Crittenden v. Colvin
DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings; denying 13 Commissioner's Motion for Judgment on the Pleadings. This matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order. The Clerk of the Court is directed to close this case.. Signed by Hon. Michael A. Telesca on 9/27/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHAMEKA Y. CRITTENDEN
-vsNANCY A. BERRYHILL,
Acting Commissioner of
Represented by counsel, Shameka Y. Crittenden ("plaintiff")
(“R.T.S.”) pursuant to Title XVI of the Social Security Act (“the
Commissioner of Social Security (“defendant” or “the Commissioner”)
denying plaintiff's application for Supplemental Security Income
(“SSI”). This Court has jurisdiction over the 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 Federal
Rule of Civil Procedure 12(c).
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
Eligibility for Childhood SSI
For the purpose of evaluating eligibility for childhood SSI
benefits, an individual under the age of 18 is considered disabled
if he has a medically determinable physical or mental impairment
that results in marked and severe functional limitations, and that
can be expected to result in death, or that has lasted, or can be
See 42 U.S.C. § 1382c(a)(3)(C)(i).
establish a sequential evaluation for determining whether a child
claimant meets this definition of disabled, and requires the
claimant to show:
1) that he is not working; 2) that he has a
severe impairment or combination of impairments; and 3) that his
impairment or combination of impairments meets or medically equals
the listings in Part A or B of Appendix 1 to Subpart P of Part 404
of the Social Security Administration’s regulations. See 20 C.F.R.
§ 416.924. A child’s functional limitations are evaluated in the
See 20 C.F.R. § 416.926a(b)(1).
If a child has
marked limitations in two domains or an extreme limitation in one
domain, the child’s impairment or combination of impairments is
functionally equivalent to a listed impairment.
A “marked” limitation means that a claimant’s
See 20 C.F.R.
claimant's] day-to-day functioning may be seriously limited when
interactive and cumulative effects of [his] impairment(s) limit
‘Marked’ limitation also means a limitation
20 C.F.R. § 416.926a(e)(2).
III. Procedural History
Plaintiff protectively filed an application for SSI on behalf
of R.T.S. on August 23, 2012, which was denied.
Transcript (“T.”) 65-69, 92-97.
At plaintiff’s request, a hearing
was held before administrative law judge (“ALJ”) Grenville W.
Harrop, Jr. on August 14, 2014.
In a decision dated
October 27, 2014, the ALJ found that R.T.S. was not disabled as
defined in the Act and denied plaintiff’s claim.
October 29, 2014, the Appeals Council denied plaintiff’s request
for review, thereby rendering the ALJ’s decision the Commissioner’s
Plaintiff subsequently filed this
The Court assumes the parties’ familiarity with the facts of
this case, which will not be repeated here.
The Court will discuss
the record further below as necessary to the resolution of the
The ALJ’s Decision
three-step sequential evaluation for evaluating child disability
See 20 C.F.R. § 416.924.
At step one, the ALJ determined
that R.T.S. had not engaged in substantial gainful activity since
August 23, 2012, the date of her application.
At step two,
the ALJ found that R.T.S. suffered from the severe impairment of
expressive and receptive language delay.
At step three, the
ALJ found that R.T.S.’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 R.T.S.’s impairment was not
limitation in the domain of Interacting and Relating with Others;
less than marked limitations in the domains of Acquiring and Using
Information, Attending and Completing Tasks, Moving About and
Manipulating Objects, and Health and Physical Well-Being; and no
limitation in the domain of Caring for Himself.
T. 28-35. The ALJ
therefore concluded that R.T.S. was not disabled within the meaning
of the Act.
Scope of Review
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
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).
Here, plaintiff makes the following arguments in support of
her motion for judgment on the pleadings: 1) the ALJ failed to
properly evaluate the credibility of the testimony of R.T.S.’s
mother and 2) the ALJ’s finding that R.T.S. had a “less than
marked” limitation in acquiring and using information was not
supported by substantial evidence.
The ALJ Failed to Properly Evaluate the Credibility of
the Testimony of R.T.S.’s Mother and the Error Was Not
Plaintiff contends that the ALJ failed to provide a sufficient
credibility determination with respect to the testimony of R.T.S.’s
Docket 9 at 16.
The Court agrees.
“Although the ALJ is free to accept or reject testimony of a
claimant's parent, a finding that a witness is not credible must be
set forth with sufficient specificity to permit intelligible review
of the record.”
Rozler v. Colvin, 2014 WL 7358708, at *10
(W.D.N.Y. Dec. 23, 2014) (citing Williams on behalf of Williams v.
Bowen, 859 F.2d 255, 260 (2d Cir. 1988)).
“If the child claimant
is unable adequately to describe his symptoms, the ALJ must accept
the description provided by testimony of the person most familiar
with the child's condition, such as a parent, and make specific
findings concerning the credibility of the parent's testimony.”
Rozler, 2014 WL 7358708, at *10 (quoting F.S. v. Astrue, 2012 WL
514944, at *19 (N.D.N.Y. Feb.15, 2012)); see Jefferson v. Barnhart,
64 F. App'x 136, 140 (10th Cir.2003) (same).
Here, R.T.S. was three years old at the time of the hearing
and unable to adequately describe his symptoms.
T. 45. The record
reveals that the ALJ neither accepted plaintiff’s description of
R.T.S.’s limitations nor made a specific credibility finding as to
the testimony of R.T.S.’s mother.
Instead, the ALJ acknowledged
testimony of R.T.S.’s mother, found that R.T.S. had a medically
determinable impairment which could be expected to produce the
concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained
The ALJ did not, however, offer any reasons
explaining why R.T.S.’s mother was “not entirely credible” as to
symptoms, and what the ALJ meant by “not entirely credible,” or the
ultimate level of credibility afforded the statements. See Ebelink
v. Colvin, 2015 WL 9581787, at *7 (W.D.N.Y. Dec. 30, 2015) (“As
Plaintiff points out, the ALJ recited the boilerplate summarizing
the two-step credibility analysis set forth in the regulations, but
said nothing at all about Plaintiff’s testimony regarding the
intensity and persistence of Claimant’s symptoms and limitations in
functioning caused by his multiple severe impairments.”)
See Jefferson, 64 F. App'x at 140 (holding that
ALJ’s finding that claimant’s mother’s testimony was “credible only
to the extent that [it was] supported by evidence of record” is
“standard boilerplate language” and an insufficient explanation of
credibility); Williams, 859 F.2d at 260-61 (concluding ALJ
set forth any finding that witness is not credible “with sufficient
specificity to permit intelligible plenary review of the record”).
The Court thus is left without a basis to determine whether the
appropriate legal standards were applied; nor can it evaluate
arriving at his conclusion.
See Rozler, 2014 WL 7358708, at *10
(citing Bennett v. Astrue, 2010 WL 3909530, at *10 (N.D.N.Y.
The Commissioner argues that any alleged error in the ALJ’s
failure to assess the credibility of plaintiff’s statements as to
R.T.S.’s limitations is harmless because the hearing transcript did
“not reveal any noteworthy testimony that adds to the medical
Docket No. 13 at 15.
During the hearing, however,
plaintiff testified that R.T.S. did not “say his ABC’s,” had a
“speech problem,” and regularly used pointing and screaming to
The ALJ failed to consider this testimony in
rendering his finding even though he noted in the decision that SSR
09-3P, which addresses acquiring and using information, cites
reciting the alphabet, as a specific example of difficulty in the
development of readiness skills.
Indeed, during the hearing the
ALJ tried and failed to elicit from R.T.S. a recitation of his
Had the ALJ properly considered plaintiff’s
testimony, he could have concluded that R.T.S.’s limitations in
acquiring and using information were “marked,” therefore rendering
a finding of disabled.
As such, the ALJ’s error was not harmless.
See Wilson v. Colvin, 213 F. Supp. 3d 478, 488 (W.D.N.Y. 2016)
(“Therefore, the ALJ's failure to evaluate Dr. Holub's opinion was
not harmless because, if the opinion were credited, it would have
directed a finding of disability.”).
Accordingly, remand “is required ‘for a determination of
plaintiff’s credibility which must contain specific findings based
upon substantial evidence in a manner that enables effective
Rozler, 2014 WL 7358708, at *10 (quoting Bennett v.
Astrue, 2010 WL 3909530, at *10 (N.D.N.Y. Sept.30, 2010)); see also
Ebelink, 2015 WL 9581787, at *7 (“The ALJ's failure to provide any
rationale for questioning Plaintiff's credibility is an error
warranting remand.”); Warren ex rel. T.M.W. v. Colvin, 2014 WL
200231, at *9 (W.D.N.Y. Jan. 16, 2014) (finding that remand was
required for the ALJ to perform a credibility assessment where the
ALJ summarized some of the claimant’s mother’s testimony, but did
not assess the credibility of her statements about the claimant’s
symptoms and their functional effects).
The Court Declines to Reach Plaintiff’s Argument as to
the ALJ’s Finding With Respect to Acquiring and Using
Plaintiff also argues that remand is required because the
ALJ’s finding that R.T.S. had a less than marked limitation with
respect to acquiring and using information was not supported by
Docket No. 9 at 12.
Because the Court has
determined that remand is required for specific findings with
respect to a determination of plaintiff’s credibility, it need not
reach this issue.
On remand and after the required specific
findings with respect to plaintiff’s credibility, the Commissioner
should revisit his finding that R.T.S. had a less than marked
limitation with respect to acquiring and using information and
reconsider his conclusion whether R.T.S. is disabled in light of
the record as a whole.
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Docket No. 13) is denied and plaintiff’s
motion for judgment on the pleadings (Docket No. 9) is granted.
administrative proceedings consistent with this Decision and Order.
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
September 27, 2017
Rochester, New York.
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