Ruffin v. Commissioner of Social Security
ORDER granting 7 Motion for Judgment on the Pleadings; denying 11 Motion for Judgment on the Pleadings. Signed by Hon. H. Kenneth Schroeder Jr. on 3/31/2021. (KER)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Lanique Q.R., on behalf of R.L.R., Jr.,
COMMISSIONER OF SOCIAL SECURITY,
DECISION AND ORDER
As set forth In the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all proceedings
in this case, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g).
Plaintiff applied for supplemental security income (“SSI”), with the Social
Security Administration (“SSA”), on July 13, 2015, alleging disability beginning July 19,
2014, at the age of 9, due to learning disability, speech and language impediment, slow
learning, difficulty catching on and forgetfulness. Dkt. #4, p.82.
On May 17, 2018, plaintiff appeared with his son and counsel and testified
at an administrative hearing before Administrative Law Judge (“ALJ”), Theodore Kim.
Dkt. #4, pp.46-61. The child testified that he was 13 years old and in the seventh grade.
Dkt. #4, p.54. His favorite subject was math. Dkt. #4, p.54. He did not play sports. Dkt.
#4, p.54. He liked to play video games. Dkt. #4, p.55. Plaintiff testified that the child’s
vocabulary was limited and that he often has trouble expressing himself with words and
carrying on a conversation. Dkt. #4, pp.56-57 & 60. He testified that his son was
forgetful and easily distracted and required constant redirection. Dkt. #4, p.58. Plaintiff
testified that the child puts forth effort with his homework and is able to do some, but
not all, of his homework on his own. Dkt. #4, p.58. He indicated that the child would
forget things that plaintiff had gone over with him previously. Dkt. #4, p.59. The child
has friends at school. Dkt. #4, p.58.
The ALJ rendered a decision that plaintiff was not disabled on October 5,
2018. Dkt. #4, pp.25-41. The Appeals Council denied review on July 11, 2019. Dkt. #4,
p.4. Plaintiff commenced this action seeking review of the Commissioner’s final
decision on September 6, 2019. Dkt. #1.
DISCUSSION AND ANALYSIS
“In reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by substantial evidence in
the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012). Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 496, 501 (2d Cir. 2009). If the evidence is susceptible to more than one
rational interpretation, the Commissioner’s determination must be upheld. McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014). “W here an administrative decision rests on
adequate findings sustained by evidence having rational probative force, the court
should not substitute its judgment for that of the Commissioner.” Yancey v. Apfel, 145
F.3d 106, 111 (2d Cir. 1998).
An individual under the age of 18 will be considered disabled under the
Social Security Act (“Act”), if he or she has a medically determinable physical or mental
impairment that results in marked and severe functional limitations and 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 must follow a three-step sequential evaluation to determine whether a
child is disabled within the meaning of the Act. 20 C.F.R. § 416.924. At step one, the
ALJ determines whether the child is engaging in substantial gainful activity. 20 C.F.R.
§ 416.924(a) & (b). If not, the ALJ proceeds to step two and determines whether the
child has an impairment or combination of impairments that is severe, i.e., causes more
than minimal functional limitations. 20 C.F.R. § 416.924(c). If the ALJ finds a severe
impairment or combination of impairments, the ALJ proceeds to step three and
examines whether the child’s impairment or combination of impairments meets or
equals, medically or functionally, the criteria of a listed impairment as set forth in
Appendix 1 of Subpart P of Regulation No. 4 (the “Listings”). 20 C.F.R. § 416.924(d).
To evaluate functional equivalence, the ALJ considers how the child
functions in the following 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.
20 C.F.R. § 416.926a(b)(1)(i)-(vi). To functionally equal the Listings, the child’s
impairment(s) must cause marked limitations in two domains or an extreme limitation in
one domain. 20 C.F.R. § 416.926a(a). A child has a marked limitation when the
impairment or combination of impairments interferes seriously with the child’s ability to
independently initiate, sustain or complete activities. 20 C.F.R. § 416.926(e)(2)(i). A
child has an extreme limitation when the impairment or combination of impairments
interferes very seriously with the child’s ability to independently initiate, sustain or
complete activities. 20 C.F.R. § 416.926(e)(3)(i).
In the instant case, the ALJ made the following findings with regard to the
five-step sequential evaluation: (1) the child had not engaged in substantial gainful
activity since the application date of July 9, 2014; (2) the child’s expressive/receptive
language disorder and learning disorder constitute severe impairments; and (3) the
child’s impairments did not meet or medically or functionally equal any listed impairment
and the child was not, therefore, disabled within the meaning of the SSA. Dkt. #4,
pp.28-38. More specifically, the ALJ determined that the child exhibited: (1) marked
limitation in acquiring and using information; (2) less than marked limitation in attending
and completing tasks; (3) less than marked limitation in interacting and relating with
others; (4) no limitation in moving about and manipulating objects; (5) no limitation in
ability to care for himself; and (6) no limitation in health and physical well-being. Dkt. #4,
Plaintiff argues that the ALJ did not set forth the criteria or explain his
reasoning for finding that the child did not meet listing 112.05B and it is unclear whether
the ALJ considered the updated criteria for this listing. Dkt. #7-1, pp.12-14. Plaintiff
argues that the child meets listing 112.05B because he has two full IQ scores below 70
and a marked limitation in the mental functioning areas of “understanding, remembering
or applying information” and “interacting with others.” Dkt. #7-1, pp., pp.14-20. Plaintiff
also argues that the ALJ improperly determined that the child had less than a marked
limitation in the functional domain of “interacting and relating with others” and that
proper analysis of this functional domain would result in a determination that the child
functionally equals listing 112.05B. Dkt. #7-1, pp.20-24. Finally, plaintiff argues that the
ALJ improperly discounted statements from the child’s parents the severity of his
impairment. Dkt. #7-1, pp.24-25.
The Commissioner notes that the ALJ cited the correct, updated title f or
listing 112.05 pertaining to intellectual disorders rather than the prior listing for
intellectual disabilities. Dkt. #11-1, p.15. Even assuming that the child’s IQ score
satisfied the listing criteria, the Commissioner argues that substantial evidence supports
the ALJ’s determination that the child did not demonstrate an extreme limitation or two
marked limitations in the areas of mental functioning as required to meet Listing
112.05B. Dkt. #11-1, p.15.
Listing 112.05B provides that an individual will be found disabled based
upon an intellectual disorder when the following criteria are established:
1. Significantly subaverage general intellectual function
evidenced by a or b:
a. A full scale (or comparable) IQ score of 70 or
below on an individually administered
standardized test of general intelligence;
b. A full scale (or comparable) IQ score of 71-75
accompanied by a verbal or performance IQ
score (or comparable part score) of 70 or
below on an individually administered
standardized test of general intelligence;
2. Significant deficits in adaptive functioning currently
manifested by extreme limitation of one, or marked
limitation of two, of the following areas of mental
a. Understand, remember, or apply information; or
b. Interact with others; or
c. Concentrate, persist, or maintain pace; or
d. Adapt or manage oneself.
20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 112.05(B).
The sum total of the ALJ’s discussion of whether the child met or
medically equaled Listing 112.05 is as follows: “The undersigned has considered the
requirements of childhood listings 112.12, Neurocognitive disorders and 112.05,
Intellectual disorder, but the medical evidence is not at a level of severity that satisfies
the requirements of either of those listings.” Dkt. #4, p.29. However, the record contains
test results dated October 3, 2013 from the Cheektowaga Central School District
Committee on Special Education (“CSE”), recording the child’s full scale IQ at 68
(Standard Score), with a notation that the child’s full scale IQ is less meaningful for
interpretation due to a significant point difference between the child’s indices. Dkt. #4,
pp.272 & 273. The ALJ acknowledged this result in his discussion of functional
equivalence, but did not address it in consideration of whether the child met or
medically equaled Listing 112.05. Dkt. #4, p.30. The record also contains test results
from the consultative examiner, Gregory Fabiano, Ph.D., dated October 22, 2015,
recording a full scale IQ of 62, with a notation that the child “appeared to give up easily
on some of the tasks, which may have negatively impacted his performance” and may
underestimate the child’s overall level of cognitive ability. Dkt. #4, pp.293-294. The ALJ
acknowledged this result in his discussion of functional equivalence, but did not address
it in consideration of whether the child met or medically equaled Listing 112.05. Dkt. #4,
pp.30 & 33.
When evaluating whether a child’s impairments meet or equal a Listing,
the ALJ must refer to the specific criteria set forth in the Listing and set forth his
analysis of the criteria with sufficient specificity to enable a reviewing court to determine
whether the ALJ’s decision is supported by substantial evidence. Barone o.b.o. Z.B. v.
Comm’r of Soc. Sec., 19-CV-1636, 2020 WL 6579070, at *2 (W.D.N.Y. Nov. 9, 2020). It
is not the job of the reviewing court to make an independent determination as to
whether the record supports a finding that the child meets or equals a Listing; rather,
the ALJ needs to articulate his basis for finding that the child’s impairment does not
meet or equal the criteria. Id., quoting Hendricks v. Comm’r of Soc. Sec., 452 F.
Supp.2d 194, 199 (W.D.N.Y. 2006). Even where, as here, the ALJ determined that the
child had less than a marked limitation in his ability to interact and relate with others, the
ALJ cannot “bootstrap onto later findings regarding functional equivalence in deciding
whether plaintiff is disabled for symptoms which medically meet or equal a Listing.” Id.
at *3. “While there may be some overlap between the subject matter of the six domains
covering functional equivalence and the requirements of the second prong of
112.05(B), the ALJ’s consideration of whether [the child’s] impairments functionally
equal the listing is not the same as considering whether those impairments literally
meet the explicit provisions of 112.05(B).” Gonzalez o.b.o. J.A.M. v. Saul, 18-CV-6240,
2019 WL 3891021, at *5 (W.D.N.Y. Aug. 19, 2019).
Based on the foregoing, plaintiff’s motion for judgment on the pleadings
(Dkt. #7), is granted in so far as plaintiff seeks remand and the Commissioner’s motion
for judgment on the pleadings (Dkt. #11), is denied.
The Clerk of the Court is directed to close this case.
Buffalo, New York
March 31, 2021
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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