Williams v. Astrue
Filing
18
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 9 Commissioner's Motion for Judgment on the Pleadings; denying 12 Plaintiff's Cross Motion for Judgment on the pleadings; and dismissing the Complaint with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/2/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JOYCE WILLIAMS O/B/O TLW,
DECISION AND ORDER
No. 12-cv-6560(MAT)
Plaintiff,
-vsCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.
_______________________________
INTRODUCTION
Plaintiff, Joyce Williams (“Plaintiff” or “Williams”), on
behalf of TLW, a minor, filed this action pursuant to the Social
Security Act (“the Act”), codified at 42 U.S.C. § 405(g), seeking
review of a final decision of the Commissioner of Social Security
(“Commissioner”
or
“Defendant”),
denying
Supplemental Security Insurance (“SSI”).
her
application
for
On July 8, 2013, the
Commissioner moved for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure and on September 19,
2013, Plaintiff cross-moved for judgment on the pleadings.
For the reasons that follow, the Court finds that substantial
evidence supports the ALJ’s decision.
Accordingly, Plaintiff’s
motion for judgment on the pleadings is denied and Defendant’s
motion for judgment on the pleadings is granted.
PROCEDURAL HISTORY
On July 24, 2009, Plaintiff filed an application for SSI,
claiming
disability
since
May
29,
2009
due
to
a
learning
disability, which was denied.
Administrative Transcript [T.] 57-
62. On May 6, 2011, an administrative hearing was conducted before
an administrative law judge (“ALJ”), at which Plaintiff and TLW
testified.
T. 75-83.
On May 20, 2011, the ALJ issued a decision
finding that TLW was not disabled within the meaning of the Act.
T. 39-53.
On August 23, 2012, the Appeals Councils denied Plaintiff’s
request for review, making the ALJ’s Decision the final decision of
the Commissioner. T. 1-6. This action followed, wherein Plaintiff
alleges that TLW, who was 10-years-old at the time Plaintiff filed
her SSI claim, is disabled due to a learning disability/borderline
intellectual functioning and knee pain.
BACKGROUND
TLW’s Knee Pain
On December 15, 2009, Plaintiff was examined at Rochester
General Pediatric Associates (“RGPA”).
his physical examination was normal.
Treatment notes show that
RGPA assessed that TLW was
obese, was a “well teen,” and that he was physically fit for
physical education and sports.
Approximately
complaining
of
experienced
for
one
year
bilateral
the
T. 389-400.
past
later,
TLW
knee
pain
that
four
years.
returned
he
T.
to
claimed
413.
A
to
RGPA,
have
physical
examination was conducted, after which TLW was diagnosed as having
bilateral patellar femoral pain syndrome and obesity. T. 414. TLW
-2-
underwent
bilateral
knee
x-rays,
which
effusion and were otherwise normal.
showed
a
small
joint
T. 414, 422, 423.
On February 23, 2011, Plaintiff returned to RGPA and reported
improved knee pain.
T. 416.
His physical examination was normal
and treatment notes show that Plaintiff was physically qualified
for physical education, sports, and school activities. T. 419-420.
Consultative Examinations
On September 23, 2009, Christine Ransom, Ph.D., conducted a
Child/Adolescent Intellectual Evaluation of TLW.
T. 378-380.
Dr. Ransom observed that TLW’s attention and concentration were
adequate and noted that he obtained an IQ score of 73, which placed
him in the borderline range.
T. 379.
She also noted that TLW was
able to dress, bathe and groom himself at age-appropriate levels.
T. 380.
friends,
She noted that TLW reported enjoying spending time with
playing
hide-n-seek,
and
watching
movies.
T.
380.
Dr. Ransom opined that TLW would have mild difficulty attending to,
following and understanding age-appropriate directions, completing
age-appropriate tasks, requesting assistance in an age-appropriate
manner, and being aware of danger and taking needed precautions.
She reported that TLW was able to adequately maintain appropriate
social behavior, learn in accordance with cognitive functioning,
and interact adequately with his peers and adults.
T. 380.
The following month, TLW was examined by consultative medical
examiner Dr. Harbinder Toor.
T. 383-386.
Dr. Toor observed that
TLW related to him in an age-appropriate manner and appeared to
-3-
have a normal attention span for his age.
T. 384.
TLW had a
normal gait and was able to walk on his heels and toes with only
slight difficulty and with complaints of knee pain.
T. 384.
Upon
examination, TLW had no muscle atrophy, no cyanosis, no clubbing,
no edema, no signs of scoliosis or kyphosis, and his range of back
motion
was
movements.
normal.
T. 384.
TLW’s
knees
exhibited
normal
and
full
Dr. Toor opined that TLW had mild to moderate
limitations for standing, walking, squatting, bending and lifting
due to his complaints of pain in his knee and back.
He also opined
that moderate obesity interfered with TLW’s routine.
T. 386.
In November 2009, State Agency Psychiatrist Dr. K. Prowda and
State Agency Pediatrician Dr. J. Randall reviewed the record.
T. 387-392.
Doctors Prowda and Randall concluded that TLW’s
impairment or combination of impairments was severe, but did not
meet, equal, medically equal, or functionally equal a Listed
impairment.
T. 387.
Doctors Prowda and Randall found that TLW had
less than marked limitations in the domains of acquiring and using
information, and moving about and manipulating objects.
390.
T. 389-
They determined that TLW had no limitations in attending and
completing tasks, interacting and relating with others, caring for
oneself and health and physical well-being.
T. 389-390.
Evidence from TLW’s School
In a May 2009 Individualized Education Program (IEP) report
generated
by
TLW’s
school,
Arcadia
Middle
School
recommended
special education classes for TLW in ELA, math, science and social
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studies, and also recommended that TLW receive speech/language
therapy.
T. 370.
The IEP report also showed that TLW was
struggling to meet standards in math, reading, and writing, but
that some progress was evident since the prior year.
T. 375.
A November 2009 Speech and Language Evaluation Report showed
that TLW demonstrated overall expressive language scores, a core
language score, and a language memory score that were within the
average range when compared to his age-matched peers.
TLW’s
overall receptive language score was slightly below average.
It
was noted that, throughout the evaluation session, TLW required
minimum
prompting,
repetition
of
significant increased response time.
that
year,
which
determined
that
recommended.
Also
in
showed
speech
an
information,
exhibited
Based on TLW’s test scores
increase
language
and
from
therapy
2005,
the
services
school
were
not
T. 294.
November
Psychological Evaluation.
2009,
Plaintiff
underwent
a
School
School Psychologist Diane M. Wilson
(“Wilson”) reported that TLW displayed average working memory
skills and his visual perceptual reasoning skills were within the
low average range.
T. 316-318.
TLW’s performance on measures of
basic academic skills fell within the average for word reading,
reading comprehension, and sentence composition.
T. 316-318.
Wilson reported that TLW continued to need special education
supports, and the learning disability classification was deemed
appropriate given TLW’s challenges with visual perceptual reasoning
-5-
and processing speed and underachievement in mathematics.
T. 316-
318.
Another IEP conducted in November 2009 recommended special
education classes in ELA, math, science, social studies, and
resource room.
T. 257.
It was noted at that time that TLW’s
overall expressive language scores, core language score, and a
language memory score were within the average when compared to his
age-matched peers.
T. 259.
Teacher Questionnaires and TLW’s Report Cards
TLW’s June 23, 2009 report card indicates that he put forth
little effort in art, Italian and music, and a good effort in math,
physical education, science and social studies, and a high degree
of effort in the language arts.
T. 204.
TLW’s January 29, 2010 report card indicates that he put forth
a fair degree of effort in the resource room, social studies, and
math.
T. 201.
education.
He also put in a good degree of effort in physical
T. 201, 342.
In April 2011, TLW’s teacher, Deborah Arieno (“Arieno”),
completed a questionnaire, in which she indicated that TLW had a
third-grade reading level, although he was in ninth grade, and that
he was not meeting standards in math.
T. 344-351.
there an unusual degree of absenteeism with TLW.
Arieno noted
T. 344.
She also
noted that he had a “slight” to “serious problem” in particular
areas related to acquiring and using information, that he had “no
problem” to a “very serious problem” in particular areas related to
-6-
attending and completing tasks, and that he had “no problem” in any
area of interacting and relating with others, caring for himself,
and physical well-being.
T. 347.
Hearing Testimony
TLW was age 15 and in the ninth grade at the time of the
hearing.
T. 23.
5'5".
T. 18, 23, 29.
He took ibuprofen for his knee pain.
He weighed 205 pounds and his height was approximately
T. 23.
Plaintiff testified that TLW had knee pain that
affected his ability to play some sports.
T. 23.
Plaintiff testified that she first noticed that TLW had
academic difficulty in 2003.
T. 24.
TLW was receiving special
education services, but Plaintiff could not recall when they
started.
T. 25.
Plaintiff testified that she was in the process
of having TLW tested for ADHD “because the school psychologist
wanted him tested for that.”
T. 26.
She also testified that
Plaintiff did not have behavioral issues at school, except for
“some fights in eighth grade.”
T. 26.
According to her, TLW did
his chores at home, but needed reminding.
T. 27.
TLW testified that he had a lot of friends, and that he liked
to “talk” with his friends when he was not in class.
T. 30.
testified that he also “liked to skateboard and stuff.”
He
T. 30.
According to him, he had knee pain that affected his activities,
and he testified that it hurt for him to bend.
T. 30-31.
When
asked by the ALJ if he found himself being distracted at school, he
testified in the affirmative and explained that he “just star[es]
-7-
at something and . . . dose[s] off.”
that he is distracted at home.
T.
34.
He also testified
When asked for an example, TLW
stated, “[l]ike, when my mom asks me to clean my room . . . I just
won’t pay attention, I just won’t do it.”
T. 34.
TLW also testified that he was absent from school a lot
because he did not get enough sleep or because he was sick.
T. 35.
DISCUSSION
Pursuant to 42 U.S.C. § 405(g), the factual findings of the
Commissioner are conclusive when they are supported by substantial
evidence.
Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980).
The
statutory standard for children seeking SSI benefits based on
disability is
[a]n individual under the age of 18 shall be
considered disabled for the purposes of this
title if that individual has 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)(1).
In evaluating disability claims in children, the Commissioner
is required to use the three step process promulgated in 20 C.F.R.
§§ 416.924. First, the Commissioner must determine whether the
claimant is engaged in any substantial gainful activity.
Second,
if the claimant is not so engaged, the Commissioner must determine
whether the claimant has a “severe impairment” or combination of
impairments.
Third, the Commissioner must determine whether the
-8-
impairment or combination of impairments correspond with one of the
conditions presumed to be a disability by the Social Security
Commission,
that
the
impairment(s)
met,
medically
equaled
or
functionally equaled the severity of an impairment in the listings.
20 C.F.R. § 416.924.
In addition, the regulations provide for a single method for
determining functional equivalence based on domains of functioning.
20 C.F.R. § 416.926a(b)(1).
A child’s functional limitations will
be evaluated in the following six domains: (i) acquiring and using
information; (ii) attending and completing tasks; (iii) interacting
and relating with others; (iv) moving about and manipulating
objects; (v) caring for yourself; and (vi) health and physical
well-being.
20
C.F.R.
§
416.926a(b)(1)(i-iv).
A
medically
determinable impairment or combination of impairments functionally
equals a listed impairment if it results in “marked” limitations in
two domains of functioning or an “extreme” limitation in one
domain.
20 C.F.R. § 416.926a.
Here,
the
ALJ
followed
this
three-step
procedure
determined that Plaintiff was not disabled under the Act.
and
In the
ALJ’s decision dated May 20, 2011, ALJ Jennifer Whang found that
Plaintiff: (1) had not engaged in substantial gainful activity
since July 24, 2009, the application date; (2) had the severe
impairments of learning disorder/borderline functioning, and that
Plaintiff did not have the severe impairments of ADHD and knee
pain; and (3) did not have an impairment that meets or equals one
-9-
of
the
listed
impairments
listed
in
Appendix
1,
subpart
P,
Appendix 1, or functionally equaled the severity of an impairment
in the Listings.
T. 45-52.
Plaintiff contends that the ALJ erred when she found less than
marked limitations in the functional domains of “acquiring and
using information” and “attending and completing tasks.”
No. 1 at ¶ 7, Dkt. No. 12-2 at 1, 11.
Dkt.
For the reasons stated
below, the Court finds that there is substantial evidence to
support the ALJ’s decision.
A.
“Acquiring and Using Information” Domain
Plaintiff
argues
that
although
the
ALJ
mentioned
the
statements of teacher Arieno and “that ‘examiners from the Greece
Central School District’ found TLW struggles with reading and needs
extended time to read through material, or with a reading partner
to assist him[,]” the ALJ failed to described what weight she
afforded these opinions “or what led [her] to the conclusion that
TLW had less than marked difficulty in this domain.”
Dkt. No. 12-2
at 15-16.
The domain of acquiring and using information addresses how
well a child learns information and how well the child uses the
information that he has learned.
case,
the
ALJ
disorder/borderline
20 C.F.R. § 416.926a(g).
acknowledged
intellectual
that
TLW
functioning
abilities in this domain. T. 45, 48.
In this
has
a
learning
that
affects
his
The ALJ explicitly took note
of Arieno’s statement that TLW had problems comprehending oral
-10-
instructions,
reading
and
comprehending
written
material
and
learning new material, and expressing ideas in written form.
T. 48.
Additionally, the ALJ took note that examiners from TLW’s
school found that he struggles with reading and needs extra time to
read through materials or needs a reading partner to assist him.
T. 49.
However, the ALJ also took into account that TLW had overall
done well in school and had been successful with assistance from
consultant teachers and services (T. 258-259, 294), and noted that
TLW “worked well at his own pace.”
T. 48, 371.
Further, the ALJ’s
finding was supported by the opinions of doctors Prowda and Randall
who opined that TLW had “less than marked” limitations, noting that
“[TLW] was in regular classes with resource room.”
T. 389.
Indeed, the opinion of a non-examining source, such as a state
agency physician, can constitute substantial evidence in support of
an ALJ’s determination where, as here, it is consistent with the
record as a whole.
See Leach ex. Rel. Murray v. Barnhart, No. 02
Civ. 3561, 2004 WL 99935, at *9 (S.D.N.Y. Jan. 22, 2004) (“State
agency physicians are qualified as experts in the evaluation of
medical issues in disability claims.
As such, their opinions may
constitute substantial evidence if they are consistent with the
record as a whole.”);
Hickman ex rel. M.A.H. v. Astrue, 728 F.
Supp. 2d 168, 178 (N.D.N.Y. 2010) (same).
-11-
Thus, the Court concludes that the ALJ’s determination that
Plaintiff has less than marked limitations in acquiring and using
information is supported by substantial evidence.
B.
“Attending and Completing Tasks” Domain
Plaintiff claims that, in arriving at her determination that
Plaintiff had less than marked limitations in this domain, the ALJ
failed to properly account for the opinions of school psychologist
Michael H. Henrichs (“Henrichs”), Ph.D. and teacher Arieno.
In support of this contention, Plaintiff points out that, in
November 2006, Henrichs found that “‘behavioral ratings by [TLW’s]
parents
and
teachers
indicate
difficulty
with
cognitive
problems/inattention to school.’” Dkt. No. 12-2 at 17.
Plaintiff
also points out that Henrichs recommended that TLW be evaluated by
his pediatrician for ADHD and that modifications in the classroom
should increase.
Id.
Additionally, Plaintiff points out that, in
2011, Arieno found that TLW had a “very serious problem” in various
areas related to his ability to attend and complete tasks.
17-18.
Plaintiff
Plaintiff
had
a
also
points
“serious
out
problem”
that Arieno
carrying
Id. At
reported that
out
multi-step
instructions, and stated in her 2011 report that TLW requires “‘a
lot of 1:1 adult support and extra time to complete all tasks[,]
[h]e is often distracted by himself . . . and others[,] [and]
[that] [h]e typically needed things explained two or more times and
completed more work with direct assistance.’” Id. at 18.
-12-
The domain of attending and completing tasks gauges how well
a
child
is
able
§ 416.926a(h).
to
focus
and
maintain
attention.
20
C.F.R.
Some examples of limited functioning include: (1)
being “easily startled, distracted, or over reactive to sounds,
sights, movements, or touch”; (2) “being slow to focus on, or fail
to
complete
activities
of
interest”;
(3)
becoming
repeatedly
sidetracked from activities or frequently interrupting others; and
(4) being easily frustrated and giving up on tasks.
See 20 C.F.R.
§ 416.926a(h)(3)(i)-(v).
In this case, the ALJ acknowledged that TLW had problems
paying attention when spoken to directly and carrying out multiple
step instructions that would affect his abilities in this domain.
The ALJ took note of Arieno’s statement that TLW required adult
support and extra time to complete tasks, and that he is often
distracted by himself.
T. 49.
However, in arriving at her
determination that Plaintiff had less than marked limitation in
this area, she took into account Arieno’s statements that TLW had
“no problem” in other areas in this domain, including carrying out
single-step instructions, waiting to take turns, changing from one
activity
to
another
without
being
disruptive,
“completes more work with directed assistance.”
and
that
TLW
T. 49, 346.
Moreover, the ALJ properly discounted the opinion of state agency
medical consultants Prowda and Randall who assessed “no limitation”
in this area, given that they provided no remarks or rationale with
respect to this domain and because their assessment was contrary to
-13-
the other evidence in the record which showed, overall, that while
Plaintiff’s focusing and attention skills were deficient in certain
respects, he was able to successfully engage himself, maintain
focus, and complete tasks with support and additional time. Id.
Accordingly, the Court concludes that the ALJ’s determination
that Plaintiff has less than marked limitations in attending and
completing tasks is supported by substantial evidence.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings is
granted (Dkt. No. 9), Plaintiff’s cross-motion for judgment on the
pleadings (Dkt. No. 12) is denied and the Complaint (Dkt. No. 1) is
dismissed with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
April 2, 2014
Rochester, New York
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