Bradley v. Colvin
DECISION AND ORDER granting 8 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 11 Commissioner's Motion for Judgment on the Pleadings. (clerk to close case.) Signed by Hon. Michael A. Telesca on 8/5/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DONNA BRADLEY o/b/o C.B.,
No. 1:14-CV-01072 (MAT)
DECISION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Represented by counsel, plaintiff Donna Bradley(“plaintiff”)
brings this action on behalf of her minor child, C.B., pursuant to
the Social Security Act (the “Act”), seeking review of the final
decision of defendant the Acting Commissioner of Social Security1
(the “Commissioner” or “defendant”) denying her application for
supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). 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 reasons discussed below, plaintiff’s motion is
Commissioner for further administrative proceedings consistent with
this Decision and Order, and the Commissioner’s motion is denied.
Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
Plaintiff protectively filed an application for SSI on behalf
of C.B. on March 8, 2011, which was denied.
Transcript (“T.”) 95-102, 141-47.
At plaintiff’s request, a
hearing was held before administrative law judge (“ALJ”) William M.
Weir on October 22, 2012.
In a decision dated March 29,
2013, the ALJ found that C.B. was not disabled as defined in the
Act and denied plaintiff’s claim.
On October 29, 2014,
the Appeals Council issued an order denying plaintiff’s request for
review, thereby rendering the ALJ’s decision the Commissioner’s
Plaintiff subsequently filed this
III. The ALJ’s Decision
In considering plaintiff’s claim, the ALJ applied the threestep sequential evaluation for evaluating child disability claims.
See 20 C.F.R. § 416.924.
At step one, the ALJ determined that C.B.
had not engaged in substantial gainful activity since March 8,
2011, the date of her application.
At step two, the ALJ
found that C.B. suffered from the severe impairment of attention
deficit hyperactivity disorder (“ADHD”) and non-severe impairments
of asthma and two prior seizure episodes.
At step three, the
ALJ found that C.B.’s impairments did not meet or medically equal
any impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ further found that C.B.’s impairments were not
Specifically, the ALJ determined that C.B. had less than marked
limitations in the domains of Acquiring and Using Information,
Attending and Completing Tasks, and Interacting and Relating with
Others, and no limitations in the domains of Moving About and
Manipulating Objects, Caring for Yourself, and Health and Physical
The ALJ therefore concluded that C.B. was
not disabled within the meaning of the Act.
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Failure to Consider Medically Determinable Impairments
Plaintiff first argues that the ALJ improperly failed to
evaluate the severity of C.B.’s medically determinable impairments
of oppositional defiant disorder (“ODD”), anxiety, enuresis, and
The Court agrees.
The relevant regulations require an ALJ to consider all
impairments about which he “receive[s] evidence.”
§ 404.1512(a)(1); see also Rockwood v. Astrue, 614 F. Supp. 2d 252,
275 (N.D.N.Y. 2009) (“the regulations specifically require an ALJ
to consider impairments a claimant says she has or those about
A “complete failure” to consider a medically
determinable impairment at step two constitutes a failure to apply
the appropriate legal standards.
Fuimo v. Colvin, 948 F. Supp. 2d
260, 270 (N.D.N.Y. 2013).
Here, the medical evidence of record shows that psychiatrist
Dr. Seth Dewey diagnosed C.B. with anxiety, ODD, and enuresis
(T. 264, 293, 383) and that psychiatrist Dr. Jennifer Scarozza
diagnosed C.B with anxiety, ODD, enuresis, and encopresis (T. 399).
Moreover, state agency review pediatrician Dr. J. Meyer assessed
indisputably aware that these impairments needed to be assessed as
part of the disability determination. Nevertheless, the ALJ failed
to discuss these impairments at all at step two, resulting in clear
legal error. See Alberalla v. Colvin, 2014 WL 4199689, at *14
(W.D.N.Y. Aug. 22, 2014), report and recommendation adopted, 2014
WL 5361950 (W.D.N.Y. Oct. 21, 2014) (failure at step two to
evaluate severity of a diagnosed impairment constitutes legal
The Court rejects Defendant’s argument that this legal error
“[A]n ALJ's Step 2 determination as to the severity
of certain conditions can amount to harmless error, but not when an
ALJ fails to address a condition in its entirety.”
Comm’r of Soc. Sec., 2014 WL 7409594, at *4 (N.D.N.Y. Dec. 30,
This Court cannot determine, as a matter of law, that a
proper consideration of C.B.’s additional medically determinable
impairments would have had no effect on the analysis of her
In particular, the Court notes that C.B.’s diagnoses
of ODD and anxiety were clearly relevant to her ability to interact
with and relate with others, and that her diagnoses of enuresis and
Accordingly, remand is required.
Failure to Consider C.B.’s Updated IEP
consider C.B.’s updated individualized education program (“IEP”)
dated March 8, 2013.
Again, the Court agrees.
An IEP is a
capabilities, and the failure to address it is error.
Hamedallah ex rel. E.B. v. Astrue, 876 F. Supp. 2d 133, 147
(N.D.N.Y. 2012) (finding ALJ’s determination was not supported by
substantial evidence where ALJ ignored child’s most recent IEP).
On remand, the ALJ is instructed to consider the March 8, 2013 IEP
in assessing whether C.B. is disabled.
Plaintiff’s final argument is that the ALJ’s credibility
assessments of C.B. and her mother were flawed.
determined that remand is required, the Court need not and does not
reach this argument.
On remand, the ALJ should, of course,
consider C.B. and her mother’s credibility in light of the record
as a whole.
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings motion (Docket No. 8) is granted to the extent that
administrative proceedings consistent with this Decision and Order.
The Commissioner’s motion for judgment on the pleadings (Docket No.
11) is denied.
The Clerk of the Court is directed to close this
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
August 4, 2017
Rochester, New York.
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