Torres v. Commissioner of Social Security
Filing
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ORDER granting in part and denying in part 12 Motion for Judgment on the Pleadings and denying 16 Motion for Judgment on the Pleadings. The decision of the Commissioner is vacated, and the matter is remanded for further administrative proceedings consistent with this decision. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 8/30/2019. (AMD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SARYAN MEL ROSARIO TORRES, o/b/o
G.S.R.R.,
Plaintiff,
17-CV-1061
Decision & Order
v.
ANDREW SAUL, Commissioner of Social
Security,
Defendant.
On October 10, 2017, the plaintiff, Saryan Mel Rosario Torres, brought this action
under the Social Security Act ("the Act") on behalf of the claimant, G.S.R.R., a minor
child under 18 years of age. She seeks review of the determination by the
Commissioner of Social Security ("Commissioner") that G.S.R.R. was not disabled.
Docket Item 1. On August 29, 2018, Torres moved for judgment on the pleadings,
Docket Item 12, and on October 29, 2018, the Commissioner responded and crossmoved for judgment on the pleadings, Docket Item 16. Each side then filed a “Notice of
No Reply.” Docket Items 17 and 19.
For the reasons stated below, this Court grants Torres’s motion in part and
denies the Commissioner’s cross-motion.
BACKGROUND
I. PROCEDURAL HISTORY
On September 10, 2013, Torres applied for Supplemental Security Income
benefits on behalf of G.S.R.R. Docket Item 9 at 25. She claimed that G.S.R.R. had
been disabled since July 10, 2013. Id.
On February 10, 2014, Torres received notice that her application on behalf of
G.S.R.R. was denied because he was not disabled under the Act. Id. She requested a
hearing before an administrative law judge ("ALJ"), which was held on April 21, 2016.
Id. The ALJ then issued a decision on June 10, 2016, confirming the finding that
G.S.R.R. was not disabled. Id. at 42. Torres appealed the ALJ’s decision, but her
appeal was denied, and the decision then became final. Id. at 5.
II. CHILDREN’S DISABILITY STANDARD
A child under 18 is disabled under section 1614(a)(3)(C)(i) of the Social Security
Act if he or she has a “medically determinable physical or mental impairment, which
results in marked and severe functional limitations, and which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” In denying Torres’s application, the ALJ evaluated her claim
under the Social Security Administration’s three-step evaluation process to determine
whether an individual under the age of 18 is disabled. See 20 C.F.R. § 416.924(a).
At the first step, the ALJ must determine whether the claimant is currently
engaged in substantial gainful activity (“SGA”), not surprisingly defined as work activity
that is both substantial and gainful. Id. § 416.972. “Substantial work activity” involves
significant physical or mental activities. Id. § 416.972(a). “Gainful work activity” is work
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usually done for pay or profit, whether or not profit is realized. Id. § 416.972(b). If the
claimant is engaged in SGA, the claimant is not disabled regardless of medical
condition, age, education, or work experience. Id. at § 416.924(b). If the claimant is not
engaged in SGA, the ALJ proceeds to the next step. Id.
At step two, the ALJ must determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is “severe.” Id. at
§ 416.924(a). For a claimant under the age of 18, an impairment is not severe if it is a
slight abnormality or a combination of such abnormalities that causes no more than
minimal functional limitations. Id. § 416.924(c). If the claimant has a severe
impairment, the ALJ proceeds to the third step. Id. § 416.924(a).
At step three, the ALJ must determine whether the impairment or combination of
impairments meet, medically equal, or functionally equal an impairment in the listings.
Id. § 416.924(d). If the claimant has an impairment or combination of impairments that
meet, medically equal, or functionally equal the severity of one in the listings, and if
such impairments have lasted or are expected to last for a continuous period of at least
12 months, then the claimant is disabled. Id. § 416.924(d). If not, then the claimant is
not disabled. Id.
To determine whether impairments functionally equal one in the listings, the ALJ
assesses the claimant’s functioning in six separate “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 well-being. Id. § 416.926a(b)(1). That assessment compares how the child
performs in each of these domains with the typical functioning of a child of the same
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age without impairment. Id. § 416.926a(b). The child’s impairment is of listing-level
severity if there are “marked” limitations in at least two domains or an “extreme”
limitation in one domain. Id. § 416.926a(d). In determining whether impairments are
“marked” or “extreme,” the ALJ considers functional limitations that result from all
impairments, including impairments that have been deemed not severe, and their
cumulative effects. Id. §§ 416.923, 416.924a(b)(4), 416.926a(a), (c), and (e)(1)(i).
A “marked” limitation results when impairments “seriously interfere with [the
child’s] ability to independently initiate, sustain, or complete activities.” Id.
§ 416.926a(e)(2)(i). A “marked” limitation is “more than moderate” but “less than
extreme.” Id. On a standardized test designed to measure abilities within a certain
domain, a “marked limitation” means a score of at least two, but less than three,
standard deviations below the mean and a level of day-to-day functioning consistent
with that score. Id. §§ 416.926a(e)(2)(i), 416.926a(e)(2)(iii). For example, in the
domain of “health and well-being,” a child is considered to have a “marked” limitation if
he or she is frequently ill as a result of his or her impairments or exhibits frequent
worsening of symptoms resulting in medically-documented exacerbations. Id.
§ 416.926a(e)(2)(iv). “Frequent” means episodes that occur on average every four
months and last two weeks or more, or that occur more often than three times a year
but last less than two weeks, or that occur less often but are of overall equivalent
severity. Id.
An “extreme” limitation, on the other hand, results when impairments “interfere[ ]
very seriously with [the child’s] ability to independently initiate, sustain, or complete
activities.” Id. § 416.926a(e)(3)(i). An “extreme” limitation is one that is “more than
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marked.” Id. The ALJ will determine a limitation to be “extreme” when a comprehensive
standardized test designed to measure functioning in a particular domain results in a
score of three or more standard deviations below the mean and day-to-day functioning
consistent with that score. Id. § 416.926a(e)(3)(iii). In the domain of “health and wellbeing,” for example, the ALJ will consider a child to have an “extreme” limitation if the
child is frequently ill or if impairments frequently become exacerbated, resulting in
medically documented symptoms significantly more than those of a “marked” limitation.
Id. § 416.926a(e)(3)(iv).
III. THE ALJ’S DECISION
The ALJ determined that G.S.R.R. was born on September 30, 2002, and
therefore school-aged when the application was filed on September 20, 2013. Docket
Item 9 at 28. At step one, the ALJ found that G.S.R.R. had not engaged in SGA since
the application date. Id. At step two, the ALJ found that G.S.R.R. suffered from several
severe impairments: “Asthma, ADHD, Bilateral Hearing Loss and learning disability.” Id.
Although the ALJ found these impairments to be severe, at step three he determined
that they did not meet or equal any of the Childhood Listings in 20 C.F.R. Part 404,
Subpart P, Appendix 1, because the impairments caused only minimal limitations. Id.
As required by 20 C.F.R. § 416.924a(a) and SSR 09-2p, the ALJ considered all
relevant evidence in the case record, which included “objective medical evidence and
other relevant evidence from medical sources; information from other sources, such as
school teachers, family members, or friends; the claimant’s statements . . .; and any
other relevant evidence in the case record, including how the claimant functions over
time and in all settings.” Docket Item 9 at 28. The ALJ also explicitly considered the
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“whole child,” as required by 20 C.F.R. § 416.924a(b) and (c) and explained in SSR 091p. Docket Item 9 at 28. In doing so, the ALJ evaluated G.S.R.R.’s abilities compared
to other children his age without impairments, as well as the interactive and cumulative
effects of all G.S.R.R.’s impairments, severe or otherwise. Id. Finally, the ALJ
considered “the type, extent, and frequency of help the claimant needs to function.” Id.
In addressing G.S.R.R.’s symptoms, the ALJ followed a two-step process to
evaluate whether (1) there is an underlying medically determinable physical or mental
impairment that could be expected to produce his symptoms and (2) the intensity,
persistence, and limiting effects of his symptoms interferes with his functioning. Id. As
part of his analysis, the ALJ addressed G.S.R.R.’s abilities in each of the six domains
for determining functional equivalence to the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Docket Item 9 at 35-42. The ALJ found less-than-marked
limitations in the five domains of “acquiring and using information,” “attending and
completing tasks,” “interacting and relating with others,” “moving and manipulating
objects,” and “health and physical well-being.” Id. And he found no limitation in the
sixth domain—G.S.R.R.’s ability care for himself. Id.
STANDARD OF REVIEW
“The scope of review of a disability determination . . . involves two levels of
inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first
decide whether [the Commissioner] applied the correct legal principles in making the
determination.” Id. This includes ensuring “that the claimant has had a full hearing
under the . . . regulations and in accordance with the beneficent purposes of the Social
Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz v.
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Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s] whether the
determination is supported by ‘substantial evidence.’” Johnson, 817 F.2d at 985
(quoting 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.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Where there is a
reasonable basis for doubt whether the ALJ applied correct legal principles, application
of the substantial evidence standard to uphold a finding of no disability creates an
unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to correct legal principles.” Johnson, 817 F.2d at 986.
DISCUSSION
I.
ALLEGATIONS
Torres objects to the ALJ’s findings of less-than-marked limitations in the
domains of acquiring and using information and attending and completing tasks.
Docket Item 12-1 at 13, 17. Specifically, she argues that these determinations were not
supported by substantial evidence. Id. Torres also argues that G.S.R.R. was denied
his due process right to a full hearing under the Act because the translator and
recording equipment were not sufficient. Id. at 19-23.
II. ANALYSIS
A. Substantial Evidence
In evaluating a claim of disability, the Commissioner “will consider all evidence in
[the claimant’s] case record.” 20 C.F.R. § 404.1520(a)(3) (emphasis added). Relevant
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evidence includes objective medical evidence such as laboratory findings; medical
opinions and other medical evidence; nonmedical evidence such as the claimant’s and
third parties’ testimony; and prior administrative findings. 20 C.F.R. § 404.1513. “[O]nly
‘acceptable medical sources' can be considered treating sources . . . whose medical
opinions may be entitled to controlling weight. ‘Acceptable medical sources’ are further
defined (by regulation) as licensed physicians, psychologists, optometrists, podiatrists,
and qualified speech-language pathologists.” Genier v. Astrue, 298 F. App'x 105, 108
(2d Cir. 2008) (citing 20 C.F.R. § 416.913(a) and SSR 06-03P, 2006 WL 2329939 (Aug.
9, 2009)).
The ALJ must also consider the opinions of “other sources”—for example, school
teachers—but the ALJ is not obliged to assign weight or give deference to such
sources. Id. Nonetheless, the ALJ “should explain the weight given to opinions from
these ‘other sources,’ or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator's reasoning, when such opinions may have an effect on the outcome of the
case.” SSR 06-03P, at *6. “[W]hile the Commissioner is thus free to decide that the
opinions of ‘other sources’ . . . are entitled to no weight or little weight, those decisions
should be explained.” Slattery v. Colvin, 111 F.Supp.3d 360, 372 (W.D.N.Y. 2015)
(quoting Oaks v. Colvin, 2014 WL 5782486, at *8 (W.D.N.Y. Nov. 6, 2014)). That is
especially so when they “may have an effect on the outcome of the case.” 20 C.F.R.
§ 404.1527(f)(2).
Some courts have found that an ALJ has an “obligation to explain his decision to
assign limited weight to the opinions of a claimant’s teachers,” see, e.g., Vazquez ex rel.
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J.V. v. Colvin, 2015 WL 1241251, at *20 (W.D.N.Y. Mar. 18, 2015), because of a
teacher’s “extensive, first-hand opportunities to observe [the c]laimant and assess his
limitations,” Stanley v. Comm’r of Soc. Sec., 32 F. Supp. 3d 382, 395 (N.D.N.Y. 2014).
Regardless of whether there is such an obligation, a teacher’s familiarity with a child
may well be “good reason[]” to assign significant weight to a teacher’s opinion. Bushey
v. Colvin, 552 Fed. Appx. 97, 98 (2d Cir. 2014); 20 C.F.R. §§ 404.1527(c), (f).
Here, Mrs. Olga Camacho, G.S.R.R.’s teacher, completed a Social Security
Administration “Teacher Questionnaire” regarding G.S.R.R.’s functioning in each of the
six domains. Docket Item 9 at 368. In the domain of acquiring and using information,
she opined that G.S.R.R. “ha[d] problems functioning in this domain.” Id. at 362. Mrs.
Camacho compared G.S.R.R.’s functioning in several activities to that of a child of the
same age without impairments, and she rated him as having either “[a]n obvious
problem” or “[a] serious problem” in every category. Id. She explained that G.S.R.R.
“needs extra support with all new material taught using multiple visuals and
descriptions” because he “has difficulty with comprehending information, so it needs to
be broken down into small chunks of information for him.” Id. For “class discussions,”
Mrs. Camacho wrote that G.S.R.R. “needs prompts for answering questions,” and she
concluded that he “is not as independent as he should be at this age.” Id.
Mrs. Camacho also opined that G.S.R.R. “has problems functioning” in the
domain of attending and completing tasks. Id. at 636. She compared G.S.R.R. to a
child of the same age without impairments, and she opined that he had “[a] very serious
problem” in six of ten categories and either “[a]n obvious problem” or “[a] serious
problem” in every other category except “[w]aiting to take turns.” Id. She also noted his
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“difficulty with attending to spoken direction” as well as his need for “a lot of redirection,
reminders and eye to eye contact as well as repetition to stay on task.” Id.
In his decision, the ALJ recounted Mrs. Camacho’s opinion that G.S.R.R. has
“problems” in acquiring and using information and “multiple limitations” in attending and
completing tasks. Id. at 34. After reciting that opinion, the ALJ gave them “some weight
. . . since her opinion is somewhat consistent with other evidence of record.” Id. at 35.
But when the ALJ later found less-than-marked limitation in those two domains—
acquiring and using information and attending and completing tasks—he did not
discuss, or even mention, Mrs. Camacho’s opinion regarding those domains. Id. at 3538. For acquiring and using information, the ALJ cited several IQ tests and concluded
that G.S.R.R. “has the innate ability to do better in school but does not complete
assignments or shows poor effort.”1 Id. at 36-37. For attending and completing tasks,
the ALJ pointed to G.S.R.R.’s individual education plans and child evaluations as
evidence that “although he carries a diagnosis of ADHD he is doing well.” Id. at 38.
In other words, the ALJ never explained how Mrs. Camacho’s opinion that
G.S.R.R. “ha[d] problems” in acquiring and using information and “multiple limitations” in
attending and completing tasks, id. at 34, factored in to his analysis of these two
domains. He may have been correct in giving that opinion “some weight” because it
was “somewhat consistent” with “other evidence of record.” Id. at 35. But he never
explained what “other evidence” he referred to, or how Mrs. Camacho’s opinion was
1
Although test scores are certainly relevant to determining a marked impairment,
the regulations provide that the Commissioner “will consider [the claimant’s] test scores
together with the other information [in the record] about your functioning, including
reports of classroom performance and the observations of school personnel.” 20 C.F.R.
§ 416.926a.
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“somewhat consistent” with it. He never addressed whether there was additional
evidence inconsistent with Mrs. Camacho’s opinion, therefore justifying his giving her
opinion only some weight. And, most basically, he never addressed that opinion in his
analysis of the key domains.
What is more, there were good reasons why the ALJ might have assigned
greater weight to Mrs. Camacho’s opinion. In particular, Mrs. Camacho had known
G.S.R.R. for about six months, and had seem him daily from 9:00 a.m. until 3:35 p.m.,
by the time she gave her opinion. Id. at 361. Although the ALJ paid lip service to that
long and intense relationship, id. at 34, he did not explain how or why it affected the
weight her opinion deserved. In fact, the length, consistency, nature, and extent of Mrs.
Camacho’s relationship with G.S.R.R. may well and provide reasons to assign greater
weight to her opinion. See Bushey, 552 Fed. Appx. at 98; 20 C.F.R. §§ 404.1527(c), (f).
The ALJ’s vague explanation of the weight assigned to Mrs. Camacho’s opinion
is especially problematic because her opinion “may have [had] an effect on the outcome
of the case.” 20 C.F.R. § 404.1527(f)(2). Her opinion that G.S.R.R. had “problems” in
acquiring and using information and “multiple limitations” in attending and completing
tasks might well evidence marked limitations in those domains. But despite assigning
Mrs. Camacho’s opinion “some weight,” the ALJ’s decision ignored it in evaluating the
domains of acquiring and using information and attending and completing tasks. Id. at
36-38.
In sum, the ALJ’s decision does not “permit the reviewer to glean the rationale”
for his consideration or treatment of Mrs. Camacho’s opinion about G.S.R.R.’s ability to
acquire and use information or attend and complete tasks. Porter, 2016 WL 1084162,
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at *4. That opinion might significantly affect the determination of whether G.S.R.R. is
disabled, but it remains unclear how or whether it affected the ALJ’s decision. This
matter therefore is remanded so that the ALJ can further develop the medical record or
otherwise consider and address the opinion of Mrs. Camacho or G.S.R.R.’s other
teachers regarding G.S.R.R.’s limitations in acquiring or using information and attending
and completing tasks.
B.
Full and Fair Hearing
Torres also argues that G.S.R.R. did not receive a full hearing under the Act
because the interpreter did not translate verbatim at the hearing and because “the
microphone failed to effectively amplify the voices of the parties in the proceeding.”
Docket Item 12-1 at 20-21. That objection is unavailing.
While a violation of the Social Security Administration’s interpreter policy—such
as denying an interpreter—can result in the denial of a full and fair hearing, see Alvarex
v. Comm’r of Soc. Sec., 2011 WL 2600712, at *3 (D.N.J. June 28, 2011), a claimant is
not denied a full and fair hearing when he is “provided with interpretation services” and
his “answers [are] generally responsive to the questions put to” him, Tankisi v. Comm’r
of Soc. Sec., 2013 WL 1296489, at *2 (2d Cir. Apr. 2, 2013).
Here, although Torres cites several points in the transcript at which the
interpreter sought to clarify testimony with follow-up questions or summaries, nothing
indicates that the claimant or his representative “did not understand the proceedings.”
Id. In fact, Torres “has failed to explain how she was disadvantaged by any
interpretation issues.” Id. The same is true regarding Torres’ complaint about the
microphones. Because Torres has “not identified a specific point that she was unable to
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present or understand at the hearing,” any issues Torres raises about the interpreter or
the microphone at that hearing “did not result in a denial of a full and fair hearing.” Id.
CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the
pleadings, Docket Item 16, is DENIED, and Torres’s motion for judgment on the
pleadings, Docket Item 12, is GRANTED in part and DENIED in part. The decision of
the Commissioner is VACATED, and the matter is REMANDED for further
administrative proceedings consistent with this decision.
SO ORDERED.
Dated:
August 30, 2019
Buffalo, New York
s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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