Lisinski v. Colvin

Filing 22

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 13 Commissioner's Motion for Judgment on the Pleadings; denying 14 Plaintiff's Motion for Judgment on the Pleadings; dismissing the complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/3/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CORY ROBERT LISINSKI,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,

13-CV-00375(MAT)
DECISION and ORDER

Defendant.

I.

Introduction
Represented by counsel, Cory Robert Lisinski (“plaintiff”)1

has brought this action pursuant to Title XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Commissioner of Social Security (“the Commissioner”) denying
his 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 April 20, 2010, plaintiff’s mother,

Jennifer M. Standish, filed an application for SSI on behalf of
plaintiff, alleging a disability onset date of February 16, 2010.
This application was denied, and at Ms. Standish’s request, a
hearing was held on November 15, 2011 before an Administrative Law
Judge (“ALJ”) Stanley A. Moskal, Jr. The ALJ issued an unfavorable

1

Plaintiff (d/o/b March 4, 1994) was an infant under the age
of 18 at the time the original application was filed. By the time
this action was filed April 16, 2013, he was competent to file the
action.

decision on February 24, 2012. The Appeals Council denied review of
the ALJ’s decision on February 22, 2013. Thereafter, 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.

Medical Evidence

Plaintiff’s medical records indicate primary diagnoses of
attention deficit hyperactivity disorder (“ADHD”), oppositional
defiant disorder (“ODD”), bipolar disorder, asthma, and OsgoodSlaughter’s syndrome (inflammation of the patellar ligament at the
tibial

tuberosity).

The

record

contains

several

consultative

examinations as well as treatment notes from plaintiff’s primary
medical and psychiatric providers.
School psychologist Mac I. Barnett completed a confidential
psycho-educational evaluation in September 2009, at the request of
plaintiff’s mother. T. 199-203. School records indicated that in
sixth grade, plaintiff’s school performance was quite good until
seventh grade, at which point it dropped off and plaintiff began
exhibiting a pattern of excessive absence and failing grades. Id.
Dr. Barnett found that plaintiff was advanced in conversational
proficiency; cooperative; had a typical activity level for his
2

age/grade;

was

attentive

to

tasks

as

typical

for

age/grade;

appeared tense or worried at times; was slow and careful in
responding; and generally persisted with difficult tasks as typical
for age/grade. Id. Dr. Barnett administered an intelligence test
and noted that “implications for the classroom teacher [were] that
[plaintiff] ha[d] the intelligence to perform at least at an
Average level and showed no significant difficulties thinking by
using a Crystallized or Fluid process[.]” T. 201.
Treatment records from the office of Dr. Thomas Szalkowski for
the

time

essentially

period

September

normal

physical

2003

through

examination

March

2010

findings,

contain

with

the

exception of episodic illnesses and injuries and diagnoses of
asthma, Osgood-Slaughter’s syndrome, explosive disorder, ADHD, and
ODD. T. 206-358. In July 2009, Dr. Szalkowski noted that plaintiff
did not play sports, but had hobbies and got along with several
peers and his parents. T. 305. Plaintiff did not have anxiety
issues, but drank alcohol and smoked cigarettes. Id. Plaintiff was
on probation from a criminal mischief charge that occurred when he
was 13. T. 306. Plaintiff had violated the conditions of an
adjournment in contemplation of dismissal, and therefore probation
was imposed for an additional year. Id.
On November 18, 2009, Dr. Szalkowski found that plaintiff was
physically

qualified

for

sports/full

playground

activity

and

physically qualified for employment. T. 265. On March 19, 2010,
after plaintiff had “missed significant days of school due to
3

varying

illnesses,

recently

abdominal

pain

with

persistent

diarrhea,” Dr. Szalkowski noted in a letter to plaintiff’s school
that plaintiff and his mother requested that plaintiff be home
tutored due to plaintiff’s and his mother’s desire to “catch him
up” before going back to school. T. 238. Dr. Szalkowski stated that
his preference, however, would be for plaintiff to return to school
if this was at all possible, and noted that he had encouraged
plaintiff to return to school. Id.
Plaintiff treated with psychiatrist Christopher Pino from
sometime in 2007 through May 2010. T. 360-63. Treatment notes
reflect diagnoses of bipolar disorder, ADHD, and ODD. In August
2009, Dr. Pino found that on mental status exam, plaintiff had
anxious mood and labile affect; his short and long-term memory were
normal, but concentration was impaired without medication; he
showed no signs of psychosis, “but can tell some very dramatic
stories as attention seeking.” T. 361, 454. In May 2010, Dr. Pino
noted that although plaintiff took medication (prescribed by school
psychiatrist Dr. Hashim) for mental conditions, [h]is mood swings
[were] not under control [and] he remains a risk for being in
school.” T. 360. Dr. Pino recommended home instruction through the
end of the school year. Id.
On June 30, 2010, Dr. Donna Miller completed a pediatric
examination at the request of the SSA. T. 382-86. Dr. Miller noted
that “[o]n a typical day [plaintiff] watches TV, listens to music,
plays sports, draws, and uses the computer.” T. 384. Physical exam
4

was essentially normal. T. 384-85. Dr. Miller noted that plaintiff
related with her “in an age-appropriate way,” and “appeared to have
[a] normal attention span for [his] age.” T. 384. Dr. Miller
diagnosed

asthma,

Osgood-Schlatter’s

syndrome,

and

chronic

intermittent back pain, and noted a stable prognosis. T. 385-86.
Dr. Miller stated that plaintiff could “participate in all ageappropriate activities,” but that she would recommend “limiting
sport activities secondary to his Osgood-Schlatter.” T. 386.
Susan

Santarpia,

Ph.D.,

completed

a

child

psychiatric

evaluation on June 30, 2010 at the request of the SSA. T. 387-91.
At that exam, plaintiff and his mother reported past diagnoses of
ADHD, bipolar disorder, ODD, intermittent rage disorder, and PTSD,
“which stems from a life-threatening trauma when he was beaten by
his biological father at age 7 and forced to do drugs.” T. 387.
Plaintiff reported using cannabis and drinking alcohol, to which
behavior his “mother did not demonstrate any apparent objection.”
T. 388. He had just been released from a three-year probation
associated with a criminal mischief charge. Id. Dr. Santarpia
assessed plaintiff’s mood as euthymic, attention and concentration
as age-appropriate, cognitive functioning as average, insight poor,
and judgment poor “due to the claimant being parented in a way that
allows a 16-year-old to live with his girlfriend, use marijuana,
and drink alcohol.” T. 389-90. Plaintiff was able to bathe, dress,
and groom himself appropriately, help out with household chores,
and travel the neighborhood independently, and had normal sleep and
5

appetite. T. 387, 390. Plaintiff had been seeing his girlfriend for
three years

and

“spen[t]

his

days

with his

girlfriend.”

Id.

Dr. Santarpia opined that plaintiff could understand directions and
perform most tasks age-appropriately, with mild impairment in
maintaining appropriate social behavior and interacting adequately
with peers and adults. Id. She concluded that the results of her
evaluation were “consistent with psychiatric problems, but in
itself, this [did] not appear to be significant enough to interfere
with the claimant’s ability to function on a daily basis.” Id. On
Axis I, she diagnosed plaintiff with disruptive behavior disorder,
not otherwise specified (“NOS”). Id. She assessed a poor prognosis
“given [plaintiff’s] current level of living situation and poor
parental skills.” T. 391. Dr. Santarpia also completed a child
intelligence evaluation, in which she assessed a full-scale IQ of
88, which put plaintiff in the low average to average range of
abilities. T. 395.
Dr. J. Meyer completed a childhood disability evaluation form
in August 2010. T. 397-402. Dr. Meyer found that plaintiff had an
impairment or combination of impairments that were severe, but did
not medically equal or functionally equal a listed impairment.
T.

397.

Dr.

Meyer

assessed

no

limitation

in

the

domains

of

interacting and relating with others, moving about and manipulating
objects, and caring for yourself, less than marked limitation in
the domains of acquiring and using information and health and
physical

well-being,

and

marked
6

limitation

in

the

domain

of

attending and completing tasks. T. 399-400. Dr. Meyer noted that
plaintiff was currently living with his girlfriend and girlfriend’s
mother, that he was possibly abusing alcohol, and that he was noncompliant with medications. T. 399.
Nurse

practitioner

Gerald

E.

Turk

examined

plaintiff

on

August 9, 2010. T. 403-10, 462. NP Turk took an extensive history
from plaintiff and plaintiff’s mother, and noted that plaintiff
complained of past physical abuse by his father and sexual abuse
from nonfamily member, and that plaintiff “has acquired many legal
problems and has been accused of attempted rape and property
destruction.” T. 403-06. NP Turk stated that plaintiff “seeks
disability and an alternate school situation so that he will avoid
further legal problems.” T. 406. Plaintiff and his mother reported
that “at the age of 13 he cut his wrist while intoxicated on
alcohol

and

subsequently

required

surgery

to

address

tendon

damage.” T. 403; see T. 383 (noting 2007 surgery). They also
reported

that

plaintiff

had

voiced

suicide

threats

on

five

different occasions prior to August 9, 2010. T. 404. NP Turk
diagnosed plaintiff, on Axis I, with bipolar disorder, NOS; ADHD,
combined type; continuous cannabis dependence; and “[a]buse of a
[c]hild, physical and sexual.” T. 406. Plaintiff requested Geodon
for psychiatric treatment, which NP Turk agreed to prescribe,
noting that if this medication was unsuccessful plaintiff would be
willing to try lithium. Id. Plaintiff was continued on Prozac and
Adderall. Id.
7

Psychiatric

treatment

notes

dated

September

2010

through

September 2011 indicate that plaintiff’s psychiatric conditions
were controlled with medications. T. 463-82. However, plaintiff had
a pattern of repeated cancellations and lateness for appointments.
T. 475. When plaintiff’s mental status was assessed, it was either
normal

or

normal

except

that

plaintiff

did

not

present

as

reasonable, rational, or insightful. T. 463 (September 13, 2010
exam

noting

labile

mood,

defiance,

and

poor

insight),

464

(October 14, 2010 exam noting limited insight), 468 (May 3, 2011
exam noting impulsivity and impaired judgment), 470 (May 10, 2011
exam was normal), 480, 482 (July 28 and September 1, 2011 exams
normal except for limitations in reason, rationality, and insight).
In

September

2010,

treatment

notes

indicated

that

plaintiff

continued THC use; in October 2010, plaintiff was home schooling
and his girlfriend had had a miscarriage; and in April 2011,
plaintiff’s girlfriend was once again pregnant. T. 463-65.
B.

Education Records

A section 504 student accommodation plan dated January 2010,
noting that plaintiff “struggle[d] to complete tests and exams in
the allotted time based upon his anxiety to meet the time limit and
the distractions in large classrooms,” recommended a flexible
testing

setting

which

would

give

plaintiff

extended

time

to

complete exams and allow him to be separated from fellow students
during tests. T. 204, 375, 377, 435-36. Nothing in the plan
indicates that accommodations were necessary for any reasons other
8

than plaintiff’s difficulty completing testing on time and without
distractions. T. 435-36.
Education records for the 2009-2010 school year show excessive
absences and tardies, with excuses ranging from substantiated
medical

issues

to

multiple

instances

of

oversleeping,

“car

trouble,” “traffic,” and “personal” absences; many absences and
tardies were simply unexcused. T. 412-14. During that school year,
plaintiff was absent from school anywhere from six to twenty-two
times each month for these various reasons. Id. Plaintiff exhibited
a similar attendance pattern in previous school years. T. 418-25.
Social worker Karen Dillon noted in September 2009 that
according to plaintiff’s mother, “[plaintiff’s and his mother’s]
relationship could become volatile if [plaintiff] did not get his
way.” T. 437. Ms. Dillon noted that plaintiff had a history of
psychiatric issues, including “a history of suicidal threats [and]
ideations,” and that plaintiff took medication to control these
mental health issues. Id. Ms. Dillon stated that plaintiff had a
girlfriend,

and

“[m]uch

of

his

world

revolves

around

their

relationship”; he “did not like attending NT Middle School [and] as
a result, missed most of the school year.” Id. Plaintiff reported
to Ms. Dillon that “he felt extremely uncomfortable in the school
environment,” and “reported that students picked on him [and] he
did not feel safe.” Id. According to Ms. Dillon, plaintiff made use
of their counseling sessions and “easily engaged in a therapeutic
counseling relationship.” Id.
9

A June 2010 teacher questionnaire from plaintiff’s guidance
counselor, Robert Derrett, noted excessive absences due to “health
and emotional issues,” and stated that plaintiff had been home
schooling since May 3, 2010. T. 152. Mr. Derrett stated:
It appears to me that [plaintiff] chooses not to apply
himself in school. His comprehension for school
activities, assignments, studying, etc. seems directly
related to his motivation (his “want” to do work) not a
disability. He understands concepts with the literature
but also seems to better understand the concept of
manipulating his “condition,” and avoiding doing work. In
my estimation it’s not a question of needing or using
support and structure, it’s a need for self-motivation
and applied effort.
T. 153. Mr. Derrett rated plaintiff as having either no or a slight
problem in various areas of acquiring and using information; some
serious problems in areas related to attending and completing
tasks; several “obvious” problems and otherwise no or slight
problems in interacting and relating with others; no problems in
moving

about

or

manipulating

objects;

and

several

“obvious”

problems and otherwise no or slight problems in caring for himself.
T.
Mr.

153-58.
Derrett

Regarding
noted

interacting

that

he

was

and
not

relating
aware

of

with
any

others,
behavior

modification strategies being implemented for plaintiff and that
Mr. Derrett almost always understood plaintiff’s speech. T. 155-56.
Regarding caring for himself, Mr. Derrett opined that plaintiff
“ha[d] his priorities mixed up. School is mainly a vehicle for
socialization with [his] current girlfriend.” T. 157. According to
Mr. Derrett, plaintiff had “had some legitimate illness and stress,
but [plaintiff’s] way of dealing with it is long term absences,
10

falling

behind

in

his

work,

and

justifying

his

failures

by

excuses,” which Mr. Derrett assessed as “[a] defense mechanism of
sorts.” Id.
C.

Non-Medical and Testimonial Evidence

At the hearing, plaintiff testified that through seventh
grade, he “did pretty good, but after seventh, it became very hard
. . . with concentration.” T. 43. He testified that he was
prescribed medication, but that each time he had to be “switched to
something else because it stopped working.” Id. Plaintiff testified
that he “desperately need[ed]” his bipolar disorder medication
because he “get[s] very, very mean without it.” T. 44. Plaintiff
testified that he had problems with people at school, including
teachers and students, specifically stating that “lately” he had a
problem “with the maturity level of the other students,” and that
he found himself getting “irritated very fast and [found it] to be
an unsafe situation for [him]self.” T. 45. Plaintiff testified that
he was convicted of criminal mischief when he was 13, and that he
had not had legal trouble since serving out his probation. T. 46.
He stated that he had a daughter, “and that ha[d] taught [him] to
control [him]self a little bit better”; he “usually wait[ed] until
outside of school to take out any rage against anyone [he] may have
a rage against.” Id. He stated that he was only in school “a few
days” that year, stating, “I couldn’t trust myself in the situation
any more due to the fact of all the kids were a lot younger than
me, a lot more mature, and I found myself getting very, very angry
11

very fast.” T. 46-47. He testified that he planned to get a GED.
T. 47.
Plaintiff testified that about a year prior, he attacked a
male who allegedly raped his girlfriend, and “put [him] in the
hospital for a month.” T. 49. Plaintiff testified that he did not
have any friends. T. 50. He stated that he was responsible for
chores at home, including sweeping the floor, doing dishes, and
wiping down counters, but that he “spen[t] most of [his] time
watching TV.” T. 54. Plaintiff testified that he had “broken quite
a few things in rages,” and that he “like[d] to punch things that
could hurt [him],” stating, “Its not the destruction I like . . .
its just . . . the release of anger more than anything.” T. 58.
Plaintiff’s mother testified that he was manipulative and selfcentered, testifying that “[h]e wants to make the self happy, and
it doesn’t matter what cost.” T. 59.
In a function report dated April 20, 2010, plaintiff’s mother
reported that plaintiff had no problems seeing, hearing, talking,
communicating,

understanding

and

using

what

he

learned,

no

limitations in physical activities, and no impairments affecting
his social activities or behavior with other people. T. 144-48.
Plaintiff’s mother reported that he had limitations going to school
full-time, taking care of his personal needs and safety (noting
problems

getting

to

school

on

time,

accepting

criticism

or

correction, keeping out of trouble, and obeying rules), and paying
attention and sticking with a task (noting limitations in all areas
12

listed). T. 146, 149-50. In a disability report dated October 25,
2010, plaintiff’s mother reported that plaintiff was “making home
life

difficult

[privileges]

for

family,”

[and]

“thinks

treatment

he

should

without

have

adult

responsibility,”

“participated with alcohol [and] marijuana, [and] possibly pills,
just to cope,” and “wants to go out on own because he doesn’t like
to be told what to do or follow rules.” T. 173.
IV.

Applicable Law
A.

Standard of Review

When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Social Security Act (“the
Act”), the district court is limited to determining whether the
Commissioner’s

findings

were

supported

by

substantial

record

evidence and whether the Commissioner employed the proper legal
standards. Green-Younger v. Barnhard, 335 F.3d 99, 105-06 (2d Cir.
2003). The district court must accept the Commissioner’s findings
of fact, provided that such findings are supported by “substantial
evidence” in the record. See 42 U.S.C. § 405(g) (the Commissioner’s
findings “as to any fact, if supported by substantial evidence,
shall

be

conclusive”).

The

reviewing

court

nevertheless

must

scrutinize the whole record and examine evidence that supports or
detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774
(2d Cir. 1998) (citation omitted). “The deferential standard of
review

for

substantial

evidence

Commissioner’s conclusions of law.”
13

does

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
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.
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:
14

(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 ALJ found that plaintiff was an adolescent (see 20 C.F.R.

§ 416.926a(g)(2)) who had not engaged in substantial gainful
activity since February 16, 2010. T. 14. The ALJ found that
plaintiff suffered from the following severe impairments: ADHD,
ODD, bipolar disorder, asthma, and Osgood-Slaughter’s syndrome. Id.
At the third step, the ALJ found that plaintiff did not have an
impairment

or

combination

of

impairments

that

met,

medically

equaled, or functionally 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. 14-28.
VI.

Discussion
Plaintiff contends that the ALJ erred in (1) finding that

plaintiff did not have a marked impairment in the domain of
interacting and relating with others; (2) finding that plaintiff
did not have a marked impairment in the domain of caring for
himself; and (3) evaluating plaintiff’s and plaintiff’s mother’s
credibility. Doc. 14-1.

15

A.

The ALJ’s Evaluation of the Domain of Interacting and
Relating With Others

Plaintiff contends that the ALJ’s conclusion that plaintiff
did not have a marked impairment in interacting and relating with
others is not supported by substantial evidence. Specifically,
plaintiff
Dr.

argues

Santarpia’s

that
and

the

Dr.

ALJ

erred

Meyer’s

in

giving

assessments,

and

weight

to

points

to

plaintiff’s and plaintiff’s mother’s reports of his difficulties
getting along with others.
The ALJ found that the evidence “demonstrate[d] that the
claimant ha[d] some problems interacting with others, but that he
has had a long-term relationship with a girlfriend, he has never
been suspended from school for fighting and can generally get along
with others.” T. 23. In evaluating this domain, the ALJ considered
the consulting examination of Drs. Santarpia and Meyer, plaintiff’s
school records

and

psychiatric

treatment

records,

plaintiff’s

testimony, and Mr. Derrett’s teacher questionnaire. T. 22-24.
For plaintiff’s age group (age 12 to 18), the regulations
provide that the adolescent should be able to initiate friendships
with peers and interact appropriately with adults, recognize that
there

are

different

social

rules

for

adults

and

peers,

and

“intelligibly express [his] feelings, ask for assistance in getting
[his] needs met, seek information, describe events, and tell
stories, in all kinds of environments . . ., and with all types of
people[.]” 20 C.F.R. § 416.926a(i)(2)(v). Examples of limited

16

functioning applicable to adolescents include withdrawing from
people the child knows, having difficulty in communication, and
difficulty

speaking

intelligibly

or

with

fluency.

20

C.F.R.

§ 416.926a(i)(3)(iii), (v), (vi). The regulations’ focus in this
domain is thus on the adolescent’s ability to communicate with, and
interact appropriately with, both peers and adults.
Dr. Santarpia concluded that plaintiff had a mild impairment
in

maintaining

adequately

with

appropriate
peers

and

social
adults,

behavior
noting

and

that

interacting

plaintiff

had

maintained a three-year relationship with his girlfriend and that
his mother’s permissive parenting style contributed to plaintiff’s
poor judgment. T. 389-91. Dr. Meyer concluded, without elucidating,
that plaintiff had no limitations in this domain. T. 399. The Court
notes that the ALJ did not give weight to Dr. Meyer’s assessment,
but rather found that plaintiff had a less than marked limitation
in this domain. T. 24.
Although plaintiff exhibited some problems, including those
noted by Dr. Santarpia and certain “obvious” problems noted by
Mr.

Derrett

(such

as

problems

playing

cooperatively,

seeking

attention appropriately, expressing anger appropriately, asking
permission appropriately, following rules, and relating experiences
and

telling

appropriately,

stories),
both

plaintiff

with

medical

was

able

to

and

educational

communicate
personnel

throughout treatment and consultation and at the hearing, and
maintained a long-term relationship with his girlfriend. School
17

psychologist Dr. Barnett noted that plaintiff was advanced in
conversational

proficiency

and

cooperative,

and

plaintiff’s

guidance counselor, Mr. Derrett, noted that he was not aware of any
behavior modification strategies implemented for plaintiff and that
he was able to understand plaintiff’s speech. T. 200. Moreover, the
record indicates that plaintiff actually exhibited a great deal of
control over and manipulation of the relationships in his life.
See, e.g., T. 59 (plaintiff’s mother testified that plaintiff
behaves so as “to make the self happy, and it doesn’t matter what
cost”), 153 (Mr. Derrett opined that plaintiff “manipulat[ed] his
‘condition,’ [to] avoid[] doing work”).
Treatment notes from plaintiff’s treating physicians also
substantially support the ALJ’s finding. Although Dr. Pino stated
that plaintiff was a risk for being in school due to mood swings
(T. 360), around that same time period (the end of the 2009-2010
school year), Dr. Szalkowski stated that plaintiff and his mother
requested the plaintiff be home schooled but Dr. Szalkowski did not
agree with this approach, noting that he had encouraged plaintiff
to

return

to

school.

T.

238.

In

psychiatric

treatment

from

September 2010 through September 2011, plaintiff was repeatedly
assessed as normal in mental status exams, with the exception of
limited insight and judgment. T. 463-64, 468, 470, 480, 482.
Additionally, plaintiff’s mother reported, in a function report
related to this claim, that plaintiff did not have any impairments
affecting his social activities or behavior with other people.
18

T. 148. Thus, although the record reflects that plaintiff did have
limitations

in

this

domain,

the

ALJ’s

conclusion

that

those

limitations were not marked is supported by substantial record
evidence.
B.

The ALJ’s Evaluation of the Domain of Caring for Himself

Plaintiff contends that the ALJ’s conclusion that plaintiff
did not have a marked impairment in the domain of caring for
himself is not supported by substantial evidence. The domain of
caring for oneself relates to how well an individual “maintain[s]
a healthy emotional and physical state,” including how well one
gets “physical and emotional wants and needs met in appropriate
ways, . . . cope[s] with stress and changes in . . . environment,”
and whether one “takes care of [his] own health, possessions, and
living area.” 20 C.F.R. § 416.926a(k). In the adolescent age range,
limitations in this domain include limitations in bathing and
dressing

oneself,

self-soothing

behaviors,

self-injurious

behaviors, disturbance in eating or sleeping patterns, and failure
to

spontaneously

pursue

enjoyable

activities

or

interests.

20 C.F.R. § 416.926a(k)(3)(ii), (iii), (iv), (v), (vi).
The ALJ found that plaintiff had no limitations in caring for
himself. T.

25-26.

In

evaluating

this domain,

the

ALJ

cited

Dr. Santarpia’s and Dr. Meyer’s consulting examinations, noting
that plaintiff had normal sleep and appetite, was able to dress,
bathe, and groom himself as age-appropriate, had hobbies and
interests, and had fair insight but poor judgment. Id. (referencing
19

T. 387-91). The ALJ also noted Dr. Santarpia’s findings that
plaintiff

could

respond

appropriately

to

changes

in

the

environment, ask questions and request assistance in an ageappropriate manner, and was able to be aware of danger and take
immediate precautions within normal limits. Id.
As plaintiff points out, Mr. Derrett noted “obvious” problems
in plaintiff’s abilities to appropriately assert emotional needs,
respond to changes in his mood, and use coping skills to meet the
daily needs of the school environment. T. 157. However, the form
used by Mr. Derrett included options in these areas for “serious”
or

“very

serious”

problems.

Considering

the

form,

and

not

discounting the nature of plaintiff’s limitations as reported by
Mr. Derrett, it appears clear that Mr. Derrett did not see these
limitations as on the upper-level scale of seriousness when he
assessed

them.

T.

157.

Significantly,

Mr.

Derrett

did

note

“serious” or “very serious” problems in certain areas of attending
and completing tasks, indicating that Mr. Derrett evaluated each
domain on a continuum, as the form requested, from “no problem” to
a

“very serious”

problem. T.

154.

Moreover, as

noted

above,

treatment records indicate that plaintiff was assessed as normal in
mental status examinations with the exception of limited insight
and judgment. T. 463-64, 468, 470, 480, 482. Plaintiff was also
able to dress, bathe, and groom himself, and reported that he had
normal sleep and appetite and could do basic chores around the

20

house, but spent most of his time watching TV, playing sports,
drawing, and using the computer. T. 54, 384, 387, 390.
The Court takes very seriously the assertion that plaintiff
has engaged in suicidal ideation and has had one prior suicide
attempt. Plaintiff and his mother reported that “at the age of 13
he cut his wrist while intoxicated on alcohol and subsequently
required

surgery

to

address

tendon

damage,”

and

stated

that

plaintiff had voiced suicide threats five times. T. 403-04; see
T. 383 (noting 2007 surgery). School social worker Ms. Dillon noted
in September 2009 that plaintiff had “a history of suicidal threats
[and] ideations.” T. 437. The record also contains evidence of two
instances of plaintiff “blacking out” and punching objects with his
fist, causing pain and swelling to his hand. Specifically, on
October 1, 2008, it was noted that a right hand injury was possibly
due to explosive disorder; follow-up revealed no fracture. T. 340,
343. On September 10, 2008, plaintiff reported that he hit an oak
dresser with his right fist; his fist was assessed on physical exam
as unremarkable. T. 347, 350. Plaintiff testified that he hit
objects as a “release of anger.” T. 58. All of these behaviors were
occurred more than a year prior to plaintiff’s alleged disability
onset date.
The evidence in the record indicates that by the alleged
disability onset date of February 16, 2010, plaintiff’s mental
conditions

were

controlled

with

medication

and

plaintiff

was

routinely assessed in treatment as having an essentially normal
21

mental state. T. 406 (August 9, 2010 mental status examination
revealed no homicidal or suicidal ideation), 463-82 (treatment
notes indicated essentially normal mental status exams, with the
exception of limited insight and judgment). Moreover, in April
2010, plaintiff’s mother reported that his limitations in taking
care of his own personal needs and safety included only problems
getting to school on time, accepting criticism or correction,
keeping out of trouble, and obeying rules; she did not list any
concerns about self-harm. T. 149. She reported that he took his
medication, avoided accidents, and asked for help when needed. Id.
Considering the above review of the evidence, the Court finds
that the record substantially supports a conclusion that plaintiff
had, at most, a less than marked impairment in this domain of
functioning. The Court finds that to the extent that the ALJ erred
in finding no impairment where he should have found a less than
marked impairment, that error was harmless. See, e.g., Ruff ex rel.
LMF v. Colvin, 2015 WL 694918, *11 (S.D.N.Y. Feb. 18, 2015) (noting
that finding of “no limitation” amounts to harmless error where the
limitation is actually “less than marked”). Because substantial
evidence supports a conclusion that plaintiff suffered a less than
marked impairment in this domain and any error in finding no
limitation

was

harmless,

the

ALJ’s

disturbed.

22

conclusion

will

not

be

C.

The ALJ’s Credibility Determination

Plaintiff argues that the ALJ erred in not crediting plaintiff
and his mother’s testimony regarding plaintiff’s symptoms. In the
context of his discussion of the record and consideration of the
six relevant domains, the ALJ cited, among other sources, 20 C.F.R.
§ 416.929 and SSR 96-7p. T. 15. 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. After summarizing the testimony of both
plaintiff and his mother, the ALJ concluded that, although there
were medically determinable impairments that could reasonably be
expected to produce the alleged symptoms, the statements concerning
the intensity, persistence and limiting effects of those symptoms
were not credible to the extent that they were inconsistent with
the

finding

that

plaintiff

did

not

have

an

impairment

or

combination of impairments which functionally equaled the listings.
T. 16.
The subsequent discussion, which incorporates a review of the
testimony, 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
23

the proper legal standard in assessing the claimant's credibility);
Judelsohn v. Astrue, 2012 WL 2401587, *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.”). The
ALJ referenced relevant testimony throughout his discussion of the
six domains. T. 20 (noting, in assessing acquiring and using
information, that neither plaintiff nor his mother testified to any
problems

in

this

arena),

T.

22

(in

assessing

attending

and

completing tasks, crediting plaintiff’s and his mother’s testimony
that behavioral problems interfered with school functioning), T. 23
(in

assessing

interacting

and

relating

with

others,

citing

plaintiff’s testimony that he did not have any friends, but noting
plaintiff’s mother’s report that he could make friends but not keep
them,

and

noting

plaintiff’s

long-term

relationship

with

a

girlfriend), T. 27 (noting, under domain of health and physical
well-being,

that

plaintiff’s

testimony

was

inconsistent

with

medical records). The ALJ’s decision therefore reflects that he
properly applied the two-step credibility test set forth in the
regulations

(see

20

C.F.R.

§

416.929),

and

his

credibility

determination will not be disturbed.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 13) is granted, and plaintiff’s
24

cross-motion (Doc. 14) is denied. The ALJ’s finding that plaintiff
was not disabled 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
August 3, 2015

25