Spaich v. Colvin
DECISION AND ORDER denying 7 Plaintiffs' Motion for Judgment on the Pleadings; granting 10 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/5/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SAMANTHA MARIE SPAICH,
DECISION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Represented by counsel, Samantha Marie Spaich (“Plaintiff”)
brings this action pursuant to Title XVI of the Social Security Act
(“the Act”), seeking review of the final decision of the Acting
Commissioner”) denying Plaintiff’s application for Supplemental
Security Income (“SSI”).
Presently before the Court are the
parties’ competing motions for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure.
Defendant’s motion is granted.
On January 13, 2011, Plaintiff, then-eighteen years old,
applied for SSI, alleging disability beginning November 30, 2008
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
syndrome) (T. 49).
Plaintiff’s application was denied on May 27,
2011 (T. 49-50), and she timely requested a hearing before an
administrative law judge (“ALJ”).
ALJ Mark Solomon held a hearing
via video teleconference on March 15, 2013 (T. 33-48, see T. 11112).
On April 3, 2013, the ALJ issued a decision in which he found
Plaintiff was not disabled as defined in the Act (T. 14-32).
Plaintiff timely filed a request for review of the ALJ’s decision
with the Appeals Council and, on February 4, 2015, the Appeals
Council denied review, leaving the ALJ’s decision as the final
agency decision (T. 1-4). This action followed. The Court assumes
the parties’ familiarity with the facts of this case as set forth
in the record and will not repeat them except as necessary.
The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. § 416.971, the ALJ found that Plaintiff had not engaged
application date (T. 19).
At step two, the ALJ found that
disorder (20 C.F.R. § 416.920(c)) (Id.).
At step three, the ALJ
found that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of a listed
impairment (T. 23).
Before proceeding to step four, the
that Plaintiff had the residual functional capacity to perform the
full range of work at all exertional levels but with the following
nonexertional limitations: (1) the claimant must avoid working at
unprotected heights and with hazardous machinery; (2) the claimant
cannot drive, and cannot climb ropes, ladders or scaffolds; (3) the
claimant is able to perform the basic mental demands of simple
work; and (4) the claimant can carry out and remember simple
directions, respond appropriately to supervision, coworkers, and
usual work situations, and deal with changes in a routine work
setting (T. 23-25).
At step four, the ALJ found that Plaintiff had
no past relevant work (T. 25).
At step five, the ALJ found that,
considering Plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform (T. 26).
Accordingly, the ALJ
January 13, 2011, the date the application was filed, through the
ALJ’s decision (T. 27).
Scope of Review
determination that a Plaintiff 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.’”
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
Plaintiff makes the following arguments in support of her
motion for judgment on the pleadings: (1) remand is necessary
Plaintiff’s valid, full scale IQ of 69; and (2) remand is necessary
Plaintiff argues that she made a prima facie showing that her
impairments met or equaled Listing 12.05(C) and therefore the ALJ
erred by offering no listing analysis in the face of that showing.
decision or the medical record permits an inference by this Court
Commissioner argues that the ALJ did consider the listed impairment
and correctly determined that Plaintiff’s impairment did not meet
the requirements of the listings.
Moreover, the Commissioner
contends that the record evidence shows Plaintiff did not meet the
requirements of 12.05(C).
In order to be found disabled based on intellectual disability
under Section 12.05 of the Listing of Impairments, a claimant “must
prove: (1) that he satisfies the definition provided for in the
introductory paragraph of Section 12.05; and (2) that he satisfies
the criteria listed in subsection A, B, C, or D.”
Barnhart, 399 F. Supp.2d 199, 200 (W.D.N.Y. 2005) (citing 20 C.F.R.
Pt. 404, Subpt. P, App. 1, 12.00 Mental Disorders, at 12.00A). The
introductory paragraph of Section 12.05 states that “intellectual
disability refers to significantly subaverage general intellectual
manifested during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before age 22.”
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00.
A claimant who meets
parameters set forth in 12.05(C), by demonstrating (1) a “valid
verbal performance, or full scale IQ of 60 through 70; and (2) a
physical or other mental impairment imposing an additional and
significant work-related limitation of function.” 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.05C. An individual who is found to meet
these requirements is presumed to be disabled at step three of the
requirements, Plaintiff is required to show (1) significantly
adaptive functioning; (2) a valid verbal performance or full scale
IQ of 60 through 70; and (3) a physical or other mental impairment
imposing an additional and significant work-related limitation of
Plaintiff argues that she has made a prima facie showing of
all three requirements.
Initially the Court notes that Plaintiff
is correct that the ALJ found the third requirement met by finding
disorder. Thus, only the first and second requirements of 12.05(C)
remain at issue.
With respect to the first requirement, Plaintiff contends that
she has demonstrated deficits in adaptive functioning.
functioning refers to an individual’s ability to cope with the
challenges of ordinary everyday life.”
Talavera v. Astrue, 697
F.3d 145, 153 (2d Cir. 2012) (quoting Novy v. Astrue, 497 F.3d 708,
709 (7th Cir. 2007)) (internal quotation marks omitted).
Plaintiff argues that her deficits in adaptive functioning
track the examples in Talavera, namely, living on one’s own, paying
Specifically, Plaintiff notes that she does not drive or manage
money; does not have a driver’s license; takes special education
classes; did not grocery shop by herself; and relied heavily on her
mother who she still lived with, including having her mother
medication and prepare complex meals (T. 38-39, 43, 149, 165, 181,
183, 198, 472, 478).
As the ALJ noted in his decision, Plaintiff
received a special education diploma (T. 24).
is correct that Plaintiff participated in general education classes
testing, and passed state-wide Regents examinations in Writing,
Biology and Global History (T. 198, 200-01). Moreover, Plaintiff’s
functioning, but to her seizure disorder, which arose around the
time Plaintiff would have been eligible for a driver’s license
(T. 169). With respect to living with her mother, Plaintiff stated
that she stayed with her boyfriend a couple days per week and had
not moved out of her mother’s house because her mother did not want
her to “move out yet” (T. 40).
Moreover, many of the Talavera
examples did not apply to Plaintiff at the time of the ALJ’s
decision, including caring for one’s children or avoiding eviction.
Several courts have concluded that a claimant’s effectiveness
in areas of social skills, communication, and daily living skills,
also illustrate adaptive functioning.
See, e.g., Webb v. Colvin,
No. 12–CV–753S, 2013 WL 5347563, at *4 (W.D.N.Y. Sept. 23, 2013);
(N.D.N.Y. May 31, 2013).
Indeed, the court in Talavera cited
examples of social skills, communication, and daily living skills,
in concluding that substantial evidence supported the ALJ’s finding
that Talavera had “not met her burden of establishing that she
Talavera, 697 F.3d at 153-54 (citing as evidence of adaptive
transportation without assistance; engage in productive social
relationships; manage her own personal finances; use computers; the
display of “fluent” speech; “coherent and goal-directed” thought
processes and “appropriate” affect).
Defendant correctly contends
that the ALJ’s decision and the medical record are replete with
examples of Plaintiff’s adaptive functioning.
ALJ found, considering the medical record, that Plaintiff had only
mild limitations in her ability to perform the activities of daily
living, social functioning and concentration persistence and pace
(T. 22); see Rodriguez v. Colvin, No. 13-CV-6360, 2014 WL 3882191,
claimant’s intellectual impairment imposed only minimal functional
Plaintiff independently cared for her personal
needs, including hygiene, and prepared simple meals for herself.
(T. 25, 166-67).
During the relevant period, Plaintiff sought out
non-profit organization and graduated from high school (T. 20, 25,
see T. 539-41). Moreover, Plaintiff took care of pets, cleaned her
room, and performed chores such as washing laundry and dishes
(T. 166-68). She also watched television, listened to the radio,
read, sent text messages, and regularly spoke with her friends on
the telephone or computer (T. 170, 175). Plaintiff frequently
socialized with friends at her home or their homes, watching
movies, playing games, going camping,
the beach (T. 170, 478, 983).
going fishing, or going to
Plaintiff does not dispute that the
ALJ correctly addressed Plaintiff’s activities of daily living and
social functioning in his decision.
As the ALJ thoroughly discussed, the medical opinion evidence
significant enough to interfere with her ability to function on a
daily basis (T. 19-23).
For instance, during a May 5, 2011
consultative examination, Dr. Sandra Jensen considered Plaintiff’s
intellectual functioning was not significant enough to interfere
with her daily functioning (T. 483; see T. 21).
Dr. Jensen also
found that Plaintiff could follow and understand simple directions
and instructions, perform simple tasks independently, maintain
attention and concentration, maintain a regular schedule, learn new
tasks, perform complex tasks with supervision, make appropriate
decisions, relate adequately with others and deal with stress
(T. 21, 478, 480-84); see also Talavera, 697 F.3d at 153-54 (noting
that such findings were inconsistent with deficits in adaptive
similarly assessed that Plaintiff’s mental conditions were not
significant enough to interfere with her daily functioning (T. 2122, 485-98).
Specifically, Dr. Tzetzo opined that Plaintiff had
only mild limitations in performing the activities of daily living,
persistence and pace (T. 495).
Thus, substantial evidence in the
medical record supports a finding that Plaintiff did not have
deficits in adaptive functioning.
Plaintiff also argues that she has met the second requirement
of 12.05(C) by showing subaverage general intellectual functioning
and a full scale IQ score of 60-70 because Dr. Jensen found
Plaintiff to have a valid full scale IQ of 69 (T. 481-82).
Plaintiff adds that her IQ was between 67 and 68 with 95% accuracy,
references to the 67 and 68 scores misstates the record.
standard, full-scale score on the Wechsler Intelligence Scale for
Children (“WISC-IV”) was 72, with a range of 68-78 at a 95%
confidence level (T. 204.).
Plaintiff’s 2009 standard, full-scale
score was also 72, with a range of 68-77 at a 95% confidence level
(T. 207.). Because this second exam was conducted on May 20, 2009,
consultative examination whereby Dr. Jensen administered the Wide
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00 (providing that “IQ
test results obtained between ages 7 and 16 should be considered
current for . . . 2 years when the IQ is 40 or above”).
Moreover, Dr. Jensen noted, with respect to Plaintiff’s full
scale score of 69 on the Wide Range Achievement Test, Fourth
Edition, that Plaintiff “did not necessarily put forth her best
effort in the testing.” (T. 482). By contrast, both of Plaintiff’s
2006 and 2009 tests were conducted by Silver Creek Central School
Psychologist Jinelle N. Burger who had multiple sessions with
Plaintiff over at least three years (T. 203, 207).
Dr. Jensen also
observed that it was “very likely that [Plaintiff’s] true cognitive
ability is in the borderline range, even though she scored a 69”
Plaintiff’s other standard scores with Dr. Jensen of 80
in Verbal Comprehension, 75 in Perceptual Reasoning, 66 in Working
Memory, and 71 in Processing Speed support that conclusion (Id.).
Dr. Tzetzo also considered Plaintiff’s 2009 and 2011 scores (T.
497) in assessing the severity of Plaintiff’s mental impairments,
and concluded that not only did her mental impairments not meet the
Listing requirements, they were not severe (T. 485-97).
substantial evidence in the record supports the conclusion that
Plaintiff’s IQ was higher than the 2011 standard score of 69.
In any case, and irrespective of the validity of Plaintiff’s
IQ scores, Plaintiff’s demonstrated adaptive functioning showed
that she did not meet the Listing’s requirements, and the ALJ did
not err in failing to specifically discuss Listing 12.05(C),
because the evidence does not indicate that plaintiff qualified
under that listing.
See Sullivan v. Zebley, 493 U.S. 521, 530
1049283, at *7 (E.D.N.Y. Mar. 17, 2010), aff’d 432 F. App’x 23
(2d Cir. 2011) (ALJ’s decision need not include “express rationale”
in finding that claimant does not meet listing where ALJ’s decision
and evidence supported ALJ’s conclusion). Therefore, Plaintiff has
failed to demonstrate that the ALJ improperly neglected to consider
Listing 12.05(C), and accordingly remand is not warranted.
Other Opinion Evidence
Plaintiff further argues that remand is necessary because the
ALJ failed to weigh and consider special education teacher Carly
Swenson-Liebenow’s teacher questionnaire (“Teacher Questionnaire”).
According to Plaintiff, a reasonable fact finder could determine
disability or otherwise did not support the ALJ’s RFC finding
because she noted problems with acquiring and using information,
attending and completing tasks, interacting and relating with
others, and caring for herself and others. Defendant counters that
the ALJ’s RFC finding was supported by substantial evidence in the
SSR 06–03p explains that opinions from “other sources” such as
teachers are “important” and “should be evaluated on key issues
such as impairment severity and functional effects, along with the
other relevant evidence in the file.” SSR 06–03p, 2006 WL 2329939,
SSR 06–03p further directs ALJs to apply the same factors
used to evaluate acceptable medical sources in evaluating the
opinions of non-medical sources such as teachers.
See Vishner v.
Colvin, No. 1:14-CV-00431 (MAT), 2017 WL 1433337, at *5 (W.D.N.Y.
Apr. 24, 2017) (citing Saxon v. Astrue, 781 F. Supp. 2d 92, 104
evidence, see 20 C.F.R. § 404.1545(a)(3), the ALJ is not required
to discuss every individual piece of information submitted as
See, e.g., Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d
443, 448 (2d Cir. 2012); Barringer v. Comm’r of Soc. Sec., 358 F.
Supp. 2d 67, 78-79 (N.D.N.Y. 2005) (“The ALJ was not required to
mention or discuss every single piece of evidence in the record.”
(citing Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983))).
Rather, where “the evidence of record permits [the court] to glean
the rationale of an ALJ’s decision, [the ALJ is not required to
explain] why he considered particular evidence unpersuasive or
insufficient to lead him to a conclusion of disability.”
722 F.2d at 1040.
Here, the ALJ did not err by not specifically addressing the
Ms. Swensen-Liebenow and the ALJ’s decision was supported by
Ms. Swensen-Liebenow to address the five domains of functioning:
acquiring and using information, attending and completing tasks,
interacting and relating with others, moving and manipulating
simplistic – it merely requires that the teacher circle ratings and
provide a conclusory statement or two unsupported by any relevant
No. CIV.A. 5:11-820, 2012 WL 6948676, at *8 (N.D.N.Y. Dec. 31,
2012) (“Finally, although ALJ Gale did not expressly mention this
fact, the record discloses that the teachers’ opinions generally
were simple, circled ratings on a form questionnaire with only a
Jan. 28, 2013).
Moreover, Ms. Swenson-Liebenow’s Teacher Questionnaire does
not support a finding that Plaintiff has significant deficiencies
Ms. Swenson-Liebenow repeatedly observes that Plaintiff’s classroom
struggles are not the result of Plaintiff’s abilities, but the
result of Plaintiff not applying herself to her studies because she
“may not want to be in school” (T. 219).
With respect to each of the five domains of functioning, the
Teacher Questionnaire directs Ms. Swenson-Liebenow to rate the
severity of Plaintiff’s problems with respect to approximately ten
to twelve different activities listed on the form to illustrate
Questionnaire includes a scale of one to five, with one being “no
problem,” two being a “slight problem,” three being an “obvious
problem,” four being a “serious problem” and five being a “very
Of the fifty-three activities across the five domains of
functioning, Ms. Swenson-Liebenow listed Plaintiff as having no
including no problem for any activity in the domain of moving about
Ms. Swenson-Liebenow did not find that Plaintiff had any very
serious problems and only six serious problems in activities
Ms. Swenson-Liebenow rated many similar or related activities no
problem or only a slight problem suggesting that she was not
entirely certain about her ratings.
For example, in the domain of
Plaintiff had a serious problem “focusing long enough to finish
[an] assigned activity or task.”
However, she also found that
Plaintiff had no problem at all with “paying attention when spoken
to directly” and only a slight problem “carrying out multi-step
instructions” (T. 215).
Moreover, in the domain of acquiring and
using information, Ms. Swenson-Liebenow found that Plaintiff had
only a slight problem with “comprehending oral instructions,”
“learning new material,” “recalling and applying previously learned
problems,” Ms. Swenson-Liebenow seemed even less certain of her
rating. For example, in the attending and completing tasks domain,
Ms. Swenson-Liebenow revised up an initial, lower rating to a
serious problem by scratching the lower rating out with an “X” and
circling the higher rating (T. 215).
Indeed, Ms. Swenson-Liebenow’s comments also exhibit a belief
that Plaintiff was sufficiently capable to handle her schoolwork,
Ms. Swenson-Liebenow stated that Plaintiff “does not like to do
extra work or sometimes even the work assigned to her” (T. 214).
Perhaps most importantly, Ms. Swenson-Liebenow found that Plaintiff
“can understand what is required of her to a great degree when she
would like to.” (T. 214 (emphasis added)).
It is notable to point
out that Ms. Swenson-Liebenow expressed skepticism with respect to
“severity of [her seizures] . . . is questionable” (T. 219).
problems, this is hardly a circumstance where a teacher’s opinion
may “properly be determined to outweigh the opinion from a medical
source, including a treating source.” SSR 06-03p, 2006 WL 2329939,
Additionally, to the extent that the Teacher Questionnaire
finds that Plaintiff struggles are deficient in certain areas of
functioning, Ms. Swenson-Liebenow’s opinion is largely consistent
with the ALJ’s RFC finding which is supported by the reports of the
consultative examiners in the medical record.
For example, the
Teacher Questionnaire found Plaintiff could follow single-step
instructions, pay attention when spoken to directly, and, with only
The ALJ’s RFC finding included a limitation for
simple work noting Plaintiff could carry out and remember simple
directions, and respond appropriately to supervision and coworkers.
activities and intellectual testing and determined that Plaintiff
could follow and understand simple directions and instructions,
perform complex tasks with supervision, make appropriate decisions,
relate adequately with others and deal with stress (T. 476-84).
Accordingly, the Court finds that substantial evidence in the
record supports the ALJ’s decision, and the ALJ did not commit
legal error in failing to summarize the Teacher Questionnaire as a
part of his decision.
See Mongeur, 722 F.2d at 1040.
remand is not warranted on this basis either.
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings is granted and Plaintiff’s motion for
judgment on the pleadings is denied.
The Clerk of the Court is
directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
December 5, 2017
Rochester, New York.
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