Parnitzke v. Commissioner of Social Security

Filing 10

DECISION AND ORDER granting 4 Motion for Judgment on the Pleadings to the extent the matter is remanded for further administrative proceedings; denying 6 Motion for Judgment on the Pleadings. Signed by Hon. Elizabeth A. Wolford on 01/06/2024. (MGB)Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
MARIE P. o/b/o L.F.G.P,
Plaintiff,

DECISION AND ORDER

v.
1:23-CV-01177 EAW
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
INTRODUCTION
Represented by counsel, plaintiff Marie P. (“Plaintiff”) brings this action on behalf
of L.F.G.P, a minor child, pursuant to Title XVI of the Social Security Act (the “Act”),
seeking review of the final decision of the Commissioner of Social Security (the
“Commissioner,” or “Defendant”) denying her application for children’s supplemental
security income (“SSI”). (Dkt. 1). This Court has jurisdiction over the matter pursuant to
42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment
on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 4;
Dkt. 6), and Plaintiff’s reply (Dkt. 7).
For the reasons discussed below, Plaintiff’s motion (Dkt. 4) is granted to the extent
that the matter is remanded for further administrative proceedings, and the Commissioner’s
motion (Dkt. 6) is denied.

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BACKGROUND
On September 28, 2020, Plaintiff protectively filed an application for SSI on behalf
of L.F.G.P., a child under the age of 18. (Dkt. 3 at 20, 111).1 Plaintiff alleged L.F.G.P.’s
disability began on January 26, 2011. (Id. at 20, 113). Plaintiff’s application was initially
denied on March 18, 2021, and upon reconsideration on July 7, 2021. (Id. at 20, 140, 159).
On May 25, 2022, Plaintiff appeared at a hearing before administrative law judge (“ALJ”)
Linda Crovella. (Id. at 69-100). On September 23, 2023, the ALJ issued an unfavorable
decision. (Id. at 17-30). Plaintiff requested review by the Appeals Council, which was
denied on September 19, 2023, making the ALJ’s determination the final decision of the
Commissioner. (Id. at 5-11). This action followed.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the [Social Security Administration (“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) (quotation omitted); see also 42 U.S.C.
§ 405(g). The Act holds that a decision by the Commissioner is “conclusive” if it is
supported by substantial evidence. 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

1

When referencing the page number(s) of docket citations in this Decision and Order,
the Court will cite to the CM/ECF-generated page numbers that appear in the upper
righthand corner of each document.
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as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)
(quotation omitted). It is not the Court’s function to “determine de novo whether [the
claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation
omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the
Secretary’s findings are conclusive if supported by substantial evidence). However, “[t]he
deferential standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003)
(citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
II.

Disability Determination
To qualify as disabled under the Act, a child under the age of eighteen must have “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). An ALJ follows a three-step sequential evaluation to determine
whether a child is entitled to SSI benefits. Encarnacion ex rel. George v. Astrue, 568 F.3d
72, 75 (2d Cir. 2009). “First, the child must not be engaged in ‘substantial gainful activity.’
Second, the child ‘must have a medically determinable impairment(s)’ that is ‘severe’ in
that it causes ‘more than minimal functional limitations.’ Third, the child’s impairment or
combination of impairments must medically or functionally equal an impairment listed in
an appendix to the regulations.” Id. (quoting 20 C.F.R. § 416.924).

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The limitations caused by a child’s severe impairment are evaluated pursuant to six
domains of functioning: (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.

See 20 C.F.R.

§ 416.926a(b)(1). “For a child’s impairment to functionally equal a listed impairment, the
impairment must ‘result in “marked” limitations in two domains of functioning or an
“extreme” limitation in one domain.’” Encarnacion, 568 F.3d at 75 (quoting 20 C.F.R.
§ 416.926a(a)). “A marked limitation is more than moderate but less than extreme and
interferes seriously with a child’s ability to independently initiate, sustain, or complete
activities. An extreme limitation is more than marked and interferes very seriously with a
child’s ability to independently initiate, sustain, or complete activities.” Id. (internal
quotations and citations omitted).
DISCUSSION
I.

The ALJ’s Decision
In determining whether L.F.G.P. was disabled, the ALJ applied the three-step

sequential evaluation set forth in 20 C.F.R. § 416.924. Initially, the ALJ determined that
L.F.G.P. was a school-age child on September 28, 2020, the date the application was filed,
and on the date of the written determination. (Dkt. 3 at 21). At step one, the ALJ
determined that L.F.G.P. had not engaged in substantial gainful activity since September
28, 2020, the application date. (Id.).

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At step two, the ALJ found that L.F.G.P. suffered from the severe impairment of
“status post left arm amputation at the elbow.” (Id.). The ALJ further found that L.F.G.P.’s
medically determinable impairment of scoliosis was non-severe. (Id.).
At step three, the ALJ found that L.F.G.P. did not have an impairment or
combination of impairments that met or medically equaled the severity of any Listing. (Id.
at 26). Similarly, the ALJ found that L.F.G.P. did not have an impairment or combination
of impairments that functionally equaled the severity of the Listings. (Id.). In making this
determination, the ALJ considered L.F.G.P.’s functioning in each of the above-mentioned
six domains and concluded that L.F.G.P. had no limitation in the domains of acquiring and
using information, attending and completing tasks, interacting and relating with others, and
caring for herself. (Id. at 22). The ALJ further found that L.F.G.P. had a less than marked
limitation in moving about and manipulating objects and a less than marked limitation in
health and physical well-being. (Id. at 22). Accordingly, the ALJ found that L.F.G.P. was
not disabled as defined in the Act. (Id. at 32).
II.

Remand for Further Administrative Proceedings is Required
Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the

Commissioner for further proceedings, arguing that: (1) the ALJ’s finding that L.F.G.P.
had a less than marked limitation in moving about and manipulating objects is not
supported by substantial evidence; (2) the ALJ’s finding that L.F.G.P. had a less than
marked limitation in health and physical well-being is not supported by substantial
evidence; (3) the ALJ “improperly considered the domain of caring for herself”; (4) the
ALJ did not properly evaluate the opinion of consultative examiner Dr. Hongbiao Liu; (5)
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the Appeals Council improperly rejected evidence that L.F.G.P. required surgery after the
date of the ALJ’s written determination; and (6) the ALJ “mischaracterized Plaintiff’s
testimony and cited testimony from L.F.G.P. that she never gave and her credibility
analysis was thus totally unsupported, which infected the ALJ’s analyses of various
childhood domains.” (Dkt. 4-1 at 1). For the reasons below, the Court agrees that the ALJ
erred in assessing Dr. Liu’s opinion, in part because the ALJ mischaracterized the hearing
testimony. The Court finds that this error warrants remand.
A.

Consideration of Dr. Liu’s Opinion

In deciding a child’s claim for SSI, the ALJ must consider, among other things,
medical evidence of the child’s impairments. 20 C.F.R. § 416.924a(a)(1)(i). Opinions
from medical sources about the nature and severity of the impairments are assessed
pursuant to 20 C.F.R. § 416.920c.
Pursuant to this regulation, when a medical source provides one or more medical
opinions, the Commissioner will consider those medical opinions from that medical source
together using the factors listed in paragraphs (c)(1) through (c)(5) of the applicable
sections. Id. at § 416.920c(a). Those factors include: (1) supportability; (2) consistency;
(3) relationship with the claimant, including the length of the treatment relationship, the
frequency of examinations, purpose and extent of the treatment relationship, and the
examining relationship; (4) specialization; and (5) any other factors that “tend to support
or contradict a medical opinion or prior administrative medical finding.”
§ 416.920c(c).

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Id. at

When evaluating the persuasiveness of a medical opinion, the most important
factors are supportability and consistency.

Id. at § 416.920c(a).

With respect to

“supportability,” the Commissioner’s regulations provide that “[t]he more relevant the
objective medical evidence and supporting explanations presented by a medical source are
to support his or her medical opinion(s) or prior administrative medical finding(s), the more
persuasive the medical opinions or prior administrative medical finding(s) will be.” Id. at
§ 416.920c(c)(1). With respect to “consistency,” the Commissioner’s regulations provide
that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s)
is with the evidence from other medical sources and nonmedical sources in the claim, the
more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.”
Id. at § 416.920c(c)(2).
The ALJ must articulate her consideration of the medical opinion evidence,
including how persuasive she finds the medical opinions in the case record. Id. at
§ 416.920c(b). The ALJ must explain how she considered the “supportability” and
“consistency” factors for a medical source’s opinion. Id. at § 416.920c(b)(2). The ALJ
may—but is not required to—explain how she considered the remaining factors. Id.
In this case, Dr. Liu issued an opinion that was favorable to Plaintiff’s claim,
wherein he opined that L.F.G.P. had a moderate-to-severe limitation for lifting, carrying,
and manipulation requiring two-handed activities, as well as a moderate-to-severe
limitation in social, education, and entertainment activities as appropriate for her group
age. (Dkt. 365-66). The ALJ found Dr. Liu’s opinion regarding L.F.G.P.’s ability to lift,
carry, and engage in manipulation requiring two-handed activities to be not persuasive,
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because “it is inconsistent with the examination notes, including that hand and finger
dexterity were intact and grip strength for 5/5 bilaterally.” (Dkt. 3 at 24-25). The Court
agrees with Plaintiff that this conclusion is nonsensical, given that L.F.G.P. has had her left
arm amputated above the elbow and thus cannot possibly have bilaterally intact hand and
finger dexterity and grip strength.
The Commissioner argues that it is “clear throughout the entire decision that the
ALJ is cognizant that [L.F.G.P.] does not have a left arm” (Dkt. 6-1 at 25), but this
argument misses the point. The ALJ was required to explain how she assessed Dr. Liu’s
opinion and why she did or did not find it persuasive. But her sole explanation for finding
this portion of Dr. Liu’s opinion not persuasive makes no sense, and thus does not allow
Plaintiff or the Court to understand why this portion of Dr. Liu’s opinion was not credited.
Nor can the Court merely infer this information from the record, because there is ample
evidence to support Dr. Liu’s opinion. That evidence includes the hearing testimony and
a questionnaire completed by L.F.G.P.’s fifth grade teacher in which she stated that
L.F.G.P. requires “extra help” with “carrying things, using scissors, really anything
requiring 2 hands.” (Dkt. 3 at 462 (emphasis added)).
The Commissioner also found Dr. Liu’s opinion that L.F.G.P. had a moderate-tosevere limitation in social, education, and entertainment activities as appropriate for her
age group not persuasive, stating that “the claimant and her mother reported entertainment
activities including gymnastics, bike riding, origami, video games, drawing and coloring,
all of which are age-appropriate activities.” (Dkt. 3 at 25). Earlier in her decision, the ALJ
stated that “[at]t the hearing the claimant testified she enjoys going to school and learning.
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She also said she completes her chores including cleaning her toys at home. The claimant’s
mother testified the claimant had a special prosthetic arm which enables her to do
gymnastics.” (Id. at 23).
The Court agrees with Plaintiff that the ALJ substantially mischaracterized the
hearing testimony regarding L.F.G.P.’s abilities and that this was error. See Brennan v.
Colvin, No. 13-CV-6338 AJN RLE, 2015 WL 1402204, at *11 (S.D.N.Y. Mar. 25, 2015)
(“the ALJ may not ignore or mischaracterize evidence of a person’s alleged disability”).
Initially, while the ALJ claimed that L.F.G.P. had offered certain testimony at the hearing,
the transcript of the hearing shows that L.F.G.P. did not testify and does not even appear
to have been present. (See Dkt. 3 at 69-100). The Commissioner asserts that this
“misattribution of one or two sentences of Plaintiff’s hearing testimony to [L.F.G.P.] was
insignificant, given that—consistent with the regulations and governing caselaw—the ALJ
considered Plaintiff’s testimony to equal [L.F.G.P.’s].” (Dkt. 6-1 at 21). Again, this
argument misses the point. The issue is not that the ALJ made a minor error in whether it
was L.F.G.P. or Plaintiff who offered a particular piece of testimony. It is that the ALJ
apparently was not even aware that L.F.G.P. neither appeared nor testified at the hearing.
This glaring factual error calls into question the validity of the ALJ’s entire assessment of
the hearing testimony.
The ALJ’s recitation of the testimony that L.F.G.P. supposedly gave at the hearing
also does not match the testimony that Plaintiff actually gave. The ALJ claimed that
L.F.G.P. “testified she enjoys going to school and learning.” (Dkt. 3 at 20). But what
Plaintiff actually testified was that while L.F.G.P. loved learning and her teachers (most of
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the time), school was “a struggle for her” every day because of her difficulties with other
children. (Id. at 88-89). Plaintiff reported that L.F.G.P. “sees the counselor to talk about
her problems that she has at school with the kids.” (Id. at 89).
The ALJ also significantly mischaracterized the testimony that Plaintiff herself gave
at the hearing. For example, the ALJ claimed that Plaintiff had testified that L.F.G.P. “had
a special prosthetic arm which enables her to do gymnastics.” (Dkt. 3 at 20). What Plaintiff
actually testified was that while L.F.G.P. wanted to do gymnastics, and her family had
purchased an “arm aide” to try to allow her to do so, she had “never taken a gymnastics
class or [been] able to do gymnastics[.]” (Dkt. 3 at 78-79). Plaintiff specifically testified
that it was L.F.G.P.’s “dream” to be able to do a cartwheel but that she had never been able
accomplish one. (Id. at 78).
The ALJ’s persistent mischaracterization of the hearing testimony undermines her
assessment of Dr. Liu’s opinion. See, e.g., Hill v. Comm’r of Soc. Sec., No. 14-CIV-9665
GBDFM, 2016 WL 4938002, at *3 (S.D.N.Y. Sept. 9, 2016) (finding that the substantial
evidence standard was not met where the ALJ improperly discounted a medical opinion
based on a mischaracterization of the plaintiff’s testimony). And this error was not
harmless. Dr. Liu’s opinion could have supported the conclusion that Plaintiff had marked
limitations in two of the relevant domains.
To be clear, the Court does not hold that the ALJ was required to credit Dr. Liu’s
opinion. But the ALJ’s assessment of Dr. Liu’s opinion did not comport with the
Commissioner’s regulations and was not supported by substantial evidence. Remand for
further administrative proceedings is therefore required.
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B.

Plaintiff’s Remaining Arguments

As set forth above, Plaintiff has identified additional reasons why she 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 WL 7017395, at *10 (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. 13cv06844 (LGS) (DF), 2015
WL 13774790, at *23 (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 WL 2137776 (S.D.N.Y. May 4,
2015).
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on the pleadings (Dkt. 4)
is granted to the extent that the matter is remanded for further administrative proceedings,
and the Commissioner’s motion for judgment on the pleadings (Dkt. 6) is denied. The
Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.
________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: January 6, 2025
Rochester, New York
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