Carson v. Astrue
Filing
14
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 7 Plaintiff's Motion for Judgment on the Pleadings; denying 10 Commissioner's Motion for Judgment on the Pleadings; and remanding this matter to the Commissioner pursuant to sentence four of 42 U.S.C. Section 405(g) for further administrative proceedings consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 5/1/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MAISHA CARSON, on behalf of J.D.,
Plaintiff,
DECISION and ORDER
No. 6:12-CV-6553(MAT)
-vsCAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.
I.
Introduction
Plaintiff Maisha Carson (“Plaintiff”), represented by counsel,
brings this action on behalf of her daughter, J.D. (“Claimant”)
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”)1 denying Claimant’s application for
Social Security Insurance (“SSI”). This Court has jurisdiction over
the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c). Presently
before the Court are the parties’ motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure.
1
Carolyn W. Colvin has replaced Michael J. Astrue as the
Commissioner of Social Security. She therefore is automatically
substituted as the defendant in this action pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure.
II.
Procedural History
On
November
20,
2009,
Plaintiff
protectively
filed
an
application for SSI, alleging that Claimant has been under a
disability
beginning
hyperactivity
May
disorder
18,
2005,
(“ADHD”)
due
and
a
to
attention
learning
deficit
disability.
T.97-116.2 On February 15, 2011, Administrative Law Judge Michael
W. Devlin (“the ALJ”) denied the application. T.12-29. On August
13, 2012, the Appeals Council denied Plaintiff’s request for
review, making
the
ALJ’s
decision
the
final
decision
of
the
Commissioner. T.1-4. This action followed.
II.
Summary of the Administrative Record
With a date of birth of May 18, 2000, Claimant was 5-years-old
on
the
alleged
onset
date,
9-years-old
on
the
date
of
the
application, and 10-years-old on the date of the ALJ’s decision.
T.26, 97.
A.
Medical Records
On March 12, 2007, Claimant was referred to Licensed Clinical
Social Worker Christy Paradise (“Counselor Paradise”) at Crestwood
Children’s Center for her behavioral issues at school and at home.
T.194. Claimant repeatedly got into trouble for hitting other
children, not listening, and leaving class without permission.
T.194. Claimant had been suspended in pre-kindergarten for pulling
2
Numerals preceded by “T.” refer to pages in the transcript of the
administrative record, submitted by Defendant as a separately bound exhibit.
-2-
a boy’s pants down and looking under a stall in the bathroom.
T.194. At home, Claimant reportedly “accidentally” set the kitchen
on fire, and physically fought with her sibling. T.194. Claimant
“seemingly
struggle[d]
most
notably
with
transitions;
school
change”; “[her] father returning following incarceration,” and with
her relationship with her half-sister. T.195. Counselor Paradise
concluded, after her examination of Claimant, that she possessed
“limited insight into [her] problems.” T.196. Counselor Paradise
diagnosed Claimant with adjustment disorder with mixed disturbance
of emotion and conduct, disruptive behavior disorder, and a sibling
relational
problem.
T.196.
Counselor
Paradise
recommended
individual and family counseling sessions, and also recommended a
psychiatric
evaluation
for
additional
insight
into
Claimant’s
diagnosis and for assistance managing a possible medication regime.
T.196.
On
April
23,
2007,
Counselor
Paradise
noted
Claimant’s
previous “fire-setting behaviors” (although it was not known if
such behaviors were intentional or accidental), and the presence of
sexualized behaviors in Claimant. T.198. Plaintiff reported that
Claimant had been caught with her pants down with a boy on top of
her and had been suspended from pre-kindergarten for pulling a
boy’s pants
down
and looking
under
a
bathroom
stall. T.199.
Counselor Paradise noted that Claimant struggled with her behaviors
at
school
while
in
the
1st
grade,
-3-
and
recommended
that
the
Committee of Special Education suggest a possible behavioral plan
to better support Claimant while at school. T.199. Counselor
Paradise opined that Claimant understood some of her behaviors were
inappropriate and even manipulative, but she nevertheless was slow
to
change
them.
T.199-200.
Counselor
Paradise
reiterated
her
diagnosis of adjustment disorder with a mix of disturbing emotional
conduct and disruptive behavior disorder. T.200.
On March 4, 2008, pediatric progress notes signed by Social
Worker J. Thomas at Genesee Health Service noted that Claimant’s
teacher had reported continued impulsiveness in Claimant despite
being prescribed Concerta for her ADHD. Claimant’s behavior was
described as “atrocious” when she was off her medication. T.242.
On March 5, 2008, pediatrician Dr. Webber suggested that
Claimant take 10 mg of Concerta in the morning and 5 mg at noon.
T.242.
Claimant
was
referred
for
mental
health
purposes
to
Christine Steerman, Ph.D. T.242.
On
April
24,
2008,
Claimant
underwent
counseling
with
Dr. Steerman. T.204. Plaintiff reported Claimant does not listen to
what
she
is
told
to
do,
fights
with
her
siblings,
and
has
difficulty following rules. T.205. Dr. Steerman diagnosed Claimant
with ADHD by history. T.206.
At their May 1, 2008, counseling session, Dr. Steerman asked
Claimant about a previous fire she had started in the kitchen of
her home. T.207. Dr. Steerman noted that Claimant “put her head
-4-
down a bit as if embarrassed” and talked about the fire as if it
had been purposefully set because “[Claimant] wanted to see the
fire trucks come.” T.207.
On June 16, 2008, Dr. Steerman met with Plaintiff who reported
she saw Claimant hitting her younger brother with a belt. T.209.
Plaintiff admitted that she had used a belt on Claimant’s brother
twice and realized that “this was probably not right.” T.209.
Plaintiff also stated that Claimant got her brother to eat paint
and thinks Claimant convinced him to drink urine. T.209.
On January 8, 2010, consultative examiner Kavitha Finnity,
Ph.D., examined Claimant. T 260. Dr. Finnity’s medical source
statement indicated that Claimant has “difficulty attending to and
following age-appropriate directions and completing age-appropriate
tasks.”
T.262.
However,
she
found,
Claimant
“can
adequately
maintain appropriate behavior”; “can learn in accordance to [sic]
cognitive functioning”; and “interacts adequately with peers and
adults.” T.262. Dr. Finnity diagnosed Claimant with ADHD and
disruptive
behavior
disorder.
T.262.
Dr.
Finnity
recommended
individual psychological and psychiatric treatment for Claimant,
and parent-effectiveness training for Plaintiff. T.263.
On January 28, 2010, State agency review medical consultant
K.
Prowda
completed
a
childhood
disability
form.
T.265-66.
Dr. Prowda found Claimant had “less than marked” limitations with
respect to acquiring and using information and attending and
-5-
completing
tasks.
limitations”
with
T.267.
Dr.
respect
to
Prowda
the
found
following:
Claimant
had
“no
interacting
and
relating with others, moving about and manipulating objects, caring
for herself, and health and physical well-being. T.268.
B.
School Records
Educational Records
On September 27, 2010, Claimant’s 5th grade teacher at Henry
Hudson School (Rochester City School District #28), Lindsay Robach
(“Ms. Robach”), noted that Claimant “was disruptive throughout the
lesson and asked to stop several times.” T.163. After being moved
to
another
spot
in
the
classroom,
Claimant
began
to
shout
“inappropriate things”, and when asked to go to another room,
Claimant refused. T.163.
On September 28, 2010, when Claimant was asked to be quiet in
the hallway, she retorted, “[T]est me, you won’t do nothing [sic].”
T.164.
On September 28, 2010, Claimant’s teacher reported that she
was “rude [and] disruptive all day.” T.165. After serving a lunch
detention, Claimant slapped another student across the face on her
way out the door for dismissal. T.165.
On October 8, 2010, school personnel conducted an internal
progress
review
of
Claimant
for
the
purpose
of
devising
intervention strategies for her behavioral problems. On a scale of
1 to 5 (with 1 being the highest priority), Claimant’s issues were
-6-
rated as a “1”. T.155-56. With respect to behaviors interfering
with learning, Claimant “call[ed] out inappropriately” and was
“restless, overactive, [and] impulsive.” T.157. With respect to
conduct
concerns,
Claimant
was
oppositional,
displayed
both
physical and verbal aggression, did not follow school rules, had
poor relations with both peers and adults, and did not follow
school
norms.
impulsive”,
T.157-58.
and
she
was
Claimant’s
“always
behavior
causing
was
issues”
“incredibly
due
to
her
“bullying her other classmates with verbal language” and her
tendency to “get very rough physically without noticing.” T.158
On October 13, 2010, Case Manager Radley performed a response
to intervention (“RTI”) observation of Claimant in her 5th grade
classroom taught by Ms. Robach. T.154. Case Manager Radley observed
Ms. Robach approach Claimant to review directions for a simple
assignment (write two facts about an explorer on an index card).
Claimant responded by “spin[ing] in circles.” T.154. Despite being
asked to stop, Claimant kept spinning, walked over to the pillow
section of the classroom, and yelled, “Robach!” T.154. Claimant
ignored group instructions and yelled across the room to get the
teacher’s attention. T.154. Claimant inappropriately played with
objects on her teacher’s desk, and when asked to stop, responded,
“[B]ut [sic] your face.” T.154. Claimant also kept running around
the room in her socks. Case Manager Radley noted that Claimant
“ignored
all
expectations
and
directions
-7-
for
working
on
the
assignment (she was spinning around and pretending to write on
incentive chart.). Teacher attempt[ed] both redirection and planned
ignoring.” T.154. These strategies were unsuccessful.
On October 22, 2010, the RTI team that noted Claimant’s two
primary concerns included being verbally/physically abusive and
“out-of-seat”. T.160. The RTI team was concerned that Claimant was
overly aggressive, and as an example noted that “she will push
through crowds. She is impulsive and aggressive which tends to get
her in trouble.” T.160. Claimant also had been referred to “SHIP”
three times at that point during the year, twice for physical
altercations. T.161. Claimant would “crawl on the floor and act
inappropriately, usually toward the end of the day.” T.161.
In a letter dated October 22, 2010, Ms. Robach noted that
Claimant
was
“overly
aggressive
at
times
(verbally
and
physically).” T.162. During class lessons, Claimant would often be
out of her seat with her shoes off, walking around the classroom;
and interrupting other students while they were working by calling
out, yelling, making barking noises, and making inappropriate
comments and gestures (e.g., “flicking off” her peers, stuffing
leaves
up
her
shirt
to
simulate
breasts
and
yelling
at
her
classmates to look at her “boobies”). T.162. Ms. Robach observed
that Claimant had had several referrals to the office from both her
classroom and the physical education class. The day of the letter,
Claimant’s “behavior escalated to the point where she needed to be
-8-
removed from the classroom. Her removal from the classroom led to
an in-school suspension.” T.162.
On November 19, 2010, the RTI team meeting minutes indicate
Claimant’s
medication
(Concerta)
had
been
increased
and
that
Claimant’s mother was to meet bi-weekly for school counseling.
T.166-67.
C. Hearing Testimony
The previously unrepresented Plaintiff testified on behalf of
Claimant before the ALJ on December 16, 2010. T.31-52. Plaintiff
explained she has a hard time getting Claimant to perform household
chores. T.41. When asked to perform chores, Claimant will whine and
throw things. T.42. Claimant is unable to sit down for a half hour
doing homework, and “for the most part”, Claimant only can sit
still doing homework for 5 to 10 minutes.
III. Standard of Review
Title 42 U.S.C., § 405(g) authorizes district courts “to
enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner
of Social Security, with or without remanding the cause for a
rehearing.” This Court’s function is not to determine de novo
whether a claimant is disabled, Pratts v. Chater, 94 F.3d 34, 37
(2d Cir. 1996) (citation omitted), but rather to evaluate whether
the Commissioner applied the correct legal standard in making the
determination and, if so, whether such determination is supported
-9-
by substantial evidence in the record. E.g., Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000) (citing 42 U.S.C. § 405(g); Bubnis v.
Apfel, 150 F.3d 177, 181 (2d Cir. 1998)).
This Court must independently determine if the Commissioner
applied
the
correct
legal
standards
in
determining
that
the
claimant is not disabled. See Townley v. Heckler, 748 F.2d 109, 112
(2d Cir. 1984). “Failure to apply the correct legal standards is
grounds for reversal.” Id. Therefore, this Court first reviews the
Commissioner’s application of the pertinent legal standards, and
then, if the standards were correctly applied, then considers the
substantiality of the evidence. See Johnson v. Bowen, 817 F.2d 983,
985 (2d Cir.1987) (“[w]here 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”).
IV.
Determining Childhood Disability
Under the Act, every individual who is considered to have a
“disability”
is
entitled
to
disability
insurance
benefits.
42 U.S.C. § 423(a)(1). Disability is defined as an “inability to
engage in
any
substantial
gainful
activity
by
reason
of
any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
-10-
to last for a continuous period of not less than twelve months.”
Id., § 423(d)(1)(A).
To qualify for SSI benefits, 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); see also Pollard v.
Halter, 377 F.3d 183, 189 (2d Cir. 2004).
The SSA has promulgated a three-step sequential analysis to
determine whether a child is eligible for SSI benefits on the basis
of disability. 20 C.F.R. § 416.924(a); see also Pollard, 377 F.3d
at 189. First, the ALJ must consider whether the child is engaged
in “substantial gainful activity.” 20 C.F.R. § 416.924(b). “Second,
the ALJ considers whether the child has a ‘medically determinable
impairment that is severe,’ which is defined as an impairment that
causes ‘more than minimal functional limitations.” Pollard, 377
F.3d at 189 (quoting 20 C.F.R. § 416.924(c)). Third, “if the ALJ
finds a severe impairment, he or she must then consider whether the
impairment ‘medically equals’ or . . . ‘functionally equals’ a
disability listed in the regulatory ‘Listing of Impairments’” as
set forth in 20 C.F.R. § Part 404, Subpart P, Appendix 1 (the
“Listings”). Id. (quoting 20 C.F.R. § 416.924(c), (d)). Under the
third step, to demonstrate functional equivalence to a listed
-11-
impairment, the child must exhibit “marked” limitations in two of
six domains, or an “extreme” limitation in one domain. 20 C.F.R.
§ 416.926a(a). These six domains consider a child’s (1) ability to
acquire and use information; (2) ability to attend and complete
tasks; (3) ability to interact and relate with others; (4) ability
to move about and manipulate objects; (5) ability to care for
oneself;
and
(6)
health
and
physical
well-being.
20
C.F.R.
§§ 416.926a(a)-(b). A “marked” limitation “interferes seriously
with [the child’s] ability to independently initiate, sustain, or
complete activities.” 20 C.F.R. § 416.926a(e)(2)(I). An “extreme”
limitation exists when the impairment “interferes very seriously
with [the child’s] ability to independently initiate, sustain, or
complete activities.” 20 C.F.R. § 416.926a(e)(3)(I).
Social Security Ruling (“SSR”) 09–1p directs consideration of
the “whole child,” which means that the ALJ must consider a child’s
everyday activities, determine all domains involved in performing
them,
consider
whether
the
child’s
medically
determinable
impairments account for limitations in the child’s activities, and
determine the degree to which the child’s impairments limit the
child’s ability to function age-appropriately in each domain. SSR
09–1p,
Title
XVI:
Determining
Childhood
Disability
Under
The
Functional Equivalence Rule–The “Whole Child” Approach, 2009 WL
396031, at *2–3 (S.S.A. Feb. 17, 2009).
-12-
V.
The ALJ’s Decision
The ALJ found that Claimant had not engaged in substantial
gainful activity since November 20, 2009, the application date.
T.18. The ALJ further found that Claimant has the following severe
impairments: ADHD and disruptive behavior disorder. T.18. However,
the ALJ determined, these impairments, considered singly or in
combination, were insufficient in severity to meet, medically
equal, or functionally equal one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. T.18-26. Accordingly, the
ALJ found Claimant not disabled. T.26.
VI.
Analysis
The ALJ found that Claimant had one severe impairment, ADHD,
but summarily concluded that Claimant did not fulfill the criteria
for Listing 112.01 (ADHD), essentially because Claimant does not
have “marked” limitations in two domains of functioning or an
“extreme” limitation in one domain of functioning. Specifically,
after considering the pertinent six domains, the ALJ found that
Claimant has “less than marked” limitations in three of the domains
(acquiring and using information; attending and completing tasks;
and interacting and relating with others); “no limitation” in two
domains (moving about and manipulating objects, and health and
physical well-being); and “marked” limitation in one domain (caring
for herself).
-13-
A.
Failure to Properly Weigh the Opinions from the
Consultative Psychologist and State Agency Psychological
Consultant
The ALJ afforded “significant weight” to the opinions of
consultative
psychologist
psychological
consultant
Dr.
Dr.
Finnity
Prowda
and
based
on
State
agency
“programmatic
expertise and consistency with the record.” T.21. However, the ALJ
erred in affording significant weight to these opinions because
they were stale and conflicted with substantial evidence in the
record. As Plaintiff notes, Dr. Finnity’s opinion was rendered on
January 18, 2010; and Dr. Prowda’s opinion was rendered on January
28, 2010. T.260, 266. Their opinions necessarily do not include
probative evidence, namely, records from Claimant’s school produced
in October and November of 2010. T.154-67.
1.
Dr. Prowda
State agency review consultant Dr. Prowda’s opinion should
have been afforded limited weight, as it was not based on a
personal examination of Claimant. Moreover, it was based on an
incomplete record since it was rendered before the receipt of
school
records
from
fall
semester
2010
detailing
Claimant’s
substantial and repeated behavioral issues. See Dowling v. Colvin,
No. 5:12–CV–1181 (LEK/VEB), 2013 WL 6800207, at *7 (N.D.N.Y. Dec.
20,
2013)
(opinion
of
a
non-examining
State
Agency
review
consultant opinion “should have been afforded limited weight, as it
was not based on an examination and, more importantly, was based on
-14-
an
incomplete
record
insofar
as
it
was
rendered
before
[the
claimant’s treating source] provided her assessment. . . .”)
(citing Griffith v. Astrue, 08–CV–6004, 2009 WL 909630, at *9
(W.D.N.Y. July 27, 2009) (“The State Agency Officials’ reports,
which are conclusory, stale, and based on an incomplete medical
record,
are
not
substantial
evidence”);
McClean
v.
Astrue,
04–CV–1425, 2009 WL 1918397, at *4 n. 2 (E.D.N.Y. June 30, 2009)).
While the opinion of a non-examining consultant may constitute
substantial evidence where consistent with the record as a whole,
see Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983), that is
not the case here. Dr. Prowda found that Claimant had “less than
marked” limitations with respect to acquiring and using information
and attending and completing tasks. T.267. Dr. Prowda also opined
that Claimant had no limitations with respect to the following:
interacting and relating with others, moving about and manipulating
objects, caring for [herself], and health and physical well-being.
Dr. Prowda’s opinion that Claimant has “no limitations” in
interacting with others is at odds with her diagnoses of ADHD and
disruptive behavior disorder. Moreover, it is inconsistent with
particular
incidents
contained
in
the
treatment
notes
which
Dr. Prowda ostensibly reviewed. For instance, in Dr. Steerman’s
notes dated June 16, 2008, Plaintiff reported that Claimant hit her
younger brother with a belt, got her brother to eat paint, and
-15-
likely convinced him to drink urine. T.209. On March 12, 2007,
Counselor Paradise reported that Claimant had been suspended in
pre-kindergarten for pulling a boy’s pants down and looking under
a stall in the bathroom. T.194.
Dr. Prowda’s opinion also is inconsistent with subsequent
school records for the fall 2010 school semester, which indicate
that
Claimant
has
difficulties
in
regard
to
interpersonal
relationships with adults and peers. On September 28, 2010, after
serving a lunch detention, Claimant slapped another student across
the face during dismissal. T.165. On October 8, 2010, school
personnel rated Claimant’s behavioral issues as a “1” on a scale of
1
to
5
(with
1
being
the
highest
priority).
T.155-56.
This
assessment was based on Claimant’s display of a number of behaviors
which interfered with her ability and her classmates’ ability to
learn, such as “call[ing] out inappropriately” and being “restless,
overactive, [and] impulsive.” T.157. Claimant was oppositional,
displayed both physical and verbal aggression, did not follow
school rules, had poor relations with both peers and adults, and
did not follow school norms. T.157-58. Her behavior was “incredibly
impulsive”,
and
she
was
“always
causing
issues”
due
to
her
“bullying her other classmates with verbal language” and her
tendency to “get very rough physically without noticing.” T.158. On
October 22, 2010, Ms. Robach wrote a letter noting that Claimant
can be “overly aggressive at times (verbally and physically).”
-16-
T.162. On September 28, 2010, Claimant’s teacher reported that she
was “rude [and] disruptive all day.” T.165.
The
Court
“significant
notes
weight”
that
to
although
Dr.
ALJ
Prowda’s
purported
assessment,
to
give
the
ALJ
nevertheless opined that Claimant has “marked limitation in ability
to care for herself.” T.25. Thus, the ALJ implicitly rejected Dr.
Prowda’s conclusion that Claimant has “no limitation” with regard
to caring for herself, but he provided no rationale for rejecting
this particular aspect of Dr. Prowda’s opinion.
2.
Dr. Finnity
Likewise, Dr. Finnity’s opinion is inconsistent with the
record
as
a
whole
and
ignores
the
substantial
evidence
of
Claimant’s difficulties in conforming to behavioral norms at school
and at home.
Dr. Finnity concluded that, based on her single
examination of Claimant, she “can adequately maintain appropriate
behavior”;
“can
learn
in
accordance
to
[sic]
cognitive
functioning”; and “interacts adequately with peers and adults.”
T.262. This conclusion is belied by even a cursory review of
Claimant’s school records and the treatment notes from Counselor
Paradise and Dr. Steerman.
The fact that Claimant was cooperative
and friendly in a single, controlled, situation, where she was
interacting one-on-one with an authority figure is of negligible
weight when compared to the oppositional and anti-social behaviors
displayed by Claimant at home and at school.
-17-
See Rivera v. Colvin,
No. 1:11-cv-04889-CM-RLE, __ F. Supp.2d ___, 2014 WL 929728, at *9
(S.D.N.Y.
Mar.
10,
2014);
Thompson
v.
Barnhart,
No.
02
CV
4930(SJ), 2004 WL 896663, *7 (E.D.N.Y. Mar. 26, 2004) (“The ALJ
also fails to consider Claimant’s functioning outside of the
structured and highly supportive setting of a special education
classroom
§
or
a
mental
416.924a(b)(5)(iv)
health
(stating
clinic.”)
that
(citing
determination
20
of
C.F.R.
child’s
limitations should be based, in part, on how child behaves when
structures are removed)).3
An ALJ is obligated to consider “all evidence” in the case
record before making a determination as to whether a claimant is
eligible for disability benefits. 20 C.F.R. § 416.920(a)(3); see
also Sutherland v. Barnhart, 322 F. Supp.2d 282, 289 (E.D.N.Y.
2004) (“It is not proper for the ALJ to simply pick and choose from
the transcript only such evidence as supports his determination,
without
affording
consideration
to
evidence
supporting
the
plaintiff’s claims.”); accord F.S. v. Astrue, 2012 WL 514944, at
*10
(N.D.N.Y.
2012)
(citations
omitted).
Here,
by
affording
3
In addition, Dr. Finnity’s opinion and Dr. Prowda’s opinion
are not necessarily consistent with each other insofar as
Dr. Finnity indicated that Claimant has “difficulty attending to
and
following
age-appropriate
directions
and
completing
age-appropriate tasks[,]” T.262, while Dr. Prowda found that
Claimant had “less than marked” limitations with respect to
acquiring and using information and attending and completing tasks,
T.267. The ALJ did not explain how he resolved this apparent
discrepancy.
-18-
“significant weight” to the opinions of two sources who did not
take
into
consideration
months
of
school
records
detailing
Claimant’s persistent behavioral problems, the ALJ necessarily did
not consider “all evidence” relative to Claimant’s disability
claim. Remand accordingly is required. See Lopez v. Secretary of
Dep’t of Health and Human Servs., 728 F.2d 148, 150-51 (2d Cir.
1984) (“We have remanded cases when it appears that the ALJ has
failed
to
consider
relevant
and
probative
evidence
which
is
available to him.”).
B.
Failure to Develop the Record
Plaintiff contends that the ALJ did not properly develop the
record because he failed to obtain an opinion regarding Claimant’s
function-by-function
limitations
from
Claimant’s
teacher,
Ms. Robach.
The
ALJ
has
an
affirmative
obligation
to
develop
the
administrative record, and this duty is “heightened” where, as
here, a claimant proceeds pro se at the administrative hearing
level.
Echevarria v. Secretary of Health & Human Servs., 685 F.2d
751, 755 (2d Cir. 1982) (internal quotation marks and citations
omitted). As noted above, the opinions by Dr. Finnity and Dr.
Prowda, upon which the ALJ heavily relied, did not take into
account any of the comments and observations by the individual who
spent time with Claimant on a daily basis, Ms. Robach.
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As a teacher, Ms. Robach is considered an “other source”. See
20 C.F.R. § 416.913(d)(2) (“other sources” include “educational
personnel such as teachers and daycare workers”). While the opinion
of an “other source” cannot “establish the existence of a medically
determinable impairment,” it may be used as a means of providing
insight into a child’s degree of impairment and functional ability.
See SSR 06–03p, Titles II and XVI: Considering Opinions and Other
Evidence From Sources Who Are Not “Acceptable Medical Sources” in
Disability Claims, 2006 WL 2329939, at *2 (S.S.A. Aug. 9, 2006).
Opinions offered by teachers “should be evaluated by using the
[20 C.F.R. § 416.927] factors,” although “[n]ot every factor . . .
will apply in every case.” SSR 06–03p, 2006 WL 2329939, at *5; see
also Bonet ex rel. T.B. v. Astrue, No. 1:11–cv–1140(GLS), 2012 WL
3544830, at *7 (N.D.N.Y. Aug. 16, 2012). The Court cannot say that
the ALJ’s error in developing the record by contacting Ms. Robach
to obtain a function-by-function evaluation was harmless. “An
opinion from a ‘non-medical source’ who has seen the claimant in
his or her professional capacity may, under certain circumstances,
properly be determined to outweigh the opinion from a medical
source[.]” SSR 06-03p, 2006 WL 2329939, at *6. As an example, SSR
06-03p notes this could occur where the “non-medical source” “has
seen the individual more often and has greater knowledge of the
individual’s functioning over time[,]” and that source’s opinion
“better
supporting
evidence
and
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is
more
consistent
with
the
evidence as a whole[,]” SSR 06–03p, 2006 WL 2329939, at *6.
Ms. Robach clearly has interacted with Claimant “more often and has
greater knowledge of the individual’s functioning over time” than
either Dr. Prowda or Dr. Finnity. Her notes also seem to be more
consistent with the earlier treatment notes by Counselor Paradise
and Dr. Steerman. Thus, a function-by-function report by Ms. Robach
may very well outweigh the opinions from the “acceptable medical
sources” in the record.
C.
To
Failure to Properly Analyze Listing 112.11
meet
or
equal
Listing
§
112.11
(ADHD),
a
claimant’s
condition must satisfy two criteria set forth in Paragraphs A and
B. The relevant portions of Listing § 112.11 provide as follows:
112.11
Attention
Deficit
Hyperactivity
Disorder:
Manifested by developmentally inappropriate degrees of
inattention, impulsiveness, and hyperactivity.
The required level of severity for these disorders is met
when the requirements in both A and B are satisfied.
A. Medically documented findings of all three of the
following:
1. Marked inattention; and
2. Marked impulsiveness; and
3. Marked hyperactivity;
And
B. For children (age 3 to attainment of age 18),
resulting in at least two of the appropriate age-group
criteria in paragraph B2 of 112.02 [Organic mental
disorders]).
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.11; 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 112.02(B)(2). Here, the ALJ
found that
although Claimant’s ADHD is a severe impairment, “the record
clearly indicates, as discussed below, that [her] impairments cause
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only minimal limitations.” T.18. Accordingly, the ALJ concluded,
Claimants’ “impairments [sic] do not meet or equal Listing 112.11.”
Id. There is no dispute that Claimant suffers from ADHD, but the
ALJ did not discuss the remaining factors in the Listing, namely,
whether Claimant suffers from marked inattention, impulsiveness and
hyperactivity, or whether Claimant suffers from the criteria in
Listing § 112.02B.
The ALJ’s conclusion that Claimant does not meeting the ADHD
Listing
simply
functional
bootstraps
equivalence.
onto
his
However,
later
courts
finding
have
found
regarding
that
“the
analyses under the attention deficit hyperactive disorder listing,
112.11, and functional equivalence are not sufficiently identical
to
the
point
that
a
failure
to
find
functional
equivalence
conclusively precludes a finding that Plaintiff’s symptoms meet or
medically equal a listing.” Johnson ex rel. J.J.G. v. Colvin, Civil
Action No. 6:12–cv–01139–RBH, 2013 WL 5309239, at *4 (D. S.C. Sept.
17, 2013) (citing M.G. v. Commissioner of Social Sec., 861 F.
Supp.2d 846, 859 n. 6 (E.D. Mich. 2012) (“[T]o the extent that the
Commissioner
functional
would
assert
equivalence
that
the
ALJ’s
suffices
for
the
analysis
required
regarding
‘meets’
and
‘medically equals’ analysis, there is case law to the contrary.”)
(collecting cases)). Indeed, such a finding would effectively
render the listings superfluous in cases involving impairments such
as severe ADHD. Id.
-22-
Furthermore, as discussed above, the ALJ’s finding of no
functional equivalence is based on an erroneous weighing of the
medical opinions and a disregard of probative evidence, namely,
school records from the fall 2010 semester. Therefore, the Court
cannot find that the ALJ’s determination regarding Listing § 112.01
is the product of the correct application of the relevant legal
principles or is supported by substantial evidence. Upon remand,
the ALJ is instructed to properly consider and evaluate the entire
record and apply the correct legal standards with regard to Listing
§ 112.11.
D.
Failure to Perform a Credibility Assessment
Plaintiff argues that the ALJ failed to evaluate explicitly
the
credibility
persistence
of
her
her
testimony
daughter’s
regarding
symptoms
the
and
intensity
and
limitations
on
functioning. T.12-29. The general rule in this regard is that the
ALJ is
required
to
evaluate
the credibility
of
testimony
or
statements about a claimant’s impairments when there is conflicting
evidence about the extent of limitations in functioning or other
alleged symptoms. See Snell v. Apfel, 177 F.3d 128, 135 (2d Cir.
1999) (“Where there is conflicting evidence about a claimant’s
pain, the ALJ must make credibility findings.”). The ALJ’s decision
“must contain specific reasons for the finding on credibility,
supported by evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent
-23-
reviewers the weight the adjudicator gave to the individual’s
statements and the reasons for that weight.” SSR 96-7p,
1996 WL
374186, at *4 (S.S.A. July 2, 1996).4
Here, there is conflicting evidence in the record regarding
the nature and extent of Claimant’s impairments, as well as the
resulting limitations manifested in the six domains of functional
equivalence. Accordingly, it was incumbent upon the ALJ to evaluate
the
credibility[,]”
Warren
ex
rel.
T.M.W.
v.
Colvin,
No. 12–CV–00544–JTC, 2014 WL 200231, at *9 (W.D.N.Y. Jan. 16,
2014),
of
Plaintiff
with
regard
to
her
testimony
and
other
statements of record pertaining to her daughter’s condition.
The
ALJ
acknowledged
his
duty
to
make
a
credibility
assessment, but he did not render such a finding. For instance, the
ALJ failed to assess Plaintiff’s testimony regarding Claimant’s
activities of daily living, namely, that it is difficult for her to
get Claimant to perform household chores, and that her response to
being asked to do so is to whine. Plaintiff also gave testimony
regarding Claimant’s inability to stay on task, i.e., she is unable
to sit down for a half hour doing homework. However, the ALJ did
4
While the discussion regarding the process for assessing
credibility refers only to DIB claims under title II and SSI claims
under title XVI by individuals 18 years or older, “the same basic
principles with regard to determining whether statements about
symptoms are credible also apply to claims of individuals under age
18 claiming disability benefits under title XVI.” SSR 96–7p, 1996
WL 374186, at *1 n. 1.
-24-
not indicate whether he credited that testimony. The ALJ also
failed
to
assess
Plaintiff’s
testimony
regarding
Claimant’s
impulsive and potentially dangerous behaviors, such as her tendency
to disappear from the house without letting anyone know and the
incident in which Claimant sent a photograph of a “private part” to
an adult over a cellular phone, which resulted in the involvement
of the police and FBI. These items of testimony are relevant and
probative of Claimant’s limitations in various of the domains of
functioning.
Defendant argues that the ALJ, by referring to some of
Plaintiff’s testimony in his decision, implicitly credited it. This
is insufficient to constitute the credibility assessment required
by the Commissioner’s regulations. See Warren ex rel. T.M.W., 2014
WL 200231, at *9 (finding that remand was required for the ALJ to
perform a credibility assessment where the ALJ summarized some of
the
claimant’s
mother’s
testimony,
but
did
not
assess
the
credibility of her statements about the claimant’s symptoms and
their functional effects). “In the absence of the required finding
on credibility, the reviewing court is unable to assess the weight
the ALJ gave to the witnesses’ statements, or the reasons for that
weight.” Id.
VII. Conclusion
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings is denied, and Plaintiff’s motion for
-25-
judgment on the pleadings is granted. The matter is remanded to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for
further administrative proceedings consistent with this Decision
and Order.
SO ORDERED.
S/Michael A. Telesca
________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
May 1, 2014
Rochester, New York
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