Gonzalez v. Colvin
Filing
26
DECISION AND ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings; adopting Report and Recommendations re 17 Report and Recommendations. (clerk to close case.) Signed by Hon. Michael A. Telesca on 11/19/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANGELICA SANTA MARIA GONZALEZ,on behalf
of D.K.M.,
Plaintiff,
1:16-cv-00767-MAT-HBS
DECISION AND ORDER
-vsNANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
INTRODUCTION
Angelica Santa Maria Gonzalaz (“Plaintiff”), represented by
counsel, brings this action on behalf of her minor child, D.K.M.
(“Claimant”), pursuant to Title XVI of the Social Security Act
(“the Act”). Plaintiff seeks review of the final decision of the
Acting Commissioner of Social Security (“the Commissioner” or
“Defendant”) denying Claimant’s application for child Supplemental
Security Income (“SSI”). The Court has jurisdiction over the matter
pursuant to 42 U.S.C. § 1383(c). 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.
On June 5, 2018, Magistrate Judge Hugh B. Scott issued a
Report and Recommendation (the “R&R”) (Docket No. 17) recommending
that Defendant’s motion be granted and Plaintiff’s motion be
denied. As discussed further below, the Court adopts Judge Scott’s
findings and accepts his recommendation as to the disposition of
the pending motions.
SCOPE OF REVIEW
When specific objections are made to a magistrate judge’s
report and recommendation, the district judge makes a “de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§
636(b)(1)(C).
When
only
general
objections
are
made
to
a
magistrate judge’s report and recommendation, the district judge
reviews it for clear error or manifest injustice. See, e.g., Brown
v. Peters, 95-CV-1641-RSP-DS, 1997 WL 599355, at *2-3 (N.D.N.Y.
Sept. 22, 1997), aff’d, 175 F.3d 1007 (2d Cir. 1999). After
conducing the appropriate review, the district court may “accept,
reject,
or
modify,
recommendations
made
in
by
whole
or
the
in
part,
magistrate
the
judge.”
findings
28
or
U.S.C.
§ 636(b)(1)(C).
PROCEDURAL BACKGROUND
Claimant was born on December 7, 2012. On June 17, 2013,
Plaintiff protectively filed an application for SSI on behalf of
Claimant, alleging disability beginning February 1, 2013 due to
congenital torticollis, and anomaly of the skull, face and bones.
Administrative Transcript (“T.”) 42. The claim was initially denied
on September 9. 2013. T. 49. At Plaintiff’s request, a video
hearing was conducted on June 23, 2015, in Rochester, New York by
administrative law judge (“ALJ”) Michael W. Devlin, with Plaintiff
and Claimant appearing pro se via video conference in Buffalo,
New York. T. 27-40.
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The ALJ issued an unfavorable decision on August 21, 2015.
T. 8-23. Plaintiff appealed the decision to the Appeals Council
(“AC”), which denied Plaintiff’s request for review on July 28,
2016, making the ALJ’s decision the final determination of the
Commissioner. T. 1-5. This action followed.
THE ALJ’S DECISION
The
ALJ
applied
the
three-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims
for individuals under the age of 18. See 20 C.F.R. § 416.924(a).
At step one of the sequential evaluation, the ALJ found that
Claimant had not engaged in substantial gainful activity since
June 17, 2013, the application date. T. 14.
At
step
following
two,
the
“severe”
ALJ
determined
impairments:
that
Claimant
congenital
had
the
torticollis;
plagiocephaly; and speech/language delay. Id.
At step three, the ALJ found that Claimant’s impairments did
not singularly or in combination meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. T. 14. He further found that Claimant’s
impairments did not singularly or in combination functionally equal
the severity of the listings in 20 C.F.R. Parts 416.924(d) and
416.926(a). T. 15. Accordingly, the ALJ found that Claimant was not
disabled as
defined
by
the
Act
process. T. 23.
3
and
concluded
the
sequential
DISCUSSION
In her objections to the R&R, Plaintiff raises the following
arguments: (1) the record was insufficient to make a finding on the
severity
of
Claimant’s
mixed
receptive-expressive
language
disorder; and (2) the ALJ failed to properly evaluate Plaintiff’s
credibility.
In
opposition,
the
Commissioner
contends
that:
(1) substantial evidence supports the ALJ’s finding that Claimant
did not have an impairment or combination of impairments that met
or
functionally
equaled
a
listing;
and
(2) the
ALJ
properly
assessed Plaintiff’s credibility. For the reasons set forth below,
the Court finds that Plaintiff’s objections are without merit.
I.
The ALJ’s Step Three Finding is Supported by Substantial
Evidence
Plaintiff argues the ALJ failed to adequately develop the
record, particularly in light of Plaintiff’s pro se status at the
hearing level. Specifically, Plaintiff contends it was error for
the
ALJ
to
make
a
finding
on
the
severity
of
Claimant’s
speech/language delay without the benefit of an expert opinion. The
Court agrees with the conclusions reached in the R&R that the
available administrative record was sufficient to substantially
support the ALJ’s findings. The R&R explains in detail that there
was no evidence in the record to support the conclusion that
Claimant suffered from a neurological disorder that affected his
speech, and “further expert development of the record based on
speech alone” would not have meaningfully impacted the ALJ’s
4
conclusions. (Docket No. 17 at 10-11). Accordingly, the Court
adopts
the
conclusion
that
the
ALJ’s
step
three
finding
is
supported by substantial evidence.
II.
The ALJ Properly Evaluated Plaintiff’s Credibility
Plaintiff further argues the ALJ’s credibility finding is
unsupported by the record. In particular, Plaintiff argues the
ALJ’s reasons for discounting her credibility were based on an
inappropriate reading of the evidence and mischaracterization of
the record. For the reasons set forth below, the Court finds upon
its de novo review of the record that the ALJ properly evaluated
Plaintiff’s credibility and supported his finding with substantial
evidence.
“Because the ALJ has the benefit of directly observing a
claimant’s demeanor and other indicia of credibility, his decision
to discredit subjective testimony is entitled to deference and may
not be disturbed on review if his disability determination is
supported by substantial evidence.” Hargrave v. Colvin, No. 12-CV6308 (MAT), 2014 WL 3572427, at *5 (W.D.N.Y. July 21, 2014)
(internal quotation omitted). While the Commissioner’s regulations
set forth seven factors the ALJ is to consider in assessing
credibility, the ALJ is not required to explicitly discuss each of
the factors, so long as he sets forth the reasoning for his
credibility determination and that determination is adequately
supported
by
the
evidence.
“[T]he
predominant
focus
of
a
credibility analysis must be the entire case record as a whole, and
5
... the adjudicator [need only] show specific cause, grounded in
evidence, for his or her conclusion.” Snyder v. Barnhart, 323
F. Supp. 2d 542, 547 (S.D.N.Y. 2004). “Credibility findings of an
ALJ are entitled to great deference and therefore can be reversed
only if they are patently unreasonable.” Andrisani v. Colvin,
1:16-CV-00196 (MAT), 2017 WL 2274239, at *3 (W.D.N.Y. May 24, 2017)
(internal quotation omitted).
In finding that Plaintiff was partially credible, the ALJ
noted
that
Plaintiff
appeared
to
overstate
the
severity
of
Claimant’s condition. T. 16. Specifically, the ALJ noted that
Plaintiff testified that torticollis was still a major problem for
Claimant at the time of the hearing, when Claimant was two-and-ahalf-years-old (T. 35); however, the medical records indicate that
Claimant’s pediatrician made no note of torticollis at Claimant’s
twelve-month well-child visit. Id.
Plaintiff argues that torticollis was not noted by Claimant’s
pediatrician at the twelve-month well-child visit because Claimant
was receiving physical therapy for torticollis elsewhere. However,
upon review of the medical records, the Court finds Claimant’s
physical
therapy
reports
last
mention
a
concern
regarding
Claimant’s head and neck alignment on December 31, 2013, shortly
after Claimant’s first birthday. T. 278. Subsequent therapy reports
include no indication that torticollis was an on-going concern. See
T. 280-85. Where an ALJ “gives specific reasons for finding the
claimant not credible, the ALJ’s credibility determination ‘is
6
generally entitled to deference on appeal.’” Costello v. Colvin,
No. 16-CV-0576SR, 2018 WL 4777186, at *4 (W.D.N.Y. Oct. 3, 2018)
(internal quotation marks omitted) (finding the ALJ’s assessment of
plaintiff’s credibility regarding the severity of her edema was
supported by the record where treatment records from plaintiff’s
primary care doctor only indicated a one-time discussion of edema
and no on-going treatment). Accordingly, the Court finds the ALJ’s
determination that Plaintiff’s testimony that torticollis was still
a major problem for Claimant in June 2015 was not fully credible is
supported by substantial evidence.
Plaintiff further argues the ALJ’s statement that “[w]hile
[Claimant] is receiving physical therapy, the progress reports
indicate improvement in his motor skills to ‘more age appropriate’
levels” is a mischaracterization of the record. T. 16 (quoting
T. 282). Upon review of the progress report in question, the Court
finds no error in the ALJ’s rephrasing of the report.
On April 1, 2015, Claimant’s physical therapist noted that
“[Claimant] has further established independent walking and running
during the course of this quarter, and is continuing to move on to
more age-appropriate motor skills...” T. 282. As the ALJ correctly
found, the physical therapy records show Claimant was making
improvements in his motor skills. Accordingly, the Court finds no
error
in
the
ALJ’s
assessment
of
the
record.
See
Jones
v.
Commissioner of Social Security, No. 6:17-CV-06396(MAT), 2018 WL
3829119, at *3-4 (W.D.N.Y. Aug. 13, 2018) (finding no error in the
7
ALJ’s discussion of plaintiff’s medical records showing significant
improvement).
For the reasons set forth above, upon its de novo review and
after careful consideration of Plaintiff’s objections, the Court
finds the ALJ did not err in his finding that Plaintiff was not
entirely credible concerning her statement regarding the severity
of Claimant’s condition. The Court further adopts the conclusions
set
forth
in
recommendation
the
that
R&R
in
their
Plaintiff’s
entirety
motion
for
and
accepts
judgment
on
the
the
pleadings be denied and that Defendant’s motion for judgment on the
pleadings be granted.
CONCLUSION
For the reasons set forth above, the R&R (Docket No. 17) is
adopted. The Commissioner’s motion for judgment on the pleadings
(Docket No. 12) is granted, and Plaintiff’s motion for judgment on
the pleadings (Docket No. 11) is denied. The Clerk of Court is
directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
November 19, 2018
Rochester, New York
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