Sanders v. Colvin

Filing 21

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 16 Commissioner's Motion for Judgment on the Pleadings; denying 17 Plaintiff's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/20/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TAMMY T. SANDERS o/b/o A.D.S.,
Plaintiff,

13-CV-0270(MAT)
DECISION
and ORDER

v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.
I.

Introduction
Represented by counsel, Tammy T. Sanders (“plaintiff”) has

brought this action on behalf of her infant daughter (“A.D.S.”)
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
The record reveals that on August 18, 2008, plaintiff filed an

application for SSI benefits on behalf of A.D.S. (d/o/b June 24,
1995), alleging disability as of September 1, 2007. Plaintiff’s
application was denied, and she requested a hearing before an
Administrative Law Judge (“ALJ”), which was held on July 27, 2011,
before ALJ Theodore Kennedy. The ALJ issued an unfavorable decision
on

August

2,

2011.

T.

76-93.

On

August

25,

2011,

plaintiff

requested review of the hearing decision, which request was denied
by

the

Appeals

Council

on

January

17,

2013.

Thereafter,

on

March 14, 2013, plaintiff timely filed this action seeking review
of that denial. Doc. 1.
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.

For

the

following

reasons,

the

Commissioner’s motion is granted, and plaintiff’s cross-motion is
denied.
III. Summary of Administrative Transcript
A.

Plaintiff’s Reports

In a “Function Report” completed on September 27, 2008,
plaintiff indicated that A.D.S. had no problems seeing or hearing,
but that her problems communicating included trouble answering the
phone,

delivering

messages,

and

using

certain

phrasing

in

sentences. T. 150-52. Plaintiff indicated, however, that A.D.S. had
no issues repeating stories she had heard, explaining why she did
something, asking for what she needs, or talking with family or
friends. Id. at 152. Plaintiff reported that A.D.S.’s only problem
understanding and using learned information was in reading and
understanding

sentences

in

comics

and

cartoons.

Id.

at

153.

Plaintiff reported that, because A.D.S. was 13 years old and
weighed 231 pounds, every physical activity was limited. Id.
Plaintiff also stated that A.D.S.’s impairments affected her social
activities by limiting her ability to make and keep friends her own
age. Id. at 154. However, plaintiff reported that A.D.S. was able
to generally get along with family, friends, teachers, and peers in
2

team sports. Id. Plaintiff indicated that A.D.S. was limited in
taking care of her personal needs in every area (e.g., personal
hygiene, studying,

taking

necessary

medication,

etc.) because

A.D.S. “can not concentrate, will not study on her own, will not
take medications and anything else with a deadline.” Id. at 155.
Finally, plaintiff indicated that A.D.S. was limited in paying
attention and sticking with tasks (e.g., arts and crafts projects,
completing homework on time, and finishing chores), because she
could not follow directions. Id. at 156.
In a “Disability Report” dated March 25, 2010, plaintiff
indicated that A.D.S. could read, understand, and speak English.
Id. at 161. Plaintiff reported that A.D.S. suffered from learning
disability, anger, forgetfulness, and that she fought with siblings
and peers at school. Id. at 162. In a separate description of
activities completed April 15, 2010, plaintiff again reported that
A.D.S. had no issues seeing, hearing, or talking, and plaintiff
stated that A.D.S. had no problems with self-care activities such
as using the restroom, washing, feeding, etc. Id. at 204-05. The
only issues plaintiff reported with A.D.S.’s activities were that
A.D.S. had imaginary friends, was mean to her actual friends, was
shy, was scared to get on the bus “some days,” and that she had
discipline problems at school and the school “call[ed] [plaintiff]
a lot.” Id. at 206.

3

B.

Education Records

In May-June of 2007, school psychologist Chithra Kandaswami
assessed A.D.S.’s cognitive skills as average for her age, but as
delayed in visual-motor integration skills. T. 296. Reading, math,
and written expression skills were significantly delayed; however,
Kandaswami

noted

that

A.D.S.

initially

was

defiant

and

uncooperative during testing sessions, but this behavior improved
after A.D.S.’s mother became aware of the non-cooperation. Id. at
294-96. A.D.S.’s individualized education program (“IEP”) for 20092010

identified

her

as

below

district

standards

in

reading,

language arts, and math, but noted that her reading and writing
skills were improving. Id. at 346. Her 2010-2011 IEP indicated that
reading and writing skills continued to improve, but that A.D.S.
required a structured environment as she had a tendency to become
confrontational with teachers. Id. at 251-52. A.D.S.’s 2012-2011
IEP noted that A.D.S. was a strong reader and speller, got along
with peers, and “[had] many friends.” Id. at 311-12. The IEP stated
that “A.D.S. has a great deal of ability and could do much better
than she is doing now.” Id. at 313. Her physical “levels and
abilities” were within age appropriate expectations. The IEP noted
that A.D.S. needed improvement in math, reading comprehension, and
following school and classroom rules. Id.
Special education teacher Andrea Merino submitted two teacher
questionnaires. T. 168-79 (dated May 6, 2010), 196-202 (dated
June 18, 2010). Merino began teaching A.D.S. in September of 2009,
4

and taught all her academic subjects, two to five days per week for
the 2009-2010 academic year. Id. at 169, 196. Merino reported that
A.D.S. had a “serious” or “very serious” problem in ten listed ares
of

the

domain

of

acquiring

and

using

information,

including

comprehending oral instructions, understanding vocabulary, reading
comprehension,

comprehending

and

completing

math

problems,

expressing ideas and recalling previously learned material, and the
like. Id. at 170, 197. According to Merino, A.D.S. “require[d]
teacher assistance to perform in the classroom.” Id. at 170. Merino
also reported problems attending and completing tasks, but her
ratings on the 13 areas of this domain ranged from “no problem” to
“a very serious problem.” Id. at 171, 198. Although Merino did not
elucidate in commentary, she rated A.D.S. as having no problem or
only a slight problem in areas such as paying attention when spoken
to directly, maintaining attention during play or sports, focusing
long enough to finish tasks, and refocusing to finish a task, but
rated A.D.S. as having a “serious” or “very serious” problem
related to tasks such as completing homework assignments and
carrying out instructions. Id. at 198. Merino’s ratings in the
domain of interacting and relating with others reflected problems
keeping and maintaining friends and expressing anger appropriately;
she noted that A.D.S.’s “behavior plan” was “to limit times arguing
with peers.” Id. at 199. Merino also related “serious” or “very
serious” problems within the domain of caring for herself, noting
that A.D.S. had “eating issues” and “obesity.” Id. at 174, 200.
5

Under the domain of medical conditions and medications/health and
physical well-being, Merino reported that A.D.S. had been “absent
for frequent illness,” but did not state what this illness was. Id.
at 201. Merino further noted that A.D.S. had “poor self esteem” and
“[would] not participate in academic activities due to size from
obesity issues.” Id. at 201. However, Merino did not indicate that
A.D.S. was

unable

to

participate

in these

activities

due

to

obesity.
School psychologist Bonnie Kane reported on January 21, 2010
that A.D.S.’s cognitive skills were within the low average to
borderline range, and noted that “some of [A.D.S.’s] scores may
have been negatively impacted by low motivation.” Id. at 262. An
Intervention Status Report for the 2009-2010 school year reflected
progress in the areas of organizational skills, study skills, and
assignment completion. Id. at 212.
C.

Medical Evidence

Office treatment records from Summit Pediatrics, dated 2007
through 2009, diagnosed A.D.S. with episodic ailments including
abdominal pain and cramping, obesity, a “behavioral problem,”
gastric reflux, and headaches. T. 322-25, 358-71. In November 2007,
neurologist

Michael

E.

Cohen

evaluated

A.D.S.’s

overall

neurological status as unremarkable. Id. at 394. The medical
records do not reflect any diagnosis or treatment of attention
deficity hyperactivity disorder (“ADHD”) or oppositional defiant
disorder

(“ODD”).

Additionally,
6

as

the

ALJ

noted,

no

record

evidence

indicates

that

A.D.S.

took

any

medication

for

the

treatment of ADHD during the time period relevant to this claim.
T.

86.

Indeed,

there

is

no

evidence

that

A.D.S.

took

any

medications on a regular basis.
A

childhood

disability

evaluation

form,

completed

by

Dr. J. Meyer on May 25, 2010 and given great weight by the ALJ,
reviewed A.D.S.’s medical record and determined that A.D.S.’s
impairment or combination of impairments was severe, but did not
meet, medically equal, or functionally equal the listings. Id. at
332. More specifically, Dr. Meyer found that A.D.S. had less than
marked limitations in all domains of functioning except moving
about and manipulating objects and health and physical well-being,
in which domains Dr. Meyer found that A.D.S. had no limitations.
Id. at 334-35.
A May 11, 2010 evaluation completed by psychologist Gregory
Fabiano, Ph.D., which was given some weight by the ALJ, concluded
that A.D.S.’s examination results were “consistent with psychiatric
problems, but in itself, this [did] not appear to be significant
enough to interfere with [her] ability to function on a daily
basis.” Id.

at

330.

Dr.

Fabiano

diagnosed

A.D.S.

with

ADHD,

combined type, learning disorder, not otherwise specified, and ODD.
Id. at 331.
D.

Testimonial Evidence

At the video hearing held on July 27, 2011, plaintiff and
A.D.S. testified; no medical testimony was presented. T. 49-72.
7

Plaintiff testified that A.D.S. was in 9th grade and attending high
school special education classes. Id. at 54-55. According to
plaintiff, A.D.S. weighed 280 pounds, and had gained weight. Id. at
54. Plaintiff testified that A.D.S. could see, hear, and talk
without issue. Id. at 55. Plaintiff indicated issues with reading
comprehension, but reported that A.D.S. could read and write in
English, and could read, write, and understand simple stories. Id.
at 55-56.
A.D.S. testified that she could perform communication tasks
such as answer the phone, deliver messages, express and explain her
opinions, and express her anger; however, she stated that she could
not understand oral instructions, communicate complete thoughts, or
speak in an easily understood manner. T. 57-58, 62. The Court notes
that the transcript of the hearing reflects that A.D.S.’s responses
were appropriate to the questions posed and aptly communicated.
Regarding completion of tasks, A.D.S. testified that she could
watch an entire television show or movie without being distracted,
and that she could pay attention during group sports, reading
alone, and completing chores, but that she could not complete games
or puzzles, and could not complete school or work tasks without
making careless mistakes. Id. at 59-60. She testified that she had
a best friend and that she enjoyed playing basketball with peers,
but that she did not make or keep new friends easily. Id. at 60-61.
A.D.S. also testified that she failed classes in school because she
was frequently absent from class, instead spending time in the
8

bathroom or roaming the halls. Id. She testified that she had
gotten

in

trouble

at

school

for

fighting

and

for

excessive

absences, which totaled 30 in the previous school year. Id.
IV.

Applicable Law
A.

Standard of Review

The Commissioner’s decision that a claimant is not disabled
must be affirmed if it is supported by substantial evidence, and if
the ALJ applied the correct legal standards. 42 U.S.C. § 405(g);
see also, e.g., Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.
2002). “Substantial evidence” has been defined as “‘more than a
mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison
Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The reviewing court
must carefully consider the entire record, examining evidence from
both sides, “‘because an analysis of the substantiality of the
evidence must also include that which detracts from its weight.’”
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (quoting Quinones
v. Chater, 117 F.3d 29, 33 (2d Cir. 1997) (quoting Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). Nevertheless, “it is not
the function of a reviewing court to decide de novo whether a
claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.
1999).

“Where

the

Commissioner’s

decision

rests

on

adequate

findings supported by evidence having rational probative force,
[the district court] will not substitute [its] judgment for that of
9

the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.
2002).
This deferential standard is not applied to the Commissioner’s
conclusions of law, however. Townley v. Heckler, 748 F.2d 109, 112
(2d Cir. 1984); see also, e.g., Tejada, 167 F.3d at 773. This Court
must independently determine whether the Commissioner’s decision
applied

the

correct

legal

standards

in

determining

that

the

claimant was not disabled. Id.
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 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, 586 F.3d 72,
75 (2d Cir.2009) (citing 20 C.F.R. § 416.924 et seq.). Under this
analysis, the plaintiff must show that: (1) the child was not
engaged in substantial gainful activity; (2) the child had a
“severe” impairment or combination of impairments; and (3) the
child’s impairment(s)

met,

medically

equaled,

or

functionally

equaled the severity of a listed impairment. 20 C.F.R. § 416.924.
10

At the third step, “[f]or 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).
V.

The ALJ’s Decision
The Commissioner does not dispute the ALJ’s finding that

A.D.S. was not engaged in substantial gainful activity under the
first step of the evaluation process. Doc. 16-1, at 13. Thus, the
relevant inquiries for this case relate to the second step, which
assesses whether A.D.S. has a “severe” impairment or combination of
impairments,

and

the

third

step,

which

assesses

whether

her

impairment(s) met, medically equaled, or functionally equaled the
severity of a listed impairment.
The

ALJ

found

that

A.D.S.

suffered

from

three

severe

impairments: ADHD, ODD, and a learning disorder (not otherwise
specified). T. 82 (citing 20 C.F.R. § 416.924(c)). At the third
step, however, the ALJ found that A.D.S. did not suffer from an
impairment or combination of impairments that met or medically

11

equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.924, 416.925,
416.926). T. 82. More specifically, the ALJ found that, regarding
A.D.S.’s ADHD, the evidence did not show that A.D.S. exhibited
marked impulsiveness or marked hyperactivity as required by the
listing. Id.; see 20 C.F.R. Part 404, Subpart P, Appendix 1,
§ 112.11. Regarding A.D.S.’s ODD, the ALJ found that although the
evidence

indicated

that

A.D.S.

had

significant

difficulties

relating with both peers and adults, her conduct, as documented by
school records and as observed by the ALJ during the hearing, did
not satisfy the criteria of “at least two of the appropriate agegroup criteria in paragraph B2 of 112.02.” T. 82.
The ALJ then proceeded to consider whether A.D.S. had an
impairment or combination of impairments that functionally equaled
the severity

of

the

listings.

T.

82-90.

The

ALJ

accordingly

evaluated A.D.S.’s functioning in the six domains set out in
20 C.F.R. § 416.926a(b)(1). After a thorough evaluation of all six
domains, the ALJ determined that A.D.S. did not have an impairment,
or

combination

of

impairments,

that

functionally

equaled

the

severity of the listings. T. 84-90.
VI.

Discussion
Plaintiff

contends

that

(1)

the

ALJ

failed

to

properly

evaluate A.D.S.’s teacher’s opinions; (2) the ALJ used an incorrect
legal standard in evaluating the domain of acquiring and using
information; (3) the ALJ made no credibility findings; and (4) the
12

ALJ did not properly consider the effects of A.D.S.’s obesity.
Doc. 19.
A.

The ALJ’s Consideration of Teacher Opinions

Plaintiff contends that the ALJ did not properly consider the
opinions of A.D.S.’s special education teacher, Andrea Merino.
Doc.

19

at

9-11.

As

described

above,

Merino

completed

two

evaluations at the end of the 2009-2010 school year. T. 168-79,
196-202.

Although

Merino’s

evaluations

contained

numerous

assessments that A.D.S. had “serious” or “very serious” problems in
areas listed in the form as relating to the six domains of
functioning,

Merino’s

opinions,

when

considered

alongside the

entirety of the evidence in the record, do not frustrate the ALJ’s
conclusion that, in the domains particularly relevant to school
functioning (i.e., acquiring and using information, attending and
completing tasks, and interacting and relating with others), A.D.S.
suffered from less than marked impairments that were not likely due
to any relevant impairments.
The ALJ’s opinion reflects consideration of the entire record,
including Merino’s opinions, in reaching conclusions regarding all
domains

of

A.D.S.’s

functioning.

Contrary

to

plaintiff’s

contention, the ALJ did reference Merino’s opinion once, in noting
that Merino suggested that A.D.S.’s obesity affected her self
esteem. Id. at 87. It is thus clear that the ALJ did review
Merino’s opinions. In any event, the ALJ’s opinion establishes that
he

considered

school

records,

where
13

relevant,

in

determining

A.D.S.’s levels of functioning. See id. at 85 (in considering
acquiring

and

using

information,

citing

and

school

records

reflecting excessive absence and IEP reports indicating that A.D.S.
could perform “fairly well when she is feeling motivated and
receives adequate encouragement”), 87 (in assessing interacting and
relating with others, citing school records, including an IEP
report relating that A.D.S. had a “poor attitude and work ethic
[which] interfere[d] with classroom performance”). The bulk of the
educational records, especially the IEP reports, supports the ALJ’s
overall determination that A.D.S.’s issues with performance and
conduct at school were not due to mental or physical impairments,
but rather to lack of motivation, attitude, and/or self esteem
issues. It should also be noted that Merino’s own opinions support
the conclusion that many of A.D.S.’s problems with school related
to attitude and motivational issues: she rated A.D.S. as having no
problem or only a slight problem in areas such as paying attention
when spoken to directly, maintaining attention during play or
sports, focusing long enough to finish tasks, and refocusing to
finish a task, but rated A.D.S. as having a “serious” or “very
serious” problem related to tasks such as completing homework
assignments and carrying out instructions. Id. at 198. Her ratings
in the domain of interacting and relating with others reflected
problems keeping and maintaining friends and expressing anger
appropriately; she noted that A.D.S.’s “behavior plan” was “to
limit times arguing with peers.” Id. at 199. These ratings are
14

consistent with the overall evidence in the record, which does not
reveal any underlying mental or physical impairment as a basis for
any of A.D.S.’s performance issues at school. The medical records
do not reflect any diagnosis or treatment of ADHD or ODD, nor do
they reveal

evidence

of

physical

limitations as

a

result

of

plaintiff’s obesity. Id. at 322-25, 358-71. Indeed, as the ALJ
noted, the only evidence that obesity had any significant effect on
A.D.S.’s functioning was plaintiff’s attorney’s conclusion, and
Merino’s, suggestion that bullying from peers regarding obesity,
and ensuing self-consciousness, affected A.D.S.’s willingness to
attend class or engage in other activities. Id. at 87.
Moreover, Merino is not a doctor nor is she an expert in the
legal standards necessary to establish limitations in any specific
domain,
Dr.

and

the

Meyer’s

ALJ

was

opinions

entitled

included

in

to

give

the

greater

Childhood

weight

to

Disability

Evaluation Form. Dr. Meyer concluded, after a thorough evaluation,
that A.D.S. did not suffer from marked limitations in any domain.
Id.

at

332-37.

As

the

ALJ

noted,

Dr.

Meyer’s

opinions

were

“consistent with the overall evidence in the record, and they were
formulated

by

a

licensed

pediatrician

with

a

sound

working

knowledge of both the claimant’s medical record and the applicable
SSI criteria.” Id. at 84.
In summary, the ALJ’s opinion does reflect that he gave
adequate consideration to Merino’s opinions in light of all of the
record evidence, including numerous school documents.
15

B.

The ALJ’s Evaluation of Acquiring and Using Information

Plaintiff contends that the ALJ used an incorrect legal
standard

in

evaluating

the

domain

of

acquiring

and

using

information. Doc. 19 at 11-13. However, the ALJ relied upon the
appropriate legal standard, with specificity, when considering this
domain. T. 84-85 (citing 20 C.F.R. §§ 416.926a(g); SSR 09-3p). The
ALJ

considered

the

record

evidence

relating

to

this

domain,

including educational records showing that A.D.S.’s “skills in
multiple core academic areas are several grade levels short of what
would be age-appropriate,” but that her full IQ scale of 87 placed
her “squarely in the low average range.” Id. at 85. The ALJ also
considered IEP reports which “indicate[d] that claimant is capable
of

performing

fairly

well

when

she

is

feeling

motivated and

receives adequate encouragement.” Id. The ALJ noted that according
to

school

records

and

by

A.D.S.’s

own

admission,

she

had

established a pattern of excessive absences from class, thus
creating a further explanation for poor performance in school
unrelated to any alleged impairment(s). Id. Based on this evidence,
the ALJ concluded that there was a “possibility that [A.D.S.’s]
poor academic achievement is attributable in significant part to a
lack of motivation rather than an organic disability.” Id. This
conclusion is supported by substantial evidence in the record.
Although the Court acknowledges plaintiff’s argument that a
child does not necessarily have to possess an “organic” disorder to
be considered limited in this domain of functioning, the evidence
16

nevertheless

fully

supports

the

ALJ’s

finding

that

A.D.S.’s

limitation in this domain was less than marked, and that his
opinion reflects that he considered this domain under the proper
legal standard. The Court is thus required to give deference to
this finding by the ALJ.
C.

Credibility

Plaintiff contends that the ALJ’s credibility determination is
insufficient, arguing that the ALJ did not acknowledge certain
statements made during the hearing, and “did not make any finding
as

to

whether

he

found

their

statements

to

be

credible

as

required.” Doc. 19 at 13-15.
Throughout his opinion, the ALJ considered the testimony of
both A.D.S. and plaintiff, most often actually crediting their
statements regarding A.D.S.’s relative abilities and limitations.
Id. at 85 (noting A.D.S.’s admission of excessive absences), 87
(noting A.D.S.’s testimony that she was able to make friends with
some peers and enjoyed team sports with peers), 88 (noting that
both plaintiff and A.D.S. testified that A.D.S. had no limitations
in the area of moving about and manipulating objects), 89 (noting
that hearing testimony indicated that A.D.S. was able to perform
basic self-care tasks, such as grooming), 90 (noting that A.D.S.
did not aver that she experienced any “significant or uncommon
problems with her physical health”).
Additionally, at the outset of the ALJ’s discussion of the
record and consideration of the six relevant domains, the ALJ
17

cited, among other sources, 20 C.F.R. § 416.929 and SSR 96-7p. Id.
at 83. He went on to state that “whenever statements about the
intensity, persistence, or functionally limiting effects of pain or
other symptoms are not substantiated by objective medical evidence,
the undersigned must make a finding on the credibility of the
statements based on a consideration of the entire case record.” Id.
The ALJ then stated that “[f]or the reasons stated in detail below,
although the claimant does appear to have ‘less than marked’
limitations in several of the six functional equivalence domains,
these limitations do not rise to the level of ‘marked’ impairment.”
Id.

The

subsequent

discussion,

which

includes

references

to

testimony as outlined above, indicates that the ALJ used the proper
standard in assessing credibility, especially in light of the fact
that the ALJ cited relevant authorities in that regard. See Britt
v. Astrue, 486 F. App'x 161, 164 (2d Cir.2012) (finding explicit
mention of 20 C.F.R. § 404.1529 and SSR 96–7p as evidence that the
ALJ used the proper legal standard in assessing the claimant's
credibility); Judelsohn v. Astrue, No. 11–CV–388S, 2012 WL 2401587,
at *6 (W.D.N.Y. June 25, 2012) ) (“Failure to expressly consider
every factor set forth in the regulations is not grounds for remand
where the reasons for the ALJ's determination of credibility are
sufficiently specific to conclude that he considered the entire
evidentiary

record.”).

Moreover,

review

of

the

record

fully

supports the conclusion that the ALJ properly assessed plaintiff’s

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and A.D.S.’s credibility in accordance with the applicable legal
authority.
D.

The ALJ’s Consideration of A.D.S.’s Obesity

Plaintiff

contends

that

the

ALJ

did

not

give

proper

consideration to the effects of A.D.S.’s obesity. Doc. 19 at 15-16.
However, the record reveals that the ALJ did consider A.D.S.’s
obesity in conjunction with all of her medically determinable
impairments (see 20 C.F.R. §§ 416.923, 416.924a(b)(4), 416.926a(a)
and (c)), and substantial evidence supports his conclusion that the
only effect

of

obesity

on

A.D.S.’s

daily

functioning

was

in

affecting her self esteem and thus perhaps derivatively influencing
her involvement in activities.
Although A.D.S.’s teacher, Ms. Merino, noted that plaintiff
was limited in mobility because of obesity (T. 173), and plaintiff
alleged this as well (T. 153), A.D.S.’s medical records contain no
evidence

that

obesity

affected

A.D.S.’s

functioning.

Medical

records described A.D.S. as obese or overweight, but examination
revealed no abnormalities in gait or station (id. at 329, 366), her
physical

abilities

were

assessed

as

within

age-appropriate

expectations (id. at 346), and a neurologist described her as
“somewhat heavy” and noted that this may affect her self-image, but
did not note any resulting physical or serious mental impairments.
Id. at 395. Thus, the ALJ properly considered the effects of
A.D.S.’s obesity.

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CONCLUSION
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 16) is granted, and plaintiff’s
cross-motion (Doc. 17) is denied. The ALJ’s finding that A.D.S. was
not disabled during the relevant period is supported by substantial
evidence in the record, and accordingly, 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
July 20, 2015

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