Brown v. Commissioner of Social Security

Filing 12

-CLERK TO FOLLOW UP- DECISION and ORDER granting 9 Commissioner's Motion for Judgment on the Pleadings; denying 10 Plaintiff's Motion for Judgment on the Pleadings; and dismissing the complaint with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 6/14/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TRACY DENISE BROWN o/b/o G.J.R.,
Plaintiff,

DECISION AND ORDER
No. 12-CV-6231T

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.
INTRODUCTION
Tracy Denise Brown (“Plaintiff”), on behalf of her minor
daughter (“G.J.R.”), brings this action pursuant to Title XVI of
the Social Security Act, seeking review of the final decision of
the Commissioner of Social Security (“Commissioner”) denying her
application for Supplemental Security Income (“SSI”).

Plaintiff

alleges that the decision of Administrative Law Judge (“ALJ”)
Joseph Grow was not supported by substantial evidence in the record
and was based on erroneous legal standards.
Presently before the Court are the parties’ competing motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.

For the reasons set forth below, this

Court finds that the decision of the Commissioner is supported by
substantial evidence in the record and is in accordance with the
applicable legal standards.

Thus, the Commissioner’s motion for

judgment on the pleadings is granted, and Plaintiff’s motion is
denied.

Plaintiff’s complaint is dismissed with prejudice.

PROCEDURAL HISTORY
On September 24, 2008, Plaintiff filed an application for SSI
on behalf of G.J.R., claiming that she was disabled due to Crohn’s
disease and congenital abnormalities of both thumbs and index
fingers.

Administrative Transcript (“Tr.”) 93-99.

Plaintiff’s

claim was administratively denied on October 20, 2008.
At

Plaintiff’s

request,

an

administrative

Tr. 62-64.

hearing

was

conducted on September 1, 2010, with ALJ Joseph Grow presiding via
videoconference from Baltimore, Maryland.

Tr. 46-61.

G.J.R. and

Plaintiff, who were not represented, testified at the hearing. Id.
On September 21, 2010, the ALJ denied the claim.

Tr. 14-25.

He

found that G.J.R. was not disabled within the meaning of the Social
Security

Act

because

substantial

evidence

in

the

record

demonstrated that her impairments did not meet, medically equal, or
functionally equal a listed impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. 416.924, 416.925, and 416.926).
Tr. 17.
On February 28, 2012, the Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of
the Commissioner.

Tr. 1-28.

This action followed.

FACTUAL BACKGROUND
G.J.R. was born on July 21, 1995.

Tr. 180.

At the time of

filing she was thirteen years old and in the eighth grade.

She

took regular classes, was not in speech therapy, liked school, and

-2-

did “okay” in her classes.

Tr. 50-51, 189, 378-79.

G.J.R. was

diagnosed with Crohn’s disease in September of 2008 after she was
hospitalized for 10 days due to diarrhea, vomiting, and weight
loss.

Tr. 273-79, 280-313, 317-77, 382-85, 405-09.

G.J.R. also

has a history of congenital abnormalities of both thumbs and index
fingers, however, she reported that it did not cause her pain or
restrict her activities.
G.J.R.’s

Crohn’s

Tr. 264-66.
disease

has

been

controlled

medications and drug infusions every eight weeks.

by

daily

Tr. 417-60.

After being diagnosed, medication decreased her pain, improved her
appetite, eliminated vomiting and nausea, and she was “active and
full of energy.”

Tr. 315.

G.J.R. sometimes feels tired after the

drug infusions, however, and her condition has resulted in about
10 absences from school a year.

Tr. 55, 57.

G.J.R.’s symptoms were under control from the end of September
2008 until she was hospitalized from June 30, 2010 to July 15, 2010
for a flare-up of Crohn’s disease.

Tr. 410-16.

Since then, a

colonoscopy performed in March 2011 showed mild Crohn’s disease.
Tr. 418.

Treatment notes from the University of Rochester Medical

Center indicated that G.J.R.’s Crohn’s disease was effectively
treated

with

hospitalization.

medication,

with

Tr. 417-60.

-3-

no

flare-ups

since

her

DISCUSSION
I.

Jurisdiction and Scope of Review
Title

42

U.S.C.,

Section

405(g)

grants

jurisdiction

to

district courts to hear claims based on the denial of Social
Security benefits.

Mathews v. Eldridge, 424 U.S. 319, 320 (1976).

When considering such a claim, the section directs the Court to
accept the findings of fact made by the Commissioner, provided that
such findings are supported by substantial evidence in the record.
See Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998); see also
Williams v. Comm’r of Soc. Sec., No. 06-CV-2019, 2007 U.S. App.
LEXIS 9396, at *3 (2d Cir. Apr. 24, 2007).
Substantial

evidence

is

“such

relevant

evidence

as

a

reasonable mind might accept as adequate to support a conclusion.”
Consolidated Edison Co. V. NLRB, 305 U.S. 197, 217 (1938).

The

Court’s scope of review is thus limited to determining whether the
Commissioner’s findings were supported by substantial evidence in
the record, and whether the Commissioner employed the proper legal
standards in evaluating Plaintiff’s claim. Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983)(finding that a reviewing Court does
not try a Social Security benefits case de novo).

The Court must

“scrutinize

determine

the

record

in

its

entirety

to

the

reasonableness of the decision reached.” Lynn v. Schweiker, 565 F.
Supp. 265, 267 (S.D. Tex. 1983).

-4-

Judgment on the pleadings pursuant to Rule 12(c) may be
granted where the material facts are undisputed and where judgment
on the merits is possible merely by considering the contents of the
pleadings.

Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d

Cir. 1988). If, after reviewing the record, the Court is convinced
that Plaintiff has not set forth a plausible claim for relief,
judgment on the pleadings may be appropriate.

See generally Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
II.

The Commissioner’s Decision to Deny Benefits is Supported by
Substantial Evidence in the Record.
The ALJ applied the Social Security Administration’s
three-step analysis for determining whether an individual
under the age of 18 is entitled to disability benefits.
Under the regulations, a child is disabled if:
1.
2.
3.

she has not performed substantial gainful activity;
she has a “severe” impairment or combination of
impairments that is “severe”;
the impairment or combination of impairments meet,
medically
equal,
or
functionally
equal
an
impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1.

20 C.F.R. 416.924(a).
In

determining

whether

an

impairment

or

combination

of

impairments functionally equals the listings, the ALJ must assess
the claimant’s functioning in terms of six domains.
§ 416.926a(b)(1).

See 20 C.F.R.

These domains are: (1) acquiring and using

information; (2) attending and completing tasks; (3) interacting

-5-

and

relating

with

others;

(4)

moving

about

and

manipulating

objects; (5) caring for yourself; and (6) health and physical wellbeing. Id.
An individual under the age of 18 will be considered disabled
if she has a medically determinable physical or mental impairment
that results in marked and severe functional limitations, that can
be expected to result in death or that have lasted or can be
expected

to

12 months.

last

for

a

continuous

period

of

not

less

than

42 U.S.C. 1382c(a)(3)(C)(i).

The ALJ found that G.J.R. was an adolescent, that she had not
engaged in substantial gainful activity since the application date,
and that her Crohn’s disease and congenital abnormalities of both
thumbs and index fingers were severe impairments.

Tr. 17.

He

determined, however, that these impairments did not meet, medically
equal, or functionally equal a listing.

Id.

Thus, the ALJ

concluded that G.J.R. was not disabled within the meaning of the
Social Security Act.

Tr. 25.

This Court finds that the ALJ’s

decision is supported by substantial evidence in the record and is
based on the appropriate legal standards.
Non-Medical Evidence
At the time of filing, G.J.R. was in the eighth grade, took
regular classes, and participated in track and tutoring.
51, 58.

She could care for her personal needs.

-6-

Tr. 234.

Tr. 50-

At the hearing, G.J.R. testified that she had asthma, which
occurred only when she had a cold, but that it was controlled with
an inhaler and did not interfere with her participation in track.
Tr. 58.

Additionally, Plaintiff testified that G.J.R. needed

speech classes, but she had not pursued them.
stated that G.J.R.’s grades were “okay.”

Tr. 57.

Plaintiff

Tr. 58.

G.J.R. also testified that she had Crohn’s disease.

Tr. 51.

It made her sick and caused her to lose weight because she had
difficulty eating during a flare-up. Id. She was hospitalized for
a flare-up of Crohn’s disease from June 30 to July 15, 2010.
Tr. 53-54.

It was the first flare-up since she was diagnosed in

September of 2008.
G.J.R.’s

Tr. 57.

medications,

which

seem

to

control

the

Crohn’s

disease, include Remicade infusions (that last six-to-seven hours
and are given every eight weeks), Prilosec, Prednisone, prenatal
vitamins, iron supplements, and a special diet that includes
Pediasure.

Tr. 54-55, 247, 277.

G.J.R. sometimes feels tired

after an infusion, and she has about 10 absences a year from school
as a result.

Tr. 57.

On January 9, 2008 and January 15, 2009, G.J.R.’s teachers
indicated that Plaintiff frequently missed school due to illness,
and that, when she was present, she often left class to use the
restroom.

Tr. 194-200, 202-08, 212-18, 220-26.

Her teachers

assessed, however, that G.J.R. had no problems (1) acquiring and

-7-

using

information;

(2)

attending

and

completing

tasks;

(3) interacting and relating with others; (4) moving about and
manipulating

objects,

and

(5)

caring

for

herself.

Id.

On

January 16, 2009 and February 6, 2009, a speech pathologist who had
evaluated G.J.R. indicated that there was no evidence of any speech
or language disorder.

Tr. 209-10, 228-29.
Medical Evidence

On December 16, 2008, Mark Birnbaum, M.D., saw G.J.R. for a
followup appointment (after a previous appointment on September 16,
2008) regarding her history of congenital abnormalities of both
thumbs and left index finger.

Tr. 264-66.

G.J.R. thought that

occupational therapy had improved the movement of both her thumbs.
Tr.

264.

During

the

September

appointment,

G.J.R.’s

chief

complaint was the inability to flex both of her thumbs, a condition
she has had since birth.

Tr. 265.

She reported, however, that she

does not experience any type of pain with activity and that it does
not restrict her activities in any way.
and do all activities related to school.
G.J.R.

was

diagnosed

with

Id.

She can write, cook,

Id.

Crohn’s

disease

after

being

hospitalized from September 2, 2008 to September 12, 2008, for
diarrhea, vomiting, and weight loss.

Tr. 273-79, 280-313, 317-77,

382-85, 405-09.
On September 30, 2008, Reinaldo Figueroa, M.D., a pediatric
gastroenterologist, examined G.J.R. after her discharge from the

-8-

hospital.

She was diagnosed with Crohn’s disease.

Tr. 314.

Dr. Figueroa reported that G.J.R. was taking Prednisone (20 mg
daily), Prevacid (30 mg twice per day), Ferrous sulfate (335 mg
three times per day), and multivitamins, plus two Lactaid tablets
before ingesting food containing lactose.

Tr. 315.

Dr. Figueroa

also reported that G.J.R. received the first infusion of Remicade
on September 11, was discharged from the hospital on September 12,
and was started on a lactose-free diet on September 16.
September

26,

she

received

the

second

infusion

of

On

Remicade.

Tr. 315.
At the time of the follow-up appointment, Plaintiff reported
that G.J.R. was having three bowel movements per day.

She had some

pain with defecation, some tenesmus, but she had a good appetite,
no vomiting, no nausea, no pain with wiping because a fistula was
closing and no fevers.
energy.

She had been more active and full of

Id.

On February 19 and February 20, 2009, non-examining, Stateagency consultants Ira Pinnelas, M.D., and Bruce Hertz, Ph.D.,
opined that G.J.R. had:
1.
2.
3.
4.
5.
6.

no limitation Acquiring and Using Information;
no limitation Attending and Completing Tasks;
no limitation Interacting and Relating with Others;
a less than marked limitation Moving About and
Manipulating Objects due to her abnormalities of
both thumbs and left index finger;
no limitation Caring for Herself; and
a marked limitation of Health and Physical WellBeing due to flare-ups of her Crohn’s disease.

Tr. 267-72.
-9-

As a result, the consultant doctors found that G.J.R.’s
impairments were severe, but did not meet, medically equal, or
functionally equal the Listings.

Tr. 267.

Koorosh Kooros, M.D., of the University of Rochester Medical
Center, treated G.J.R. from July 8, 2009 to April 26, 2010.
Tr. 389-403.

On April 26, 2010, Dr. Kooros noted that G.J.R. had

received ten Remicade infusions so far.

Tr. 389.

any abdominal pain, diarrhea, or blood in the stool.

G.J.R. denied
Id.

She did

not have any nausea, vomiting, fever, arthritis, or skin rashes.
Id.

She had lost about one-half of a pound since her last visit.

Id.

She indicated that she felt full soon after starting to eat,

which is why she did not finish her meals.

Id.

At that time, G.J.R. was taking Prevacid, prenatal vitamins,
an iron supplement, and MiraLax, as needed, as well as three cans
of Pediasure a day.

Id.

G.J.R. reported that she had daily bowel

movements without blood or mucus in them.
upper

GI

small

bowel

“completely normal.”

follow

through

Id.

(on

Her most recent

March

8,

2010)

was

Tr. 389, 402.

G.J.R. was hospitalized from June 30 to July 15, 2010, for a
flare-up of Crohn’s disease.

Tr. 410-16.

Remicade infusion, G.J.R. began vomiting.

While at a scheduled
Tr. 412.

She said she

“had been experiencing 5-6 days of nausea, vomiting, generalized
abdominal pain, chills, decreased appetite and loose stools.”
G.J.R. also noted she had lost five pounds since April.

-10-

Id.

Id.

While hospitalized, a scope of G.J.R.’s esophagus, stomach,
and intestines were all normal.

Id.

She received nutrition

through an IV until her ability to eat improved and she was
discharged. Id. Since then, a colonoscopy performed in March 2011
showed mild Crohn’s disease.

Tr. 418.

Treatment notes from the

University of Rochester Medical Center (dated June 30, 2010 to
March

14,

2011)

indicated

that

G.J.R.’s

Crohn’s

disease

was

effectively treated with medication, with no flare-ups since her
hospitalization.
A.

Tr. 417-60.

The ALJ’s Determination that G.J.R.’s Impairments Did Not
Meet or Medically Equal Listing 105.06 (Irritable Bowel
Disease, or “IBD”) is Supported by Substantial Evidence.

The ALJ found that G.J.R.’s impairments did not meet or
medically equal Listing 105.061, stating that “the medical evidence
of record does not establish the presence of the criteria for
paragraph ‘A’ or ‘B’” of the Listing.
1

Tr. 17.

105.06 Inflammatory Bowel Disease (IBD) documented by endoscopy, biopsy, appropriate
medically acceptable imaging, or operative findings with:

A.

Obstruction of stenotic areas (not adhesions) in the small intestine or colon with proximal dilatation,
confirmed by appropriate medically acceptable imaging or in surgery, requiring hospitalization for intestinal
decompression or for surgery, and occurring on at least two occasions at least 60 days apart within a
consecutive 6-month period; OR

B.

Two of the following despite continuing treatment as prescribed and occurring within the same consecutive
6-month period:
1.
Anemia with hemoglobin less than 10.0 g/dL, present on at least two evaluations at least 60 days
apart; or
2.
Serum albumin of 3.0 g/dL or less, present on at least two evaluations at least 60 days apart; or
3.
Clinically documented tender abdominal mass palpable on physical examination with abdominal
pain or cramping that is not completely controlled by prescribed narcotic mediation, present on at
least two evaluations at least 60 days apart; or
4.
Perineal disease with a draining abscess or fistula, with pain that is not completely controlled by
prescribed narcotic medication, present on at least two evaluations at least 60 days apart; or
5.
Need for supplemental daily enteral nutrition via a gastrostomy or daily parenteral nutrition via a
central venous catheter. (See 105.10 for children who have not attained age 3.)

-11-

Plaintiff claims that the ALJ erred by not making a finding as
to whether G.J.R.’s symptoms were medically equivalent to the
Listing, and that he failed to develop the medical opinion evidence
in that regard.

Pl.’s Mem. at 9.

Plaintiff alleges that the ALJ

should have provided an explanation as to why G.J.R.’s impairments
were not medically equivalent to Listing 105.06 (IBD) or Listing
105.082 (Malnutrition) (because Listing 105.00(E)(4) states: “if
you are unable to maintain adequate nutrition, we will evaluate
your impairment under 105.08.”).

Pl’s Mem. at 10-11.

Plaintiff

asserts that an updated medical opinion should have been obtained
to ascertain whether G.J.R.’s impairments were of a severity
equivalent to Listings 105.06 and/or 105.08.

Pl.’s Mem. at 11.

If the claimed symptoms and medical evidence support the
criteria described by a listing, the ALJ must give an explanation
2

105.08 Malnutrition due to any digestive disorder with:

A. Chronic nutritional deficiency despite continuing treatment as prescribed, present on at least two evaluations at
least 60 days apart within a consecutive 6-month period, and documented by one of the following:
1. Anemia with hemoglobin less than 10.0 g/dL; or
2. Serum albumin of 3.0 g/dL or less; or
3. Fat-soluble vitamin, mineral, or trace mineral deficiency;
AND
B. Growth retardation documented by one of the following:
1. For children who have not attained age 2, multiple weight-for-length measurements that are less than the third
percentile on the CDC’s most recent weight-for-length growth charts, documented at least three times within a
consecutive 6-month period; or
2. For children age 2 and older, multiple Body Mass Index (BMI)-for-age measurements that are less than the third
percentile on the CDC’s most recent BMI-for-age growth charts, documented at least three times within a
consecutive 6-month period.

-12-

why a claimant does not meet or equal the listing.

See Kuleszo v.

Barnhart, 232 F. Supp. 2d 44, 52 (W.D.N.Y. 2002).

If the ALJ does

not provide reasons for rejecting a listed impairment, the Court
can look to other parts of the decision and credible evidence in
the

record

to

determine

substantial evidence.
(2d Cir. 1982).

if

the

rejection

was

supported

by

See Berry v. Schweiker, 675 F.2d 464, 469

For a finding of disability based on a listing,

the claimant’s impairments must satisfy all the listing’s criteria.
20 C.F.R. § 416.925(d).

The combined effect of all the claimant’s

impairments must be considered, including those determined not to
be severe.

See 42 U.S.C. § 1382c(a)(3)(G); 20 C.F.R. §§ 416.923,

416.924a(b)(4).
Paragraph A of Listing 105.06 (IBD) is not met because G.J.R.
does not have “obstruction of stenotic areas (not adhesions) in the
small intestine or colon with proximal dilatation,” as explained by
the Listing.

Neither the doctors’ evaluations nor Plaintiff or

G.J.R.’s testimony allege such a problem.

Furthermore, after a

careful

shows

review

of

the

record,

evidence

that

G.J.R.’s

impairment does not meet the criteria required by Paragraph B of
Listing 105.06.

Thus, because the claimed symptoms and medical

evidence do not support the criteria described by Listing 105.06,
this

Court

finds

that

the

ALJ’s

decision

was

supported

by

substantial evidence.
Additionally, although the ALJ did not address it, substantial
evidence in the record demonstrates that G.J.R.’s impairment does
-13-

not meet or medically equal the criteria required by Listing 105.08
(Malnutrition).
Paragraph A of Listing 105.08 requires “chronic nutritional
deficiency despite continuing treatment as prescribed.”

Although

G.J.R. has trouble gaining weight and tends to lose weight during
a flare-up of her Crohn’s disease, upon discharge from the hospital
(on July 15, 2010) it was prescribed that she drink three cans of
PediaSure a day and take daily vitamins to maintain her nutrition.
Tr. 415.

Recent treatment notes from the University of Rochester

Medical Center report that this was effective treatment.

Tr. 425.

At a followup appointment on September 16, 2010, Dr. Thomas Rossi
reported that G.J.R. “seems to have gained weight nicely and has
otherwise been healthy” and that “we can stop her iron and stop her
PediaSure.”

Id.

Paragraph B of Listing 105.08 requires “multiple Body Mass
Index (BMI)-for-age measurements that are less than the third
percentile on the CDC's most recent BMI-for-age growth charts...”
On March 1, 2010, Dr. Koorosh Kooros reported that G.J.R. weighed
45 kg, which is between the 10th and 25th percentiles, and was 164
cm tall, which is between the 50th and 75th percentiles.
On February 21, 2011, she weighed 47.9 kg.
December 23, 2010, she was 165.5 cm tall.

Tr. 420.
Tr. 421.

Tr. 391.
As of
Despite

G.J.R.’s low weight and her difficulty gaining weight, recent
treatment notes from the University of Rochester Medical Center

-14-

report

that

controlled.

she

is

healthy

Tr. 420.

and

that

her

Crohn’s

disease

is

There is no report of malnurishment.

After a careful review of the record, this Court finds that
substantial evidence supports a finding that G.J.R.’s impairments
did not meet or medically equal Listing 105.08.
B.

The ALJ Did Not Err in Failing to Further Develop the
Record.

Plaintiff alleges that the ALJ erred in failing to develop the
medical opinion evidence regarding the equivalence of G.J.R.’s
symptoms to Listing 105.06.

Pl.’s Mem. At 9.

The Commissioner

contends that the record was sufficient to support a decision on
the issue of disability, thus the ALJ was not required to further
develop the record.

This Court finds that the ALJ did not err in

failing to develop the record or recontact any physician.
Where there are deficiencies in the record, an ALJ is under an
affirmative obligation to develop a claimant’s medical history.
See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (“Because a
hearing on disability benefits is a non-adversarial proceeding, the
ALJ

generally

has

an

affirmative

obligation

to

develop

the

administrative record.”)(citing Echevarria v. Sec’y of Health &
Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)); see also Pratts v.
Chater, 94 F.3d 34, 37 (2d Cir. 1996).

Recontacting medical

providers is necessary when the ALJ cannot make a disability
determination based on the evidence of record.

Donmore v. Astrue,

No. 07-CV-732S, 2009 U.S. Dist. LEXIS 83586, at *4 (W.D.N.Y. Sept.

-15-

14, 2009) (citing 20 C.F.R. § 404.1512(e)).

The ALJ does not have

a duty to recontact a treating physician if the evidence submitted
by the treating source, viewed as a whole, is complete.
Astrue,

No.

6:06-CV-0485

(LEK/VEB),

2009

(N.D.N.Y. Mar. 25, 2009)(citations omitted).

WL

Hluska v.

799967,

at

*17

Moreover, the ALJ is

not obligated to recontact treating physicians when the record
contains no critical gaps and there are medical opinions from
different sources concerning the plaintiff’s impairments.

Taylor

v. Astrue, No. 3:05-CV-1444 (LEK/DEP), 2008 WL 3884356, at *13 n.18
(N.D.N.Y. Aug. 18, 2008).
After a review of the complete record, this Court finds that
the record contains ample treatment notes from G.J.R.’s treating
sources, teachers, and State consultant doctors related to her
impairments,
evidence.

as

well

as

G.J.R.

and

Plaintiff’s

testimonial

Because the ALJ had adequate medical and other evidence

in the record to assess G.J.R.’s disability status, and there are
no obvious gaps in her treatment history, this Court finds that
there was no reason for the ALJ to recontact any of the treating
sources or to obtain additional medical opinions.
C.

The ALJ’s Determination that G.J.R.’s Impairments Did Not
Functionally Equal the Listings is Supported by
Substantial Evidence.

The ALJ found that G.J.R. had a less than marked limitation in
the domain Moving About and Manipulating Objects, and a marked
limitation in the domain Health and Physical Well-Being.

-16-

Tr. 22-

24.

This Court finds that the ALJ’s determination of functional

equivalence is supported by substantial evidence.
To

determine

whether

an

impairment

or

combination

of

impairments functionally equals the listings, the ALJ must assess
the claimant’s functioning in terms of the following six domains:
(1)
(2)
(3)
(4)
(5)
(6)

acquiring and using information;
attending and completing tasks;
interacting and relating with others;
moving about and manipulating objects;
caring for yourself; and
health and physical well-being.

See 20 C.F.R. § 416.926a(b)(1).
In

making

this

assessment,

the

ALJ

must

compare

how

appropriately, effectively and independently the claimant performs
activities compared to the performance of other children of the
same age who do not have impairments.

20 C.F.R. § 416.926a(b).

To

functionally equal the listings, the claimant’s impairment or
combination of impairments must result in “marked” limitations in
two domains of functioning or an “extreme” limitation in one
domain.

20 C.F.R. 416.926a(d).

A child has a “marked” limitation in a domain when her
impairment(s)

interferes

“seriously”

with

the

ability

to

independently initiate, sustain, or complete activities. 20 C.F.R.
416.926a(e)(2).

A child has an “extreme” limitation in a domain

when her impairment(s) interferes “very seriously” with her ability
to independently initiate, sustain, or complete activities.
C.F.R. 416.926a(e)(3).

-17-

20

In

the

domain

Health

and

Physical

Well-Being,

a

marked

limitation means frequent episodes of illness because of the
impairment(s) or frequent exacerbations of the impairment(s) that
result in significant documented symptoms or signs that occur:
(a) on an average of 3 times a year, or once every 4 months,
each lasting 2 weeks or more; (b) more often than 3 times in
a year or once every 4 months, but not lasting for 2 weeks; or
(c) less often than an average of 3 times a year or once every
4 months but lasting longer than 2 weeks, if the overall
effect (based on the length of the episode(s) or its
frequency) is equivalent in severity.
20 C.F.R. 416.926a(e)(2).

An “extreme” limitation in this domain

means there are episodes of illness or exacerbations that result in
significant, documented symptoms or signs substantially in excess
of the requirements for showing a “marked” limitation.

20 C.F.R.

416.926a(e)(2).
When evaluating the child’s functioning, the ALJ must consider
the

functional

limitations

from

all

medically

determinable

impairments, including any impairments that are not severe.

20

C.F.R. 416.926a(a).
Plaintiff asserts that the record supports a finding that
G.J.R.’s Crohn’s disease is an extreme limitation in the Health and
Physical Well-Being domain, and/or that she has marked limitations
in the domain Attending and Completing Tasks.

Pl.’s Mem. at 12.

Health and Physical Well-Being
Plaintiff argues that, because of her “excessive absences from
school as a result of her symptoms,” G.J.R.’s Crohn’s disease

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interferes “very seriously” with her ability to independently
sustain

and

limitation.

complete

activities,

Pl.’s Mem. at 13.

and

is

thus

an

“extreme”

Plaintiff further asserts that the

ALJ “did not provide a rational (sic) as to why he found G.J.R.’s
impairment marked rather than extreme,” and that he failed to
develop the record by recontacting her treating physician or
seeking

an

updated

medical

opinion.

Tr.

13.

As

discussed

previously, this Court finds that the ALJ had no duty to further
develop the record.
Plaintiff also argues that, instead of recontacting treating
physicians

or

obtaining

an

updated

medical

opinion,

the

ALJ

erroneously gave great weight to State agency consultants in making
his functional determination.

Pl.’s Mem. at 14.

An ALJ is

“responsible for reviewing the evidence and making findings of fact
and conclusions of law.”

See 20 C.F.R. § 416.927(e)(2).

The

opinions of State consultants may be relied on by an ALJ, and their
findings can constitute substantial evidence.
Here,

the

ALJ

noted

in

his

decision

See id.
the

standard

for

evaluating State consultant opinion evidence, and there is no
indication that the regulations were not followed.

Tr. 19.

The

State consultant evidence was consistent with treating notes,
academic reports, hearing testimony, and other evidence of record.
Accordingly, this Court finds that the ALJ properly relied on the
findings of the State agency consultants who opined that G.J.R.’s

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impairments were severe but did not meet, medically equal or
functionally equal the Listings.

Tr. 267.

In determining that G.J.R. had a marked limitation in the
domain of Health and Physical Well-Being, the ALJ noted that G.J.R.
suffered for three months from diarrhea and lost about 20 pounds.
Tr. 24. He explained, however, that once “an appropriate diagnosis
[had] been made and [G.J.R.] received proper treatment, she is
going about her daily activities without evidence of significant
symptoms.”

Id.

The ALJ indicated that G.J.R. gets tired after a

Remicade infusion and has trouble gaining weight, but that her
symptoms are not always present and that she did not experience an
exacerbation of her Crohn’s disease until June 30, 2010 when she
was hospitalized for treatment.

Id.

If “the ALJ’s rationale can be perceived from the evidence in
the record, a remand for clarification is unnecessary.”

See

Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 112-13 (2d Cir.
2010). After carefully reviewing the record, this Court finds that
there is substantial evidence to support the ALJ’s decision that
G.J.R. does not have an extreme limitation in this domain.
Attending and Completing Tasks
The domain Attending and Completing Tasks considers how well
a child is able to focus and maintain attendance, and how well she
is able to begin, carry through, and finish activities, including
the mental pace at which she performs activities and the ease of
changing activities.

Tr. 20.

It also refers to a child’s ability
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to avoid impulsive thinking and her ability to prioritize competing
tasks and manage her time. 20 C.F.R. 416.926a(h) and SSR 09-4p.
Some examples of difficulty children could have in this domain
are: (i) is easily startled, distracted, or over-reactive to
everyday sounds, sights, movements, or touch; (ii) is slow to focus
on, or fails to complete, activities of interest (e.g., games or
art

projects);

activities

or

(iii)

repeatedly

frequently

becomes

interrupts

side-tracked

others;

(iv)

is

from
easily

frustrated and gives up on tasks, including ones she is capable of
completing; (v) requires extra supervision to remain engaged in an
activity; or (vi) cannot plan, manage time, or organize self in
order to complete assignments or chores.

20 C.F.R. 416.926a(h)(3)

and SSR 09-4p.
Plaintiff argues that the ALJ should have found that G.J.R.
had a marked limitation in this domain “due to the need for
frequent breaks and absences secondary to her need for frequent
bathroom breaks and experience of nausea.”

Pl.’s Mem. at 12.

Plaintiff contends that, because G.J.R. had absences from school
and had to use the restroom frequently, she repeatedly became
sidetracked from activities and thus had a marked limitation in
this domain.

Pl.’s Mem. at 15.

G.J.R.’s teachers, however, indicated that G.J.R. had no
limitations in this domain.

Tr. 194-200, 202-08, 212-18, 220-26.

The State agency consultant doctors also opined that she had no
limitation in this domain. Tr. 269. Accordingly, this Court finds
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that substantial evidence in the record supports the ALJ’s finding
that

“the

totality

of

in

domain

limitation

[the

the

evidence
Attending

of
and

record...

reveals

Completing

no

Tasks].”

Tr. 21.
For the stated reasons, the ALJ correctly found that G.J.R.’s
impairments did not result in “marked” limitations in two domains
of functioning or an “extreme” limitation in one domain. 20 C.F.R.
416.926a(d).

As

a

result,

G.J.R.’s

impairments

did

not

functionally equal the listings, and thus she was properly found
not to be disabled.
D.

The ALJ Applied the Appropriate Legal Standards Regarding
Plaintiff’s Credibility and his Determination is
Supported by the Record.

Plaintiff argues that the ALJ failed to apply the appropriate
legal standards for assessing her credibility.

The regulations

provide that a parent can testify regarding the symptoms of his or
her child when the child cannot describe them fully.
§ 416.928(a).

Credibility of witnesses is primarily determined by

the ALJ, not the courts.
Servs.,

705

See 20 C.F.R.

F.2d

638,

See Carroll v. Sec’y of Health & Human
642

(2d

Cir.

1982).

When

assessing

credibility, a conclusory statement is not sufficient; the ALJ’s
decision must contain specific reasons supported by evidence in the
record.

See SSR 96-7P, 1996 WL 374186, *4 (S.S.A.).

The decision

must explain to the individual and a reviewing court the weight
given to the testimony and the reasons for the determination.
id.
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See

Plaintiff contends that, instead of making a finding as to
credibility,

the

ALJ

“summarized

some

of

the

testimony

and

evidence, but failed to engage in an analysis of the facts and law
relating to the testimony and other allegations of symptoms.”
Pl.’s Mem. at 16.
In his decision, the ALJ noted that “whenever statements about
the intensity, persistence, or functionally limiting effects of
pain or other symptoms are not substantiated by objective medical
evidence, [he] must make a finding on the credibility of the
statements based on a consideration of the entire case record.”
Tr. 18.

The ALJ did not discount Plaintiff’s statements regarding

G.J.R.’s Crohn’s disease or congenital abnormalities of the thumbs
and index fingers. He appropriately noted that her Crohn’s disease
is controlled by medication and that her congenital abnormalities
do not cause her pain or restrict her activities.

Tr. 18-19.

The ALJ indicated, however, that allegations of disability due
to speech and language problems are unsupported by the record.
Tr. 18.

A speech pathologist completed a questionnaire indicating

that G.J.R. has displayed “no evidence of any speech disorder” and
that her speech patterns are appropriate for her chronological age
and cognitive level.

Tr. 209-10.

Furthermore, the ALJ correctly

noted that G.J.R.’s asthma does not restrict her activities.
Tr. 19.

Plaintiff and G.J.R. testified that her asthma does not

interfere with track, and that she uses an inhaler as needed but
does not need to take it on a daily basis.

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Tr. 58.

Thus, after a thorough review of the record, this Court finds
that the ALJ’s credibility decision is supported by substantial
evidence.
Conclusion
For the reasons stated, and after a careful review of the
record, this Court finds that the Commissioner’s denial of SSI
benefits to Plaintiff was based on substantial evidence in the
record and was not erroneous as a matter of law.
Commissioner’s

decision

is

affirmed.

Accordingly, the

This

Court

Commissioner’s motion for judgment on the pleadings.

grants

Plaintiff’s

motion for judgment on the pleadings is denied, and Plaintiff’s
complaint is dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

June 14, 2013
Rochester, New York

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