Rivera v. Colvin
DECISION AND ORDER DENYING Plaintiff's 9 Motion for Judgment on the Pleadings; GRANTING Defendant's 10 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 9/28/2014. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANNA M. RIVERA o/b/o A.C., a minor,
DECISION AND ORDER
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Plaintiff Anna M. Rivera challenges an Administrative Law Judge’s (“ALJ”)
decision, dated July 29, 2011, wherein the ALJ determined that Plaintiff’s daughter was not
disabled under section 1614(a)(3)(C) of the Social Security Act. Plaintiff protectively filed
an application for supplemental security income on May 7, 2009, alleging that the child’s
disability began on July 15, 2004. Plaintiff subsequently amended the onset date to May
7, 2009, the application date. Plaintiff now contends that the ALJ’s determination is not
based upon substantial evidence, and reversal is warranted.
Plaintiff’s application was initially denied on August 10, 2009. A hearing was
granted on that denial and, on June 17, 2011, at which both Plaintiff and her daughter
testified before the ALJ.
The ALJ issued a decision denying the application for
supplemental security income on July 29, 2011. After acknowledging receipt of additional
evidence, the Appeals Council denied Plaintiff’s request for review on May 21, 2013,
rendering the ALJ’s determination the final decision of the Commissioner. Plaintiff filed the
instant action on June 12, 2013.
Plaintiff and the Commissioner each filed a Motion for Judgment on the
Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Judgment on
the pleadings is appropriate where material facts are undisputed and where a judgment
on the merits is possible merely by considering the contents of the pleadings. Sellers v.
M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988).
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s
determination will only be reversed if it is not supported by substantial evidence or there
has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to
“more than a mere scintilla,” and it has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (internal
quotation marks and citation omitted). Where evidence is deemed susceptible to more
than one rational interpretation, the Commissioner’s conclusion must be upheld. See
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert denied, 459 U.S. 1212
To determine whether the ALJ's findings are supported by substantial
evidence, “a reviewing court considers the whole record, examining the evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams on Behalf of Williams v. Bowen, 859 F.2d 255,
258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must
be sustained “even where substantial evidence may support the plaintiff's position and
despite that the court's independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other
words, this Court must afford the Commissioner's determination considerable deference,
and will not substitute “its own judgment for that of the [Commissioner], even if it might
justifiably have reached a different result upon a de novo review.” Valente v. Sec’y of
Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
An individual under the age of 18 is considered disabled when he or she “has
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 twelve months.”
42 U.S.C. § 1382c(a)(3)(C)(i). The Commissioner has established a three-step sequential
evaluation process to determine whether a child is disabled as defined under the Act. See
20 C.F.R. § 416.924. Specifically, it must be determined whether: (1) the child has not
engaged in any substantial gainful activity; (2) if not, whether he or she has a “severe”
impairment or combination of impairments that cause “more than minimal functional
limitations;” and (3) his or her impairment or combination of impairments is of listing-level
severity, in that it meets, medically equals, or functionally equals the severity of a listed
impairment. See 20 C.F.R. § 416.924; see also 20 C.F.R. Part 404, Subpart P, Appendix
1 (“Listing of Impairments”).
Where an impairment medically meets or equals a listed impairment, the
child will be found disabled. 20 C.F.R. §§ 416.924(d)(1); 416.925. If a child’s impairment
or combination thereof does not meet or equal a listed impairment, the ALJ must assess
all functional limitations caused by the child's impairments in terms of six domains: (1)
acquiring and using information; (2) attending and completing tasks; (3) interacting and
relating with others; (4) moving about and manipulating objects; (5) caring for self; and (6)
health and physical well-being. 20 C.F.R. § 416.926a(a),(b)(1). A child is classified as
disabled if he or she has a “marked” limitation in two domains of functioning or an
“extreme” limitation in one domain. 20 C.F.R. §§ 416.926a(d). A “marked” limitation exists
when an impairment or the cumulative effect of impairments “interferes seriously with [the
child’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(2)(i)). An “extreme” limitation “interferes very seriously” with that ability. 20
C.F.R. § 414.926a(e)(3)(i).
After applying the three-step evaluation in this case, the ALJ concluded that
Plaintiff’s child, who was ten years old at the time of the decision: (1) had not engaged in
substantial activity since the application date of May 7, 2009; (2) had the following severe
impairments: anxiety disorder and Attention Deficit Hyperactivity Disorder (“ADHD”); and
(3) did not have an impairment or combination of impairments that either met, medically
equaled, or functionally equaled a listed impairment. (R. 25-26.) With respect to the
specific functional-equivalent domains, the ALJ found that Plaintiff’s child had a less than
marked limitation in acquiring and using information and attending and completing tasks.
(R. 29-31.) The child had no limitations in the remaining four domains. (R. 31-34.)
Because the child did not have an impairment or combination thereof that resulted in the
functional equivalent of a listed impairment, the ALJ held that the child was not disabled
under section 1614(a)(3)(C) of the Social Security Act.
Plaintiff first argues that the ALJ erred in failing to find the child’s sexual abuse
disorder to be a severe impairment. Any error in failing to identify a severe impairment,
however, is harmless if that impairment is specifically considered during the subsequent
steps. See Rice ex rel. T.C.K. v. Astrue, – F. Supp. 2d –, 2012 WL 11406113, *5 (N.D.N.Y.
2012); see generally Reices-Colon v. Astrue, 523 F. App’x 796, 798 (2d Cir. 2013). Here,
even if the ALJ’s erred in failing to specifically reference the child’s prior trauma as “Sexual
Abuse of a Child (as a Victim)” as listed in the American Psychiatric Association’s
Diagnostic & Statistical Manual of Mental Disorders, he specifically considered the
evidence of causal links between the child’s sexual abuse history and her current alleged
difficulties throughout the decision. (R. 27-28, 30.) Indeed, contrary to Plaintiff’s assertion,
the ALJ expressly considered the opinion of Dr. Rajnisz, the school psychologist, that the
child’s academic difficulties might “possibly [be the result of] experiencing a trauma that
pre-dated her school years.” (R. 30; see R. 335 (psychologist stated that “academic
difficulties may be the result of earlier trauma experienced within the home”). Any error is
Plaintiff next argues that this matter must be remanded because the Appeals
Council failed to appropriately weigh the opinion of the child’s treating counselor submitted
directly to the council following the hearing. Initially, this is not a case where the Appeals
Council considered the merits of the ALJ’s decision and then affirmed. Instead, although
the Appeals Council made this additional evidence part of the record, it denied Plaintiff’s
request for review. (R. 1-4); see Snell v. Apfel,, 177 F.3d 128, 132 (2d Cir. 1999) (reviewing
Appeals Council decision rendered after reconsidering and reversing the ALJ’s
determination based on the Council’s new analysis). “SSA regulations provide that, if the
Appeals Council grants review of a claim, then the decision that the Council issues is the
Commissioner’s final decision. But if, as here, the Council denies the request for review,
the ALJ’s opinion becomes the final decision.” Sims v. Apfel, 530 U.S. 103, 106-7, 120 S.
Ct. 2080, 147 L. Ed. 2d 80 (2000); Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996). In the
instant case, it is the ALJ’s determination that is the final decision of the Commissioner and
therefore reviewable pursuant to 42 U.S.C. § 405(g). See DiBlasi v. Comm’r of Social
Security, 660 F. Supp. 2d 401, 406 (N.D.N.Y. 2009).
The new evidence submitted to the Appeals Council nonetheless becomes part of
the administrative record to be considered by this Court in determining whether the ALJ’s
determination is supported by substantial evidence. Perez, 77 F.3d at 46; Sobolewski v.
Apfel, 985 F. Supp. 300, 311 (E.D.N.Y. 1997). The additional opinion consists of a
preprinted functional limitation questionnaire completed by the child’s licensed social
worker. (R. 394-96.) As Defendant argues, a social worker is not an acceptable “medical
source” to whose opinion deference is given.
See 20 C.F.R. § 416.913(d); §
416.927(d),(e). “Opinions from these [other] medical sources, who are not technically
deemed ‘acceptable medical sources’ under [Social Security Administration] rules, are
important and should be evaluated on key issues such as impairment severity and
functional effects, along with other relevant evidence in the file.” SSR 06-03P, 2006 WL
2329939, *3 (S.S.A. Aug. 9, 2006). Here, however, the social worker merely circled
conclusions on the form without any detail or explanation for those conclusions, and
therefore this additional evidence does not call into question the ALJ’s conclusion.
Contrary to Plaintiff’s further contention, the decision is sufficiently specific to
allow this Court to glean the rationale of the ALJ’s credibility determination. Cichocki v.
Astrue, 534 F. App’x 71, 76 (2d Cir. 2013). Initially, it must be noted that Plaintiff does not
specify what testimony she believes the ALJ improperly discounted. This is significant
because her testimony at the hearing is not that far removed from the mild findings
reflected in the record. Although Plaintiff testified that the child experienced hallucinations,
the ALJ correctly noted that she “did not pursue this statement when [the ALJ] noted that
the record lacked this diagnosis.” (R. 28; see R. 54, 64-65.) Plaintiff in fact clarified that she
did not know if the child was actually hallucinating or simply having bad dreams. (R. 64
(“that’s me saying the hallucinations”).)
Plaintiff further testified that the child saw
improvement from both the “hallucinations” and the child’s inappropriate sexual behaviors
as a result of medication, improvements noted by the ALJ in his decision. (R. 27-28, 59.)
Finally, although Plaintiff correctly concedes that the opinions of Dr. Baskin
and Dr. Meyer support the ALJ’s conclusion, she argues that the ALJ nonetheless failed
to appropriately explain his consideration of these opinions in his decision. As Defendant
argues, even if the ALJ failed to adequately explain his reasoning, remand is not necessary
where it is conceded that any new analysis would have no effect on the ultimate
determination. See Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (remand
unnecessary where application of the correct legal principle could only lead to the same
For the foregoing reasons, and upon a review of the record as a whole, the
Court concludes that the ALJ’s determination is supported by substantial evidence.
Defendant’s Motion for Judgment on the Pleadings is granted.
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 9) is DENIED;
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No. 10)
FURTHER, that the Clerk of the Court is directed to take the necessary steps to
close this case.
Dated: September 28, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?