Henry v. Commissioner of Social Security

Filing 18

MEMORANDUM - DECISION and ORDER granting in part and denying in part Plaintiff's 12 Motion for Judgment on the Pleadings; granting in part and denying in part Defendant's 15 Motion for Judgment on the Pleadings and remanding this matter for further proceedings. Signed by Magistrate Judge William B. Carter on 8/22/2019. (KLH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________________
JOLENE M. HENRY o/b/o V.E.W.,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,

1:18-CV-0552
(WBC)

Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

LAW OFFICES OF KENNETH HILLER, PLLC
Counsel for Plaintiff
6000 North Bailey Ave, Ste. 1A
Amherst, NY 14226

ANTHONY ROONEY, ESQ.
KENNETH HILLER, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, NY 10278

DENNIS CANNING, ESQ.
JOHANNY SANTANA, ESQ.
JOLETTA FRIESEN, ESQ.

William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
The parties consented, in accordance with a Standing Order, to proceed before
the undersigned. (Dkt. No. 17.) The court has jurisdiction over this matter pursuant
to 42 U.S.C. § 405(g). The matter is presently before the court on the parties’ crossmotions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. For the reasons discussed below, Plaintiff's motion is granted in part,
to the extent it seeks remand, and denied in part, and the Commissioner’s motion is
granted in part and denied in part.

I.

RELEVANT BACKGROUND
A.

Factual Background

Claimant was born in 2003. (T. 69.) At the time of filing Claimant was a schoolaged child and at the time of the hearing she was an adolescent. (T. 16.) Claimant’s
alleged disability consists of attention deficit hyperactivity disorder (“ADHD”). (T. 196.)
B.

Procedural History

On March 6, 2015, Plaintiff applied for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act on Claimant’s behalf. (T. 69.) Plaintiff’s
application was initially denied, after which she timely requested a hearing before an
Administrative Law Judge (“the ALJ”). On September 26, 2017, Plaintiff and Claimant
appeared before the ALJ, Andrew Niedrick. (T. 35-68.) On October 12, 2017, ALJ
Niedrick issued a written decision finding Claimant not disabled under the Social
Security Act. (T. 10-34.) On March 19, 2018, the Appeals Council (“AC”) denied
Plaintiff’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. (T. 1-6.) Thereafter, Plaintiff timely sought judicial review in this Court.
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 16-29.) First, the ALJ found Claimant was a “school-aged child”
at the time of filing and an “adolescent” the time of the hearing pursuant to 20 C.F.R. §
416.926a(g)(2). (T. 16.) Second, the ALJ found Claimant had not engaged in
substantial gainful activity since the application date. (Id.) Third, the ALJ found
Claimant suffered from the severe impairments of: ADHD, oppositional defiant disorder,
and a learning disorder. (Id.) Fourth, the ALJ found Claimant did not have an

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impairment or combination of impairments that met or medically equaled one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix I (“the Listings”). (T. 17.)
Fifth, the ALJ found Claimant did not have an impairment or combination of impairments
that functionally equaled an impairment set forth in the Listings. (T. 17-28.) Sixth, and
finally, the ALJ concluded Claimant had not been disabled, as defined by the Social
Security Act, since March 6, 2015, the date her application was filed. (T. 28.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Plaintiff makes two arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues the ALJ erred by failing to evaluate Claimant’s auditory
processing disorder at step two. (Dkt. No. 12 at 8-10.) Second, and lastly, Plaintiff
argues the ALJ erred in finding less than marked limitations in the domain of acquiring
and using information and the domain of attending and completing tasks. (Id. at 10-15.)
Plaintiff also filed a reply in which she reiterated her original arguments. (Dkt. No. 16.)
B.

Defendant’s Arguments

In response, Defendant makes two arguments. First, Defendant argues the ALJ
properly assessed Claimant’s auditory processing disorder. (Dkt. No. 15 at 15-17.)
Second, and lastly, Defendant argues the ALJ’s decision that Claimant was not disabled
was supported by substantial evidence. (Id. at 17-25.)
III.

RELEVANT LEGAL STANDARD
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), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the

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Commissioner’s determination will only be reversed if the correct legal standards were
not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987) (“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 the correct
legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979).
“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 accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971). 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).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be
sustained “even where substantial evidence may support the plaintiff’s position and
despite that the court’s independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In
other words, this Court must afford the Commissioner’s determination considerable

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deference, and may not substitute “its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review.”
Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
An individual under the age of eighteen is considered disabled within the
meaning of the Act “if that individual 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.” 42 U.S.C. § 1382c(a)(3)(C)(i). The
Commissioner has set forth a three-step process to determine whether a child is
disabled as defined under the Act. See 20 C.F.R. § 416.924.
At step one, the ALJ determines whether the child is engaged in substantial
gainful work activity. 20 C.F.R. § 416.924(b). If so, the child is not disabled. Id. If not,
the ALJ proceeds to step two and determines whether the child has a medically
determinable impairment(s) that is “severe.” Id. § 416.924(c). If the child does not have
a severe impairment(s), he or she is not disabled. Id. If the child does have a severe
impairment(s), the ALJ continues to step three and examines whether the child’s
impairment(s) meets, medically equals, or functionally equals the listed impairments in
Appendix 1 to Subpart P of Part 404 of the Commissioner’s regulations (the “Listings”).
Id. § 416.924(d). In determining whether an impairment(s) functionally equals the
Listings, the ALJ must assess the child’s functioning in six 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 him or herself; and (6)
health and physical well-being. Id. § 416.926a(b)(1)(i)-(vi). To functionally equal the

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Listings, the child’s impairment(s) must result in “marked” limitations in two domains or
an “extreme” limitation in one domain. Id. § 416.926a(a). A child has a “marked”
limitation when his or her impairment(s) “interferes seriously” with his or her ability to
independently initiate, sustain, or complete activities. Id. § 416.926a(e)(2). A child has
an “extreme” limitation when his or her impairment(s) “interferes very seriously” with his
or her ability to independently initiate, sustain, or complete activities. Id. §
416.926a(e)(3).
If the child has an impairment(s) that meets, medically equals, or functionally
equals the Listings, and the impairment(s) meets the Act’s duration requirement, the
ALJ will find the child disabled. 20 C.F.R. § 416.924(d).
IV.

ANALYSIS
A.

The ALJ’s Determination in the Domains of Acquiring and Using
Information and Attending and Completing Tasks

Plaintiff asserts the ALJ erred in finding a “less than marked” limitation in the
domains of acquiring and using information and attending and completing tasks
because the ALJ relied on stale evidence and failed to consider the impact of Claimant’s
subsequent Individual Education Plan (“IEP”). (Dkt. No. 12 at 10-15.) Defendant
counters the ALJ’s decision that Claimant was not disabled was supported by
substantial evidence and further Plaintiff’s argument is a “red herring” because no
physician or teacher indicated Claimant had disabling limitations in the domains of
acquiring and using information or attending and completing tasks. (Dkt. No. 15 at 1725.)
For the reasons outlined below, remand is necessary for a proper evaluation in
the domains of acquiring and using information and attending and completing tasks.
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Although the ALJ discussed some aspects of Claimant’s IEP, there are conflicts in the
record that should be reconciled by the ALJ. To be sure, the court does not require that
“every conflict in a record be reconciled by the ALJ or the Secretary, ... but we do
[require] that the crucial factors in any determination ... be set forth with sufficient
specificity to enable us to decide whether the determination is supported by substantial
evidence.” Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019) (citing Ferraris v.
Heckler, 728 F.2d 582, 587 (2d Cir. 1984)).
In making his determination that Claimant had a less than marked limitation in
the domains of acquiring and using information and in attending and completing tasks,
the ALJ relied, in part, on teacher questionnaires from 2015 and the 2015 opinion of a
non-examining State agency consultant, Dr. Sharif-Najafi. (T. 23-24.) Plaintiff
subsequently received an IEP in April 2017 which was to be implemented the following
school year. (T. 529.)
Although provided early in the application process and prior to Plaintiff’s IEP, the
opinions of Dr. Sharif-Najafi and Claimant’s teacher were not intrinsically stale. To be
sure, “medical source opinions that are conclusory, stale, and based on an incomplete
medical record may not be substantial evidence to support an ALJ finding.” Camille v.
Colvin, 104 F.Supp.3d 329, 343 (W.D.N.Y. 2015). “However, a medical opinion is not
necessarily stale simply based on its age.” Biro v. Comm'r of Soc. Sec., 335 F. Supp.
3d 464, 470 (W.D.N.Y. 2018); see Andrews v. Berryhill, No. 17-CV-6368, 2018 WL
2088064, at *3 (W.D.N.Y. May 4, 2018) (ALJ did not err in relying on dated opinions
where there was no indication the plaintiff's “condition had significantly deteriorated after
the issuance of ... [the] opinions such that they were rendered stale or incomplete”).

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Further, as stated by Defendant, the “mere fact that [Claimant] received an IEP
and qualified for special education services [. . .] does not establish a significant
deterioration where the evidence showed that she had received intervention services
since 2013.” (Dkt. No. 15 at 20.) In general, IEPs “can provide useful information about
a child's functioning[; however,] the underlying purpose of these documents is not to
determine disability under [the Administration’s] rules.” SSR 09-2p, 2009 WL 396032,
at *6.
Although the ALJ discussed portions of Claimant’s IEP in his decision and
although the information from 2015 was not stale purely because it was provided early
in the application process, remand is nonetheless necessary for resolution of conflicts in
the record. Here, information contained in the IEP provided information that directly
contradicted the ALJ’s reasoning for finding “less than marked” limitations in the
domains and remand is necessary for the ALJ to resolve those conflicts.
In the domain of acquiring and using information, the ALJ determined Claimant
had a less than marked limitation because she essentially lacked motivation. (T. 23.)
The ALJ stated despite Plaintiff’s report Claimant had difficulty learning and focusing in
large groups, a teacher indicated Claimant’s grades improved when she “buckled
down.” (T. 23.) The ALJ further relied on a teacher’s comment that Claimant’s
problems in this domain were “a choice and not always a lack of ability.” (Id.) The ALJ
also cited Claimant’s grade point averages and IQ scores to support his determination.
(Id.) Lastly, the ALJ relied on Dr. Sharif-Najafi’s opinion Claimant had less than marked
limitation in this domain. (Id.) Dr. Sharif-Najafi concluded Claimant had a less than
marked limitation in this domain based on the teacher questionnaire Claimant’s

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problems were “a choice and not lack of ability” and on a 2015 notation Claimant was
not eligible for special education services. (T. 74-75.)
In the domain of attending and completing tasks, the ALJ determined Claimant
had a less than marked limitation. (T. 24.) In making his determination the ALJ relied
on 2015 teacher notations that Claimant had obvious problems in this area and was
distractible, but she was a “hard worker.” (Id.) The ALJ also relied on a teacher
observation that Claimant improved with medication. (Id.) Lastly, the ALJ relied on Dr.
Sharif-Najafi’s opinion Claimant had a less than marked limitation in this domain. (Id.)
Dr. Sharif-Najafi based his opinion on treatment notations from 2011, the 2015 teacher
questionnaire, and the consultative examiner’s observations. (T. 75.)
The 2017 IEP report contained objective testing, subjective reports from Plaintiff,
and teacher observations. (T. 529-536.) The IEP concluded Claimant’s “difficulties at
school are likely related to her diagnosis of ADHD and weakness in verbal
ability/comprehension.” (T. 530.) Claimant’s teacher noted Claimant’s progress
fluctuated, which the teacher believed had “a lot to do with her inability to focus in
class.” (T. 531.) The IEP noted that based on cognitive evaluations, despite having a
good memory, Claimant required practice, re-teaching, and prompts to stay on focus
and on task. (T. 532.) The conclusion of the IEP directly contradicted the ALJ’s
conclusion that Claimant had a less than marked limitation in the domain of acquiring
and using information due to lack of motivation. The IEP also contradicted the ALJ’s
determination Claimant had a less than marked limitation in the domain of attending and
completing tasks, because despite being a hard worker and taking medication, Claimant

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still was failing courses, needed services in every subject area, and prompts to stay on
task. (T. 533-534.)
Although the ALJ summarized the 2017 IEP in his decision, he failed to discuss
the recommendations and findings in any meaningful way. (T. 19.) To be sure, an ALJ
is not required to “reconcile explicitly every conflicting shred of medical testimony,”
Dioguardi v. Comm'r of Soc. Sec., 445 F. Supp. 2d 288, 297 (W.D.N.Y. 2006) (citation
omitted). However, the ALJ’s failure to discuss the findings within the IEP which
conflicted with his determination that Claimant had a less than marked limitations in the
domains based on a lack of motivation and improvement with medication requires
remand. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.2002) (“Genuine conflicts in
the medical evidence are for the Commissioner to resolve.”).
B.

The ALJ’s Step Two Determination

Plaintiff argues the ALJ erred in failing to find Claimant’s auditory processing
disorder a severe impairment at step two. (Dkt. No. 12 at 8-10.) Defendant argues the
ALJ properly evaluated Claimant’s impairments at step two because Claimant’s auditory
processing disorder was not diagnosed by an acceptable medical source and further
any error was harmless because the ALJ considered the effects of all of Claimant’s
medically determinable impairments in his decision. (Dkt. No. 15 at 15-17.)
At step two, the ALJ must determine whether Claimant has a medically
determinable impairment that is “severe” or a combination of impairments that is
“severe.” 20 C.F.R. § 416.924(c). For an individual who has not attained age 18, a
medically determinable impairment of combination of impairments is not severe if it is a

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slight abnormality or a combination of slight abnormalities that causes no more than
minimal functional limitations. Id.
“The claimant bears the burden of presenting evidence establishing severity.”
Smith v. Comm'r of Soc. Sec., 351 F. Supp. 3d 270, 276 (W.D.N.Y. 2018) (quoting
Taylor v. Astrue, 32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012)). Step two's “severity”
requirement is de minimis and is meant only to screen out the weakest of claims. Dixon
v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). However, the “mere presence of a
disease or impairment, or establishing that a person has been diagnosed or treated for
a disease or impairment” is not, by itself, sufficient to render a condition “severe.”
Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y. 1995); see Prince v. Astrue, 514 F.
App'x 18, 20 (2d Cir. 2013).
In addition, an error in finding an impairment non-severe at step two is harmless
where the ALJ found other severe impairments, thus proceeding with the sequential
steps, and the ALJ “specifically considered” those impairments in subsequent steps.
Reices-Colon v. Astrue, 523 F. App'x 796, 798 (2d Cir. 2013).
Only acceptable medical sources, as defined by the regulations, can provide
evidence to establish a medically determinable impairment. 20 C.F.R. § 416.913(a).
Only medically determinable impairments may be considered severe or non-severe.
See Id. § 416.920(a)(4)(ii). Plaintiff does not provide citation to evidence in the record
of a diagnosis of auditory processing disorder by an acceptable medical source. (Dkt.
No. 12 at 8-10.) On August 10, 2017, Claimant underwent a central auditory processing
evaluation with an audiologist who determined Claimants had a severe auditory
processing disorder. (T. 584-587.) Because audiologists are defined as “other sources”

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they cannot establish a medically determinable impairment. 20 C.F.R. §416.913(d).
Therefore, because Claimant’s auditory impairment was not diagnosed by an
acceptable medical source, the impairment cannot be considered a medically
determinable impairment and therefore cannot be considered severe or nonsevere.
Further, any error in failing to discuss Claimant’s auditory processing disorder at
step two was harmless. Even assuming Claimant had a medically determinable
impairment of an auditory processing disorder, the ALJ discussed auditory testing and
results in his step three analysis. (T. 21.) Therefore, the ALJ did not err in his
evaluation of Claimant’s auditory processing disorder.
Overall, remand is necessary for the ALJ to resolve conflicts in the record.
However, the ALJ did not err in his assessment of Claimant’s auditory processing
disorder.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) is
GRANTED IN PART AND DENIED IN PART; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 15)
is GRANTED IN PART AND DENIED IN PART; and it is further
ORDERED that this matter is REMANDED to Defendant, pursuant to 42 U.S.C. §
405(g), for further proceedings consistent with this Decision and Order.
Dated:

August 22, 2019

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