Lester v. Astrue
Filing
14
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 5 Plaintiff's Motion for Judgment on the Pleadings; granting 6 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/6/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JORDAN LAWRENCE LESTER,
Plaintiff,
DECISION and ORDER
No. 12-CV-0143(MAT)
-vsCAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.
I.
Introduction
Represented by counsel, Jordan Lawrence Lester (“Plaintiff”),
brings this action pursuant to Title XVI of the Social Security Act
(“the
Act”),
seeking
review
of
the
final
decision
of
the
Commissioner of Social Security (“the Commissioner”)1 denying his
application for Supplemental Security Income (“SSI”). The Court has
jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
II.
Procedural History
Plaintiff’s mother, Camille Lester, filed an application for
SSI child’s benefits on Plaintiff’s behalf on June 24, 2009,
alleging that Plaintiff was disabled due to attention deficit
1
Carolyn M. Colvin is automatically substituted for the
previously named Defendant Michael Astrue pursuant to Fed.R.Civ.P.
25(d). The Clerk of the Court is requested to amend the caption
accordingly.
hyperactivity disorder (“ADHD”). T. 153-55, 180.2 The initial
application was denied, and Ms. Lester requested a hearing before
an Administrative Law Judge (“ALJ”). T. 73-75. Plaintiff had his
18th birthday on March 30, 2010, while he awaited his hearing.
T. 43.
On March 29, 2011, a hearing was conducted by telephone with
Plaintiff, his mother, and his attorney present. T. 19-42. On
April 7, 2011, the ALJ issued a 16-page decision determining that
Plaintiff was not eligible for SSI under either the standard
applied for children or that for adults. T. 44-62. The ALJ’s
determination became the final decision of the Commissioner on
December 15, 2011, when the Appeals Council denied Plaintiff’s
request for review. T. 1-3. This action followed. Dkt. #1.
Now pending before the Court are the parties’ cross-motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. Dkt. ##5, 6. For the reasons that follow,
the Commissioner’s motion is granted, and Plaintiff’s motion is
denied.
III. Factual Background
Plaintiff, born March 30, 1992, was 17 years old on the date
of his filing for SSI benefits and 18 years old on the date of his
hearing. T. 21, 51.
2
References to “T.__” refer to the pages of the administrative
transcript, submitted as a separately bound exhibit in this action.
-2-
A.
Medical Evidence
1.
Plaintiff’s Providers
Plaintiff was evaluated by Mark Zali, school psychologist, on
December 5, 2007 when Plaintiff was in the 9th grade. Zali noted
that Plaintiff was classified as “Emotionally Disturbed,” and took
Ritalin for ADHD. Plaintiff’s composite, verbal, and nonverbal IQ
scores were within Average range. T. 310. At that time, Plaintiff
was
failing
most
of
his
courses,
required
assistance
with
organization, task completion, and had difficulty concentrating.
T. 308-311. Zali recommended a change in classification to “Other
Health Impairment” to reflect Plaintiff’s ADHD diagnosis. T. 31112.
Kimberly Jackson, M.D., treated Plaintiff for the management
of his ADHD. T. 327-28. Treatment notes dated November 18, 2010
show that Plaintiff was prescribed Strattera with “excellent and
fair” medication compliance. T. 327. Dr. Jackson noted that while
Plaintiff
showed
relationships,
no
improvement
disruptive
in
behavior,
the
areas
academic
of
social
performance,
independence, self-esteem, and safety in the community, he did show
improvement in a multitude of other areas relating to focus,
organization, attention, distractibility, and listening. T. 327.
-3-
2.
Consultative Examinations
Plaintiff
underwent
a
consultative
child
psychiatric
evaluation by Renee Baskin, Ph.D., on August 17, 2009, when he was
17 years old and entering the 9th grade. T. 284-87. He described
difficulty falling asleep and insomnia. T. 284. General behavior
was remarkable for losing his temper, being actively defiant, or
noncompliant, as well as remarkable symptoms of hyperactivity. Id.
Attention
and
concentration
were
intact.
T.
285-86.
Though
intellectual functioning was estimated to be “below average range,”
Dr. Baskin observed that Plaintiff appeared to be a “fairly bright
young man” whose psychiatric problems may have a negative impact on
his ability to function academically. T. 286. Dr. Baskin concluded
that Plaintiff would have minimal to no limitations being able to
attend to, follow, and understand age appropriate directions,
complete
age
assistance,
appropriate
and
interact
tasks,
ask
adequately
questions
with
peers
and
request
and
adults.
Plaintiff would have moderate limitations being able to adequately
maintain
social
behavior.
T.
286.
Finally,
Plaintiff’s prognosis was “fair, given that
she
noted
that
[he] seek therapy,”
and recommended psychological treatment and educational services.
T. 287.
A consultative pediatric examination was conducted by Samuel
Balderman, M.D., on September 2, 2009, which indicates a 14-year
history of migraine headaches and mental health issues. T. 288.
-4-
Frequency of headaches were two per month, lasting approximately
two hours. Id. Diagnoses were headaches and learning disability and
the examiner opined no physical limitations. T. 291.
A Childhood Disability Evaluation Form dated November 9, 2009
by State Agency non-examining review physician J. Meyer indicates
severe impairments that do not meet the Social Security Listings.
T. 295-96. Limitations were “none” or “less than marked” in every
category. T. 297-98. Attributes were attention-seeking, immature,
poor organization, and poor focus. T. 297.
B.
Non-medical Evidence
1.
Hearing Testimony
At the hearing, Plaintiff, who was 18 years old at the time,
testified that he could not work because he had ADHD, for which he
took medication and saw a doctor every 2-3 months. T. 28. He stated
that he had trouble paying attention, and had difficulty with math,
such as algebra, but could perform basic arithmetic and could use
a
checking
writing,
account.
watching
T.
29-30.
television,
Plaintiff
and
could
had
no
remember
difficulties
and
follow
multiple-step instructions. T. 30. Plaintiff could use a computer,
shop, travel by bus or subway, and help with household chores.
T. 26-27. Socially, Plaintiff went to the movies and visited with
friends. T. 26.
In addition to ADHD, Plaintiff testified that he suffered from
migraine headaches, for which he took Excedrin. T. 41. He reported
-5-
his headaches to last 30 minutes and required him to rest for a few
hours. T. 41-42.
Ms. Lester also testified at Plaintiff’s hearing. She stated
that Plaintiff had ADHD and Oppositional Defiant Disorder (“ODD”)
while growing up, had difficulty with authority, and that his
condition had not really improved as he grew up, except that he had
fewer tantrums. T. 34-35.
2.
School Records
During the
2006-07 school year, Plaintiff was enrolled in
Special Education (“SE”) classes for English Language Arts, Math,
Social Studies, and Science. T. 222. He repeated the 9th grade three
times and the 7th grade twice. T. 31, 256. Plaintiff had a history
of
poor
academic
distractibility,
achievement
sleeping,
and
poor
behavioral
organization,
issues
and
due
to
difficulty
focusing. T. 256-57. Also noted in Plaintiff’s school records were
inconsistent social judgment and poor social skills. T. 257.
Plaintiff was often suspended, absent, or tardy from school.
T. 267-83.
An Individualized Education Program (“IEP”) Annual Review for
the 2009-10 school year indicates ongoing classification in SE as
Emotionally Disturbed with additional diagnosis of ADHD. T. 303.
The IEP notes the same difficulties and issues with Plaintiff’s
behavior,
peer
relationships,
and
academics
as
previously
mentioned, and further notes that testing completed in December,
-6-
2007 yielded average results in decoding, calculation, and math
fluency, and high-average fluency for reading. T. 301-07. The IEP
states
that
Plaintiff
needed
to
develop
grade
appropriate
organization and study skills. T. 303.
3.
Vocational Expert Testimony
The ALJ obtained the testimony of James Newton, Vocational
Expert (“VE”).
The ALJ posited a hypothetical question to the VE, asking
whether work existed in significant numbers for an individual who
was restricted to work at all exertional levels that was simple,
routine, repetitive; was in an environment free of fast-paced
production
decisions
requirements;
and
routine
involved
workplace
only
simple
changes;
and
work-related
required
only
occasional interaction with the public and co-workers. T. 39. In
response, the VE identified three unskilled medium jobs: hospital
cleaner (50,000 positions nationally, 6,600 regionally); diet aid
(186,000 positions nationally, 2,400 regionally); and cook helper
(100,000 positions nationally; 6,000 regionally).
IV.
The ALJ’s Decision
Because Plaintiff was 17 at the time of his application and 18
at the time of the hearing, the ALJ evaluated Plaintiff’s claim for
SSI under both the child and adult standards.
-7-
A.
Child Disability
The statutory standard for children seeking SSI benefits based
on disability is
[a]n individual under the age of 18 shall be
considered disabled for the purposes 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.
42 U.S.C. §§ 1382c(a)(3)(C)(1).
In evaluating disability claims in children, the Commissioner
is required to use the three-step process promulgated in 20 C.F.R.
§§ 416.924. First, the Commissioner must determine whether the
claimant is engaged in any substantial gainful activity. Second, if
the claimant is not so engaged, the Commissioner must determine
whether the claimant has a “severe impairment” or combination of
impairments. Third, the Commissioner must determine whether the
impairment or combination of impairments correspond with one of the
conditions presumed to be a disability by the Social Security
Commission,
that
the
impairment(s)
met,
medically
equaled
or
functionally equaled the severity of an impairment in the listings.
20 C.F.R. § 416.924.
In
applying
the
tree-step
process,
the
ALJ
found
that
Plaintiff: had not engaged in substantial gainful activity since
the application was filed; had the severe impairments of ADHD,
-8-
learning disability, and headaches; and did not have an impairment
which functionally equaled the Listings because he did not have two
marked limitations or one extreme limitation in the six domains of
functioning. T. 51-55. The ALJ then determined that Plaintiff was
not disabled. T. 19.
B.
Adult Disability
The Social Security Administration (“SSA”) has promulgated a
five-step sequential analysis that the ALJ must adhere to for
evaluating disability claims for adults. 20 C.F.R. § 404.1520.
Pursuant to this inquiry:
First, the Commissioner considers whether the
claimant is currently engaged in substantial
gainful
activity.
If
he
is
not,
the
Commissioner considers whether the claimant
has a “severe impairment” which significantly
limits his ability to do basic work activity.
If the claimant has such an impairment, the
Commissioner considers whether, based solely
on medical evidence, the claimant has an
impairment which is listed in Appendix 1, Part
404, Subpart P. If the claimant does not have
a listed impairment, the Commissioner inquires
whether, despite the claimant's impairment, he
has the residual functional capacity to
perform his past work. If he is unable to
perform his past work, the Commissioner
determines whether there is other work which
the claimant can perform.
Berry v. Schweiker, 675 F.2d 464, 466–67 (2d Cir. 1982).
Applying this analysis, the ALJ found that: Plaintiff did not
engage
in
substantial
gainful
activity
since
the
date
the
application was filed; that Plaintiff continued to have the same
-9-
severe
impairments,
which
did
not
meet
the
Adult
Listings;
Plaintiff had the residual functional capacity (“RFC”) to perform
a full range of work at all exertional levels but with certain
non-exertional
limitations.
Proceeding
to
step
five
of
the
sequential evaluation process, the ALJ relied on the VE testimony
and found that jobs existed in significant numbers in the national
economy that Plaintiff could perform. Therefore, the ALJ concluded
that Plaintiff was not a disabled adult during the relevant period.
T. 59-62.
V.
General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Section 405(g) provides that the District Court “shall have the
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g) (2007). The section
directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
Substantial evidence is defined as “‘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 Consolidated Edison Co. v. NLRB, 305 U.S.
-10-
197, 229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S.
121, 149 (1997).
When
determining whether
the
Commissioner's
findings
are
supported by substantial evidence, the Court's task is “to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits
the scope of the Court's review to two inquiries: determining
whether the Commissioner's findings were supported by substantial
evidence in the record as a whole, and whether the Commissioner's
conclusions
are
based
upon
an
erroneous
legal
standard.
Green–Younger v. Barnhart, 335 F.3d 99, 105–06 (2d Cir. 2003); see
also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not
try a benefits case de novo).
Under Rule 12(c), judgment on the pleadings may be granted
where the material facts are undisputed and where judgment on the
merits is possible merely by considering the contents of the
pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642
(2d Cir. 1988). A party's motion will be dismissed if, after a
review of the pleadings, the Court is convinced that the party does
not set out factual allegations that are “enough to raise a right
to relief beyond the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
-11-
VI.
Discussion
A.
Step 3 Assessment
Plaintiff first contends that the ALJ’s determination that
Plaintiff was not disabled prior to age 18 is not supported by
substantial evidence. Pl. Mem. (Dkt. #5-1) at 9-12. Specifically,
that the ALJ did not provide a rationale or cite to Listing
112.05(D) in his step three analysis. Id.
The Commissioner argues that the ALJ properly found that
Plaintiff’s mental impairment did not meet Listing 112.05(D), which
pertains to mental retardation. Comm’r Reply Mem. (Dkt. # 12) at 1.
The Court agrees.
The regulations state, in relevant part:
Mental
Retardation:
Characterized
by
significantly subaverage general intellectual
functioning
with
deficits
in
adaptive
functioning [and accompanied by] D. A valid
verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental
impairment
imposing
an
additional
and
significant limitation of function.
20 C.F.R. Part 404, Subpt. P, App. 1, § 112.05(D).
On the outset, Plaintiff’s most recent Kaufman intelligence
test (“KBIT-2"), administered on December 5, 2007, indicates an IQ
composite score of 93, a verbal score of 92, and a nonverbal score
of 96. T. 310. The ALJ therefore had no need to discuss Listing
112.05(D) because Plaintiff’s IQ score did not fall within the
parameters of 112.05(D).
-12-
Plaintiff claims that the ALJ should have discussed the
variation
between
the
current
IQ
test
and
a
prior
Wechsler
Intelligence (“WISC-III”) test administered in February, 2002, when
Plaintiff was 9 years old. Pl. Mem. 11. The 2002 test revealed
scores of 66 in verbal, 79 in performance, and 70 in full scale IQ.
T. 308.
An
ALJ
may
reject
an
IQ
score
as
invalid
where
it
is
inconsistent with the record. See Lax v. Astrue, 489 F.3d 1080
(10th Cir. 2007). Here, the ALJ was free to disregard the 2002 WISCIII test because the evidence the record as a whole, including
medical
treatment
testimony,
notes,
supports
inconsistent
with
ADHD
mental
school
and
records,
learning
retardation.
and
the
Plaintiff’s
disability,
On
the
and
other
is
hand,
Plaintiff’s 2007 KBIT-2 IQ score is more consistent with his daily
activities such as performing household chores, shopping, and
maintaining a checking account. Also significant is the fact that
Plaintiff was never diagnosed with mental retardation. Accordingly,
the
ALJ’s
finding
regarding
the
Listings
is
supported
by
substantial evidence.
B.
Plaintiff’s Credibility
Plaintiff next contends that the ALJ’s assessment of his
credibility is not supported by substantial evidence because the
ALJ “cherry picked” from the evidence and focused on those factors
that supported his finding. Pl. Mem. 12-14.
-13-
To establish disability, there must be more than subjective
complaints.
There
must
impairment,
demonstrable
be
an
underlying
by medically
physical
acceptable
or
mental
clinical
and
laboratory diagnostic techniques that could reasonably be expected
to produce the symptoms alleged. 20 C.F.R. § 416.929(b); accord
Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). When a
medically
determinable
impairment
exists,
objective
medical
evidence must be considered in determining whether disability
exists,
whenever
such
evidence
is
available.
20
C.F.R.
§ 416.929(c)(2). If the claimant's symptoms suggest a greater
restriction of function than can be demonstrated by objective
medical evidence alone, consideration is given to such factors as
the claimant's daily activities; the location, duration, frequency
and intensity of pain; precipitating and aggravating factors; the
type,
dosage,
effectiveness,
and
adverse
side-effects
of
medication; and any treatment or other measures used to relieve
pain. 20 C.F.R. § 416.929(c)(3); see Social Security Ruling (“SSR”)
96–7p, (July 2, 1996), 1996 WL 374186, at *7. Thus, it is well
within the Commissioner's discretion to evaluate the credibility of
Plaintiff's testimony and render an independent judgment in light
of the medical findings and other evidence regarding the true
extent of symptomatology. Mimms v. Secretary, 750 F.2d 180, 186
(2d Cir. 1984); Gernavage v. Shalala, 882 F.Supp. 1413, 1419
(S.D.N.Y. 1995).
-14-
Here, the ALJ summarized the Plaintiff’s and his mother’s
testimony, as well as the objective medical evidence, and concluded
that the Plaintiff’s subjective symtomatology was not corroborated
to
the
extent
alleged.
T.
53-60.
Pursuant
to
20
C.F.R.
§ 416.929(c)(3), the ALJ evaluated Plaintiff’s activities of daily
living (shopping, socializing, using a computer, watching movies,
playing sports, and maintaining a checking account) and found that
they were not limited. T. 53.
Regarding Plaintiff’s headaches, the ALJ noted that Plaintiff
was not under treatment and takes only over-the-counter medication
and these facts undermined his assertion that his migraines limited
his functioning. Id. Though Ms. Lester testified that her son had
ODD and speech problems, those impairments were not diagnosed by a
medical source and not supported elsewhere in the record. T. 54.
Ms. Lester’s claim that Plaintiff’s symptoms had not improved over
the years was contradicted by the treatment notes in the record.
Id.
The ALJ’s 16-page Decision belies Plaintiff’s allegation of
“cherry
picking”
the
evidence
to
support
a
finding
of
no
disability. The ALJ repeatedly acknowledged Plaintiff’s academic
and behavioral shortcomings and weighed that evidence against the
remainder of the clinical findings, testimony, school records, and
opinion evidence, all of which is generally consistent with mild
limitations due to Plaintiff’s ADHD and learning disability. Thus,
-15-
the ALJ’s analysis here fulfills SSR 96–7p’s requirement that he
carefully consider the rest of the record when making a credibility
determination. See e.g., Marquez v. Colvin, 12 Civ. 6819, 2013 WL
5568718, at *15 (S.D.N.Y. Oct. 9, 2013) (“[T]he ALJ did not merely
point to the conclusions of his own RFC assessment to support his
credibility determination. Rather, he stated his conclusion after
an
exhaustive
review
of
plaintiff's
medical
records
and
testimony.”).
Accordingly,
the
Court
finds
that
the
ALJ's
credibility
determination is proper as a matter of law, and is supported by
substantial evidence.
C.
Listing of Impairments
Next, Plaintiff contends that the ALJ’s determination that
Plaintiff had less than marked limitations in acquiring and using
information, attending and completing tasks, and interacting and
relating with others, was not supported by substantial evidence.
Pl. Mem. 14-19.
To
determine
whether
an
impairment
or
combination
of
impairments functionally equals the listings, the ALJ must assess
the claimant's functioning in terms of the following six domains:
(1) acquiring and using information; attending
and completing tasks;
(2) interacting and relating with others;
(3) moving about and manipulating objects;
(4) caring for yourself; and
-16-
(5) health and physical well-being.
20 C.F.R. § 416.926a(b)(1).
In
making
this
assessment,
the
ALJ
must
compare
how
appropriately, effectively and independently the claimant performs
activities compared to the performance of other children of the
same age who do not have impairments. 20 C.F.R. § 416.926a(b). To
functionally equal the listings, the claimant's impairment or
combination of impairments must result in “marked” limitations in
two domains of functioning or an “extreme” limitation in one
domain. 20 C.F.R. 416.926a(d).
A child has a “marked” limitation in a domain when his
impairment(s)
interferes
“seriously”
with
the
ability
to
independently initiate, sustain, or complete activities. 20 C.F.R.
§ 416.926a(e)(2). A child has an “extreme” limitation in a domain
when her impairment(s) interferes “very seriously” with his ability
to
independently
initiate,
sustain,
or
complete
activities.
20 C.F.R. § 416.926a(e)(3).
1.
Acquiring and Using Information
In this domain, the ALJ considers how well a child acquires or
learns information and how well he uses the information he has
learned. 20 C.F.R. 416.926a(g). An adolescent between ages 12 and
18 should be able to: (1) use what he has learned in daily living
situations without assistance; (2) comprehend and express both
-17-
simple and complex ideas; (3) should also learn to apply these
skills in practical ways that will help him enter the workplace. 20
C.F.R. § 416.926a(g)(2)(v).
Examples of a “marked” or “extreme”
limitation in this domain include difficulty recalling important
things learned in school the previous day and difficulty solving
mathematics questions or computing arithmetic answers. 20 C.F.R.
§ 416.926a(3)(v), (iv).
Plaintiff argues that his placement in SE classes, poor test
scores from February 15, 2008 in math and reading, and having had
to repeat both 7th and 9th grade multiple times indicates “marked”
limitations and that the ALJ did not attempt to obtain a functional
assessment in this domain. Pl. Mem. 15-16. However, the ALJ did
acknowledge that Plaintiff had repeated grades, and noted that one
consultative examiner found that Plaintiff’s psychiatric problems
could affect his academic performance. T. 55.3 The ALJ also noted
Plaintiff’s
treatment
records,
which indicated
improvement
in
attention, instructions, schoolwork, and organization. Id. Finally,
the ALJ considered that in a non-academic setting, the Plaintiff
demonstrated that he was able to use a computer for research,
played guitar, and played sports. Id. Here, Plaintiff’s school
records,
treatment
records,
the
3
opinion
of
the
consultative
In his reply brief, Plaintiff argues that the ALJ failed to
acknowledge this fact. Pl. Reply Mem. (Dkt. #11) at 3. The ALJ’s
Decision indicates that it was not only considered but explicitly
mentioned in the discussion of this functional domain. T. 55.
-18-
examiner, and Plaintiff’s testimony were all considered by the ALJ
in making his determination and support his finding of less than
marked limitations.
2.
Attending and Completing Tasks
The domain “[a]ttending and completing tasks” contemplates a
child's ability to focus and maintain attention, “begin, carry
through, and finish ... activities, including the pace at which
[the child] perform[s] activities and the ease with which [he]
change[s] them.” 20 C.F.R. § 416.926a(h). Adolescents should “be
able to pay attention to increasingly longer presentations and
discussions, maintain . . . concentration while reading textbooks,
and independently plan and complete long-range academic projects.”
Children of Plaintiff’s age should also “be able to organize [his]
materials and to plan [his] time in order to complete school tasks
and assignments. In anticipation of entering the workplace, [he]
should be able to maintain your attention on a task for extended
periods of time, and not be unduly distracted by your peers or
unduly distracting to them in a school or work setting.” Examples
of difficulties children might have in this domain are: (1) easily
startled or distracted; (2) slow to focus on or complete activities
of
interest;
frequently
(3)
repeatedly
interrupts
sidetracked
others;
(4)
from
easily
activities
frustrated;
or
and
(5) requires extra supervision to remain engaged in an activity.
-19-
The ALJ found less than marked limitations in this domain, but
noted that Plaintiff’s school records showed poor attention and
difficulties
in
completing
tasks.
T.
56.
In
considering
the
evaluation by consultative examiner Dr. Baskin, the ALJ noted that
Plaintiff’s attention and concentration were intact. T. 56, 286.
Dr. Balderman observed that Plaintiff had “normal attention for his
age,” and Dr. Jackson’s report indicated that Plaintiff’s ability
to pay attention had improved. T. 285, 289. Plaintiff testified
that he could remember and follow multi-step instruction, had no
trouble watching television programs that interested him, and used
a computer to research topics of interest. T. 25, 30. Based on the
evidence in the record, the ALJ reasonably concluded that while
Plaintiff had a limitation in this domain, it was less than marked.
T. 56.
3.
Interacting and Relating with Others
In the domain of “interacting and relating with others,” the
ALJ must “consider a child's ability to initiate and respond to
exchanges with other people, and to form and sustain relationships
with family members, friends, and others.” SSR 09–5p, 2009 WL
396026,
at
*2
(S.S.A.
Feb.
17,
2009).
Examples
of
limited
functioning in this domain include: (1) not having close friends
within age group; (2) being withdrawn, overly anxious, or fearful
of meeting new people; (3) difficulty playing games or sports with
-20-
rules; (4) difficulty communicating with others; and (5) difficulty
speaking intelligibly or with adequate fluency.
The
ALJ acknowledged Plaintiff’s behavioral issues in school
and went on to consider Plaintiff’s testimony that he had friends
with
whom
he
went
to
movies,
as
well
as
his
statements
to
consultative examiner Dr. Baskin that he had good peer relations
and enjoyed socializing with friends and family. T. 26, 57, 286. In
an SSA “Function Report” questionnaire, Ms. Lester stated that
Plaintiff had no difficulties with social activities or behaving
with
others.
interacted
T.
well
172.
According
one-on-one.
to
T.
an
257.
IEP
Both
report,
Dr.
Plaintiff
Baskin
and
Dr. Balderman noted that Plaintiff related in an age-appropriate
manner. T. 257, 289. Plaintiff’s IEP stated that though Plaintiff
behaved “immature” and “attention-seeking” at times, he was also
observed to “speak[] very well.” T. 257.
In
light
of
the
information
contained
in
the
record,
substantial evidence supports the ALJ’s conclusion that while
Plaintiff had a limitation in interacting and relating with others,
the limitation was not marked. T. 57.
In
summary,
the
Court
finds
that
the
ALJ’s
functional
equivalence assessments are supported by substantial evidence.
D.
RFC Determination
Plaintiff next challenges the ALJ’s RFC determination relating
to the period after Plaintiff turned 18. According to Plaintiff,
-21-
the ALJ failed to apply the appropriate legal standard because he
did
not
follow
the
“special
technique”
relative
to
mental
impairments as set forth in 20 C.F.R. § 404.1520a. Pl. Mem. 20. The
Commissioner
concedes
technique, but
that
ALJ
did
not
employ
the
special
submits that the ALJ implicitly evaluated the four
broad factors when he discussed the six domains of functioning.
Comm’r Reply. Mem. 5.
Under the special technique for assessing mental impairments,
an ALJ considers four broad functional areas: daily living, social
functioning, concentration, persistence or pace, and episodes of
decomposition. 20 C.F.R. § 404.1520a(c)(3). If the limitations in
the first three areas are rated mild or less, and there are no
episodes of decompensation, the impairment will not be found
severe. 20 C.F.R. § 404.1520a(d)(1). Notably, the omission of an
impairment at step two may be deemed harmless error, particularly
where the disability analysis continues and the ALJ later considers
the
impairment
in
his
residual
functional
capacity
(RFC)
determination. See Tryon v. Astrue, No. 10–CV–537, 2012 WL 398952,
at
*4
(N.D.N.Y.
Feb.7,
2012);
see
also
Plante
v.
Astrue,
No. 11–CV–77, 2011 WL 6180049, at *4 (D. Vt. Dec.13, 2011). Such is
the case here.
The ALJ found that since attaining age 18, Plaintiff continued
to have the severe impairments of ADHD, learning disability, and
headaches. Having found that Plaintiff did not meet a Listing, the
-22-
ALJ then went on to determine Plaintiff’s RFC. In doing so, he
found that Plaintiff had no physical limitations and could work at
all exertional levels. T. 26-27, 60, 289, 291, 327-29. The ALJ next
evaluated Plaintiff’s mental conditions and concluded that he could
perform some types of work despite his impairments. In support of
his RFC finding, the ALJ relied upon the opinion of Dr. Baskin, who
assessed that Plaintiff had no or minimal limitation in attending
to,
following,
and
understanding
age-appropriate
directions;
completing age-appropriate tasks; asking questions and requesting
assistance in an age-appropriate manner; being aware of danger and
taking needed precautions; and interacting adequately with peers
and adults. T. 54, 286. She opined that Plaintiff had only a
moderate limitation in adequately maintaining social behavior,
responding
appropriately
to
changes
in
the
environment,
and
learning in accordance with cognitive functioning. T. 286.
Relevant to concentration, the ALJ relied upon the report of
Plaintiff’s
Plaintiff
details,
through
treating
physician,
experienced
sustaining
on
an
improvement
attention
instructions,
Dr.
to
Jackson,
in
tasks,
organizing
who
paying
noted
attention
listening,
tasks,
that
to
following
distractibility,
forgetfulness, fidgeting, and running about. T. 54, 327. He also
relied upon Dr. Meyer’s report, which supported no limitations or
less than marked limitations in the six functioning domains.
-23-
Finally, the ALJ considered Plaintiff’s activities of daily
living and social functioning and found that they undermined his
allegation of disability. Plaintiff was able to use a computer to
research topics of interest, went shopping, went to movies with
friends, visited with friends, traveled by walking, taking the bus,
or subway, helped with household chores, and played the guitar and
sports. T.25-27, 289. Plaintiff testified that he could read a
couple of pages before losing focus, and that he could add,
subtract, multiple, and divide, but could not perform algebra or
count change at a store. T. 29. Plaintiff had a checking account
with a balance at the time of the hearing. T. 30.
This evidence provides substantial support for the ALJ’s
finding
that
repetitive
Plaintiff
tasks.
could
Although
perform
the
simple,
ALJ
did
routine,
not
and
conduct
a
function-by-function assessment, he did discuss Plaintiff’s mental
capabilities and work-related functions and limitations, and the
RFC assessment is supported by substantial evidence. Accordingly,
the ALJ’s
failure
to
employ
the special
technique
is
deemed
harmless error. See Carrigan v. Astrue, 2011 WL 4372651, *7–8
(D.Vt.) (failure to conduct function-by-function assessment of
mental capabilities harmless where ALJ's decision discussed the
claimant's
substantial
work-related
evidence
functions
supported
and
RFC
limitations
assessment),
and
report
where
and
recommendation adopted, 2011 WL 4372494 (D. Vt. 2011); see also
-24-
Moore v. Astrue, 2013 WL 935855, *7–8 (N.D.N.Y. 2013) (ALJ properly
concluded plaintiff's depression was non-severe where plaintiff
“failed
to
impairments
present
...
any
[and
medical
thus]
evidence
failed
to
demonstrating
establish
a
mental
colorable
impairment[;] ... to the extent that any failure to comply with the
mechanics of the special technique could be found, it is harmless
error”).
In light of the determination that the ALJ’s RFC assessment is
supported by substantial evidence, the Court need not delve into
Plaintiff’s final argument that the VE’s testimony was invalid
because it relied upon a “faulty RFC which did not completely and
accurately describe the Plaintiff’s limitations.” Pl. Mem. 22.
For all of the foregoing reasons, the Court finds that the
ALJ’s decision is supported by substantial evidence.
VII. Conclusion
For the foregoing reasons, Plaintiff's motion for judgment on
the pleadings (Dkt. #5) is denied, and the Commissioner's crossmotion for judgment on the pleadings (Dkt. #6) is granted. The
Complaint is dismissed in its entirety with prejudice
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
August 6, 2014
Rochester, New York
-25-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?