Carter v. Commissioner of Social Security
ORDER granting 7 Motion for Judgment on the Pleadings; denying 10 Motion for Judgment on the Pleadings and Remanding the action for further proceedings pursuant to 42 U.S.C. 405(g). Signed by J. Gregory Wehrman on 6/4/21. (SG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CASE # 20-cv-00122
COMMISSIONER OF SOCIAL SECURITY,
Law Offices of Kenneth Hiller, PPLC
Counsel for Plaintiff
6000 North Bailey Avenue
Amherst, NY 14226
JUSTIN M. GOLDSTEIN, ESQ.
KENNETH R. 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
MARIA PIA FRAGASSI
J. Gregory Wehrman, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
The parties consented in accordance with a standing order to proceed before the
undersigned. 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’ cross-motions for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. Upon review of the administrative record
and consideration of the parties’ filings, the plaintiff’s motion for judgment on the administrative
record is GRANTED, defendant’s motion is DENIED, the decision of the Commissioner be
REVERSED, and this matter be REMANDED for further administrative proceedings consistent
with this order.
Plaintiff was born on July 19, 2001 and was 15 years old, an adolescent, on the application
date. (Tr. 193). Generally, plaintiff alleges disability consisting of attention deficit hyperactivity
disorder (ADHD), asthma, slow learner, learning disabled, and issues with focusing and
comprehending. (Tr. 194).
On January 17, 2017, plaintiff1 protectively filed an application for Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act (Tr. 145). Plaintiff’s application was
initially denied, after which a timely request was made for a hearing before an Administrative Law
Judge (“the ALJ”). On November 7, 2018, plaintiff and his father appeared before the ALJ,
Andrew J. Soltes, Jr. (Tr. 40-87). On February 1, 2019, ALJ Soltes issued a written decision finding
plaintiff not disabled under the Social Security Act. (Tr. 12-35). On December 4, 2019, the Appeals
Council (“AC”) denied plaintiff’s request for review. (Tr. 1-6). The ALJ’s decision became the
“final decision” of the Commissioner subject to judicial review under 42 U.S.C. § 405(g),
incorporated for SSI by 42 U.S.C. § 1383(c)(3) and this action followed.
The ALJ’s Decision
Generally, ALJ Soltes made the following findings of fact and conclusions of law:
1. The claimant was born on July 19, 2001. Therefore, he was an adolescent on January 17,
2017, the date application was filed, and is currently an adolescent (20 CFR
At the time of application plaintiff’s father commenced the action because plaintiff was a minor.
2. The claimant has not engaged in substantial gainful activity (20 CFR 416.924(b) and
416.971 et seq.).
3. The claimant has the following severe impairments: Attention deficit/hyperactivity
disorder and intellectual disorder (20 CFR 416.924(c)).
4. The claimant does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).
5. The claimant does not have an impairment or combination of impairments that
functionally equals the severity of the listings (20 CFR 416.924(d) and 416.926a).
(a) The claimant has less than marked limitation in acquiring and using information.
(b) The claimant has less than marked limitation in attending and completing tasks.
(c) The claimant has less than marked limitation in interacting and relating with others.
(d) The claimant has no limitation in moving about and manipulating objects.
(e) The claimant has less than marked limitation in the ability to care for himself.
(f) The claimant has less than marked limitation in health and physical well-being.
6. The claimant has not been disabled, as defined in the Social Security Act, since January
17, 2017, the date the application was filed (20 CFR 416.924(a)).
THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
Plaintiff makes essentially three arguments in support of the motion for judgment on the
pleadings. First, plaintiff argues the ALJ erred by failing to cite, discuss, or weigh a February 3,
2017 opinion from teacher Ms. Brownschidle. Second, the ALJ’s functional equivalence finding
is unsupported by the appropriate legal standards and substantial evidence. Third, the ALJ erred
by failing to evaluate plaintiff’s allegations and his father’s testimony pursuant to appropriate legal
standards. (Dkt. No. 7 at 1 [Pl.’s Mem. of Law]).
In response, defendant makes three arguments. First, defendant argues the ALJ properly
evaluated responses to the teacher questionnaires. (Dkt. No. 10 at 18 [Def.’s Mem. of Law]).
Second, the ALJ properly evaluated the totality of the record evidence supporting his
determinations. (Id. at 22). Third, plaintiff’s argument regarding allegations and testimony is
overbroad. (Id. at 28).
RELEVANT LEGAL STANDARD
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), 1383(c)(3); Wagner v. Sec’y of Health & Human
Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the 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 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).
Standard to Determine Disability
To be “disabled” within the meaning of the Act, a child must show he or she has a
“medically determinable physical or mental impairment, which results in marked and severe
functional limitations,” and which either lasts 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).
A three-step sequential evaluation process determines whether a supplemental security
income claimant under the age of 18 is disabled. 20 C.F.R. § 416.924(a). At the first step, the ALJ
determines whether the child has engaged in substantial gainful activity during the relevant period.
20 C.F.R. § 416.924(b). If so, the child is not disabled; if not, the evaluation continues to the next
step. At the second step, the ALJ determines whether the child has a “severe” impairment, or
combination of impairments – i.e., a slight abnormality or combination of slight abnormalities that
causes more than minimal functional limitations. 20 C.F.R. § 416.924(c). If not, the ALJ denies
the application; otherwise, the evaluation continues.
At step three of the sequential evaluation process, the ALJ determines whether a child’s
impairments meet, medically equal, or functionally equal the severity of one of the
Commissioner’s listed impairments (Listings). 20 C.F.R. §§ 416.924(a), (d). If not, the child is not
disabled. 20 C.F.R. § 416.924(d). As part of the step three analysis, if the ALJ finds that a child’s
impairments do not meet or medically equal a listed impairment, the ALJ assesses all functional
limitations using six “domains” of functioning to determine whether the child’s symptoms are
functionally equivalent to the listed impairments. 20 C.F.R. § 416.926a. The six domains of
functioning include: (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). The evaluation of
age-appropriate functioning within each domain focuses on the child’s abilities and limitations;
where the child has difficulty; the quality of any limitations; and the kind, extent, and frequency
of help that the child needs. 20 C.F.R. § 416.926a(b)(2). A finding of functional equivalence occurs
when a child has an “extreme” limitation in one of the six domains of functioning or “marked”
limitations in at least two domains. 20 C.F.R. § 416.926a(e).2
Case law in the Second Circuit holds that an ALJ should consider all relevant evidence in
determining a child’s functioning, including information from the child’s teachers. White o/b/o
T.R.W. v. Berryhill, 2019 WL 1367382, at *3 (W.D.N.Y. Mar. 26, 2019) (quoting Swan v. Astrue,
2010 WL 3211049, *6 (W.D.N.Y. 2010); citing Yensick v. Barnhart, 245 F. App'x 176, 181 (3d
Cir. 2007)). Teachers are not acceptable medical sources, but the regulations assert the Agency
will ask for information from teachers to describe functioning in school. See 20 CFR
416.926a(b)(3). Teachers are classified as “non-medical sources” and regulations explain that they
“Extreme” means a child has an impairment that very seriously interferes with a child’s ability to
independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e). “Marked” indicates that
he or she has an impairment that seriously interferes with the ability for independently initiating,
sustaining, or completing activities. Id.
are valuable sources of evidence for assessing impairment severity and functioning. See SSR. 0603p, Titles II & XVI: Considering Opinions & Other Evidence from Sources Who Are Not
“Acceptable Medical Sources” in Disability Claims, 2006 WL 2329939, at *3 (S.S.A. Aug. 9,
On February 3, 2017, special education teacher, Amanda Brownschidle, completed a
Teacher Questionnaire indicating she worked with plaintiff in two separate classes since
September 2016 for a total of 1.5 hours every school day. (Tr. 239-49). Unfortunately, the ALJ
never addressed the questionnaire/opinion in his decision. Plaintiff argues this is error requiring
remand because the opinion supports greater limitations in the domains. (Dkt. No. 7 at 16-18).
Defendant responds the ALJ was not required to expressly state he considered the opinion and
regardless of any omission, it did not harm plaintiff because it did not support greater limitations.
Defendant is clearly attempting to offer post-hoc rationalizations for the ALJ’s error, as presented
by plaintiff is his reply brief. (Dkt. No. 11).
Defendant is correct that Ms. Brownschidle’s questionnaire was cited by the State agency
pediatric consultant, Dr. Stouter, however the weight accorded to Dr. Stouter’s opinion by the ALJ
cannot be bootstrapped to all the opinions and evidence cited in the report. The regulations state
that regardless of source, each medical opinion will be evaluated, however, separate factors are to
be applied depending on the source. Here the sources are vastly different and distinct factors would
apply in determining weight since Dr. Stouter is a medical source and Ms. Brownschidle is an
other source. See 20 CFR 461.927. It is the ALJ’s duty to evaluate the opinion and not the
reviewing state agency medical consultant. The ALJ accorded great weight to the April 2017
assessment by Dr. Stouter citing his familiarity with the Social Security disability program and
totality of the evidence of record as a whole. (Tr. 93-94). As discussed above a teacher’s opinion
is considered in terms of familiarity with daily functioning and longitudinal understanding of
plaintiff’s educational history. An ALJ's decision generally 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, 2006
WL 2329939, at *6. In this case it is not clear if or how Ms. Brownschidle’s teacher questionnaire
Dr. Stouter broadly summarized Ms. Brownschidle’s questionnaire responses as no serious
problems in the domains of acquiring and using information, attending and completing tasks, and
caring for self. (Tr. 93-95). However, Dr. Stouter never addressed that the plaintiff’s instructional
levels were assessed at the 3rd and 4th grade ability while his actual grade level was 10th. (Tr. 239).
Further, the format of the questionnaire used five categories for the rating of severity, none of
which align with the regulation’s terms of none, marked, or extreme. Rather the rating key on the
form was (1) no problem, (2) a slight problem, (3) an obvious problem, (4) a serious problem, and
(5) a very serious problem. While Ms. Brownschidle never indicated serious problems under the
rating key, there were several obvious problems indicated and additional narrative which should
have been considered. Smith ex rel. J.H. v. Colvin, 935 F. Supp. 2d 496, 506 (N.D.N.Y. 2013)
(holding that a finding of “less than marked limitation” was not supported by the record where
claimant had “obvious problems”).
Ms. Brownschidle indicated plaintiff had an obvious problem in the following areas of
acquiring and using information: (1) understanding school and content vocabulary; (2) reading and
comprehending written material; and (3) expressing ideas in written form. (Tr. 240). Ms.
Brownschidle added that plaintiff “required on task focusing prompts during all classroom
activities. He is able to generate idea, but some may be off topic or lack analysis and appropriate
detail.” (Tr. 240).
In the domain of attending and completing tasks, Ms. Brownschidle marked that plaintiff
had an obvious problem occurring on a daily basis in the following: (1) focusing long enough to
finish assigned activity or task; (2) waiting to take turns; and (3) completing work accurately
without careless mistakes. (Tr. 241). Ms. Brownschidle added that plaintiff “requires refocusing
and redirection to keep him on task. This is needed more when he does not want to do the
activity/assignment.” (Tr. 241). See 20 C.F.R. § 416.926a(h)(3) (stating that repeatedly becoming
sidetracked from activities, giving up on tasks, and requiring extra supervision to stay engaged are
examples of “limited functioning” in this domain); Archer ex rel. J.J.P., 910 F. Supp. 2d at 425
(holding that a claimant had a “marked limitation” in attending and completing tasks where the
child was distracted by objects and sounds in the classroom, had a hard time attending to tasks,
and required prompts to refocus).
In the domain of caring for self, Ms. Brownschidle reported plaintiff had an obvious
problem occurring on a weekly basis in the following: (1) handling frustration appropriately; (2)
being patient when necessary; and (3) responding appropriately to changes in own mood (e.g.,
calming self). (Tr. 244). Ms. Brownschidle added, “When Devon becomes frustrated, he shuts out
adults and gets angry when spoken to. This is most evident when he asks to do something and is
not given permission. Devon needs to develop appropriate coping skills.” (Tr. 244).
Although an ALJ does not have to state on the record every item of testimony supporting
his conclusion, his decision does need to afford an adequate basis for meaningful judicial review
and be supported by substantial evidence. McIntyre v Colvin, 758 F.3d 146, 150 (2d Cir. 2014)
(citations and internal quotation marks omitted). Defendant’s argument that the ALJ implicitly
considered Ms. Brownschidle’s assessment is unpersuasive, and the limitations identified go
directly to the activities and abilities identified in the domains. Further, defendant’s argument that
the opinion was stale because there was an October 2018 Teacher Questionnaire that the ALJ did
discuss and weigh is also unavailing. (Dkt. No. 10 at 20). The ALJ accorded great weight to the
2018 opinion because of the teacher-student relationship, which was shorter and less frequent, than
the relationship with Ms. Brownschidle. Additionally, defendant’s highlighting of inconsistencies
between the opinions only furthers the necessity for the ALJ to properly consider all opinion
evidence and resolve any conflicts.
The ALJ unquestionably did not discuss the opinion of Ms. Brownschidle which may or
may not be favorable to the plaintiff. The ALJ’s failure to explicitly discuss evidence undermining
key findings prevents meaningful judicial review and remand is required for further administrative
proceedings with adherence to the regulations. See Cichocki v. Astrue, 729 F.3d 172, 177-78 (2d
Cir. 2013) (noting that “[r]emand may be appropriate . . . where other inadequacies in the ALJ’s
analysis frustrate meaningful review”); Corchado v. Astrue, 2008 WL 686765, *7 (W.D.N.Y. Mar.
10, 2008). On remand, the ALJ is directed to also consider all opinion evidence, including the
Vanderbilt Assessment forms which were also not discussed or acknowledged in the decision. Five
teachers completed Vanderbilt Assessments, which directly assess limitations in the school setting
as a result of ADHD. (Tr. 552, 555-57, 561-62).
Although the ALJ did thoroughly summarize the treatment history and individualized
education plan (IEP), there was an absence of meaningful analysis. Under the domains, the ALJ
primarily cited sections from the IEP, form answers from a 2018 teacher questionnaire, and
testimony from plaintiff’s father. In three of the domains the analysis was written in a manner
suggesting a greater limitation than ultimately found by the ALJ. Without any analysis however,
it is unclear how the ALJ decided the favorable evidence cited was supportive of a less than marked
limitation. For example, in the domain of attending and completing tasks, the ALJ identifies that
under the Social Security rules an adolescent without an impairment should be able to:
Pay attention to increasingly longer presentations and discussions, maintain his
concentration while reading textbooks, and independently plan and complete long-range
academic projects. The child should also be able to organize his materials and to plan his
time in order to complete school tasks and assignments. In anticipation of entering the
workplace, the child should be able to maintain attention on a task for extended periods of
time, and not be unduly distracted by peers or unduly distracting to them in a school or
work setting (20 CFR 416.926a(h)(2)(v) and SSR 09-4p).
Additionally, the ALJ cited examples of difficulty in the attending and completing domain which
included: slow to focus on or fails to complete, activities of interest; repeatedly becomes sidetracked from activities; is easily frustrated and gives up on tasks; requires extra supervision to
remain in an activity; and cannot plan, manage time, or organize self in order to complete
assignments. However, the following was the analysis for supporting his finding of less than
marked limitation in attending and completing tasks:
IEP dated October 11, 2017, (Exhibit 13E) indicated the claimant is diagnosed with
attention deficit/hyperactivity disorder and required frequent checks for understanding
and needed shortened assignments. He struggled with concentration and accuracy in all
areas and struggled with staying focused on the topic at hand. He could generally follow
one direction at a time.
He needed multiple redirecting prompts to stay on task, making it essential for him to have
refocusing and redirection prompts during class, in addition to a special seating
arrangement located within a dose proximity the teacher. He struggled with keeping his
materials organized in the appropriate class folders. Most of his homework and notes all
end up together in one binder, making it difficult for him to locate materials for his classes
when needed. He needed to take the time to make sure that his binders and folders remain
organized. It is essential for Devon to receive support for his organizational skills.
The teacher's questionnaire of October 18, 2018, (Exhibit 15E) indicated claimant
exhibited a moderate problem focusing long enough to finish assigned activity or task,
refocusing to task when necessity, organizing his own things or school materials. He
exhibited a serious problem working without distracting himself or others. He was sitting
at a desk in class with minimal distractions.
Medical treatment notes of March 2017 from Towne Garden Pediatrics, (Exhibit 5F)
documents 4:00p, dose of Adderall 5mg started previous month has been extremely
Claimant’s father, Mr. Carter testified claimant does not complete his homework
assignments. He has concentration difficulties and does not finish tasks (testimony). For
these reasons, the claimant has less than marked limitation in this domain. (Tr. 30).
Here the ALJ recited the evidence in the record with no analysis whatsoever. It is the
function of the ALJ to make such findings and this Court may not substitute its findings to remedy
the ALJ's omission. Berry v. Comm'r of Soc. Sec., No. 3:16-CV-1513 (WBC), 2018 WL 1393784,
at *4 (N.D.N.Y. Mar. 19, 2018). The ALJ referenced evidence that was directly on point with the
regulation’s examples of problems in the domain but he failed to explain how the evidence
supports less than marked limitations instead of marked limitations. Looking to other portions of
the opinion is not helpful as it also contains primarily a recitation of the evidence and boilerplate
language for how evidence was considered. See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d
Cir.1983) (per curiam) (noting that when “the evidence of record permits us to glean the rationale
of an ALJ's decision, we do not require that he have mentioned every item of testimony presented
to him or have explained why he considered particular evidence unpersuasive or insufficient to
lead him to a conclusion of disability”). Remand is therefore warranted due to this error.
As set forth above, plaintiff has identified additional reasons why he contends the ALJ’s
decision was not supported by substantial evidence. However, because the Court has already
determined, for the reasons previously discussed, that remand of this matter for further
administrative proceedings is necessary the Court declines to reach these issues. See, e.g., Bell v.
Colvin, No. 5:15-CV-01160 (LEK), 2016 U.S. Dist. LEXIS 165592, at *32 (N.D.N.Y. Dec. 1,
2016) (declining to reach arguments “devoted to the question whether substantial evidence
supports various determinations made by [the] ALJ” where the court had already determined
remand was warranted); Morales v. Colvin, No. 13-CV-06844 (LGS)(DF), 2015 U.S. Dist. LEXIS
58246, at *80 (S.D.N.Y. Feb. 10, 2015) (The court need not reach additional arguments regarding
the ALJ’s factual determinations “given that the ALJ’s analysis may change on these points upon
remand”), adopted, 2015 U.S. Dost. LEXIS 58203 (S.D.N.Y. May 4, 2015).
ACCORDINGLY, it is
ORDERED that plaintiff’s motion for judgment on the pleadings (Dkt. No. 7) is
GRANTED; and it is further
ORDERED that defendant’s motion for judgment on the pleadings (Dkt. No. 10) is
DENIED; and it is further
ORDERED that this matter is REMANDED, pursuant to 42 U.S.C. § 405(g), for
further proceedings consistent with this Decision and Order.
Dated: June 4, 2021
Rochester, New York
J. Gregory Wehrman
HON. J. Gregory Wehrman
United States Magistrate Judge
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