Grant v. Astrue

Filing 18

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 11 Commissioner's Motion for Judgment on the Pleadings; terminating 14 Motion for Extension of Time to File Response/Reply ; denying 16 Plaintiff'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 6/15/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DIAMONIQUA GRANT,
Plaintiff,

12-CV-962(MAT)
DECISION
and ORDER

v.
CAROLYN W. COLVIN, Commissioner
of Social Security,1
Defendant.
INTRODUCTION

Diamoniqua Grant ("Plaintiff"), who is represented by counsel,
brings this action pursuant to the Social Security Act (“the Act”),
seeking review of the final decision of the Commissioner of Social
Security

(“the

Commissioner”)

denying

her

application

for

Supplemental Security Income (“SSI”) when she was a minor child.
This Court has jurisdiction over the matter pursuant to 42 U.S.C.
§ 405(g). Presently before the Court are the parties’ motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. Dkt. ##11, 16.
BACKGROUND
Quormina

Taylor

(“Taylor”)

protectively

filed

an

SSI

application on behalf of her minor daughter on June 5, 2009,
alleging disability beginning on April 7, 2008. T. 120-22. Her
application was initially denied, and a hearing was requested

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.

before an Administrative Law Judge. T. 70, 73-80. Plaintiff, her
attorney, and Taylor appeared before ALJ Michael Devlin on August
24, 2010, in Rochester, New York. T. 49-69. An unfavorable decision
was

issued

on

October

22,

2010,

in

which

the

ALJ

found:

(1) Plaintiff did not engage in substantial gainful activity since
her application was filed; (2) she had the severe impairment of
bipolar disorder; and (3) her impairment did not meet or equal the
Listings set forth at 20 C.F.R. 404, Subpart P, Appx. 1. The ALJ
then evaluated Plaintiff’s limitations in the six domains of
functioning,

found

that

her

impairment

was

not

functionally

equivalent to any listed impairment, and concluded that Plaintiff
had not been disabled since the date of her application. T. 28-46.
The ALJ’s determination became the final decision of the
Commissioner when the Appeals Council denied her request for review
on August 14, 2012. T. 1-6. This action followed. Dkt.#1.
The Commissioner moves for judgment on the pleadings arguing
that the ALJ’s decision must be affirmed because it was supported
by substantial evidence and was based on the application of correct
legal standards. Comm’r Mem. (Dkt.#11-1) 8-12.
Plaintiff has filed a cross-motion on the grounds that:
(1) the ALJ improperly found Plaintiff and Taylor not credible, did
not fully develop the record, and failed to find marked impairments
in three of the six domains of functioning. Pl. Mem. (Dkt.#16-1)
7-13.

2

DISCUSSION
I.

General Legal Principles
A. Standard of Review
A determination by the Commissioner that a claimant is not

disabled will be set aside when the factual findings are not
supported by “substantial evidence” or when the decision is based
upon legal error. See 42 U.S.C. § 405(g). “Where the Commissioner's
decision rests on adequate findings supported by evidence having
rational probative force,” a reviewing court may not substitute its
judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d
578, 586 (2d Cir. 2002). However, this deferential standard is not
applied to the Commissioner's application of the law. Townley v.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984). “Where there is a
reasonable basis for doubt whether the ALJ applied correct legal
principles, application of the substantial evidence standard to
uphold a finding of no disability creates an unacceptable risk that
a claimant will be deprived of the right to have [his] disability
determination made according to the correct legal principles.”
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
B. Legal Standard for Disability Claims by Children
To qualify as disabled under the Act, a child under the age of
eighteen must have “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
3

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).

By

regulation, the Commissioner has promulgated a three-step analysis
to determine whether a child is eligible for SSI benefits on the
basis of a disability. Encarnacion ex rel. George v. Astrue, 586
F.3d 72, 75 (2d Cir. 2009) (citing 20 C.F.R. § 416.924, et seq.).
First, the ALJ determines whether the child is engaged in
“substantial gainful activity.” 20 C.F.R. § § 416.924(a), (b).
Second, the ALJ considers whether the child has a “medically
determinable impairment that is severe,” in that it causes “more
than minimal functional limitations.” Id., § 416.924(c). If a
severe impairment is present, the ALJ must then consider whether
the impairment “meets, medically equals,” or “functionally equals”
a

presumptively

disabling

condition

listed

in

the

regulatory

“Listing of Impairments.” Id., § 416.924(d); 20 C.F.R. Part 404,
Subpart P, Appx. 1.
The limitations caused by a child's severe impairment or
combination of impairments are evaluated in the context of the
following 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 oneself; and (6) the child's health and
physical well-being. 20 C.F.R. § 416.926a(b)(1). “For a child's
impairment

to

functionally

equal

4

a

listed

impairment,

the

impairment must ‘result in “marked” limitations in two domains of
functioning

or

an

“extreme”

limitation

in

one

domain.’”

Encarnacion, 568 F.3d at 75 (quoting 20 C.F.R. § 416.926a(a)). An
“extreme

limitation”

is

an

impairment

which

“interferes

very

seriously with [the claimant's] ability to independently initiate,
sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(i). A
“marked limitation” is an impairment that “interferes seriously
with [the claimant's] ability to independently initiate, sustain,
or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i). “A marked
limitation may arise when several activities or functions are
impaired, or even when only one is impaired, as long as the degree
of limitation is such as to interfere seriously with the ability to
function (based upon age-appropriate expectations) independently,
appropriately, effectively, and on a sustained basis.” 20 C.F.R.
Part 404, Subpart P, Appx. 1, § 112.00(C).
II.

Medical Evidence
Plaintiff underwent an evaluation at Penfield Central School

District

on

November

17,

2008,

during

which

she

appeared

cooperative and pleasant. T. 190-96. She experienced moments of not
being focused but brought herself back to task. T. 193. Testing
revealed a verbal composite IQ of 81, a nonverbal composite of 89,
and an IQ composite of 83, placing Plaintiff in the low average
range. Id. Her broad reading score was low average, broad written
score was average, and broad math score was borderline. T. 194.

5

Dr. Christine Ransom consultatively evaluated Plaintiff on
July 7, 2009. T. 315-19. Plaintiff, an adolescent who resided with
her

mother,

attended

special

education

classes

and

received

counseling at school. T. 315. She lived with her mother and
brother, and her sister was diagnosed with bipolar disorder,
Attention Deficit Hyperactivity Disorder (“ADHD”), and learning
disability. T. 311-12. She had no psychiatric history and took no
medication. T. 311.
Plaintiff attended the consultation dressed neatly, casually,
and appropriately, with adequate hygiene and grooming, and normal
posture and motor behavior. Eye contact was appropriate, with
speech and language skills in the low average range. T. 316.
Dr. Ransom noted that Plaintiff was uncooperative, irritable, and
pressured, and appeared to be “faking bad on purpose.” Id. She
readily recalled, understood, and responded to instructions, and
her attention and concentration were adequate. Id. Dr. Ransom
concluded that the results were not a valid and reliable estimate
of current functioning due to purposeful faking. Despite a full
scale IQ of 65 (mildly mentally retarded), the physician opined
that

her

intellectual

capacity

appeared

to

be

in

the

high

borderline range between 75 and 80, based on other factors during
the evaluation. Id.
Plaintiff
moderate

to

was diagnosed
marked,

with

probable

bipolar

high

6

disorder,

borderline

currently

intellectual

functioning, and treatment was recommended for bipolar disorder.
Prognosis was fair to good with appropriate treatment. T. 318.
Dr. Ransom opined that Plaintiff would have moderate difficulty
attending
directions,

to,

following,

completing

and

understanding

age-appropriate

age-appropriate

tasks,

adequately

maintaining appropriate social behavior, responding appropriately
to

changes

in

the

environment,

learning

in

accordance

with

cognitive functioning, 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. 317-18.
Plaintiff obtained routine medical care at Penfield Family
Medicine from June, 2009, through May, 2010. T. 382-96. Treatment
notes indicate that Plaintiff had no psychiatric or social issues
on March 22, 2010. T. 385. On May 27, 2010, her neurological
examination was unremarkable except for some dizziness and feeling
off-balance due to being hit in the head while playing basketball.
T. 382. A psychological examination the same day indicated trouble
concentrating, however she had been tested negative for ADHD. Id.
During

the

same

visit,

the

attending

physician

noted

that

Plaintiff’s “mother [was] prompting her by whispering for answers
to my questions.” T. 383. Plaintiff was diagnosed with a prior
concussion

with

no

loss

of

consciousness,

7

with

differential

diagnoses

of

conversion

disorder,

anxiety,

depression,

or

malingering. Id.
State Agency review psychologist E. Kamin reviewed the record
on September 10, 2009, and opined that Plaintiff had less than
marked limitations in acquiring and using information and attending
and

completing

functional

tasks,

domains.

and
T.

no

limitations

357-62.

Diagnoses

in

the

were

remaining
borderline

intellectual functioning, rule out bipolar disorder. T. 357.
III. Testimonial Evidence and School Records
Plaintiff

was

born

in

June,

1993,

and

attended

special

education classes. T. 212-19, 220-28. At the time of her hearing,
she was entering the 11th grade. T. 68, 120. A 2007-2008 report card
showed grades of mostly As and Bs, with a D+ for not completing a
major assignment. T. 209. A report card from the following school
year indicated a cumulative grade point average of 75. T. 379.
While two teachers noted that Plaintiff was a “pleasure to have in
class,” four teachers noted that Plaintiff had excessive absences
and did not turn in assignments. T. 379. Individualized Education
Program (“IEP”) documents from April, 2010, showed that Plaintiff
was

progressing

satisfactorily

in

most

of

her

annual

goals.

T. 374-78.
During the disability hearing, Plaintiff testified that she
tried her best at school but did not enjoy it, and that she felt
overwhelmed at school by the number of people. T. 61-62. She got

8

along “okay” with her teachers, but told the ALJ that she got into
fights with other students. T. 62-63. Plaintiff required extra time
for her examinations because she was easily distracted. T. 63-64.
Taylor also testified at the hearing, stating that Plaintiff
sometimes displayed an attitude and became upset for no reason.
T. 53. Plaintiff didn’t like to be around a lot of people, was
easily distracted, and would get into physical fights with her
siblings. T. 53-55. She took no medication, and spent most of the
time watching television in her room during the summer months.
T. 55.
IV.

The decision of the Commissioner that Plaintiff was not
disabled was supported by substantial evidence.
A.

Credibility

Plaintiff first challenges the ALJ’s credibility assessment of
her and her mother. Pl. Mem. 7-8.
Social

Security

Ruling

(“SSR”)

96–7p

requires

ALJs

to

articulate the reasons behind credibility evaluations:
The determination or decision must contain
specific
reasons
for
the
finding
on
credibility, supported by the evidence in the
case record, and must be sufficiently specific
to make clear to the individual and to any
subsequent
reviewers
the
weight
the
adjudicator
gave
to
the
individual's
statements and the reasons for that weight.
SSR 96–7p, 1996 WL 374186, at *4 (S.S.A. July 2, 1996). “If the
child claimant is unable adequately to describe his symptoms, the
ALJ must accept the description provided by testimony of the person
9

most familiar with the child's condition, such as a parent[,]” F.S.
v. Astrue, No. 10–CV–444, 2012 WL 514944, at *19 (N.D.N.Y. Feb.15,
2012) (citing Jefferson v. Barnhart, 64 Fed. Appx. 136, 140 (10th
Cir. 2003)), and “make specific findings concerning the credibility
of the parent's testimony....” Id. (citing Jefferson, 64 F. App'x
at 140 (citation omitted)).
In

his

opinion,

the

ALJ

determined

that

the

degree

of

limitation alleged was not credible based on evidence that “appears
to indicate that the claimant’s mother is attempting to influence
the process and make the claimant appear to be disabled.” T. 36.
The ALJ noted Plaintiff’s psychological evaluation conducted by
Dr.

Ransom,

intentionally

who

found

performing

that
poorly,

Plaintiff
and

was

was

uncooperative,

“faking

bad.”

Id.,

T. 311-18. Plaintiff’s treating physician also opined that Taylor
was coaching or prompting Plaintiff during an evaluation, and
suggested a differential diagnosis of malingering in the treatment
notes. T. 36; T. 383. Finally, the ALJ noted that Plaintiff was
working after school as a food server, which “demonstrat[ed]
adaptive functioning,” further undermining Plaintiff’s allegation
of a disabling impairment. T. 36.
In accordance with the regulations, the ALJ made a specific
credibility finding as to Plaintiff’s testimony concerning her
limitations, and it was based on substantial evidence in the
record.

10

B.

Development of the Record

Next, Plaintiff argues that the ALJ failed to properly develop
the record with respect to her education because Plaintiff’s IEP
from the 2009-2010 school year was not considered. Pl. Mem. 9-10.
To determine whether the ALJ's findings are supported by
substantial evidence, the Court must consider whether “the claimant
has had a full hearing under the [Commissioner's] regulations and
in accordance with the beneficent purposes of the Act.” Cruz v.
Sullivan,

912 F.2d

8,

11

(2d

Cir. 1990)

(internal

citations

omitted). In addition, “[b]ecause a hearing on disability benefits
is

a

non-adversarial

proceeding,

the

ALJ

generally

has

an

affirmative duty to develop the administrative record.” Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996). The ALJ's determination of
disability is not based solely on testimony at the hearing. When
determining whether or not a child is disabled, all relevant
evidence on the record is considered, including medical evidence,
school records, and information from persons who know the claimant
and who can provide evidence about the claimant's functioning.
20 C.F.R. § 416.924.
At the time of Plaintiff’s hearing, her most recent IEP in the
record was one-year old. T. 212. However, the record also contained
a Progress Report for IEP Goals, dated April 29, 2010, which
consisted of six pages of assessment as part of Plaintiff’s overall
educational

achievement

to

date,

11

showing

that

Plaintiff

was

generally progressing satisfactorily with regard to her academic
goals as provided by her IEP.

T. 373-78. Plaintiff’s 2009-10

school year report card also indicated a cumulative grade point
average of 75. T. 379. Among other things, the report card showed
positive remarks by her teachers despite Plaintiff’s excessive
absences impacting her overall scores. Id. The same was noted by
the ALJ in discussing her 2008-09 report card and her 2008-09 IEP.
T. 40. The administrative record with respect to Plaintiff’s
education was therefore sufficient for the ALJ to determine that
Plaintiff was not disabled. There were no significant conflicts,
and the absence of the 2009-10 IEP does not render the record
inadequate because it is unlikely this sole document, even if
contradicted

by

the

remainder

of

the

record,

would

have

significantly affected the ALJ’s decision. See, e.g., DeChirico v.
Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998) (An ALJ's duty to
develop the record is triggered where there is “reason to believe
that the information was necessary to reach a decision.”). Thus,
the Court finds that the ALJ did not commit legal error by not
requesting Plaintiff’s most recent IEP. See Rodriguez ex rel. Mena
v. Astrue, No. 10 Civ. 0305, 2011 WL 2923861, at *9 (S.D.N.Y.
July

7,

2011)

(finding

that

omitted

pages

from

a

teacher

questionnaire did not deprive plaintiff of a full record where
there were other reports that described child’s skill levels for
academic tasks and social interactions in the same school year).

12

Moreover, Plaintiff received a full and fair hearing at which
she and Taylor testified, responding to questions from both counsel
and the ALJ. T. 53-67. The ALJ asked Plaintiff and her mother
questions regarding Plaintiff’s social and familial relationships,
her academic experiences, and her emotional disposition. At the
conclusion

of

these

questions,

the

ALJ

permitted

Plaintiff's

attorney to follow with a closing statement which elaborated upon
Plaintiff’s and Taylor’s responses. T. 68.
For these reasons, the Court finds that the Commissioner
properly developed the administrative record and provided Plaintiff
a full and fair hearing.
C.

Functional Domains

Plaintiff contends that the ALJ's decision was not based on
substantial evidence when he found “less than marked” limitations
in three domains of functioning: Acquiring and Using Information,
Attending and Completing Tasks, and Interacting and Relating with
Others. Pl. Mem. 10-12.
1.
In

his

Acquiring and Using Information
decision,

the

ALJ

recounted

record

information

suggesting that Plaintiff suffered from some limitations in the
domain of acquiring and using information, including her placement
in special education classes due to a learning disability. T. 38.
The

evidence

documents,

cited,

which

intelligence

included

evaluations,

13

Plaintiff’s
and

school

2008-09

IEP

report cards,

indicated that her overall cognitive ability was in the low average
range, with average verbal reasoning, low average visual-perceptual
and working memory skill, and high average processing speed. Id.
Moreover, Plaintiff’s negative academic achievement was mostly
attributed to her high level of absenteeism. Id. The fact that
Plaintiff was classified as special education does not, standing
alone, warrant a finding of a marked limitation. See Torres v.
Comm’r, 09 CV 59, 2010 WL 2674543, at *7 (E.D.N.Y. June 30, 2010)
(upholding Commissioner's finding that claimant, who received some
special education instruction and had a low average IQ score that
fell within two standard deviations of the mean, had less than
marked limitations in acquiring and using information).
Here the evidence shows that Plaintiff’s impairment in this
area was not “marked,” and Plaintiff’s allegation that the ALJ did
not substantiate his finding, see Pl. Mem. 10, is without merit.
2.

Attending and Completing Tasks

In finding a less than marked limitation in this area, the ALJ
took into account Taylor’s claim that Plaintiff had a limited
attention span, as noted the IEPs indicating her difficulty with
distractibility. T. 39. The remaining evidence showed, however,
that Plaintiff’s treating physician indicated that previous tests
for ADHD were negative, and that Plaintiff had no history of mental
health treatment. T. 39; 382, 385. She displayed adequate attention
and concentration during her consultative examination, T. 316, and

14

a school evaluation demonstrated that while she had moments of not
being focused, she “brought herself back to task.” T. 193. Finally,
the ALJ noted again that Plaintiff’s report cards showed that her
academic achievement was negatively impacted by excessive absences
and arriving to class unprepared. T. 39.
While there is some evidence of her distractibility, which the
ALJ properly considered, the balance of the record shows that the
ALJ relied on substantial evidence when he found a less than marked
limitation in this domain. See Watson ex rel. K.L.W. v. Astrue,
No. 07–CV–6417, 2008 WL 3200240, *3 (W.D.N.Y. Aug. 5, 2008) (ALJ
correctly found less than marked limitations in attending and
completing tasks where the medical record did not support a marked
impairment, and school evaluations showed that the claimant could
be directed to a task, even though she required twice the time to
complete assigned tasks, had difficulty focusing on her work, and
was easily distracted).
The ALJ’s finding in this domain is therefore supported by
substantial evidence.
3.

Interacting and Relating with Others

The ALJ discussed Plaintiff’s and Taylor’s testimony that
Plaintiff did not get along with her sister, did not have many
friends,

and

suspended.

T.

engaged
40.

in

one

Despite

school

this,

fight

for

which

Plaintiff

had

no

she

history

was
of

outpatient mental health treatment or hospitalizations, her IEPs

15

showed that she related well to peers and adults and was courteous,
polite, and respectful, and her 2008-09 report card indicated that
she was a “pleasure to have in class.” Id., T. 379.

Similarly,

Plaintiff’s treating primary physician noted no social issues.
T. 40; T. 385.
Accordingly, the ALJ appropriately assessed a less than marked
limitation in this domain.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Dkt.#11) is granted, and Plaintiff’s
cross-motion (Dkt.#16) is denied. The Complaint is dismissed in its
entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
June 15, 2015

16