Rozler v. Astrue

Filing 23

-CLERK TO FOLLOW UP- DECISION AND ORDER terminating 5 Motion to Dismiss for Lack of Jurisdiction; granting 12 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 15 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/23/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TIFFANY ROZLER, o/b/o A.E.R.S.,
Plaintiff,
DECISION and ORDER
No. 1:12-CV-1000(MAT)

-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented

by

counsel,

Tiffany

Rozler

(“Plaintiff”)

has

brought this action on behalf of her infant son (“AERS”) 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”) denying AERS’s application for Supplemental Security
Income

(“SSI”).

This

Court

has

jurisdiction

over

the

matter

pursuant to 42 U.S.C. §§ 405(g), 1383(c).
II.

Procedural History
Plaintiff submitted an application for SSI on behalf of AERS

on September 16, 2008. T.64, 124-27.1 After it was denied on
November 5, 2008, T.64-68, Plaintiff requested a hearing before an
administrative law judge. Plaintiff and AERS appeared with their
non-attorney representative before William E. Straub (“the ALJ”) on
1

Citations to “T.” refer to pages in the certified copy of the
administrative transcript, filed by the Commissioner in connection with her
Answer to the Complaint.

November 16, 2010. T.31-63. After considering AERS’s claim de novo,
the ALJ

issued

an

unfavorable decision

on December

6, 2010.

T.11-26. Plaintiff requested review of the hearing decision by the
Appeals

Council,

which

was

denied

June

22,

2012.

T.6-9.

On

February 27, 2013, the Appeals Council extended the time within
which Plaintiff could file a civil action to October 19, 2012. This
action followed.
Presently 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.
III. Summary of the Administrative Transcript
A.

Pre-Application Date Academic and Medical Records

AERS underwent a psychological evaluation by Amanda R. DeSio,
B.A. and Lisa D. Dekeon, Ph.D. on November 29, 2006, at his home.
He was approximately two years-old at the time and had been
referred

due

difficulty

to

concerns

following

regarding

directions,

frequent

easy

temper

frustration,

tantrums,
and

high

activity level. He had received special education services through
Early Intervention (“EI”) since the summer of 2006.
The evaluators found that AERS was easily engaged in formal
testing, but required frequent redirection in order to stay on task
and complete the evaluation. The test results were likely an
underestimate of his of cognitive abilities due to his difficulty
in

attending

to

tasks

appropriately.

-2-

Results

of

the

social/emotional development testing were considered accurate. Due
to

inattention

and

frustration,

AERS

could

not

complete

the

Stanford-Binet Intelligence Scales, Fifth Education. He quickly
became uninterested, requiring frequent prompting to respond to
each item. Abbreviated Battery IQ was 94 (the average range) and at
the 35 percentile. The evaluator noted that the Abbreviated Battery
results should be interpreted with caution. Pre-academic skills
were

inconsistent

and

negatively

affected

by

his

inattentive

behaviors. AERS’s speech was sometimes difficult to understand,
especially when he spoke loudly and rapidly. In social/emotional
development, AERS appeared to have difficulty waiting his turn or
waiting for the evaluator to prepare materials between tasks. His
mother expressed concern about his behavior and described him as a
very unpredictable child who had frequent temper tantrums and was
easily

frustrated.

The

evaluators

observed

that

AERS

rarely

persisted in an activity he found challenging. He played in an
aggressive manner, frequently banging and throwing toys. On testing
using the Child Behavior Checklist, there were severe difficulties
(two standard deviations above the mean) in Attention Problems,
Aggressive Behavior, Externalizing Problems, and Total Problems.
T.165.

The evaluators recommended that AERS be considered for

services provided by the Committee on Preschool Special Education
due to his delays in social and emotional development.

-3-

The educational evaluation conducted in conjunction with the
psychological evaluation revealed that AERS’s poor attending skills
and

self-directed

pre-academic

skill

behaviors

were

development.

negatively

During

the

affecting

evaluation

he

his
was

self-directed and impulsive. He had a hard time “catching on” to
what was expected of him and often responded before listening to
directions. He was unwilling to change the way he was doing
something when provided with a suggestion to do it differently.
When he could not complete a task successfully, he would often
yell,

shut

down,

or

throw

what

he

was

working

on.

Taking

information provided by his mother into account, AERS was given
credit for academic skills through the 30-month level, which was
below-age

expectations.

Results

of

the

evaluation

indicated

statistically significant scores in the areas of attention problems
and aggressive behavior. There were borderline clinical scores in
the emotionally reactive, withdrawn and sleep problems domains. His
mother described AERS’s behavior as unpredictable, explosive, and
difficult to manage; it was difficult to take him places, and even
within the home he required frequent redirection and very close
supervision. According to his mother, he had not shown improvement
in behavior or social skill development through the five months of
EI that he had received. Rather, he continued to have difficulty
attending to tasks, handling frustration and playing appropriately.
The evaluators felt that AERS would benefit from enrollment in a

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small, highly structured classroom setting with firm limits and
clear

consequences

for

negative

behavior.

Therefore,

special

education services were indicated.
An

Occupational

Therapy

Evaluation

administered

on

December 13, 2006, revealed that AERS’s fine motor skills were in
the second percentile. He showed definite difficulty regulating and
controlling his physical activity and had a very limited ability to
self-regulate. Due to his high activity level, AERS had difficulty
with fine motor tasks even during the moments he did attempt them
(e.g., his hands would shake noticeably). He could not engage in
“graded” levels of activity, which would allow a “winding down”
period and the emergence of fine and visual motor skills. Thus, his
high and impulsive, activity level was retarding the development of
fine and visual motor skills. He was not imitating age-appropriate
activities, was unable to regulate his activity level, and was
unsuccessful transitioning to a sedentary task. As a result, direct
occupational therapy (“OT”) services were recommended.
Pursuant

to

his

Preschool

Individualized

Education

Plan

(“IEP”) for January 14, 2008, through December 18, 2008, AERS was
placed in a small, special education class for an extended school
year and received OT twice per week. Socially, AERS was highly
active and impulsive and displayed a very short attention span. His
teacher

reported

minimal

interaction

with

his

peers;

he

had

difficulty playing alongside them and sharing. Often, AERS refused

-5-

to

participate

in

group

activities,

and

his

behavior

was

noncompliant and unpredictable. Tantrums occurred at least several
times per day. When he had a tantrum, he would cry, throw objects
and furniture, kick and punch the wall, bang his head on the wall,
make comments about hating school, threaten to hurt himself. The
evaluators observed that AERS needed to develop age-appropriate
emotional regulation skills.
In the area of physical development, AERS continued to exhibit
significant sensory processing delays. He was in constant motion
and could not maintain prone position for more than 30 seconds
without readjusting. He required a structured environment and a
great deal of behavior management, such as reinforcement and
frequent prompts and redirection to complete tasks.
B.

Post-Application Date Academic and Medical Records

AERS was admitted to Child and Adolescent Treatment Services
(“CATS”) on September 10, 2008. Intake notes with a psychiatrist
(whose name is illegible) show complaints by Plaintiff concerning
AERS’s aggression and “out of control behavior”. Plaintiff stated
that AERS “had been kicked out of Head Start”. He was impulsive,
irritable, hyperactive, and had sleep disturbance. Diagnoses were
Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional
Defiant Disorder (“ODD”).
In a Childhood Disability Evaluation form dated November 5,
2008, nonexamining state agency physician J.

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Meyer, M.D. opined

that AERS had “marked” limitations in the domain of attending and
completing

tasks

and

“no

limitation”

in

the

other

domains,

including acquiring and using information and interacting and
relating with others. T.240-41. Dr. Meyer concluded that AERS’s
combination of impairments, while severe, did not meet or medically
equal any listed impairment.
On November 5, 2008, an IEP Annual Review indicated that
AERS’s cognitive skills appeared age appropriate. T.259. He was
socializing with peers, but needed adult verbal prompts to share,
take turns, and not be bossy. Per his mother, AERS did not sleep
several nights per week. When his mother brought him to school (as
opposed to his taking the bus), AERS was observed to be crying,
screaming for his mother and throwing a tantrum. T.259. If he
presented with a task that he perceived to be difficult, he would
become frustrated. However, with positive encouragement he would
complete the task. Many times with age appropriate self help skills
AERS would refuse to do it. AERS benefitted from a structured
environment with a daily routine and needed a lot of positive feed
back

and

encouragement

to

try

activities

he

perceived

as

challenging. T.259-60, 275. He frequently tried to challenge adult
authority, but with positive verbal prompts, he would change his
demeanor. AERS was placed in special education classes five days
per

week.

OT

services

were

discontinued

November 13, 2008. T.264-66.

-7-

after

evaluation

on

AERS’s preschool IEP for the period from January 5, 2009,
through June 25, 2009, indicated that he was placed in a 12:1+1
classroom. It was noted that, as far as social development, AERS
needed to attempt perceived challenges without becoming frustrated
and giving up, and to share and not be bossy with his peers. T.274.
On November 19, 2009, Kelly Jaszka, MS, CAS opined AERS would
not qualify for special education services, based solely on her
classroom observation of him. T.284-85.
In a treatment summary dated October 22, 2010, Emilie Tothero,
LCSW-R indicated that AERS had been referred for counseling by his
kindergarten teacher Mrs. Brockman, because he was very distracted
in class, lacked appropriate social skills and was urinating in his
pants in class. T.319. His mother reported he was angry and
aggressive at home. AERS attended outpatient counseling with his
mother at CATS, and he also attended individual, family and social
skills

group

sessions

in

school

from

September

24,

2009

to

April 19, 2010. LCSW-R Tothero stated that as treatment progressed,
AERS learned

to

control

his

impulses better,

and

learned

to

interact more positively with peers in group therapy. His attention
span and impulse control improved with the medication Strattera
(for ADHD), which was prescribed in February 2010.
On October 13, 2010, AERS’s first grade teacher, Erin Bryce
(“Ms. Bryce”), completed a “Teacher Questionnaire”. T.322-29. Also
in the record are Ms. Bryce’s weekly planner which contains her

-8-

notes documenting AERS’s behavior and performance in her first
grade classroom from September 8, 2010, to November 15, 2010.
T.332-42.

In

the

domain

of

Acquiring

and

Using

Information,

Ms. Bryce indicated that AERS has a “very serious problem” with
reading and comprehending written material, expressing ideas in
written form, and applying problem-solving skills in the classroom;
a “serious problem” providing organized oral explanations; and an
“obvious problem” comprehending math problems, understanding and
participating in class discussion, and learning new material. In
the domain of Attending and Completing Tasks, Ms. Bryce indicated
that AERS has a “very serious problem” focusing long enough to
finish a task, refocusing when necessary, sustaining attention,
changing from one activity to another without being disruptive,
completing assignments, completing work accurately, working without
distracting

himself

or

others,

pace/finishing on time; and an

and

working

at

a

reasonable

“obvious problem” paying attention

when spoken to directly, carrying out single-step instructions,
carrying out multi-step instructions, waiting to take turns, and
organization. In the domain of Interacting and Relating With
Others, Ms. Bryce observed a “very serious problem” with AERS’s
ability to play cooperatively with other children and make and keep
friends (for instance, he repeatedly tried to get other students in
trouble and on at least one occasion, kicked a friend); and a
“serious problem” with his ability to seek attention appropriately,

-9-

follow rules, respect/obey adults in authority; and an “obvious”
problem with his ability to relate experiences and tell stories,
use language appropriate to the situation and listener, introduce
and maintain relevant and appropriate topics of conversation, and
take turns in conversation. Ms. Bryce noted that AERS “needs close
proximity

to the

lead teacher/adult

@

all

times”

and

“needs

frequent adult supports and reminder5s through the school day.”
T.325. In the domain of “Moving About and Manipulating Objects”,
Ms.

Bryce

noted

a

“serious

problem”

demonstrating

strength,

coordination and dexterity inasmuch as he has poor handwriting. In
the domain of Caring for Himself or Others, AERS had a “very
serious problem” being patient when necessary and a “serious
problem”

handling

frustration

appropriately,

identifying

and

appropriately asserting emotional needs, responding appropriately
to changes in his mood, and using appropriate coping skills; and an
“obvious problem” knowing when to ask for help.
IV.

Applicable Law
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 decision is based upon
legal error. See 42 U.S.C. § 405(g); see also Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000) (citations omitted). “Where the
Commissioner’s decision rests on adequate findings supported by

-10-

evidence having rational probative force,” a reviewing court may
not substitute its judgment for that of the Commissioner.” Veino v.
Barnhart,

312

deferential

F.3d

578,

standard

586

(2d

Cir.

is

not

applied

2002).
to

the

However,

this

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 her 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 of 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
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 this statutory dictate, the Social Security Administration (“the
SSA”) has promulgated, by regulation, a three-step sequential
analysis to determine whether a child is eligible for SSI benefits
on the basis of a disability. Encarnacion ex rel. George v. Astrue,

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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©. 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. Pt. 404, Subpt. P,
App. 1.
“For a child’s impairment to functionally equal 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)). A child’s limitations are evaluated in the context
of the following six domains of functioning:
(1)
(2)
(3)
(4)
(5)
(6)

acquiring and using information;
attending and completing tasks;
interacting and relating with others;
moving about and manipulating objects;
caring for oneself; and
health and physical well-being.

20 C.F.R. § 416.926a(b)(1).

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V.

The ALJ’s Decision
At the time of the ALJ’s decision on December 6, 2010, AERS

was six years and eleven months-old, and was in first grade. The
ALJ found, at step one of the evaluation, that AERS had not engaged
in substantial gainful activity since the application date. At
step

two,

the

ALJ

found

that

AERS

has

the

following

severe

impairments: ADHD and ODD.
At step three, the ALJ determined that AERS does not have an
impairment or combination of impairments that meets or medically
equals

one

of

the

listed

impairments

in

20

C.F.R.

Pt.

404,

Subpt. P, App. 1. The ALJ specifically considered Listing 112.11
(Attention Deficit Hyperactivity) and found that while AERS does
have “some”

limitations

in

the

areas

of

acquiring

and

using

information and attending and completing tasks, they are “less than
marked” limitations. The ALJ accordingly entered a finding of “not
disabled”. The ALJ also declined Plaintiff’s request to receive
testimony from a medical consultant at a supplemental hearing
regarding to whether AERS “medically equals” a listed impairment.
VI.

Discussion
In her motion for judgment on the pleadings, Plaintiff asserts

two arguments: (1) the ALJ erred when he determined that AERS does
not

have

an

impairment

or

combination

of

impairments

that

functionally equals a listed impairment; and (2) the ALJ failed to

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make a credibility finding regarding Plaintiff’s testimony and
statements concerning AERS’s limitations.
A.

Functional Equivalency to Listing 112.11

To meet the impairment set forth in Listing 112.11 (Attention
Deficit Hyperactivity), the record must contain the following:
(1) medically documented findings of marked inattention, marked
impulsiveness, and marked hyperactivity (2) resulting in a marked
impairment
(a)
(b)

in

at

least

age-appropriate
age-appropriate

personal

of

the

following

cognitive/communicative

social

functioning;

two

and

functioning;
(d)

areas:

function;

(c)

age-appropriate

maintaining

concentration,

persistence and pace. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 112.11. A “marked” impairment for purposes of meeting a Listing
“means

more

than

moderate

but

less

than

extreme”

degree

of

limitation. “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.” Id., § 112.00(c).
Plaintiff argues that the ALJ erred in weighing the opinions
of state agency review physician Dr. Meyer and AERS’s first grade
teacher, Ms. Bryce. Plaintiff asserts that if the ALJ had properly
weighed these opinions, he would have concluded that AERS has

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“marked” limitations in three domains, namely, (1) attending and
completing tasks, (2) interacting and relating with others, and
(3) caring for himself.
1.

Attending and Completing Tasks

The domain of attending and completing tasks principally
entails an assessment of the degree to which a child can “focus and
maintain . . . attention, and . . . begin, carry through, and
finish . . . activities.” 20 C.F.R. § 416.926a(h). Some limitations
the Commissioner may consider in connection with this domain
include (a) being easily startled, distracted, or overreactive to
sounds, sights, movements, or touch; (b) being slow to focus on, or
failing to complete activities of interest; © repeatedly becoming
sidetracked from activities or frequently interrupting others;
(d) becoming easily frustrated and giving up on tasks, including
ones the child is capable of completing; and (e) requiring extra
supervision

to

stay

engaged

in

an

activity.

20

C.F.R.

§ 416.926a(h)(3).
Plaintiff argues that because Dr. Meyer’s opinion is the only
physician’s opinion in the record concerning the severity of AERS’s
deficits in the six domains of functioning, it should have been
afforded

more

than

“some

weight”.

Of

particular

relevance,

physician Dr. Meyer found “marked” limitations in the domain of
attending and completing tasks. The ALJ gave “some weight” to this
opinion “[1] based on [Dr. Meyer’s] review of the evidence and

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[2] extensive programmatic experience.” The first part of the ALJ’s
rationale is so vague as to be essentially meaningless. The second
part of the ALJ’s rationale conflicts with his assignment of only
“some weight” to Dr. Meyer. That is to say, if the ALJ relied on
Dr. Meyer’s “extensive programmatic experience”, then one would
expect the ALJ to credit his or her opinion as to AERS’s “marked
limitation” in the area of attending and completing tasks.
Because the Court cannot discern the rationale for the ALJ’s
assignment of weight to Dr. Meyer’s opinion, remand is necessary.
See, e.g., Berry v. Schweiker, 675 F.2d 464, 468-69 (2d Cir. 1982)
(stating remand “further findings or a clearer explanation” would
be appropriate where the court is “unable to fathom the ALJ’s
rationale in relation to evidence in the record,” “especially where
credibility determinations and inference drawing is required”).
2.

Interacting and Relating With Others

The domain of interacting and relating with others considers
how well the child initiates and sustains emotional connections
with others, develops and uses the language of his community,
cooperates with others, complies with rules, responds to criticism,
and respects and takes care of the possessions of others. 20 C.F.R.
§ 416.926a(I). “Interacting means initiating and responding to
exchanges with other people, for practical or social purposes[;]
[r]elating to other people means forming intimate relationships
with family members and with friends who are [the child’s] age, and

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sustaining them over time[;] [and] [i]nteracting and relating
require [the child] to respond appropriately to a variety of
emotional and behavioral cues.” 20 C.F.R. § 416.926a(i)(1)(i)(iii).
The

ALJ

determined

that

AERS

has

“less

than

marked”

limitations in interacting and relating with others. The ALJ
considered AERS’s ODD diagnosis and Plaintiff’s testimony that her
son is “oppositional, particularly with her, and can be bossy with
his peers”. The ALJ discounted AERS’s oppositional tendency based
on his testimony that while he gets into trouble at school for
excessive talking, he has never been sent to the principal’s
office. In addition, the ALJ found that AERS’s educational records
indicated “no evidence of significant interpersonal conflict.”
Plaintiff argues that the ALJ overlooked evidence that AERS
lacked appropriate social skills, was urinating on himself in
class, was being bossy, was not sharing, and, according to his
mother, was angry and aggressive at home. Plaintiff’s Memorandum of
Law (“Pl’s Mem.”) at 17-20 (citing T.319; other citations to record
omitted). Plaintiff urges that the ALJ should have relied on
Ms. Bryce’s Teacher Questionnaire, completed on October 13, 2010.2
In the domain of interacting and relating with others, Ms. Bryce
found that AERS had a “very serious problem” playing cooperatively

2

In addition, Ms. Bryce submitted her daily observations regarding AERS from
September 8, 2010 to November 15, 2010.

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with other children and making and keeping friends; a “serious
problem seeking” attention appropriately, respecting adults in
authority, and following rules; an “obvious problem” relating
experiences and telling stories, using language appropriate to the
situation and listener, introducing and maintaining relevant and
appropriate

topics

of

conversation;

and

a

appropriately,

asking

conversation,
“slight
permission

and

problem”

taking

turns

expressing

appropriately,

in

a

anger

interpreting

meaning of facial expression and body language, and using adequate
vocabulary

and

grammar

to

express

thoughts/ideas

in

everyday

conversation. T.325.
Under

the

regulations,

educational

Ms. Bryce, are considered “other sources.”

personnel,

such

as

SSR 06–03p, 2006 WL

2329939, at *6 (Aug. 9, 2006) (citing 20 C.F.R. § 416.913(d)).
Opinions offered by teachers “should be evaluated by using the [20
C.F.R. § 416.927] factors,” although “[n]ot every factor . . . will
apply in every case.”

Id.

The ALJ did not give “any great weight” to Ms. Bryce’s report
because it was based on only one month of observing AERS and,
according to the ALJ, “so divergent from other reports” in the
record. The ALJ noted that LCSW-R Tothero indicated on October 22,
2010, that as AERS’s outpatient counseling treatment progressed,
“[e]nuresis stopped, [he] learned to control his impulses better,
and learned to interact more positively with peers in group.”

-18-

T.319.

The

Court

notes

that

LCSW-R

Tothero’s

report

was

a

discharge summary relative to AERS’s treatment at CATS, which ended
on April 19, 2010. T.319. Thus, the fact that LCSW-R Tothero’s
letter was dated October 22, 2010, does not mean that it was based
on observations that actually occurred in September or October
2010, as was the case with Ms. Bryce’s report, which was completed
contemporaneously with her observations of AERS in her first grade
classroom. In other words, it is unclear if LCSW-R Tothero’s letter
and Ms. Bryce’s report are actually inconsistent with each other.
Remand is necessary to obtain clarification as to the period of
time reflected by LCSW-R Tothero’s letter, and whether LCSW-R
Tothero had interactions with AERS during the period of time
covered by Ms. Bryce’s report. See, e.g., Berry, 675 F.2d at 468-69
(stating remand “further findings or a clearer explanation” would
be appropriate where the court is “unable to fathom the ALJ’s
rationale in relation to evidence in the record,” “especially where
credibility determinations and inference drawing is required”).
3.

Caring for Self

The caring for self domain evaluates “how well [the child]
maintain[s] a healthy emotional and physical state, including how
well [he or she] get[s his or her] physical and emotional wants and
needs met in appropriate ways; . . . cope[s] with stress and
changes in [the] environment; and whether [her or she can] take
care of [his or her] own health, possessions, and living area.”

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20 C.F.R. § 416.926a(k). In the domain of caring for self, the ALJ
found that AERS was able to feed, bathe and dress himself with ageappropriate assistance, although [Plaintiff] claims that he does
not do so.” The ALJ acknowledged that there was “some” evidence of
problems

with

enuresis,

but

stated

that

those

problems

had

resolved. Accordingly, the ALJ found that AERS has “no limitations”
in the area of self-care.
Plaintiff asserts that the ALJ’s conclusion was not supported
by substantial evidence because it failed to consider contrary
evidence in the record, including the report of AERS’s first grade
teacher, Ms. Bryce. The report that Ms. Bryce completed included,
in the domain of caring for self, skills in addition to the basic
hygiene and personal care skills that the ALJ addressed in his
decision. According to Ms. Bryce, AERS had a “very serious problem”
being

patient

when

necessary;

a

“serious

problem”

handling

frustration appropriately, appropriately asserting emotional needs,
and calming himself; and an “obvious problem” knowing when to ask
for help and a very serious problem being patient when necessary.
T.327. The Teacher Questionnaire that Ms. Bryce completed was a
form promulgated by the SSA. Based on the areas about which the SSA
solicits

input

activities

from

besides

teachers,
basic

it

hygiene

is
are

apparent

that

important

to

self-care
assessing

functioning in this domain. The ALJ, however, did not take any
apparent account of the evidence concerning AERS’s limitations with

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regard, inter alia, to expressing his thoughts and feelings in an
appropriate way, handling frustration, and being patient when
necessary, all of which are important parts of the functioning
expected with respect to the domain of caring for oneself.

See

Juckett ex rel. K.J. v. Astrue, No. 09–CV–708(FJS/VEB), 2011 WL
4056053, *14 (N.D.N.Y. June 29, 2011) (finding error where ALJ did
not consider evidence concerning claimant’s limitations with regard
to expressing her thoughts and feelings in an appropriate way, “an
important part of the functioning expected with respect to th[e]
domain” of

caring

for

oneself

and

others) (citing

20

C.F.R.

§ 416.926a(k).
Accordingly, the Court finds that the ALJ’s conclusion that
Plaintiff has “no limitation” with regard to caring for herself is
not supported by substantial evidence and was not based on the
application of the appropriate legal standards.
B.

Credibility Finding

Plaintiff contends that the ALJ disregarded his obligation to
make a specific credibility finding regarding her testimony and
statements concerning AERS’s limitations.
Although the ALJ is free to accept or reject testimony of a
claimant’s parent, Williams on behalf of Williams v. Bowen, 859
F.2d 255, 260 (2d Cir. 1988), a finding that a witness is not
credible must be set forth with sufficient specificity to permit
intelligible review of the record. Id. (citing Carroll v. Secretary

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of Health and Human Servs., 705 F.2d 638, 643 (2d Cir. 1983)). SSR
96–7p requires ALJs to articulate the reasons behind credibility
evaluations:
The reasons for the credibility finding must be grounded
in the evidence and articulated in the determination or
decision. It is not sufficient to make a conclusory
statement that “the individual’s allegations have been
considered” or that “the allegations are (or are not)
credible.” . . . 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
most familiar with the child’s condition, such as a parent[,]” F.S.
v. Astrue, No. 1:10-CV-444 MAD), 2012 WL 514944, at *19 (N.D.N.Y.
Feb. 15, 2012) (citing Jefferson v. Barnhart, 64 F. App’x 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)).
Here, the ALJ did not make a specific credibility finding as
to Plaintiff’s testimony concerning her son’s limitations. Instead,
in the portion of the decision regarding the domain of attending
and completing tasks, the ALJ summarily stated that “[w]hile the
evidence is consistent with some difficulties [in this domain], the

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evidence does not support the level of limitation alleged by the
claimant.” T.18 (emphasis supplied). This was insufficient. See SSR
96-7p, 1996 WL 374186, at *4; Jefferson, 64 F. App’x at 140
(holding that ALJ’s finding that claimant’s mother’s testimony was
“credible only to the extent that [it was] supported by evidence of
record” is “standard boilerplate language” and an insufficient
explanation of credibility) (citation omitted). It is well settled
that credibility determinations are to be made by the ALJ in the
first

instance,

and

post-hoc

rationalizations

offered

by

the

Commissioner are not permissible. E.g., LoRusso v. Astrue, No. 08CV-3467(RJD), 2010 WL 1292300, at *5 (E.D.N.Y. Mar. 31, 2010)
(citing, inter alia, Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.
1999)). The Court thus is left without a basis to determine whether
the appropriate legal standards were applied; nor can it evaluate
whether

the

ALJ

considered

the

entire

evidentiary

record

in

arriving at his conclusion. Bennett v. Astrue, No. 07–CV–0780
(NAM), 2010 WL 3909530, at *10 (N.D.N.Y. Sept. 30, 2010) (citing
Harrison v. Secretary of Health and Human Servs., 901 F. Supp. 749,
757 (S.D.N.Y. 1995)). Accordingly, remand is required “for a
determination

of

[P]laintiff’s

credibility which

must

contain

specific findings based upon substantial evidence in a manner that
enables effective review.” Id.

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VII. Conclusion
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings is denied, and Plaintiff’s motion for
judgment on the pleadings is granted to the extent that this matter
is

remanded

to

the

Commissioner

for

further

administrative

proceedings consistent with this Decision and Order. The Clerk of
the Court is requested to close this case.
SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

December 23, 2014
Rochester, New York

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