Doerr v. Colvin

Filing 15

-CLERK TO FOLLOW UP---DECISION AND ORDER granting Defendant's 10 MOTION for Judgment on the Pleadings and denying Plaintiff's 9 MOTION for Judgment on the Pleadings. The Clerk is directed to enter judgment in favor the Commissioner and to close this file. Signed by Hon. John T. Curtin on 8/13/2014. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JENNIFER MAE DOERR,
Plaintiff,
-vs-

13-CV-429-JTC

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

APPEARANCES:

PUSATIER, SHERMAN, ABBOTT & SUGARMAN LLP (RICHARD G.
ABBOTT, ESQ., of Counsel), Kenmore, New York, for Plaintiff.
WILLIAM J. HOCHUL, JR., United States Attorney (MICHAEL S.
CERRONE, Assistant United States Attorney, of Counsel), Buffalo,
New York, for Defendant.

This matter has been transferred to the undersigned for all further proceedings, by
order of Chief United States District Judge William M. Skretny dated April 16, 2014 (Item
14).
Plaintiff Jennifer Mae Doerr initiated this action on April 29, 2013, pursuant to the
Social Security Act, 42 U.S.C. § 405(g) (“the Act”), for judicial review of the final
determination of the Commissioner of Social Security (“Commissioner”) denying plaintiff’s
application for child’s disability insurance benefits. Both parties have moved for judgment
on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (see Items
9, 10). For the following reasons, plaintiff’s motion is denied, and the Commissioner’s
motion is granted.

BACKGROUND
Plaintiff was born on August 5, 1970 (Tr. 24).1 She filed an application for child’s
disability insurance benefits on December 1, 2010, alleging disability since July 1, 1979,
due to complications from a brain tumor suffered as a young child (Tr. 96-102). The
application was denied administratively (Tr. 52-55), and plaintiff requested a hearing which
was held before Administrative Law Judge (“ALJ”) Robert T. Harvey on April 4, 2012 (Tr.
18-50). Plaintiff testified at the hearing, and was represented by counsel.
In a decision issued on May 21, 2012, the ALJ found that plaintiff was not disabled
within the meaning of the Act (Tr. 6-14). Following the sequential process for evaluating
disability claims outlined in the Social Security Regulations at 20 C.F.R. § 404.1520(a), the
ALJ determined that, in the absence of any medical records reflecting plaintiff’s condition
during the period from August 1988 (when she turned 18) through August 1992 (when she
turned 22), plaintiff “failed to carry her burden of proof demonstrating the presence of a
severe impairment causing restrictions in her ability to perform work related activities within
the meaning of the Act and Regulations continuously since prior to the age of 22” (Tr. 14).
On March 28, 2013, the Appeals Council denied plaintiff’s request for review (Tr.
1-4), making the ALJ’s decision the final determination of the Commissioner, and this
action followed.
In her motion for judgment on the pleadings, plaintiff contends that the
Commissioner’s determination should be reversed because the record establishes that
plaintiff has been continuously disabled since prior to her twenty-second birthday, and that

1

Parenthetical numeric references preceded by “Tr.” are to pages of the administrative transcript
filed by the Commissioner as part of the answer in this action (Item 7).

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the ALJ failed to properly assess the credibility of the hearing testimony with respect to
plaintiff’s complaints of disabling chronic fatigue. See Item 9-1. The government contends
that the Commissioner’s determination should be affirmed because the ALJ’s decision is
based on substantial evidence.

DISCUSSION
I.

Scope of Judicial Review
The Social Security Act provides that, upon district court review of the

Commissioner‘s decision, “[t]he findings of the Commissioner . . . as to any fact, if
supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g).
Substantial evidence is defined as evidence which “a reasonable mind might accept as
adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938), quoted in Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tejada v.
Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999). The substantial evidence test applies not only
to findings on basic evidentiary facts, but also to inferences and conclusions drawn from
the facts. Giannasca v. Astrue, 2011 WL 4445141, at *3 (S.D.N.Y. Sept. 26, 2011) (citing
Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977)).
Under these standards, the scope of judicial review of the Commissioner’s decision
is limited, and the reviewing court may not try the case de novo or substitute its findings
for those of the Commissioner. Richardson, 402 U.S. at 401; see also Cage v. Comm'r of
Soc. Servs., 692 F.3d 118, 122 (2d Cir. 2012). The court’s inquiry is “whether the record,
read as a whole, yields such evidence as would allow a reasonable mind to accept the

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conclusions reached” by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982), quoted in Hart v. Colvin, 2014 WL 916747, at *2 (W.D.N.Y. Mar. 10, 2014).
However, “[b]efore the insulation of the substantial evidence test comes into play,
it must first be determined that the facts of a particular case have been evaluated in the
light of correct legal standards.” Klofta v. Mathews, 418 F. Supp. 1139, 1411 (E.D.Wis.
1976), quoted in Sharbaugh v. Apfel, 2000 WL 575632, at *2 (W.D.N.Y. March 20, 2000);
Nunez v. Astrue, 2013 WL 3753421, at *6 (S.D.N.Y. July 17, 2013) (citing Tejada, 167 F.3d
at 773). “Failure to apply the correct legal standard constitutes reversible error, including,
in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue,
546 F.3d 260, 265 (2d Cir. 2008) (citations omitted).

Thus, the Commissioner’s

determination cannot be upheld when it is based on an erroneous view of the law, or
misapplication of the Regulations, that disregards highly probative evidence. See Grey v.
Heckler, 721 F.2d 41, 44 (2d Cir. 1983); see also Johnson v. Bowen, 817 F.2d 983, 985
(2d Cir. 1987) (“Failure to apply the correct legal standards is grounds for reversal.”),
quoted in McKinzie v. Astrue, 2010 WL 276740, at *6 (W.D.N.Y. Jan. 20, 2010).
If the Commissioner's findings are free of legal error and supported by substantial
evidence, the court must uphold the decision. 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive, and where a claim has been denied ... the court shall review only the
question of conformity with [the] regulations….”); see Kohler, 546 F.3d at 265. “Where the
Commissioner's decision rests on adequate findings supported by evidence having rational
probative force, [the court] will not substitute [its] judgment for that of the Commissioner.”

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Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). Even where there is substantial
evidence in the record weighing against the Commissioner's findings, the determination will
not be disturbed so long as substantial evidence also supports it. See Marquez v. Colvin,
2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013) (citing DeChirico v. Callahan, 134 F.3d
1177, 1182 (2d Cir. 1998) (upholding the Commissioner's decision where there was
substantial evidence for both sides)).
In addition, it is the function of the Commissioner, not the reviewing court, “to
resolve evidentiary conflicts and to appraise the credibility of witnesses, including claimant.”
Carroll v. Sec'y of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983); cf.
Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. Sept. 5, 2013). “Genuine conflicts in the
medical evidence are for the Commissioner to resolve,” Veino, 312 F.3d at 588, and the
court “must show special deference” to credibility determinations made by the ALJ, “who
had the opportunity to observe the witnesses’ demeanor” while testifying. Yellow Freight
Sys. Inc. v. Reich, 38 F.3d 76, 81 (2d Cir. 1994).

II.

Standards for Determining Eligibility for Child’s Disability Benefits
The Social Security Act provides disability insurance benefits for a disabled adult

child “on the earnings record of an insured person who is entitled to old-age or disability
benefits or who has died” if the claimant is “18 years old or older and ha[s] a disability that
began before [the claimant] became 22 years old ….” 20 C.F.R. § 404.350(a)(5); see also
42 U.S.C. § 402(d). Thus, to establish entitlement to disabled adult child benefits, plaintiff
must prove

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… that she is a disabled adult whose parent was entitled to Social Security
retirement benefits and that she may receive Social Security childhood
disability benefits because she has been continuously disabled since before
the age of 22 and was dependent on her parent. The disability must be
continuous from before age 22 until the claimant's application.
Bronzene v. Astrue, 2012 WL 602142, at *11 (N.D.N.Y. Feb. 23, 2012) (citing 42 U.S.C.
§ 402(d)(1)(B); Rossello ex rel. Rossello v. Astrue, 529 F.3d 1181, 1182 (D.C. Cir. 2008)
(“Under Title II of the Social Security Act, a disabled adult … whose parent is entitled to
Social Security retirement benefits may herself receive Social Security childhood disability
benefits if she has been continuously disabled since before the age of 22 and is dependent
on her parent.”); and Futernick v. Richardson, 484 F.2d 647, 648 (6th Cir. 1973) (same);
see also Anderson v. Heckler, 726 F.2d 455, 456 (8th Cir. 1984) (same).
In the context of determining eligibility for disabled adult child’s benefits, the term
“disability” has substantially the same definition as it does in traditional, adult disability
cases.2 See Ahearn v. Astrue, 2010 WL 653712, at *3 (N.D.N.Y. Feb. 22, 2010). As such,
the Regulations set forth a five-step sequential process for the ALJ to follow in evaluating
the claimant's eligibility for benefits. See 20 C.F.R.§§ 404.1520, 416.920. First, the ALJ
must determine whether the claimant is presently engaged in substantial gainful activity.
If the claimant is not, the ALJ must decide if the claimant has a “severe” impairment, which
is an impairment or combination of impairments that has lasted (or may be expected to
last) for a continuous period of at least 12 months which “significantly limits [the claimant's]

2

“Disability” is defined as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment 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 …” and which
“results from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(1)(A), (3); see
also 20 C.F.R. §§ 404.1505(a), 404.1508.

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physical

or

mental

ability

to

do

basic

work

activities....”

20

C.F.R.

§§ 404.1520(c), 416.920(c); see also §§ 404.1509, 416.909 (duration requirement). If the
claimant's impairment is severe and of qualifying duration, the ALJ then determines
whether it meets or equals the criteria of an impairment found in the Listings. If the
impairment meets or equals a listed impairment, the claimant will be found to be disabled.
If the claimant does not have a listed impairment, the fourth step requires the ALJ to
determine if, notwithstanding the impairment, the claimant has the residual functional
capacity to perform his or her past relevant work. Finally, if the claimant is not capable of
performing the past relevant work, the fifth step requires that the ALJ determine whether
the claimant is capable of performing any work which exists in the national economy,
considering the claimant's age, education, past work experience, and RFC. See Curry v.
Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Lynch v. Astrue, 2008 WL 3413899, at *2
(W.D.N.Y. Aug. 8, 2008).
The claimant bears the burden of proof with respect to the first four steps of the
analysis. If the claimant meets this burden, the burden shifts to the Commissioner to show
that there exists work in the national economy that the claimant can perform. Lynch, 2008
WL 3413899, at *3 (citing Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)); see also
Plumley v. Astrue, 2010 WL 520271, at *2 (D.Vt. Feb. 9, 2010.)
In this case, ALJ Harvey found at step one that plaintiff had not performed
substantial gainful activity since July 1, 1979, the alleged disability onset date (Tr. 11). At
step two, the ALJ determined that, while the evidence in the record established that plaintiff

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suffered from a medically determinable impairment (i.e., status post medulloblastoma3)
prior to attaining age 22 (Tr. 11), plaintiff had failed to provide sufficient evidence “to meet
her burden of proof in demonstrating the presence of a severe impairment present
continuously from prior to her twenty-second birthday” (Tr. 14). The ALJ stated:
The decisive element of this case is not whether the claimant has had an
impairment prior to age twenty-two. That is acknowledged in the form of
status post medulloblastoma. The issue is, rather, the standard of proof
required …. The operative word in the law and regulations is “disability.” It
is not sufficient for a claimant to establish that her currently alleged disability
relates to an impairment that began prior to the age of twenty-two.… Rather,
a claimant must prove that the disability (not merely the impairment)
continuously existed from before the time the claimant attained the age of
twenty two through to the time of application.
(Tr. 13). Noting that “the medical record is silent” from 1982 through 2003 (Tr. 14), the ALJ
found insufficient evidence to demonstrate the presence of a severe impairment present
continuously from prior to plaintiff’s twenty-second birthday on August 5, 1992, and
terminated the sequential analysis at step two.
Plaintiff contends that this was error, relying primarily on the hearing testimony of
her father, Dr. Ralph Doerr (a retired surgical oncologist), indicating that plaintiff has
experienced symptoms of fatigue continuously since her brain surgery in 1979 and
subsequent radiation treatments ending in 1982. However, as set forth in the Act and
Regulations, testimony or other subjective statements as to a claimant’s symptoms cannot
alone constitute conclusive evidence of disability. See 42 U.S.C. § 423(d)(5)(A). Rather:
[T]here must be medical signs and findings, established by medically
acceptable clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment that results from anatomical,

3

Medulloblastoma is the most common brain tumor in children. See http://www.nih.gov (U.S. Dept
of Health & Human Services, National Institutes of Health website).

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physiological, or psychological abnormalities which could reasonably be
expected to produce the pain or other symptoms alleged and which, when
considered with all evidence required to be furnished under this paragraph
(including statements of the individual or his physician as to the intensity and
persistence of such pain or other symptoms which may reasonably be
accepted as consistent with the medical signs and findings), would lead to
a conclusion that the individual is under a disability.
Id.; see also 20 C.F.R. § 404.1529(a); Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999).
The ALJ found no medical evidence in the record to substantiate plaintiff’s claim that
she was rendered disabled by fatigue continuously from her last radiation treatments in
1982 through the time of the filing of her application for child’s disability insurance benefits
in December 2010. As noted, there are no treatment notes, reports, opinions, clinical
findings, or other medical evidence in the record to provide a basis for a finding that
plaintiff’s impairments could reasonably be expected to have produced the symptoms
alleged during the period from 1982 to 2004, or lead to the conclusion that plaintiff was
under a disability continuously from sometime prior to her twenty-second birthday through
the filing of her present application for benefits.
Plaintiff has submitted records from her neurologist, Dr Richard Ferguson (see Tr.
182-231, 332-35), and from her primary physician Dr. Kenneth Guth (see Tr. 232-91, 32731), reporting office visits and treatment since 2004 which indicate that plaintiff has
experienced “progressive cerebellar atrophy … likely related to her … medulloblastoma
and its treatment” (Tr. 197), and “gait ataxia … related to her underlying cerebellar
dysfunction” (Tr. 183). While these reports and opinions from plaintiff’s current treating
sources could certainly provide an evidentiary basis for determining the disabling effect of
plaintiff’s medical impairments post-2004, the court’s review of these records reveals no

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contemporaneous reports, retrospective opinions, or other indications of plaintiff’s condition
during the twenty-two year gap between 1982 and 2004.4
In any event, the court’s review of this evidence reveals no substantial corroboration
for plaintiff’s claims of disabling fatigue or exhaustion during the relevant time period.
Rather, these records indicate that plaintiff’s condition post-2004 has generally been
reported by her treating physicians as “stable” (Tr. 237, 241, 245) or “neurologically stable”
(Tr. 201, 203, 205, 207, 209, 211), with no complaints of fatigue, and her physicians’
concerns about unsteady gait and progressive cerebellar atrophy as related to her
underlying brain dysfunction did not become significant until 2009-10, when plaintiff
suffered a series of minor falls (see Tr. 186-99). Based on this review, and upon
consideration of the record as a whole, the court finds that a reasonable mind could accept
the ALJ’s conclusion that plaintiff failed to meet her burden of proof to demonstrate the
presence of a severe impairment continuously from prior to her twenty-second birthday
through the date of her application for adult child’s benefits, as required under the Social
Security Act and the weight of circuit court authority cited above.
Plaintiff also contends that the Commissioner’s determination should be reversed
because the ALJ failed to properly assess the credibility of the hearing testimony with
respect to plaintiff’s claims of disabling fatigue. This contention must likewise be rejected.

4

The court notes that where there are such obvious gaps in the administrative record, the ALJ “is
under an affirmative obligation to develop a claimant's medical history even when the claimant is
represented by counsel....” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (internal quotation marks
omitted). Under the Regulations, the Commissioner satisfies this duty by making an initial and one
follow-up attempt to obtain medical evidence. 20 C.F.R. §404.1512(d)(1). The record reflects that these
steps were taken in this case (see Tr. 232, 292).

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The general rule in this regard is that the ALJ is required to evaluate the credibility
of testimony or statements about the claimant's impairments when there is conflicting
evidence about the extent of pain, limitations of function, or other symptoms alleged. See
Paries v. Colvin, 2013 WL 4678352, at *9 (N.D.N.Y. Aug. 30, 2013) (citing Snell, 177 F.3d
at 135).

As the above discussion makes clear, however, there is no evidence of

record–conflicting or otherwise–to support a reasonable conclusion that plaintiff was under
a disability due to fatigue continuously since before she reached the age of twenty-two
through the time she filed her application for child’s disability insurance benefits in
December 2010. Therefore, the ALJ properly determined that plaintiff did not meet the
eligibility requirements for entitlement to adult child’s disability insurance benefits, and any
error resulting from the ALJ’s failure to properly evaluate the credibility of the hearing
testimony of plaintiff and her father regarding the disabling effects of plaintiff’s chronic
fatigue must be considered harmless.
Based on this review, the court finds that the ALJ’s evaluation of the facts in this
case was performed in accordance with the requirements of the Social Security Act, its
implementing Regulations, and the weight of controlling authority, and his decision is
supported by substantial evidence. Accordingly, the Commissioner’s determination must
be upheld.

CONCLUSION
For the foregoing reasons, plaintiff’s motion for judgment on the pleadings (Item 9)
is denied, the Commissioner’s motion for judgment on the pleadings (Item 10) is granted,
and the case is dismissed.
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The Clerk of the Court is directed to enter judgment in favor of the Commissioner,
and to close the case.

So ordered.
\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated: August 13, 2014

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