McGrady v. Commissioner of Social Security

Filing 20

DECISION AND ORDER denying 14 Motion for Judgment on the Pleadings; granting 17 Motion for Judgment on the Pleadings. The Clerk of the Court is directed to close this case. SO ORDERED. Signed by Hon. H. Kenneth Schroeder Jr. on 9/26/2019. (HKG)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GABRIELLE McGRADY,
o/b/o R.S., a minor,
Plaintiff,
v.

DECISION AND ORDER
18-CV-87

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

INTRODUCTION
Plaintiff, on behalf of her child, R.S., challenges an Administrative
Law Judge’s (“ALJ”) determination that R.S. is not entitled to benefits under the Social
Security Act (“the Act”). Plaintiff alleges that R.S. became disabled on December 1,
2013, at the age of five, due to his “trouble concentrating” and “defiant behavior.” Tr. 1 at
129, 63. Plaintiff alleges that the decision of the Administrative Law Judge (“ALJ”) is not
supported by substantial evidence in the record and is based on erroneous legal
standards.

Presently before this Court are the parties’ competing motions for judgment
on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt.
Nos. 14, 17). For the reasons set forth below, this Court finds that the decision of the
Commissioner is supported by substantial evidence and consistent with applicable legal

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“Tr.” refers to the Social Security Transcript which appears at Docket No. 8.

standards. Thus, the Commissioner’s motion for judgment on the pleadings (Dkt. No. 17)
is granted and Plaintiff’s motion (Dkt. No. 14) is denied.

PROCEDURAL HISTORY
On March 11, 2014, Plaintiff filed an application for Supplemental
Security Income (SSI) benefits for R.S., which was denied at the initial level. Tr. at 13,
78-83. Upon Plaintiff’s written request, an ALJ held an administrative hearing on August
10, 2016, at which R.S. and his mother, who were represented by counsel, testified. Tr.
at 33-68. On January 11, 2017, the ALJ issued a decision finding that R.S. was not
disabled. Tr. at 13-28. After the Appeals Council denied her request for review, Plaintiff
filed the current action challenging the ALJ’s final decision to the United States District
Court for the Western District of New York on January 17, 2018. Dkt. No. 1.

DISCUSSION
Standard of Review
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. § 405(g); Wagner v. Sec’y of Health &
Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the district court must only
decide whether the Commissioner applied the appropriate legal standards in evaluating
the plaintiff's claim, and whether the Commissioner’s findings were supported by
substantial evidence in the record. See Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d
Cir. 1983). “Substantial evidence” is evidence that amounts to “more than a mere
scintilla,” and has been defined as “such relevant evidence as a reasonable mind might
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accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971). If the Court finds no legal error, and that there is substantial evidence for the
Commissioner’s determination, the decision must be upheld, even if there is also
substantial evidence for the plaintiff’s position. See Perez v. Chater, 77 F.3d 41, 46-47
(2d Cir. 1996); Conlin ex rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 384 (W.D.N.Y.
2015). Where evidence is deemed susceptible to more than one rational interpretation,
the Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982).

Standard for Disabled Child’s SSI Benefits
An individual under the age of 18 is considered disabled when 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 twelve
months.” 42 U.S.C. § 1382c(a)(3)(C)(i). The Commissioner has established a three-step
sequential evaluation process to determine whether a child is disabled as defined under
the Act. See 20 C.F.R. §§ 416.924 (a)-(d).

First, the ALJ determines whether the child is engaged in any substantial
gainful activity. 20 C.F.R. § 416.924(b). Second, if the child is not engaged in any
substantial gainful activity, the ALJ determines whether the child has a medically severe
impairment or combination of impairments that cause “more than a minimal functional
limitation.” 20 C.F.R. § 416.924(c). Third, the ALJ determines whether the child’s severe
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impairment(s) or combination of impairments, medically equals, or functionally equals the
criteria of any listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listing of
Impairments”). See Conlin, 111 F. Supp. 3d at 384-85.

Where an impairment medically meets or equals a listed impairment, the
child will be found disabled. 20 C.F.R. § 416.924(d)(1). If a child’s impairment or
combination of impairments does not meet or equal a listed impairment, the ALJ must
assess all functional limitations caused by the child’s impairments in six domains:
(1) acquiring and using information; (2) attending and completing tasks; (3) interacting
and relating to others; (4) moving about and manipulating objects; (5) caring for oneself;
and (6) health and physical well-being. 20 C.F.R. § 416.926(a), (b)(1). A child is
classified as disabled if he or she has a “marked” limitation in two domains of functioning
or an “extreme” limitation in one domain. 20 C.F.R. §§ 416.926a(d). “A ‘marked’
limitation exists when the impairment ‘interferes seriously with [the child’s] ability to
independently initiate, sustain, or complete activities.’” Hart v. Colvin, No. 12-CV-1043JTC, 2014 WL 916747, at *3 (W.D.N.Y. Mar. 10, 2014) (citing 20 C.F.R. §
416.926a(e)(2)(i)). “An ‘extreme’ limitation is an impairment which ‘interferes very
seriously with [the child’s] ability to independently initiate, sustain, or complete activities.’”
Id. (citing 20 C.F.R. § 416.926a(e)(3)(i)).

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ANALYSIS
Applying the three-step evaluation in the instant case, the ALJ determined
that: (1) R.S. had not engaged in substantial gainful activity since March 11, 2014, the
application date (Tr. at 16); (2) R.S.’s attention deficit hyperactivity disorder (“ADHD”),
speech delay, and asthma were severe impairments (Tr. at 16); and (3) R.S. did not have
an impairment or combination of impairments that met or medically equaled an
impairment contained in the Listing of Impairments (Tr. at 16).

Assessing the impact of R.S.’s impairments in the six relevant domains, the
ALJ concluded that his deficits did not functionally equal a listed impairment. Tr. at 1628. The ALJ started with the premise that R.S. was a school-aged child when his mother
filed the application for benefits and was a school-aged child at the time of the decision.
Tr. at 16. He determined that R.S. had a “marked” limitation in only one domain, that
relating to attending and completing tasks; and either less than marked or no limitation in
the remaining five domains. Tr. at 16-28. Thus, the ALJ concluded that R.S. was not
disabled and was not entitled to benefits. Tr. at 28.

Plaintiff argues that the ALJ erred in giving “little weight” to two Functional
Equivalence Assessments: one from R.S.’s pediatrician, Dr. Edward Brown (“Brown
Assessment”), and a second one prepared by two individuals, R.S’s Mental Health
Counselor Jessica Whitley and Nurse Practitioner Diana Page (“Whitley/Page
Assessment”). Dkt. No. 14-1, pp. 11-19. Both Assessments indicated, without
explanation, that R.S. had a “marked” limitation in two domains: acquiring and using
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information and attending and completing tasks. Tr. at 300-302; 305-307. Thus, if
credited, the Assessments would have supported a finding of disability. The
Commissioner contends, and this Court agrees, that the ALJ properly evaluated the two
opinions for the reasons that follow.

The Treating Physician Rule
The “treating physician” rule requires ALJ’s to give “deference to the views
of the physician who has engaged in the primary treatment of the claimant.” Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir. 2008). Specifically, “the opinion of a claimant’s
treating physician as to the nature and severity of the impairment is given ‘controlling
weight’ so long as it ‘is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in the
case record.’” Id. (quoting 20 C.F.R. § 404.1527(d)(2)). “Medically acceptable clinical
and laboratory diagnostic techniques include consideration of a patient’s report of
complaints, or history, as an essential diagnostic tool.” Id. (quotation marks and brackets
omitted).

An ALJ may decline to give “controlling” weight to the opinion of a
claimant’s treating physician, but must “consider several factors in determining how much
weight [the physician’s opinion] should receive,” Id. at 129, including:
the frequency of examination and the length, nature and extent of
the treatment relationship; (ii) the evidence in support of the
treating physician’s opinion; (iii) the consistency of the opinion with
the record as a whole; (iv) whether the opinion is from a specialist;
and (v) other factors brought to the Social Security
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Administration’s attention that tend to support or contradict the
opinion.
Ecklund v. Comm’r, 349 F. Supp. 3d 235, 242 (W.D.N.Y. 2018) (quoting Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)).

If an ALJ decides not to give “controlling” weight to a claimant’s treating
physician, “the ALJ must comprehensively set forth his reasons for the weight assigned
to a treating physician’s opinion.” Burgess, 537 F.3d at 129 (quotation marks omitted).
The ALJ need not “explicitly walk through” the factors identified above, “so long as the
Court can conclude that the ALJ applied the substance of the treating physician rule.”
Eckland, 349 F. Supp. at 242 (quotation marks omitted). Nonetheless, “[f]ailure to
provide . . . good reasons for not crediting the opinion of a claimant’s treating physician is
a ground for remand.” Burgess, 537 F.3d at 129-30 (quotation marks omitted). Because
the “‘good reasons’ rule exists to ensure that each denied claimant receives fair process,
an ALJ’s failure to follow the procedural requirement of identifying the reasons for
discounting the opinions and for explaining precisely how those reasons affected the
weight given denotes a lack of substantial evidence, even where the conclusion of the
ALJ may be justified based on the record.” McCarthy v. Colvin, 66 F. Supp. 3d 315, 323
(W.D.N.Y. 2014) (quotation marks and citations omitted). Of course, the ALJ’s reasons
for discounting a treating physician’s opinion must also be “supported by [specific]
evidence in the case record.” Id. at 323 (quotation marks omitted).

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Dr. Brown’s Opinion
The ALJ explicitly gave “little weight” to Dr. Brown’s February 15, 2016
Assessment, reasoning that Dr. Brown’s opinions were given “without explanation” and
that “claimant sees Dr. Brown relatively infrequently and not for treatment of his ADHD,
making the basis for his opinion unclear.” Tr. at 20, 22. These are both factually correct
and legally legitimate reasons for rejecting Dr. Brown’s opinion that R.S. had “marked”
limitations in two domains. The Brown Assessment was only two pages long, consisting
of five headings (the domains) with multiple-choice options (severity of limitation) ranging
from “None” to “Extreme.” Tr. at 306-307. Dr. Brown circled “Marked” under two of the
headings but did not cite to any medical findings or otherwise offer any basis for his
answer. Tr. at 301. This alone was a valid reason for the ALJ to assign the Brown
Assessment “little weight.” See 20 C.F.R. § 416.927(c)(3) (stating that the Social
Security Agency will give more weight to an opinion supported by relevant evidence).

Secondly, the record shows that R.S. saw Dr. Brown infrequently,
and only for treatment of asthma and other physical ailments. Tr. at 352, 355, 360, 362,
364. Dr. Brown never treated R.S. for ADHD, which is the only one of R.S.’s impairments
that would impact his ability to acquire and use information, the domain in dispute in
R.S.’s case. Tr. at 22. An ALJ may properly discount a treating physician’s opinion
where that physician did not treat the claimant for the impairment the doctor opined was
disabling. Johnson v. Astrue, 628 F.3d 991, 994 (8th Cir. 2011). Plaintiff argues that the
ALJ did not discuss the regulatory factors for considering medical opinions. The ALJ is
not required to do so; rather, he or she is only required to consider the factors. See
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Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (the regulations do not require a
“slavish recitation of each and every factor where the ALJ’s reasoning and adherence to
the regulation are clear); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004) (per
curiam). The ALJ clearly considered the factors in R.S.’s case.

Moreover, the ALJ was not, as Plaintiff argues, required to follow up with
Dr. Brown to clarify the opinion. While the SSA has a duty to develop the record, 20
C.F.R. § 404.1545(a)(3), that duty only arises if there is insufficient evidence to reach a
determination on disability. 20 C.F.R. § 416.920b(b). The records relating to R.S.’s
ability to acquire and use information, which consisted of teacher questionnaires, speechlanguage testing, Individualized Education Plans, and medical records, were voluminous
and were more than sufficient to evaluate whether R.S. was disabled.

“Other Opinion” Evidence
Plaintiff also claims that the ALJ did not properly weigh the Whitley/Page
Assessment, a form identical to that filled out by Dr. Brown. Tr. at 300-302. Whitley and
Page completed the form as representatives of Monsignor Carr Institute, where R.S.
received mental health counseling. Tr. at 300. As an initial matter, neither a nurse
practitioner nor a therapist is an “acceptable medical source” under 20 C.F.R. § 416.913.
Instead, each is considered an “other source.” SSR 06-03p; 20 C.F.R. § 416.927(c). An
“other source” cannot be considered a treating source under the regulations — thus, an
opinion from an “other source” is not entitled to controlling weight and not considered a
medical opinion. 20 C.F.R. §§ 416.927(a)(2); 416.927(c); SSR 06-03p. Ultimately, the
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ALJ is “free to decide that the opinions of ‘other sources’ . . . are entitled to no weight or
little weight . . . .” Oaks v. Colvin, No. 13-CV-917-JTC, 2014 WL 5782486, at *8
(W.D.N.Y. Nov. 6, 2014).

The ALJ properly assigned “little weight” to the Whitley/Page Assessment
stating that R.S. had marked limitations in acquiring and using information, because it
conflicted with the evidence from R.S.’s teachers showing improvement in speech and
academic performance. Tr. at 22. Indeed, the record reflects that after R.S. was
prescribed Adderall on January 28, 2016, his performance in both of these areas
improved significantly. Tr. at 221. For example, on February 25, 2016, R.S.’s mother
reported to R.S.’s mental health counselor that “school is good.” Tr. at 342. R.S.’s April
2016 Individualized Education Plan stated that R.S. was “feeling more success
academically” after he repeated first grade and was benefitting from “prompt feedback,
firm expectations, and positive praise.” Tr. at 21, 235. This was approximately three
months after the Whitley/Page Assessment was completed. Tr. at 302.

The ALJ also identified evidence from the record which contradicted the
Whitley/Page Assessment. Specifically, he cited to the July 2016 questionnaire from
R.S.’s first grade teacher, Michele Devans (“Devans Questionnaire”), who indicated that
R.S. had a “serious” problem in only two of ten areas within the domain of acquiring and
using information. Tr. at 24, 244. Ms. Devans’ opinion was particularly probative of his
abilities because she had taught R.S. for almost two years. Tr. at 243. Her evaluation of
R.S.’s abilities in this domain was consistent with the comprehensive evaluation from
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Buffalo Hearing and Speech from 2014, also cited to by the ALJ, which indicated that
R.S. had only “mild” receptive and expressive language disorders. Tr. at 308-314. For
all of these reasons, the ALJ was justified in giving “little weight” to the Whitley/Page
Assessment. 20 C.F.R. § 416.927(c)(4) (stating that the SSA will give more weight to an
opinion that is consistent with the record as a whole).

The ALJ also logically opined that R.S.’s academic problems were not
caused solely by his ADHD, but were due in part to his excessive absenteeism. Tr. at 22.
According to the Devans Questionnaire, R.S. “missed well over 20 days of school in 1415 and was retained in grade1[;] he missed another 20+ days in 15-16 and was late
almost every day, often . . . coming in up to two hours late,” and explaining “mom
overslept.” Tr. at 243, 250. According to Ms. Devans, R.S. “has never had a note from a
medical professional stating illness” to excuse his numerous absences or late arrivals.
Tr. at 249. Ms. Devans stated that when R.S. came in late, he would miss “morning
movement group, resource room, and literacy instruction, possibly our recess as well,”
that this would put R.S. in a “grumpy” mood and result in R.S. “refusing small group
instruction and not completing work until he was feeling better.” Tr. at 248. These
substantial disruptions to R.S.’s school schedule most certainly interfered with his
academic development, and the ALJ justifiably gave the Devans Questionnaire
“significant weight” in concluding that R.S. was not disabled. Tr. at 22.

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After carefully examining the administrative record, this Court finds that
substantial evidence supports the ALJ’s decision. This Court is satisfied that the ALJ
thoroughly examined the record and afforded appropriate weight to all of the evidence in
rendering his decision that R.S. is not disabled within the meaning of the Act.

CONCLUSION
For the foregoing reasons, the Court finds that the Commissioner’s decision
is not legally flawed and is based on substantial evidence.

Accordingly, IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment
on the Pleadings (Docket No. 14) is DENIED.

FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket
No. 17) is GRANTED.

FURTHER, that the Clerk of Court is directed to close this case.

SO ORDERED.

DATED:

Buffalo, New York
September 26, 2019

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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