Brown v. Astrue

Filing 26

-CLERK TO FOLLOW UP-ORDER denying the Commissioner's 10 Motion for Judgment on the Pleadings; granting Plaintiff's 15 Motion for Judgment on the Pleadings; reversing the Commissioner's decision; and remanding the case for calculation and payment of benefits. (Clerk is requested to close case.) Signed by Hon. Michael A. Telesca on 4/14/15. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TWYLA BROWN, o/b/o

J.B.,

Plaintiff,
DECISION and ORDER
No. 1:12-CV-1062(MAT)

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

I.

Introduction
Represented by counsel, Twyla Brown (“Plaintiff”) has brought

this action on behalf of her infant son (“JB” or “Claimant”)
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

JB’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 Status
On March 12, 2009, Plaintiff protectively filed an application

for SSI on behalf of JB, alleging an onset date of March 1, 2009.
After the claim was denied, Plaintiff requested a hearing, which
was held on February 16, 2011, in Buffalo, New York, before

-1-

Administrative Law Judge William R. Pietz (“the ALJ”). T.33-51.1
Plaintiff

was represented

by

an

attorney.

The

ALJ

issued

an

unfavorable decision dated March 9, 2011. T.13-32. On September 4,
2012, the Appeals Council denied Plaintiff’s request for review,
making the ALJ’s decision the final decision of the Commissioner.
This timely action followed.
III. Factual Background
On September 16, 2008, when JB was nine-years, ten-months-old,
Plaintiff

brought

him

to

a

psychiatric

clinic

due

to

his

hyperactivity, oppositional behaviors, and occasional suicidal
ideation. T.178, 312-18. Plaintiff related that JB had a history of
aggressiveness

toward

his

younger

brother,

hyperactivity,

impulsiveness, lying, stealing food, and complaining of being
hungry all the time. T.289. Plaintiff had to watch him constantly.
He was in a 15-1-1 class, was disrespectful to his teachers,
received poor grades, and had been suspended from school on several
occasions. At the time, his Axis I diagnoses were Oppositional
Defiant

Disorder

(“ODD”)

and

Attention

Deficit

Hyperactivity

Disorder (“ADHD”). JB began participating in individual and family
therapy and was prescribed medication. Treatment notes and academic
evaluations

throughout

the

relevant

period

indicate

that

JB

consistently received violations at school due to his inappropriate
1

Citations to “T.” refer to pages in the certified administrative transcript
filed manually by the Commissioner in connection with her answer to the
complaint.

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behavior, was disruptive and inattentive in class, continued to
steal and hoard food at home and was grossly overweight, would not
bathe or wash himself despite reminders by his mother, and would
act out and pick on his younger brother. T.290. The Court has
reviewed the

entire

administrative

transcript,

including

JB’s

medical, academic, and psychiatric records, and will discuss the
evidence further below as necessary.
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 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.”

-3-

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
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. Pt. 404,
Subpt. P, App. 1.
The limitations caused by a child’s severe impairment or
combination of impairments are evaluated in the context of the

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following six domains of functioning:
(1)
(2)
(3)
(4)
(5)
(6)
20

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

C.F.R.

§

416.926a(b)(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)). 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.
Pt. 404, Subpt. P, App. 1, § 112.00(C).
V. The ALJ’s Decision
The ALJ found that JB has never engaged in substantial gainful

-5-

activity and has the following severe combination of impairments:
speech/language delays, ADHD, and obesity. T.29. The ALJ found that
these impairments impose more than minimal limitations on his
functioning. The ALJ found that JB’s headaches were well-controlled
by medication and no longer lengthy or frequent, making them a nonsevere impairment.
With regard to JB’s speech/language delays, the ALJ noted that
he

was

consultatively

evaluated

and

found

to

have

a

severe

receptive language and a moderate expressive language delay. JB’s
prognosis for improvement was assessed as “good” with continued
appropriate interventions, particularly since JB had demonstrated
progress and recently was noted to have good intelligibility. In
terms of JB’s ADHD, the ALJ found that he “receives pharmacotherapy
with good results.” T.20. The ALJ noted that based on the treatment
notes, at least some of JB’s weight problems were caused by his
medication for ADHD.
The ALJ concluded that JB has “less than marked” limitations
in the domains of Acquiring and Using Information, Attending and
Completing Tasks, Interacting and Relating with Others, Caring for
Self, and Health and Physical Well-Being; and no limitations in
Moving About and Manipulating Objects. Because JB was not found to
have have “marked” limitations in two domains or an “extreme”
limitation in one domain and a “marked” limitation in another
domain, the ALJ entered a finding of “not disabled.”

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VI.

Discussion
Plaintiff contends that the ALJ’s decision was not based on

substantial evidence and was marred his mischaracterization of the
record and misunderstanding of the nature of JB’s behavioral
disorders.

In

particular,

Plaintiff

asserts

that

the

ALJ

erroneously found “less than marked” limitations in these three
domains

of

functioning:

Attending

and

Completing

Tasks,

Interacting and Relating with Others, and Caring for Self.
A.

Attending and Completing Tasks

In

the

domain

of

Attending

and

Completing

Tasks,

the

Commissioner considers the child’s ability “to focus and maintain
. . . attention,” and how well he can “begin, carry through, and
finish

.

.

.

activities,

including

the

pace

at

which

[he]

perform[s] activities and the ease with which [he] change[s] them.”
20 C.F.R. § 416.926a(h). A school-age child such as JB is expected
to focus attention in a variety of situations in order to follow
directions, remember and organize school materials, and complete
classroom

and

homework

assignments.

See

20

C.F.R.

§

416.926a(h)(2)(iv). The child should be able to, e.g., concentrate
on details, change activities or routines without distracting
himself or others, and stay on task and in place when appropriate.
See id.
On April 24, 2009, JB’s fourth-grade special education teacher
Linda Tokaz (“Ms. Tokaz”), who had known JB since September 2009,

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completed a teacher questionnaire indicating JB was in a room with
10 students to 1 teacher. See T.119-26. In the domain of Attending
and Completing Tasks, Ms. Tokaz assessed JB’s limitations as
follows:
•

a “serious” problem, occurring hourly, with (1)
paying attention when spoken to directly, (2)
sustaining attention during play, (3) focusing long
enough to finish an assigned activity or task, (4)
refocusing to task when necessary, (5) carrying out
single-step instructions, (6) carrying out multistep instructions, (7) waiting to take turns; and
(8) working at a reasonable pace/finishing on time;

•

a “very serious” problem, occurring hourly, with
(1) changing from one activity to another without
being
disruptive,
and
(2)
working
without
distracting self or others;

•

an
“obvious”
problem
occurring
hourly
with
organizing his own things or school materials; and

•

a “slight” problem, occurring daily, with (1)
completing class/homework assignments, and (2)
completing
work
accurately
without
careless
mistakes.

T.121. Ms. Tokaz noted that JB “thinks whispering to himself and
others during no talk/independent time is ok.” T.121.
On February 15, 2011, JB’s sixth-grade teacher, Jennifer
Killinger (“Ms. Killinger”) completed an assessment, noting that
she had known JB since September 9, 2009. T.619. In the domain of
Attending

and

Completing

Tasks,

Ms.

Killinger

assessed

limitations as follows:
•
•

Changing from one activity to another without being
disruptive-a very serious problem occurring hourly;
Working without distracting self or others-a very
-8-

JB’s

serious problem occurring hourly;
•
•

Completing class/homework
problem occurring weekly;

•

Completing
work
accurately
without
careless
mistakes-a slight problem occurring weekly;

•

Paying attention when spoken to directly-a slight
problem occurring daily;

•

Focusing long enough to finish assigned activity or
task-an obvious problem, no assessment of frequency
of occurrence;

•

Refocusing to task when necessary-an obvious
problem, no assessment of frequency of occurrence;

•

Carrying out single-step instructions-an obvious
problem, occurring monthly;

•

Carrying out multi-step instructions-an
problem, occurring monthly;

•

Waiting to take turns-no problem;

•
T.

Organizing own things or school materials-a serious
problem occurring hourly;

Working at reasonable pace/finishing on time-no
problem.

621.

Ms.

Killinger

noted

that

assignments-an

while

JB

was

obvious

obvious

“on

level

academically,” he was “hinder[ed] from completing assignments” by
his behavior, which “ha[d] to be constantly monitored.” T.621, 626.
Ms. Killinger stated that “[JB] is a complete distraction to his
peers,” needs constant re-direction from the teacher[,]” T.621, was
“extremely impulsive,” T.626, and was “often the ‘root’ of several
problems [in the classroom] and [was] extremely disruptive and
talkative.” T.626.

Although there were some areas of improvement

-9-

from Ms. Tokaz’s 2009 report, it is noteworthy that, according to
Ms. Killinger, JB still was having “very serious problems” on an
hourly basis changing from one activity to another without being
disruptive and working without distracting himself or others.
Relying in large part on his own observations about JB at the
hearing (i.e., “[JB] was calm and attentive at the hearing and his
mother testified that Strattera has helped [his ADHD] ‘a lot[,]’”
T.21), the ALJ found that JB had a “less than marked” limitation
with regard to the domain of Attending and Completing tasks. The
ALJ noted that JB’s teacher reported in April 2009 that he “does
not keep quiet and that he is a constant distraction to class,” and
that he had “very serious” and “serious” problems in most areas in
this domain. However, according to the ALJ, JB’s problems were
“clearly the result of the claimant’s choice to be talkative, as
indicated in the teacher’s comments[,]” T. (citing Exhibit (“Ex.”)
4E) (emphasis supplied). Although the ALJ does not identify the
particular comments by Ms. Tokaz on which he relied, it appears
that he is referring to Ms. Tokaz’s comment that JB “can’t and
won’t keep his mouth closed. He is a constant distraction to class.
He has no self-control.” T.121. Based on these statements, the ALJ
opined that “[t]he claimant’s chosen behaviors are trivial or
otherwise do not rise to the level of severity contemplated in the
Diagnostic and Statistical Manual, Fourth Edition (DSM-IV).” T.21
(emphasis supplied). The ALJ later declared that JB’s “behavioral

-10-

choices do not constitute medically determinable impairments.”
T.25.
The ALJ’s comments are problematic for multiple reasons.
First, by characterizing JB’s limitations as merely “choices”, the
ALJ ignored the medically-recognized symptomatology of ADHD, an
impairment

that

demonstrated

a

the

ALJ

deemed

fundamental

to

be

severe.

misunderstanding

of

The
the

ALJ

also

nature

of

behavioral disorders. Here, as noted above, JB has been diagnosed
with

ADHD,

Combined

Type

(ICD-9

Code

314.01),

which

is

characterized by inattention, hyperactivity, and impulsivity that
have

“persisted

maladaptive

and

for

at

least

inconsistent

6

months
with

to

a

degree

developmental

that

is

level[.]”

Diagnostic and Statistical Manual of Mental Disorders 78-85 (4th Ed.
2000) (“DSM IV”). ADHD, Combined Type is met if both criterion 1A
(six or more enumerated symptoms of inattention2 have been present

2

The symptoms of inattention listed in the DSM-IV for ADHD,
Combined Type, are that the child “[o]ften does not give close
attention to details or makes careless mistakes in schoolwork,
work, or other activities”; “[o]ften has trouble keeping attention
on tasks or play activities”; “[o]ften does not seem to listen when
spoken to directly”; “[o]ften does not follow instructions and
fails to finish schoolwork, chores, or duties in the workplace (not
due
to
oppositional
behavior
or
failure
to
understand
instructions)”; “[o]ften has trouble organizing activities”;
“[o]ten avoids, dislikes, or doesn’t want to do things that take a
lot of mental effort for a long period of time (such as schoolwork
or homework)”; “[o]ften loses things needed for tasks and
activities (e.g. toys, school assignments, pencils, books, or
tools); “[i]s often easily distracted”; “[i]s often forgetful in
daily activities”.
-11-

for

at

least

6

months

to

a

point

that

is

disruptive

and

inappropriate for developmental level) and criterion 1B (six or
more enumerated symptoms of hyperactivity-impulsivity3 have been
present for at least 6 months to an extent that is disruptive and
inappropriate for developmental level) are met for the past 6
months. See DSM IV, pp. 78-85.

Upon reviewing the diagnostic

criteria in the DSM-IV, it is apparent that the behaviors the ALJ
characterized as “choices” are actually examples of the main
diagnostic features of ADHD itself.

See supra nn. 3 & 4 (citing

DSM IV, pp. 78-85). The ALJ’s dismissal of JB’s symptoms as merely
poor

behavioral

choices

amounts

to

the

ALJ

“arbitrarily

substitut[ing] his own judgment[,]” McBrayer v. Secretary of Health
and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983) (citing Grable
v. Secretary of HEW, 442 F. Supp. 465, 470 (W.D.N.Y. 1977)), for
that of the competent medical professionals who diagnosed JB with
ADHD, Combined Type. See Selian v. Astrue, 708 F.3d 409, 419 (2d

3

The symptoms of hyperactivity listed in the DSM-IV are that
the child “[o]ften fidgets with hands or feet or squirms in seat”;
“[o]ften gets up from seat when remaining in seat is expected”;
“[o]ften runs about or climbs when and where it is not appropriate
(adolescents or adults may feel very restless)”; “[o]ften has
trouble playing or enjoying leisure activities quietly”; “[i]s
often ‘on the go’ or often acts as if ‘driven by a motor’”;
“[o]ften talks excessively”. The symptoms of impulsivity are that
the child “[o]ften blurts out answers before questions have been
finished”; “[o]ften has trouble waiting one’s turn”; “[o]ften
interrupts or intrudes on others (e.g., butts into conversations or
games)”.
-12-

Cir. 2013) (finding reversible error where “the ALJ improperly
substituted her own criteria as to what is necessary to establish
a fibromyalgia diagnosis without support from medical testimony”.).
The ALJ also mischaracterized the teachers’ opinions so as to make
it appear as though they supported his belief that JB’s behaviors
are attributable simply to wilfulness rather than to his medicallydeterminable impairment of ADHD. As Plaintiff argues, JB has a
medical

diagnosis

that

accounts

for

all

of

the

maladaptive

behaviors described by his teachers.
Other legal errors affect the ALJ’s decision, including his
apparent over-reliance on his observations of JB’s demeanor during
the

hearing.

As

one

of

his

justifications

for

finding

JB’s

impairments non-disabling, the ALJ observed that JB “was calm and
attentive” during the hearing. This amounts to a variant of the
disfavored “sit and squirm” test. See Brown v. Commissioner of
Social Sec., No. 06–CV–3174(ENV)(MDG), 2011 WL 1004696, at *5
(E.D.N.Y. Mar. 18, 2011) (“The ‘sit and squirm’ test has been
rejected by the Second Circuit as impermissible, and observations
by the ALJ of any sort shall be accorded only limited weight,
‘since the ALJ is not a medical expert.’”) (quoting Spielberg v.
Barnhart, 367 F. Supp.2d 276, 282 (E.D.N.Y. 2005) (citing Aubeuf v.
Schweiker,

649

F.2d

107,

113

(2d

Cir.

1981);

other

citation

omitted)). Without a doubt, an administrative hearing constitutes
a “highly structured setting.” The “Commissioner’s regulations

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require the ALJ to consider the effects of a structured or highly
supportive setting . . . on the claimant’s functioning and, if the
claimant’s symptoms or signs are controlled or reduced by the
structured

environment,

the

ALJ

is

required

to

consider

the

claimant’s functioning outside of the highly structured setting.”
Smith v.

Massanari,

No.

00–CV–0402,

2002

WL

34242375,

at

*6

(W.D.N.Y. Mar. 17, 2002) (citing 20 C.F.R. § 416.924c). Neither the
law nor the record in this case supports the ALJ’s generalization
of JB’s calm demeanor during the highly structured setting of a
legal proceeding to a less structured setting.
In sum, the Court finds that the ALJ’s assessment with regard
to the domain of Attending and Completing Tasks was not supported
by

substantial

evidence

evidence.

demonstrated

difficulties

attending

As

outlined

conclusively
to

and

above,

that

JB

completing

the

had

tasks

educational

very

serious

and

required

significant support to perform such tasks, even within a highly
supportive setting. The record evidence establishes a finding of at
least a marked impairment with regard to this domain.

See, e.g.,

Perkins ex rel. J.P. v. Astrue, 32 F. Supp.3d 334, 342-43 (N.D.N.Y.
2012) (child claimant’s teacher noted that claimant needed an
“‘extremely long time’” to complete tasks “‘even with teacher or
student assistance’” and had “obvious” and “very serious” problems
in this domain notwithstanding the direct support provided to
claimant; district court found that “[t]his is plainly indicative

-14-

of a marked limitation” in the domain of Attending and Completing
Tasks) (citations to record omitted).
B.

Interacting and Relating with Others

In the domain of interacting and relating with others, the
Commissioner considers the claimant’s ability to “initiate and
sustain emotional connections with others, develop and use the
language of [his] community, cooperate with others, comply with
rules, respond to criticism, and respect and take care of the
possessions

of

others.”

20

C.F.R.

§

416.926a(i).

By

way

of

illustration, limited functioning in this domain is shown by a
claimant’s lack of close friends, avoidance or withdrawal from
social interaction, overanxiousness or fear of meeting new people
or trying new experiences, difficulty playing games or sports with
rules, and difficulty communicating with others. See 20 C.F.R. §
416.926a(i)(3).
JB’s fourth-grade special education teacher, Ms. Tokaz, found
that he had a “very serious problem” occurring hourly in nearly all
of

the

relevant

activities

in

this

domain:

(1)

playing

cooperatively with other children; (2) making and keeping friends;
(3)

seeking

attention

appropriately;

(4)

expressing

anger

appropriately; (5) asking permission appropriately; (6) following
rules in all settings; (7) respecting/obeying adults in authority;
(8) taking turns in a conversation; and (9) interpreting the
meaning of facial expressions, body language, hints, and sarcasm.

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T.122. Behavior modification strategies, including time-out for
repeated noncompliance and removal from “FunFridays” for repeated
disrespect, were necessary. However, praise did not motivate JB,
and he was the subject of formal write-ups for his behavioral
problems.

T.122. Ms. Tokaz expressed “worry about [JB]’s future”

as he “has no respect for authority.” T.126. Ms. Tokaz noted that
JB does “not take redirection of any kind well” and often blames
others for his actions. T.124. Interacting with him was a “constant
verbal struggle,” and his “[p]eers think he is a bully.” Id.
Sixth-grade

teacher

Ms.

Killinger’s

assessment

of

JB’s

performance in this domain showed some improvement, although she
still

found

“very

serious

problems”

with

seeking

attention

appropriately and following rules. T.622. JB had a “serious”
problem asking permission appropriately. Although he had “obvious”
problems playing cooperatively with other children, Ms. Killinger
somewhat incongruously found that he had “no problem” making and
keeping friends. Ms. Killinger noted “obvious” problems with JB
taking turns in a conversation, relating experiences, understanding
body

language

and

facial

expressions,

expressing

anger

appropriately, and respecting/obeying adults in authority.
The ALJ concluded that JB had a less than marked limitation in
this domain, but his cursory analysis simply does not support this
finding.

The

ALJ

underplayed

JB’s

oppositional

behaviors,

characterizing them as a “history of attitude problems” for which

-16-

he is receiving counseling. The ALJ noted that there “have been
some

suspensions”

because

of

what

the

ALJ

calls

“behavioral

choices”. By characterizing JB’s limitations in this domain as
“behavioral choices”, the ALJ erroneously dismissed the medicallyrecognized symptomatology of Oppositional Defiant Disorder, with
which JB has consistently been diagnosed since September 2008.4
According to the DSM IV, ODD consists of a “[a] pattern of
negativistic, hostile, and defiant behavior lasting at least 6
months, during which four (or more) of the following are present
more frequently than is typically observed in individuals of
comparable age and developmental level: (1) often loses temper; (2)
often argues with adults; (3) often actively defies or refuses to
comply with adults’ requests or rules; (4) often deliberately
annoys

people;

(5)

often

blames

others

for

his

mistakes

or

misbehavior; (6) is often touchy or easily annoyed by others; (7)
is

often

angry

and

resentful;

and

(8)

is

often

spiteful

or

vindictive. The reports from JB’s mother, teachers, and counselors
consistently reflect observations of nearly all of the diagnostic
features of ODD.

As he did when assessing the limitations caused

4

See, e.g., T.485 (January 13, 2010 DSM-IV-R Diagnosis form); T.289
(September 16, 2008 referral for psychiatric consultation). Although Plaintiff
has not raised this issue, the Court finds that the ALJ erred in failing to
address whether this impairment, diagnosed consistently by JB’s treatment
providers, as a “severe” impairment at step two. An argument can be made that
because the ALJ found that JB had other severe impairments and continued with the
balance of the sequential evaluation, the error in failing to address the ODD
diagnosis was harmless. In any event, because this Court finds that reversal is
warranted on other grounds, this question need not be resolved. Rice ex rel.
T.C.K. v. Astrue, 32 F. Supp.3d 113, 121 (N.D.N.Y. 2012).

-17-

by JB’s ADHD, the ALJ discounted the validity of JB’s diagnosis of
ODD by dismissing the symptoms of this behavioral disorder as
simply “choices”. The ALJ’s attempt to downplay the severity JB’s
oppositional behaviors by characterizing them as “intentional”
represents the ALJ attempting to substitute his lay opinion for
that of the competent medical professionals who diagnosed JB with
ODD in the first place.
The

ALJ

conceded

that

JB

is

“aggressive,

destructive,

argumentative and disobedient” at home, but concluded that “this
[behavior] has improved with ongoing treatment.” In support of this
statement, the ALJ cited to Exhibits 4F-5F, 7F, 9F, and 18F. As
these exhibits amount to a very large portion of the administrative
record,

this

is

as

unhelpful

as

citing

to

nothing

at

all.

Furthermore, the record does not reflect continuous improvement
with treatment. For instance, Ex. 18F contains a relatively recent
note from Plaintiff to JB’s psychiatrist, Dr. Seth Dewey, dated
June 16, 2010, explaining that JB was “getting worser [sic]” and
that he “got suspended from school . . . for picking at an autistic
boy[,] throwing things at him and hitting him.” T.611. See also
T.534. Plaintiff said he was “still talking back, lying [and]
getting loud with her,” and “refus[ing] to bathe.” T.611.
After reviewing the record in its entirety, the Court finds
that the ALJ’s assessment of a “less than marked” limitation in
this domain was not supported by “substantial evidence” because the

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ALJ “cherry picked” the evidence in favor of a finding of no
disability while ignoring other probative and consistent evidence
of disability. See, e.g., Castano v. Astrue,
278

(E.D.N.Y.

2009)

(finding

error

where

650 F. Supp.2d 270,
the

ALJ

and

the

Commissioner “rel[ied] on an often-used but dubious argumentative
technique of selecting the facts that tend against a finding of
disability, however attenuated, while ignoring the key test results
that are consistent with a finding of disability”); Backus v.
Astrue, No. 3:05–CV–1180(NAM), 2008 WL 4519006, at *16 (N.D.N.Y.
Sept. 29, 2008) (“The ALJ may not ‘pick and choose’ excerpts of
medical reports that support a denial of benefits and cannot ignore
aspects of a medical opinion that are favorable to a plaintiff.”)
(citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983);
other citation omitted). The Court finds that, contrary to the
ALJ’s assessment, the record demonstrates at least a “marked”
limitation in JB’s ability to appropriately interact with, and
relate to, others. See, e.g., Rice ex rel. T.C.K., 32 F. Supp.3d at
124-25 (marked limitation in domain of Interacting and Relating to
Others where claimant was frequently involved with negative peer
interactions, including bullying and was disciplined for taking
other students’ property, fighting, threatening a bus driver, and
inappropriate physical contact).
C.

Caring for Self

Because the Court already has found that JB has “marked”

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limitations in two other domains, it need not consider whether he
has a limitation in the third domain of Caring for Self; a finding
of marked limitations in two domains qualifies him as disabled
under

the

Commissioner’s

regulations.

See

20

C.F.R.

§

416.926a(d). Nevertheless, in the interest of completeness, the
Court addresses Plaintiff’s argument regarding the ALJ’s analysis
of this domain.
The

Caring

for

Self

domain

considers

how

well

a

child

maintains a healthy emotional and physical state, including how
well he gets his physical and emotional wants and needs met in
appropriate ways; how he copes with stress and changes in his
environment;

and

whether

he

takes

care

of

his

own

health,

possessions, and living area. 20 C.F.R. § 416.926a(k). A school-age
child should be independent in most day-to-day activities, (e.g,
dressing and bathing oneself, although he “may still need to be
reminded

sometimes

to

do

these

routinely”).

20

C.F.R.

§

416.926a(k)(2)(iv). A school-age child “should begin to develop
understanding of what is right and wrong, and what is acceptable
and unacceptable behavior”; “should begin to demonstrate consistent
control

over

[his]

behavior”;

and

“should

be

able

to

avoid

behaviors that are unsafe or otherwise not good for [him]”. Id.
The ALJ found a “less than marked” limitation in this domain.
The ALJ’s analysis consists of only two sentences, in which he
again improperly discounted the severity of JB’s limitations in

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this domain by labeling them as “choices”: According to the ALJ, JB
simply “does not always choose to maintain appropriate behavior.”
T.27 (emphasis supplied). However, the regulations state that an
“[i]mpaired ability in this area [of Caring for Self] is manifested
by failure to take care of these needs or by self-injurious
actions.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(C)(2)(c)
(emphasis

supplied).

Thus,

the

ALJ’s

discounting

of

what

he

perceived to be JB’s “choices” reflects a misapplication of the
Commissioner’s regulations.
Furthermore, the ALJ did not analyze the substantial evidence
in the record regarding JB’s impairments in multiple self-care
areas–namely, his appetite disturbance, stealing and hoarding of
food, obesity, and serious personal hygiene problems. For instance,
on February 9, 2010, JB was still failing to maintain personal
hygiene, and his mother had decided to “let him deal with the
consequences” of having his peers talk about him. T.482. He was
taking Strattera for his ADHD and ODD without any side effects, but
he was not completing his school work, and was not listening or
sitting down on the bus. His teachers were allowing him to complete
his homework in school. He was grossly overweight. A treatment plan
review on March 3, 2010, noted that JB had regressed and was not
doing well at home or in school. T.200. He continued to gain
weight, though the doctor stated it was not due to his medication.
On April 2, 2010, his personal hygiene was noted to be worse.

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T.498. On June 24, 2010, it was noted that JB had gained 10 pounds,
and his mother was going to lock the refrigerator and kitchen in an
attempt to keep him from stealing and hoarding food. T.534. Notes
from September 6, 2010, and December 2, 2010, indicate that JB
continued to gain weight and ignore his personal hygiene. T.563,
576.
JB’s teachers’ assessments support these reports of very
serious limitations in the domain of Caring for Self. JB’s fourthgrade special education teacher, Ms. Tokaz, indicated in April
2009, that he had a “very serious problem” handling frustration
appropriately,
appropriately
otherwise

being

patient

asserting

responding

when

necessary,

emotional

needs,

appropriately

to

identifying

calming
mood

himself

changes,

and
or

using

appropriate coping skills to meet the daily demands of school, and
knowing when to ask for help. T.124. Ms. Killinger, in February
2011, noted that JB had a “very serious problem” in being able to
take care of physical needs (e.g., dressing and eating), and had
“obvious” problems with personal hygiene, taking his medications,
and being patient when necessary. T.624.
Based on the ALJ’s abbreviated analysis of JB’s limitations in
this domain, and his generic citation to large portions of the
record, the Court is unable to say that the ALJ fulfilled his duty
to consider all of the relevant evidence. To the contrary, the
record contains substantial evidence of a “marked” limitation in

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the domain of Caring for Self.
VI.

Remedy
Sentence four of 42 U.S.C. § 405(g) provides district courts

with the authority to affirm, reverse, or modify a decision of the
Commissioner “with or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g). After reviewing the record in its entirety, the
Court

concludes

that

remand

to

the

Commissioner

for

further

proceedings “would serve no productive purpose, would not produce
findings contrary to this Court’s conclusions, and would only cause
further delay.” Perkins, 32 F. Supp.2d at 344. The ALJ in this case
had access to the full record, and his determination that JB did
not have “marked” limitation in two domains of functioning was
legally flawed in multiple ways and unsupported by the record. To
remand the case for further consideration would be futile, as the
only conclusion supported by the record evidence is that JB suffers
a marked limitation in at least two domains, and is therefore
disabled pursuant to the Commissioner’s regulations. See 20 C.F.R.
§§ 416.926a(d). The Court also is mindful of the length of the time
Plaintiff’s application for SSI on behalf of JB has been pending.
Delay “is harmful for any litigant, but particularly in connection
with benefits for children, which are not to replace lost income,
but to enable low-income families to afford special education,
medical treatment, physical rehabilitation, early intervention
services, and personal needs assistance for the child.” Nieves ex

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rel. Nieves v. Barnhart, No. 02 Civ.9207, 2004 WL 2569488, at *10
(S.D.N.Y. Nov. 12, 2004) (citing Maldonado v. Apfel, 55 F. Supp.2d
296, 297–98 (S.D.N.Y. 1999)).
VII. Conclusion
For

the

reasons

discussed

above,

Plaintiff’s

motion

for

judgment on the pleadings is granted insofar as the Commissioner’s
decision denying benefits is reversed, and the matter is remanded
to the Commissioner solely for the calculation and payment of
benefits. The Commissioner’s motion for judgment on the pleadings
is denied. 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:

Rochester, New York
April 14, 2015

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