others
In his motion papers, Plaintiff argues that the ALJ erred in his evaluation of the evidence
concerning, in particular, Claimant's functioning in the domains of acquiring and using
information 3 and interacting and relating with others. 4 Plaintiff contends that Claimant's scores
on the CELF-4 (Clinical Evaluation of Language Fundamentals, 4th Edition), which was
administered on May 31, 2014, and placed her at a standard deviation of "-2," see AR 171, 297,
alone establishes disability. Mem. of Law in Supp. at 18; see id. ("language scores in the range
achieved by R.R.O. normally necessitate a finding that the child has a marked limitation in the
domain" of acquiring and using information). 5 However, the Social Security regulations state
3
The Social Security regulations state that with respect to the domain of acquiring and using
information, "we consider how well you acquire or learn information, and how well you use the
information you have learned." 20 C.F.R. § 416.926a(g). In the case of school-age children,
ages 6 to 12, the Social Security regulations state with respect to this domain that children
without an impairment "should be able to learn to read, write, and do math, and discuss history
and science" and "should be able to use increasingly complex language (vocabulary and
grammar) to share information and ideas with individuals or groups, by asking questions and
expressing your own ideas, and by understanding and responding to the opinions of others." 20
C.F.R. § 416.926a(g)(2)(iv).
4
The Social Security regulations state that with respect to the domain of interacting and relating
with others, "we consider how well you initiate and sustain emotional connections with others,
develop and use the language of your 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). In the case of school-age children, ages 6 to 12, the Social Security regulations state
with respect to this domain that children without an impairment "should be able to develop more
lasting friendships with children who are your age"; "should begin to understand how to work in
groups to create projects and solve problems"; "should have an increasing ability to understand
another's point of view and to tolerate differences"; and "should be well able to talk to people of
all ages, to share ideas, tell stories, and to speak in a manner that both familiar and unfamiliar
listeners readily understand." 20 C.F.R. § 416.926a(i)(2)(iv).
5
Plaintiff argues that "[a]ll three scores [for core, receptive, and expressive language] were
below the -2 standard deviation cutoff (70) for a 'marked' limitation." Mem. of Law in Supp. at
7
that "we will find that you have a 'marked' limitation when you have a valid score that is two
standard deviations or more below the mean, but less than three standard deviations, on a
comprehensive standardized test designed to measure ability or functioning in that domain, and
your day-to-day functioning in domain-related activities is consistent with that score." 20
C.F.R. § 416.926a(e)(2)(iii) (emphasis added); see also 20 C.F.R. § 416.926a(e)(4) ("[W]e will
not rely on any test score alone. No single piece of information taken in isolation can establish
whether you have a 'marked' or an 'extreme' limitation in a domain."). Therefore, if there was
substantial evidence in the record for the ALJ to find that Claimant's day-to-day functioning was
not consistent with her score on the CELF-4, her performance on that test would not be
dispositive of the question of whether she had a marked limitation in the domain of acquiring and
using information. See Johnson ex rel. A.J. v. Astrue, No. 11 Civ. 5247 (JMF), 2013 WL
1187436, at *13 (S.D.N.Y. Mar. 22, 2013) (where claimant had scored between 2 and 3 standard
deviations below the norm on the Preschool Language Scale 4 test, the court held that this was
"not sufficient to require an ALJ to make a finding that a child has a marked limitation in a
domain" and that "as long as there was sufficient evidence for the ALJ to conclude that A.J.'s
day-to-day functioning was not consistent with her score on the PLS-4, her performance on that
test was not dispositive"); see also Miles ex rel. J.M. v. Astrue, 502 F. App'x 59, 61 (2d Cir.
2012) (20 C.F.R. § 416.926a(e)(2)(iii) "does not compel a finding of disability based on one
standardized test").
Here, the ALJ noted that Claimant's scores on the CELF-4 indicated a two-year delay.
AR 85; see AR 169-72, 295-98. He also noted, however, that the psychoeducational evaluation
11 (citing AR 171 and Claimant's scores of 69 for core language and expressive language and 64
for receptive language). The Commissioner notes that the assessment revealed "scores two
standard deviations below the mean." Mem. of Law in Opp'n at 4.
8
report, which discussed the results of the CELF-4 assessment as well as the other assessments
conducted on that same date, stated that Claimant's overall cognitive functioning was assessed to
be in the borderline range on the WISC-IV, 6 but that Claimant's WISC-IV "subtest scale scores
suggest higher potential for learning due to marked (sic) scattered among the subtests." AR 86
(internal quotation marks omitted); see also AR 309 (psychoeducational evaluation report noted
that Claimant's "performance in the subtests administered indicated great variability among the
skills tested"). The ALJ also observed that Michael Kushner, Ph.D., who conducted a
consultative mental status evaluation of the Claimant on October 7, 2015, "opined that the results
of the examination appear to be consistent with psychiatric and cognitive problems that do 'not
appear to be significant enough to interfere with the claimant's ability to function on a daily
basis.' " AR 88; see also AR 360 (as to Claimant's speech, Dr. Kushner noted, "Expressive
language was age appropriate. Receptive language was age appropriate."). In addition, the June
2015 Individualized Education Program (IEP) from Claimant's school stated that Claimant was
reading at level J, which is "the benchmark for mid 1st grade," AR 706, but that Claimant had
"shown improvement in her ability to decode and to retell a story using the key details." Id. 7
6
The psychoeducational evaluation report explains that the Wechsler Intelligence Scale for
Children-Fourth Edition, or WISC-IV,
is an individually administered clinical instrument for assessing children's
intelligence. It provides composite scores that represent intellectual
functioning in specified cognitive domains (i.e. Verbal Comprehension
Index, Perceptual Reasoning Index, Working Memory Index and
Processing Speed Index), as well as providing a composite score that
represents a child's general intellectual ability (i.e. Full Scale IQ).
AR 309. The report notes that Claimant's Full Scale IQ was a 77, which placed her in the 6th
percentile. Id.
7
The ALJ noted that Claimant's 2014 IEP stated that she "was behind academically and
struggled with decoding words and with comprehension, and was receiving speech and language
9
Nonetheless, Claimant was performing below grade level in writing, but this was "mostly due to
her inability to focus, follow directions and complete projects," and she struggled with math
"also mostly due to her lack of attention during whole class instruction." Id.; see also AR 94
(ALJ stated that "the teacher questionnaire (Exhibit 5F) was from 2014 but noted that the
claimant's main problem was concentrating to learn new things"). Finally, the ALJ cited the
discharge summary filled out in February, 2016, after Claimant attended her last treatment
session at the Metropolitan Center for Mental Health (MCMH) on January 18, 2016, which
stated that Claimant's symptoms were "decreased" and "improving" 8 and that during her period
of treatment (from June 10, 2014, to January 18, 2016), Claimant "made markedly [sic]
improvements in her behaviors and in her academic performance." AR 625; see AR 89.
Thus, there is substantial evidence in the record to support the ALJ's conclusion that in
the domain of acquiring and using information, Claimant had a less than marked limitation.
With respect to the domain of interacting and relating with others, Plaintiff contends that
"language function is as critical to this domain as it is to Acquiring and Using Information,"
Mem. of Law in Supp. at 19, and that "there is a considerable body of case law recognizing, not
only that a severe language disorder must be evaluated in both domains, but also that a marked or
extreme limitation in one domain is usually accompanied by a marked or extreme limitation in
therapy." AR 88-89. The 2015 IEP also noted that Claimant had "shown some improvement in
her fluency and comprehension," AR 706, and that Claimant "love[d] reading fiction texts and
discussing what is happening with the character" and "enjoy[ed] participating in group and
partnership conversations." Id.
8
The discharge summary lists Claimant's diagnoses as separation anxiety disorder, oppositional
defiant behavior disorder, and parent-child relational problem. AR 624. There appears to be a
fourth condition listed under diagnoses, but it is hard to read the handwriting on the document,
and neither party states that there was a fourth diagnosis. However, a treatment plan review from
MCMH dated December 16, 2015, includes as a fourth disorder/condition "child affected by
parental relationship distress." AR 641.
10
the other." Id. at 20 (citing cases). Indeed, as one of the cases cited by Plaintiff states, "In
recognizing that 'communication' comprises both speech and language, and that language is used
both for learning and for interacting and relating to peers, the SSA regulations require that a
child's problems with speech and language be considered in both the Acquiring and Using
Information and Interacting and Relating with Others domains." Robbins v. Comm'r of Soc.
Sec., 04 CV 2568 (NG)(JMA), 2006 U.S. Dist. LEXIS 2781, *23 (E.D.N.Y. Jan. 13, 2006)
(citation omitted). But, as that case adds, "a finding of a 'marked' limitation in one domain does
not automatically warrant a finding of a 'marked' limitation in the other . . .." Id. (emphasis
added).
The ALJ noted that examples of limited functioning in this domain include "difficulty
speaking intelligibly or with adequate fluency," AR 91, but the May 31, 2014, speech/language
assessment cited by the ALJ, AR 85, found that Claimant's speech "was intelligible throughout
the assessment period and no verbal dysfluencies were noted." AR 298; see also AR 159 (June
2014 IEP). Rather, the evaluator found that Claimant exhibited a "frontal lisp that is affecting
his [sic9] fricative and sibilant sounds." Id. A questionnaire completed on October 8, 2014, by
Claimant's second grade teacher, Ms. Grube, who saw Claimant every day for all subjects, rated
Claimant as having an obvious problem only with respect to one of the 13 key activities within
this domain, "[u]sing adequate vocabulary and grammar to express thoughts/ideas in general,
everyday conversation," and otherwise rated Claimant as having only slight or no problems with
respect to 10 of the remaining key activities (she failed to rate Claimant at all with respect to two
key activities—"[e]xpressing anger appropriately" and "[f]ollowing rules (classroom, games,
9
Although the speech/language assessment notes at the top of the first page that Claimant's
gender is female, it also states that she is a boy and interchangeably uses the words "she," "he,"
"her," "his," and "him." See AR 295-98.
11
sports)"). AR 323. Additionally, Ms. Grube checked off that it had not been necessary to
implement behavior modification strategies with Claimant, but she noted that Claimant "tend[ed]
to be bossy with her peers." Id. Lastly, with respect to this domain, Ms. Grube checked off that
"Almost All" of Claimant's speech could be understood by a familiar listener on the first attempt
when the topic of conversation was either known or unknown, as well as after repetition and/or
rephrasing. AR 324.
As cited by the ALJ, Dr. Kushner reported in his evaluation that Claimant's "demeanor
and responsiveness to questions was cooperative, and her manner of relating, social skills, and
overall presentation were age-appropriate." AR 87; see AR 360. 10 With respect to Claimant's
speech, Dr. Kushner stated, "Overall intelligibility was good. Quality of voice was clear.
Expressive language was age appropriate. Receptive language was age appropriate." AR 360.
Dr. Kushner opined that Claimant had mild to moderate limitations in terms of both adequately
maintaining appropriate social behavior and interacting adequately with peers and adults. AR
361.
A social history evaluation performed on June 3, 2014, and cited by the ALJ, noted that
although Claimant's parents reported that Claimant had a "history of serious behavior problems
at home," during her first grade year, Claimant was "well behaved in school" and that although
her teacher reported that Claimant could "become irritable at times," there had been "no
significant behavior difficulties in school." AR 305-06. A psychoeducational evaluation
10
Among the evidence cited in the ALJ's decision was also the report of the consultative
pediatric examination by Gregory Bard, M.D., in which Dr. Bard noted that Claimant's speech
and behavior were "normal for age" and that Claimant "related to the examiner and person with
them in an age-appropriate way. The child appeared to have normal attention span for age." AR
364; see AR 88.
12
performed on May 31, 2014, also cited by the ALJ, noted that "[d]uring the time spent with the
examiner [Claimant] was quite cooperative. She did not show any signs of maladaptive
behavior." AR 311. The evaluation report nonetheless noted that although Claimant's parents
reported that during first grade, "her behavioral issues have somewhat decreased[,] she still
presents with unmanageable behaviors that warrant professional intervention," noting "anger and
oppositional issues that make it difficult for them and teachers to handle her." Id. Claimant's
parents reported that Claimant was receiving therapy at Metropolitan Hospital at that time. Id.
Treatment records from MCMH reflect improvement in Claimant's behavior over time. AR 341
(noted in September, 2014, that Claimant was "calmer in school & at home, not as angry as
before nor as aggressive towards her parents"), 337 (noted in March, 2015, that Claimant "has 2
friends in school" and "obeys her parents"), 625-26 (noted in discharge summary from February,
2016, that Claimant made marked improvements in her behaviors with decreasing frequency and
intensity of her symptoms).
In sum, there is substantial evidence in the record to support the ALJ's conclusion that in
the domain of interacting and relating with others, Claimant had a less than marked limitation.
2.
Attending and Completing Tasks and Caring for Yourself
Plaintiff contends, "Given the strength of the evidence in these two domains [acquiring
and using information and interacting and relating with others], no great purpose would be
served by discussing at length R.R.O.'s potentially marked limitations in other domains, but they
should at least be mentioned." Mem. of Law in Supp. at 21. Plaintiff then states in conclusory
fashion that Claimant "has well-documented problems with focus and attention that obviously
13
impact the domain of Attending and Completing Tasks." Id. 11 However, Plaintiff provides no
argument as to why the ALJ erred in concluding that Claimant had a "less than marked
limitation" in this domain. Indeed, as the Commissioner points out, and as the Court agrees,
there is "substantial evidence in the record as a whole" to support the ALJ's finding that Claimant
had a less than marked limitation in this domain. Mem. of Law in Opp'n at 19 (citing May 31,
2014, psychoeducational evaluation report, teacher questionnaire, Dr. Kushner's consultative
examination report, and 2015 IEP). 12
Plaintiff also argues that Claimant "has considerable difficulties in the domain of Caring
for Yourself," 13 adding that Claimant
11
The Social Security regulations state that with respect to the domain of attending and
completing tasks, "we consider how well you are able to focus and maintain your attention, and
how well you begin, carry through, and finish your activities, including the pace at which you
perform activities and the ease with which you change them." 20 C.F.R. § 416.926a(h). In the
case of school-age children, ages 6 to 12, the Social Security regulations state with respect to this
domain that children without an impairment "should be able to focus your attention in a variety
of situations in order to follow directions, remember and organize your school materials, and
complete classroom and homework assignments"; "should be able to concentrate on details and
not make careless mistakes in your work (beyond what would be expected in other children your
age who do not have impairments)"; "should be able to change your activities or routines without
distracting yourself or others, and stay on task and in place when appropriate"; "should be able to
sustain your attention well enough to participate in group sports, read by yourself, and complete
family chores"; and "should also be able to complete a transition task (e.g., be ready for the
school bus, change clothes after gym, change classrooms) without extra reminders and
accommodation." 20 C.F.R. § 416.926a(h)(2)(iv).
12
The ALJ acknowledged the evidence in the record concerning Claimant's issues with focusing
and remaining on-task, citing the 2015 IEP, AR 93, but he noted that, as evidenced by the
treatment records from MCMH, Claimant had made "marked" improvements in her behavior and
academic performance. AR 94.
13
The Social Security regulations state that with respect to the domain of caring for yourself,
"we consider how well you maintain a healthy emotional and physical state, including how well
you get your physical and emotional wants and needs met in appropriate ways; how you cope
with stress and changes in your environment; and whether you take care of your own health,
possessions, and living area." 20 C.F.R. § 416.926a(k). In the case of school-age children, ages
14
cannot sleep alone. She has delayed ADLs (toileting, bathing, bottle
feeding at age 5). She has expressed suicidal thoughts. She engages in
self-injurious behaviors (biting and choking herself, pulling her own hair,
hitting her head on walls). She is often unable to control her own
impulses and behaviors.
Mem. of Law in Supp. at 21. However, there is substantial evidence in the record to support the
ALJ's conclusion that Claimant had a less than marked limitation in this domain. Mental health
records reflected improvements in Claimant's behavior over time and also noted on repeated
occasions that she was not a danger to herself or others. AR 331-58, 623-43; see AR 94. Dr.
Kushner opined that Claimant had "no evidence of limitation and mild limitation" with respect to
"responding appropriately to changes in the environment," and only mild to moderate limitations
with respect to "being aware of danger and taking needed precautions." AR 361. Claimant's
mother testified at the hearing that although Claimant had engaged in unsafe behavior when she
was younger, Claimant was now "more controlled." AR 64. The June 3, 2014, social history
evaluation report notes that Claimant "still demands assistance with personal hygiene but this
does not seem to be an issue of ability." AR 306. 14 Although the ALJ stated in his decision that
6 to 12, the Social Security regulations state with respect to this domain that children without an
impairment "should be independent in most day-to-day activities (e.g., dressing yourself, bathing
yourself), although you may still need to be reminded sometimes to do these routinely"; "should
begin to recognize that you are competent in doing some activities and that you have difficulty
with others"; "should be able to identify those circumstances when you feel good about yourself
and when you feel bad"; "should begin to develop understanding of what is right and wrong, and
what is acceptable and unacceptable behavior"; "should begin to demonstrate consistent control
over your behavior"; "should be able to avoid behaviors that are unsafe or otherwise not good for
you"; and "should begin to imitate more of the behavior of adults you know." 20 C.F.R. §
416.926a(k)(2)(iv).
14
The Function Report completed by Plaintiff on July 8, 2014, reported that in the realm of selfcare, Claimant could use zippers, comb/brush her hair, choose her clothes, eat by herself, pick up
and put away toys, hang up clothes, help around the house, do what she was told most of the
time, obey safety rules, and get to school on time. AR 145.
15
in the mental health records, Claimant "was said to be able to care for herself," AR 94, the Court
has not been able to find such a statement in the cited mental health records. Nonetheless, there
is substantial evidence to support the ALJ's finding with respect to this domain. 15
C.
Remand to Develop the Record/Provide Rationale for ALJ's Decision
Plaintiff argues, in the alternative, that the decision should be reversed and remanded
based on the ALJ's failure to develop the record. Mem. of Law in Supp. at 21-23. Plaintiff cites
the hearing testimony of Claimant's mother, who testified that Claimant was due to resume
treatment with SBMHP (School-Based Mental Health Program) "next month," i.e., August,
2016. Id. at 22; see AR 61. Plaintiff contends that the ALJ
should have obtained records from the school describing the behaviors that
caused the school to urge "more intensive therapy." Moreover, since [the
ALJ] did not issue his decision until October 13, 2016, he should have
obtained the records available by then from SBMHP. At a minimum, he
should have alerted [Claimant's] unrepresented parents at the hearing to
the potential importance of the records, so they could obtain them
themselves.
Id. at 22-23.
"Pursuant to the SSA regulations, the duty to develop medical records normally extends
only to obtaining medical history for at least the twelve months preceding the month of
application." Gonzalez v. Comm'r of Soc. Sec., 17 Civ. 1976 (JCM), 2018 WL 4054866, at *12
(S.D.N.Y. Aug. 24, 2018) (internal quotation marks, brackets, and citation omitted). "Whether
the ALJ has a duty to develop the record with respect to treating sources after the date of filing is
not settled and may depend on the facts of the case." Id. (internal quotation marks and citation
omitted). Although "some courts have held that the duty to develop the record does not require
15
As Plaintiff does not contest the ALJ's findings with respect to the domains of moving about
and manipulating objects and health and physical well-being, the Court does not address them
herein.
16
the ALJ to obtain medical records generated after the filing date of the claimant's application,"
id. (citing e.g., Brown v. Comm'r of Soc. Sec., 709 F. Supp. 2d 248, 257 (S.D.N.Y. 2010);
Infante v. Apfel, No. 97 CIV. 7689 (LMM), 2001 WL 536930, at *7 (S.D.N.Y. May 21, 2001);
Centano v. Apfel, 73 F. Supp. 2d 333, 337 (S.D.N.Y. 1999)), there are cases in which courts
have held that the duty to develop the record applies to the period between the date of the
claimant's application for benefits and the claimant's hearing date, id. (citing e.g., Corporan v.
Comm'r of Soc. Sec., No. 12-Civ-6704 (JPO), 2015 WL 321832, at *27 (S.D.N.Y. Jan. 23,
2015); Moreira v. Colvin, No. 13 Civ. 4850 (JGK), 2014 WL 4634296, at *5 n.2 (S.D.N.Y. Sept.
15, 2014)).
Plaintiff has not provided any legal support for the proposition that the ALJ has a duty to
develop the record during the time period after the hearing but before issuing a decision where,
as here, the records do not relate to treatment that was ongoing at the time of the hearing.
Plaintiff does not point to any gaps in the record that existed as of the time of the hearing which
would undermine the Court's conclusion that the ALJ's decision, based on that record, was
supported by substantial evidence. Moreover, although the administrative record includes
documents submitted to the Appeals Council which relate primarily to the post-decision period
but include an undated letter faxed to SSA on May 18, 2017, which states that Claimant "was
evaluated . . . in August 2016 and has been receiving ongoing treatment services since that time,"
AR 24, Plaintiff's counsel "has not identified any evidence that suggests that [the evaluation
report and treatment notes from August, 2016, to the date of the ALJ's decision] would
materially alter the ALJ's analysis." Gonzalez, 2018 WL 4054866, at *13. 16 Accordingly,
16
The Appeals Council noted that "[t]he Administrative Law Judge decided your case through
October 13, 2016. This additional evidence does not relate to the period at issue. Therefore, it
17
remand to develop the record is not warranted.
Plaintiff additionally argues that the ALJ "failed to issue an intelligible decision that can
be meaningfully reviewed by the courts." Mem. of Law in Supp. at 23. However, where "the
evidence of record permits [the court] to glean the rationale of an ALJ's decision, [the court]
do[es] not require that he [or she] have mentioned every item of testimony presented to him [or
her] or have explained why he [or she] considered particular evidence unpersuasive or
insufficient to lead him [or her] to a conclusion of disability." Mongeur v. Heckler, 722 F.2d
1033, 1040 (2d Cir. 1983) (citing Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982), in
which the Second Circuit stated that it would not remand a case where "we were able to look to
other portions of the ALJ's decision and to clearly credible evidence in finding that his [or her]
determination was supported by substantial evidence."). As is apparent from the Court's
determination above that the ALJ's findings concerning the functional domains were supported
by substantial evidence, the Court was able to glean the rationale of the ALJ's decision from both
the decision as a whole and the evidence of record. Accordingly, remand on this basis is
likewise not warranted.
does not affect the decision about whether you were disabled beginning on or before October 13,
2016." AR 2.
18
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