VanWie v. Colvin
DECISION AND ORDER. Plaintiff's Motion for Judgment on the Pleadings 7 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 9 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. Signed by Hon. Frank P. Geraci, Jr. on 10/14/2016. -CLERK TO FOLLOW UP- (AFM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TRICIA VAN WIE ex rel. K.M.,
Case # 15-CV-208-FPG
DECISION AND ORDER
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Tricia Van Wie (“Plaintiff”) brings this action on behalf of her minor daughter (“K.M.”)
pursuant to Title XVI of the Social Security Act (“the Act”) seeking review of the final decision
of the Acting Commissioner of Social Security (“the Commissioner”) that denied her application
for Supplemental Security Income (“SSI”). ECF No. 1. This Court has jurisdiction over this
action under 42 U.S.C. §§ 405(g), 1383(c).
Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. ECF Nos. 7, 9. For the reasons that follow, this Court finds
that the Commissioner’s decision is not in accordance with the applicable legal standards.
Accordingly, Plaintiff’s motion is GRANTED, the Commissioner’s motion is DENIED, and this
matter is REMANDED to the Commissioner for further administrative proceedings.
On September 13, 2011, Plaintiff filed an application for SSI with the Social Security
Administration (“the SSA”) on K.M.’s behalf. Tr. 122-28. She alleged that she had been
disabled since January 1, 2010, due to Tourette’s syndrome, attention deficit disorder (“ADD”),
and obsessive compulsive disorder (“OCD”). Tr. 142. After her application was denied at the
initial administrative level, a hearing was held before Administrative Law Judge David S.
Lewandowski (“the ALJ”) on February 19, 2013, in which the ALJ considered K.M.’s
application de novo. Tr. 39-65. K.M. and her mother appeared at the hearing with their attorney
and testified. Id. On June 26, 2013, the ALJ issued a decision finding that K.M. was not
disabled within the meaning of the Act. Tr. 10-28. That decision became the Commissioner’s
final decision on January 5, 2015, when the Appeals Council denied K.M.’s request for review.
Tr. 1-6. This action seeks review of the Commissioner’s final decision. ECF No. 1.
District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether
the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotation
marks omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner
is “conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (internal quotation marks omitted). It is not this Court’s function to “determine de
novo whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)
(internal quotation marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary’s decision is not de novo and
that the Secretary’s findings are conclusive if supported by substantial evidence).
Child Disability Standard
An individual under 18 years old will be considered disabled if he or she has a medically
determinable physical or mental impairment that results in marked and severe functional
limitations, that can be expected to result in death or that 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).
The Commissioner must follow a three-step process to evaluate child disability claims.
See 20 C.F.R. § 416.924. At step one, the ALJ determines whether the child is engaged in
substantial gainful work activity. See 20 C.F.R. § 416.924(b). If so, the child is not disabled. If
not, the ALJ proceeds to step two and determines whether the child has an impairment, or
combination of impairments, that is “severe,” meaning that it causes “more than minimal
functional limitations.” 20 C.F.R. § 416.924(c). If the child does not have a severe impairment
or combination of impairments, he or she is “not disabled.” If the child does, the ALJ continues
to step three.
At step three, the ALJ examines whether the child’s impairment meets, medically equals,
or functionally equals the criteria of a listed impairment in Appendix 1 of Subpart P of
Regulation No. 4 (the “Listings”).
20 C.F.R. § 416.924(d).
To determine whether an
impairment or combination of impairments functionally equals the Listings, the ALJ must assess
the child’s functioning in terms of the following 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 yourself; and (6) health and physical wellbeing. 20 C.F.R. §§ 416.926a(b)(1)(i)-(vi). To “functionally equal the listings,” the child’s
impairment(s) must cause “marked” limitations in two domains of functioning or an “extreme”
limitation in one domain. 20 C.F.R. § 416.926a(a).
The ALJ’s Decision
The ALJ’s decision analyzed K.M.’s claim for benefits under the process described
above. At step one, the ALJ found that K.M. had not engaged in substantial gainful activity
since the application date. Tr. 13. At step two, the ALJ found that K.M. has the following
severe impairments: Tourette’s syndrome, attention deficit hyperactivity disorder (“ADHD”),
anxiety disorder, bilateral femoral anteversion, OCD, and migraines. Tr. 13. At step three, the
ALJ found that such impairments, alone or in combination, did not meet or medically equal an
impairment in the Listings. Tr. 13-14.
As to the six domains of functioning, the ALJ found that K.M. had a “less than marked”
limitation in each domain. Tr. 21-27. Thus, the ALJ found that K.M.’s impairments, alone or in
combination, did not functionally equal an impairment in the Listings. Tr. 14-27. Accordingly,
the ALJ found K.M. not disabled within the meaning of the Act. Tr. 27.
K.M. argues that remand is warranted because the ALJ’s credibility analysis was
improper. ECF No. 7-1, at 17-25. Specifically, K.M. asserts that ALJ erred because he found
K.M. and her mother credible yet determined that “their credible testimony did not support a
finding of disability.” Id. at 18. The Commissioner maintains that it was proper for the ALJ to
find that the testimonial evidence was credible but not supportive of disability. ECF No. 9-1, at
An ALJ must “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.” Warren ex rel. T.M.W. v. Colvin, No. 12-CV-00544-JTC, 2014 WL
200231, at *8 (W.D.N.Y. Jan. 16, 2014) (citation omitted); Snell v. Apfel, 177 F.3d 128, 135 (2d
Cir. 1999) (“Where there is conflicting evidence about a claimant’s pain, the ALJ must make
credibility findings.”). Additionally, a parent’s testimony in an SSI case on a child’s behalf “is
evidence in a disability determination proceeding and the ALJ must consider it.” Brownell v.
Astrue, No. 05-CV-0588 (NPM/VEB), 2009 WL 5214948, at *4 (N.D.N.Y. Dec. 28, 2009);
Phelps v. Colvin, 20 F. Supp. 3d 392, 404 (W.D.N.Y. 2014) (citation omitted). The court must
uphold the ALJ’s decision and may not substitute its judgment for the Commissioner’s when the
ALJ’s credibility analysis is based on application of the proper legal standards and is supported
by substantial evidence. Hogan v. Astrue, 491 F. Supp. 2d 347, 352 (W.D.N.Y. 2007) (citing
Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980)).
An ALJ must conduct a two-step analysis when he or she considers the extent to which
subjective evidence of a claimant’s symptoms can reasonably be accepted as consistent with the
medical and other objective evidence. Brownell, 2009 WL 5214948, at *3. First, the ALJ
considers whether the medical evidence shows any impairment that “could reasonably be
expected to produce the pain or other symptoms alleged[.]” 20 C.F.R. § 416.929(a); S.S.R. 967p, 1996 WL 374186, at *2 (S.S.A. July 2, 1996). Second, if an impairment is shown, the ALJ
must evaluate the “intensity, persistence, or functionally limiting effects” of a claimant’s
symptoms to determine the extent to which they limit the claimant’s capacity to work. 20 C.F.R.
§ 416.929(b); S.S.R. 96-7p, 1996 WL 374186, at *2 (S.S.A. July 2, 1996).
When the objective medical evidence alone does not substantiate the claimant’s alleged
symptoms, the ALJ must assess the credibility of the claimant’s statements considering the
following factors: (1) the claimant’s daily activities; (2) the location, duration, frequency, and
intensity of the claimant’s symptoms; (3) precipitating and aggravating factors; (4) the type,
dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5) other
treatment received to relieve symptoms; (6) any measures the claimant has taken to relieve
symptoms; and (7) any other factors concerning the claimant’s functional limitations and
restrictions due to symptoms. 20 C.F.R. §§ 416.929(c)(3)(i)-(vii); S.S.R. 96-7p, 1996 WL
374186, at *2 (S.S.A. July 2, 1996).
The ALJ’s credibility findings “must be set forth with sufficient specificity to permit
intelligible plenary review of the record.” Phelps, 20 F. Supp. 3d at 403 (internal quotation
marks and citation omitted). Social Security Ruling 96-7p warns that:
It is not sufficient for the [ALJ] to make a single, conclusory
statement that “the individual’s allegations have been considered”
or that “the allegations are (or are not) credible.” It is also not
enough for the [ALJ] simply to recite the factors that are described
in the regulations for evaluating symptoms. The determination or
decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must
be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the [ALJ] gave to the individual’s
statements and the reasons for that weight.
S.S.R. 96-7p, 1996 WL 374186, at *2 (S.S.A. July 2, 1996).
Here, the ALJ summarized K.M. and her mother’s testimony and then stated that “[i]n
terms of [K.M.]’s alleged limitations, although the testimony of [K.M.] and her mother was
found credible, it does not establish disability.” Tr. 15. The discussion that followed, however,
seemed to suggest that the ALJ did not find them credible. Id. Instead of explaining why their
credible testimony was insufficient to establish disability, the ALJ analyzed some of the factors
set forth above. Id. The ALJ noted, for instance, that K.M. “described activities of daily living,
which are not limited to the extent one would expect, given the complaints of disabling
symptoms and limitations.” Id. This seems to detract from K.M.’s credibility, because the ALJ
found her allegations inconsistent with her daily activities. 20 C.F.R. § 416.929(c)(3)(i). The
ALJ also discussed K.M.’s medications, which the ALJ found to be “relatively effective in
controlling [her] symptoms.” Tr. 15-16; 20 C.F.R. § 416.929(c)(3)(iv). The ALJ also noted that
“the teacher evaluations do not show significant problems to warrant marked or extreme
findings.” Tr. 15.
It is confusing to this Court how the ALJ found K.M. and her mother credible but then
discredited their allegations. The remainder of the ALJ’s decision fails to clarify how K.M. and
her mother’s “credible” testimony affected the ALJ’s findings in each of the functional domains,
because he does not discuss the testimony in his analysis. Tr. 21-27. It is possible that this
testimony, if the ALJ believed it and afforded weight to it, could have changed the findings in
one or more of the functional domains.
K.M. testified, for example, that her tics make it hard for her to complete assignments
and concentrate at school, that she needs extra time to get organized and take tests, and that she
has episodes of Tourette’s every few minutes. Tr. 48-52. K.M.’s mother testified that the tics
cause K.M. to take “two to three hours to do homework instead of a half hour like other kids,”
and that a change in her schedule could cause a “meltdown” that lasts for one to two hours. Tr.
56, 58. This testimony is arguably relevant to the domain of Attending and Completing Tasks,
because it demonstrates that K.M.’s impairments affect her focus, attention, and how well she
carries through and finishes activities. 20 C.F.R. § 416.926a(h); S.S.R. 09-4p, 2009 WL 396033,
at *5-6 (S.S.A. Feb. 18, 2009). K.M.’s mother also testified that K.M’s most common tic is
hitting herself and that it is so bad that she leaves bruises on her leg. Tr. 54. This testimony is
arguably relevant to the domain of Caring For Yourself, because it demonstrates that K.M.’s
impairments cause her to engage in self-injurious behavior. 20 C.F.R. § 416.926a(k); S.S.R. 097p, 2009 WL 396029, at *6 (S.S.A. Feb. 17, 2009).
Given the confusion described above, the ALJ’s credibility determination does not permit
intelligible plenary review of the record.
Accordingly, because the ALJ’s credibility
determination lacks the requisite specificity to make it clear to Plaintiff and to this Court the
weight he gave to the testimony and the reasons for that weight, remand is required.
For the reasons stated, Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 7) is
GRANTED, the Commissioner’s Motion for Judgment on the Pleadings (ECF No. 9) is
DENIED, and this matter is REMANDED to the Commissioner for further administrative
proceedings consistent with this opinion, pursuant to sentence four of 42 U.S.C. § 405(g). See
Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000); 42 U.S.C. § 1383(c)(3). The Clerk of Court is
directed to enter judgment and close this case.
IT IS SO ORDERED.
Dated: October 14, 2016
Rochester, New York
HON. FRANK P. GERACI, JR.
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?