Gallo v. Colvin
Filing
13
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Motion for Judgment on the Pleadings; granting 10 Motion for Judgment on the Pleadings; and dismissing the Complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/11/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
PAUL MICHAEL GALLO,
DECISION AND ORDER
No. 13-CV-06528(MAT)
Plaintiff,
-vsCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.
_______________________________
INTRODUCTION
Plaintiff Paul Michael Gallo (“Plaintiff” or “Gallo”), filed
this action, pursuant to Title XVI of the Social Security Act (“the
Act”), codified at 42 U.S.C. §§ 405(g) and 1383(c), seeking review
of
a
final
decision
(“Commissioner”
or
of
the
Commissioner
“Defendant”),
denying
of
his
Social
Security
application
for
Supplemental Security Insurance (“SSI”).
Currently 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, I grant
the Commissioner’s motion, deny the Plaintiff’s motion, and dismiss
the Complaint.
PROCEDURAL HISTORY
On July 7, 2010, Plaintiff filed an application for SSI,
alleging disability as of May 14, 1997 due to autism.
Plaintiff
subsequently amended the alleged onset date to the filing date.
Administrative Transcript [T.] 37.
The application was denied on
October 14, 2010.
T. 71-75.
A hearing was held on October 13,
2011 before administrative law judge (“ALJ”) Milagros Farnes.
Plaintiff, his mother, and vocational expert (“VE”) Diane L. Haller
testified at the hearing.
T. 21-57.
On January 6, 2012, the ALJ
issued a decision finding that Plaintiff was not disabled since
May 23, 2010, the day Plaintiff attained age 18, through January 6,
2012, the date of the ALJ’s decision.
T. 28.
On June 21, 2013, the Appeals Councils denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of
the Commissioner.
T. 1-7.
This action followed.
FACTUAL BACKGROUND
Plaintiff was born in 1992 and was 18 years old on July 7,
2010 when he filed his SSI application.
T. 208, 37.
After
graduating from high school in June 2011, Plaintiff participated in
a vocational training program where he shadowed different jobs.
T. 39-41.
Plaintiff testified that he had a driving permit and was
learning to drive at the time of the hearing.
Plaintiff testified
further that he had participated in special education when he was
in school, that he had been diagnosed with autism, and that his
autism affects his ability to learn and interact with others.
T. 41-42.
He testified that he has two friends from high school,
but that he has not seen them since graduating.
T. 42.
Plaintiff testified that on a typical day, he wakes up, eats
breakfast, watches TV, cares for his cat, plays games and does
-2-
chores around the house either of his own volition or when his
parents leave him a list of things to do.
T. 43.
Further,
Plaintiff testified that he reads fantasy or adventure books, helps
his parents grocery shop, fishes with his father, and takes martial
arts classes.
T. 44-45.
Relevant Medical and School Evidence
Plaintiff’s school records show that he was diagnosed with
autism as a child and received home and school-based services with
respect thereto throughout his life. T. 163-207, 211-218, 251-268,
306-313, 319-331, 333-344, 349, 351-362, 366-468, 509-510, 529-542,
553, 556-557, 572-586, 489-616, 647-655.
In a Speech/Language Progress Summary report dated May 3,
2010, speech pathologist for the Marion Central School District
Robin Pembroke (“Pembroke”) reported that Plaintiff was currently
undergoing speech/language therapy to address pragmatic language
delays.
Pembroke noted that Plaintiff had difficulty remaining
focused on topics that did not interest him and knowing when to end
discussions.
Pembroke
recommended
that
Plaintiff
continue
speech/language therapy services throughout the 2009-2010 school
year.
T. 514.
An Individualized Education Program (“IEP”) report generated
by Plaintiff’s school dated May 19, 2010 reflects that Plaintiff
was in twelfth grade at that time and had difficulty with thinking
abstractly,
processing
speed,
grapho-motor
language skills, and organization.
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skills,
T. 164-165.
speech
and
Also on May 19,
2010, Plaintiff saw school social worker Cathy Grasso (“Grasso”),
who reported that Plaintiff was pleasant and hard-working, he
completed his work and was doing “very well.”
She noted further
that Plaintiff appeared anxious about interactions with people in
a work setting in person or on the phone.
Grasso recommended that
Plaintiff work on adjusting from high school to post-high school in
the upcoming year.
T. 515.
On September 3, 2010, Plaintiff met with pediatrician Elliot
Kaplan, M.D. for a college physical.
T. 346-348.
Dr. Kaplan
diagnosed Asperger’s disorder, but noted that Plaintiff was “very
high functioning - doing well.”
otherwise normal.
T. 347.
The examination was
T. 346-348.
On September 27, 2010, psychologist Christine Ransom, Ph.D.
performed a consultative examination of Plaintiff and diagnosed
Plaintiff with social phobia, currently mild.
recommended
psychiatric
intervention
for
T. 288.
social
Dr. Ransom
anxiety,
and
indicated that his prognosis was “fair” to “good” with treatment.
Dr. Ransom assessed that Plaintiff could follow and understand
simple
directions
independently;
tasks;
and
instructions;
perform
simple
tasks
maintain attention and concentration for simple
maintain a regular schedule and learn simple new tasks.
She opined that Plaintiff would have “mild” difficulty performing
complex tasks, relating adequately with others, and appropriately
dealing with stress due to social phobia.
-4-
T. 288.
On September 8, 2011, Dr. Kaplan completed an affidavit in
connection
mother.
with
a
guardianship
T. 561-564.
petition
filed
by
Plaintiff’s
Dr. Kaplan indicated that he had last seen
Plaintiff in September 2010.
He diagnosed Asperger’s disorder and
indicated
was
that
Plaintiff
“high-functioning”
with
some
limitations in insight and socially appropriate behavior.
Dr.
Kaplan opined that Plaintiff was incapable of making healthcare
decisions for himself.
T. 564.
On September 14, 2011, pediatrician David Breen, M.D. also
completed
an
affidavit
in
connection
petition.
Dr. Breen reported that he examined Plaintiff that day,
and diagnosed him with autism.
with
the
guardianship
Dr. Breen reported that Plaintiff
spoke in a soft voice and was pleasant and cooperative.
He opined
that Plaintiff was incapable of making healthcare decisions for
himself.
T. 567-568.
The VE’s Testimony
At
the
hypothetical
hearing,
the
individual
of
ALJ
asked
the
Plaintiff’s
VE
age,
to
consider
education,
a
and
vocational profile, who had no exertional limitations, but was
limited to simple, routine tasks and working in a low stress
environment with occasional decision-making, occasional changes in
work setting, occasional judgment required, no production and pace
work, who needed to be reminded of tasks twice per day, and also
requires a ten minute break every two hours.
-5-
T. 59-60.
The VE
testified that such an individual could work as a sorter, grocery
bagger, or laundry worker.
T. 59-60.
DISCUSSION
I. Jurisdiction and Scope of Review
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
The
section directs that when considering such a claim, the Court must
accept the findings of fact made by the Commissioner, provided that
such findings are supported by substantial evidence in the record.
Substantial evidence is defined as “‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’”
Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
Section 405 (g) limits the scope of the Court’s review to two
inquiries: determining whether the Commissioner’s findings were
supported by substantial evidence in the record as a whole, and
whether the Commissioner’s conclusions are based upon an erroneous
legal standard.
Green-Younger v. Barnhart, 335 F.3d 99, 105-06
(2d Cir. 2003).
Under Rule 12(c), judgment on the pleadings 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, 642
(2d Cir. 1988).
A party’s motion will be dismissed if, after a
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review of the pleadings, the Court is convinced that the party does
not set out factual allegations that are “enough to raise a right
to relief beyond the speculative level.”
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
II.
The Commissioner’s Decision Denying Plaintiff Benefits is
Supported by Substantial Evidence in the Record
The ALJ evaluated Plaintiff’s claim for benefits under the
disability standards for both adults and children, although the ALJ
ultimately determined that Plaintiff was not disabled since May 23,
2010 (the date he turned age 18) through January 6, 2012 (the date
of the ALJ’s decision).
A.
T. 16-24.
The Disability Standard for Children
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
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whether the claimant has a “severe impairment” or combination of
impairments.
Third, the Commissioner must determine whether the
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.
Here,
the
ALJ
followed
this
three-step
determined that Plaintiff was not disabled.
procedure
and
The ALJ found that
Plaintiff: (1) had not engaged in substantial gainful activity
since the application was filed; (2) had the severe impairment of
autism before attaining age 18; and (3) did not have an impairment
that meets or equals one of the Listed Impairments listed in
Appendix 1, Part A or B, or functionally equaled the severity of an
impairment in the Listings before attaining age 18.
B.
T. 16-17, 24.
The Disability Standard for Adults
The Social Security Administration has promulgated a five-step
sequential analysis that the ALJ must adhere to for evaluating
disability claims for adults.
20 C.F.R. § 404.1520.
Pursuant to
this inquiry:
First, the Commissioner considers whether the
claimant is currently engaged in substantial
gainful
activity.
If
he
is
not,
the
Commissioner considers whether the claimant
has a “severe impairment” which significantly
limits his ability to do basic work activity.
If the claimant has such an impairment, the
Commissioner considers whether, based solely
on medical evidence, the claimant has an
-8-
impairment which is listed in Appendix 1,
Part 404, Subpart P. If the claimant does not
have a listed impairment, the Commissioner
inquires whether, despite the claimant's
impairment, he has the residual functional
capacity to perform his past work. If he is
unable
to
perform
his
past work,
the
Commissioner determines whether there is other
work which the claimant can perform.
Berry v. Schweiker, 675 F.2d 464, 466-67 (2d Cir. 1982).
The ALJ found that:
Plaintiff did not engage in substantial
gainful activity since the date the application was filed;
that
since attaining age 18, he has continued to have the severe
impairment of autism, but that Plaintiff did not have an impairment
or combination of impairments that meets or medically equals the
severity of one of the Listed Impairments; that Plaintiff has the
residual functional capacity (“RFC”) to perform a full range of
work at all exertional levels but with certain non-exertional
limitations; and that, considering Plaintiff’s age, education,
vocational
profile
and
RFC,
there
are
jobs
that
exist
in
significant numbers in the national economy that Plaintiff can
perform. Therefore, the ALJ concluded that Plaintiff was not
disabled from May 23, 2010 through January 6, 2012.
T. 24-28.
III. The ALJ’s RFC Assessment
Plaintiff contends that the ALJ’s RFC assessment is flawed
because the ALJ failed to: (1) account for Plaintiff’s difficulty
with
social
interactions;
and
(2)
adequately
account
for
Plaintiff’s limitations regarding concentration, persistence, and
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pace.
Pl’s Mem (Dkt. No. 9) at 12-17.
The Commissioner maintains
that the ALJ’s RFC adequately accounted for Plaintiff’s limitations
and is supported by substantial evidence.
Def’s Mem (Dkt. No. 10)
at 12-16.
In assessing a claimant’s RFC, the ALJ must consider all of
the relevant medical and other evidence in the case record to
assess
the
sensory,
claimant’s
and
other
§ 404.1545(a)(3)-(4);
ability
to
meet
requirements
the
of
physical,
work.
20
mental,
C.F.R.
see also SSR 96-8p, SSR LEXIS 5, 1996 WL
374184 (S.S.A. July 2, 1996).
Here, after considering the entire
record, the ALJ determined that Plaintiff had the RFC “to perform
a full range of work at all exertional levels but with the
following non-exertional limitations: the claimant is limited to
work
consisting
of
simple,
routine
tasks
in
low
stress
environments, with only occasional changes in the work setting,
occasional decision-making, occasional use of judgment, and no
production pace requirements. The claimant must be reminded of his
work task twice a day, and requires a ten-minute break every two
hours.”
treatment
T. 25.
notes
As the ALJ explained, this RFC was supported by
from
Plaintiff’s
treating
opinion of consultative examiner Dr. Ransom.
physicians
and
the
T. 27.
Specifically, Plaintiff saw pediatrician Dr. Kaplan in early
September 2010 for a college physical.
T. 326-348.
Dr. Kaplan
noted that Plaintiff was active in Tai Kwan Do, was running track,
and enjoyed working with and learning about animals, history, and
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culture. T. 346.
appearing
T. 347.
Plaintiff
T. 347.
He also reported that Plaintiff was a “[h]ealthy
adolescent, well
nourished,
alert
and
interactive.”
Dr. Kaplan assessed Asperger Syndrome, but noted that
was
“[v]ery
[h]igh
functioning”
and
“doing
well.”
Approximately one year later, Dr. Kaplan completed an
affidavit in connection with a guardianship petition filed by
Plaintiff’s
mother.
T.
561-564.
At
that
time,
Dr.
Kaplan
diagnosed Asperger’s disorder but again indicated that Plaintiff
was “high-functioning,” noting only “some limitations in insight
and socially appropriate behavior.”
Similarly,
pediatrician
Dr.
T. 562.
Breen
examined
Plaintiff
in
September 2011, and completed an affidavit in connection with the
guardianship petition filed by Plaintiff’s mother.
Dr. Breen
diagnosed autism, and reported that Plaintiff was “ambulatory and
able to speak in a soft voice.”
“pleasant and cooperative.”
Likewise,
the
findings
Dr. Breen noted that Plaintiff was
T. 566.
and
observations
of
consultative
examiner Dr. Ransom also supported the ALJ’s RFC determination.
Specifically, Dr. Ransom assessed social anxiety, but assessed that
Plaintiff
could
instructions;
follow
perform
and
understand
simple
tasks
simple
directions
independently;
and
maintain
attention and concentration for simple tasks; maintain a regular
schedule and learn simple new tasks.
She opined that Plaintiff
would have mild difficulty performing complex tasks, relating
adequately with others, and appropriately dealing with stress due
-11-
to his social phobia, which she reported as “currently mild.”
T. 288.
The opinion of a consultative examiner can constitute
substantial evidence where, as here, it is consistent with the
other evidence in the record.
See generally Diaz v. Shalala, 59
F.3d 307, 315 (2d Cir. 1995) (opinions of consultative physicians
can constitute substantial evidence); see also Mongeur v. Heckler,
722 F.2d 1033, 1039 (2d Cir. 1983) (same).
Despite the ALJ’s thorough discussion of the above evidence,
Plaintiff argues that remand is warranted on account of the ALJ’s
failure
to
account
for
or
discuss
State
Agency
psychologist
Dr. Harding’s opinion that Plaintiff was “moderately” limited in
various areas of social functioning.
Pl’s Reply at 4.
Pl’s Mem at 12-14; see also
The Court rejects this argument.
Initially, the
ALJ was not required to mention or discuss every single piece of
evidence in the record.
1040 (2d Cir. 1983);
See Mongeur v. Heckler, 722 F.2d 1033,
Berry v. Schweiker, 675 F.2d 464, 469
(2d Cir. 1982); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981).
In any event, the record reflects that while Dr. Harding opined in
October 2010 that Plaintiff was “moderately” limited in some areas
of social functioning, he also determined that Plaintiff was “not
significantly
concluded
limited”
that, despite
in
others.
Plaintiff’s
Ultimately,
“moderate”
Dr.
Harding
limitations
in
various areas, he was still “capable of performing simple tasks.”
T. 68.
Dr. Harding’s conclusion, therefore, was consistent with
the other evidence in the record (discussed above), which showed
-12-
that Plaintiff’s autism resulted in some functional limitations,
but that these limitations did not prevent him from performing work
all types of work.
Plaintiff also argues that the ALJ’s RFC assessment is flawed
because it did not explicitly account for social worker Grasso’s
statement that Plaintiff was “anxious” about working with people in
person and on the phone.
Pl’s Mem at 15.
this argument for several reasons.
There is no merit to
First, social workers, like
Grasso, are not acceptable medical sources.
20 C.F.R. §§ 416.902,
416.927(d). “[O]nly ‘acceptable medical sources’ can be considered
treating sources . . . whose medical opinions may be entitled to
controlling weight.”
SSR 06-3p, 2006 SSR LEXIS 5.
The ALJ has
discretion to determine appropriate weight to accord opinions of
other medical sources.
(2d Cir. 1995).
See Diaz v. Shalala, 59 F.3d 307, 313-314
In this case, the ALJ properly discounted this
portion of her opinion to the extent it was not consistent with the
other evidence in the record, namely Dr. Ransom’s assessment that
Plaintiff’s social phobia was “mild” and that Plaintiff only had
“mild” limitations in relating to others.
T. 288.
Grasso’s
statement was also inconsistent with Plaintiff’s own statements
that he had at least two friends from high school, participated in
vocational training programs, and engaged in martial arts classes.
Further, Plaintiff argues that the ALJ’s RFC finding is flawed
because
it
did
not
account
for
his
mother’s
Plaintiff has difficulty recognizing social cues.
-13-
testimony
that
Pl’s Mem at 15.
The Court finds this argument unavailing.
“As a fact-finder, an
ALJ is free to accept or reject the testimony of a parent.”
F.S.
v. Astrue, 2012 U.S. Dist. LEXIS 18865, 2012 WL 514944, at * 19
(N.D.N.Y. Feb. 15, 2012).
decision
that
he
It is evident from the text of the ALJ’s
considered
the
lay
witness
testimony
of
Plaintiff’s mother, as he summarized her testimony at page 25 of
the
administrative
transcript.
He
specifically
included
a
discussion of her testimony that Plaintiff’s autism “caused delays
in processing, difficulty understanding social cues . . . and
experiences difficulty keeping on task.”
T. 25, 50.
Although the
ALJ did not expressly state the weight he afforded to Plaintiff’s
mother’s testimony, he did discuss the testimony in such a way as
to make it clear to a reviewer of the decision that he did not
fully credit it.
When “the evidence of record permits us to glean
the rationale of an ALJ’s decision, we do not require that he have
mentioned
every
item
of
testimony
presented
to
him
or
have
explained why he considered particular evidence unpersuasive or
insufficient to lead him to a conclusion of disability.”
Mongeur,
722 F.2d at 1040 (citing Berry v. Schweiker, 675 F.2d 464, 469
(2d Cir. 1982)).
As the ALJ explained, Plaintiff’s mother’s
testimony was not consistent with his own observations at the
hearing “that the claimant was able to testify without significant
difficulty, spoke in an appropriate manner, and did not display any
actions
or
behaviors
inappropriate.”
T. 25.
that
could
be
construed
as
socially
Moreover, Plaintiff’s mother’s testimony
-14-
was also inconsistent with Plaintiff’s reported daily activities,
which included participating in martial arts classes, having at
least two friends from high school, and that he participated in
vocational training programs.
T. 224, 228, 366-557.
Further
still, Plaintiff’s mother’s testimony was inconsistent with the
particular
was
observation of pediatrician Dr. Breen that Plaintiff
“alert and interactive.”
Finally, the Court finds no merit to Plaintiff’s argument that
the
ALJ
failed
to
take
into
account
Plaintiff’s
regarding concentration, persistence and pace.
limitations
In support of this
argument, Plaintiff points to various school records which show
that Plaintiff “consistently had difficulty maintaining attention
for tasks[.]”
Pl’s Mem at 16.
As an initial matter, the Court
notes that some of the school/childhood records Plaintiff points to
in support of this contention –- i.e., T. 196-197, 385, 391, 392 –significantly pre-date the relevant time period.
the
ALJ
pointed
school/childhood
out
records
in
his
showed
decision,
that
his
In any event, as
while
autism
Plaintiff’s
affected
his
ability to maintain concentration, persistence and pace, it did so
only to a “mild” to “moderate” degree. T. 25-26.
for Plaintiff’s
diminished
ability
to
The ALJ accounted
maintain concentration,
persistence and pace in his non-exertional limitation assessment by
limiting Plaintiff to work consisting of simple, routine tasks in
low-stress environments, with only occasional changes in the work
setting, occasional decision-making, occasional use of judgment, no
-15-
production-pace requirements, that he must be reminded of his work
task twice a day, and that he requires a break every two hours.
T. 24-25.
In sum, the Court finds that the ALJ’s RFC was proper as a
matter of law and is supported by substantial evidence in the
record.
IV.
The Disability Standard & the ALJ’s Step 3 Determination
Plaintiff argues that the ALJ erred by applying the childhood
disability standard to Plaintiff’s case, despite the fact that he
was an adult during the relevant time period.
Pl’s Mem. at 18.
He
also argues that the ALJ erred at Step 3 of his analysis in
determining that Plaintiff’s autism did not meet or medically
equally Listing 12.10.
Id. at 18-19; see also Reply at 2-3.
The
Commissioner counters, arguing that the ALJ properly applied the
adult disability standard and his Step 3 analysis is supported by
substantial evidence.
Def’s Mem at 9-10.
The Court finds no merit to Plaintiff’s argument that the ALJ
erred in applying the childhood disability standard to his claim.
As stated above, Plaintiff amended his alleged onset date to the
date he filed his SSI application (July 7, 2010), and the ALJ
analyzed Plaintiff’s claim under both the childhood disability
standard (for the period prior to his 18th birthday) and the adult
disability standard (for the period after his 18th birthday, which
included the time beginning on July 7, 2010).
T. 12-28.
The ALJ
ultimately concluded that Plaintiff was not disabled since May 23,
-16-
2010, the day he attained age 18, and thus it was not necessary for
him to even analyze the claim under the disability standard.
In his Reply (Reply at 1-2), Plaintiff claims that the ALJ’s
additional analysis was prejudicial to him because it “detracted
from a proper evaluation under the adult standard.”
The Court rejects this argument.
Reply at 1.
A review of the decision and the
related record shows that the ALJ properly set forth and analyzed
Plaintiff’s claim under the five-step adult disability standard.
Moreover, the additional analysis under the childhood disability
standard, if anything, was beneficial to Plaintiff because it
helped
to
provide
a
complete
and
more
detailed
account
of
Plaintiff’s history of autism over the course of his life.
The Court also finds no merit to Plaintiff’s contention that
the ALJ erred at Step 3 of his analysis in determining that
Plaintiff’s autism did not meet or medically equal Listing 12.10.
In analyzing Plaintiff’s claim under the adult disability standard,
the ALJ stated, “I have reviewed the record as a whole and find
that the severity of the claimant’s severe impairment does not meet
or equal any section of the Social Security listing.”
T. 24.
While Plaintiff is correct in pointing out that the ALJ did not
explain how he arrived at this conclusion or specify any particular
Listing he considered, he did state that he considered Listing
112.10
(Autistic
Disorder
and
Other
Pervasive
Developmental
Disorders) when reviewing Plaintiff’s claim under the childhood
-17-
disability standard, and the language of that Listing which mirrors
the language for adult disability Listing 12.10 (Autistic Disorder
and Other Pervasive Developmental Disorders).
To meet the requirements of Listing 112.10, a claimant first
must have an autistic disorder or other pervasive development
disorder characterized by “qualitative deficits" in development of
reciprocal social interaction, verbal and nonverbal communication
skills, and imaginative activity.
exhibit
a
markedly
restricted
In addition, the claimant must
repertoire
of
activities
and
interests (Paragraph “A” criteria). See 20 C.F.R., Pt. 404, Subpt.
P, App. 1, § 112.10(A).
Second, the claimant must establish that
his disorder results in at least two marked impairment-related
functional
limitations
§ 112.10(B).
(Paragraph
“B”
criteria).
Id.,
at
Here, the ALJ reviewed the record and determined
under the child disability standard that the record “does not
evidence qualitative deficits in the development of reciprocal
social interactions or qualitative deficits in verbal and nonverbal
communication and imaginative play.
Nor does the claimant’s
records evidence markedly restricted repetoire of activities and
interests.
T. 19 (citing Exs. 1F to 25F).
The ALJ discussed, in
detail, the evidence supporting this conclusion when he analyzed
Plaintiff’s claim under the child disability standard.
T. 19. For
example, he pointed out that despite Plaintiff’s autism, he was
able to obtain a high school diploma.
-18-
T. 19.
He also noted that
school speech pathologist Pembroke reported in early May 2010 that
Plaintiff’s receptive language was within the low end of the normal
range and that he exhibited only “mild” delays, his expressive
language
showed
only
moderate
limitation,
and
his
language was within the mild to moderate range.
pointed
out
that
Plaintiff’s
treatment
notes
pragmatic
The ALJ also
from
Continuing
Development Services dated from 2007 to 2010 showed that Plaintiff
did not require any adaptive equipment or environment modification.
The ALJ also noted that Plaintiff was independent in the areas of
the community he was familiar with, could be left alone for up to
8 hours, and did not require supervision while being transported.
T. 19 (citing Exs. 1F through 25F).
While the ALJ did not
separately perform a similar analysis when reviewing Plaintiff’s
claim under the adult disability standard at Step 3, there is no
evidence suggesting that Plaintiff’s condition deteriorated after
his 18th birthday in any meaningful way that would have altered the
ALJ’s analysis.
Moreover, as
the
ALJ noted
when
evaluating
Plaintiff’s RFC at Step 4 (T. 25-26), the evidence in the record
showed that Plaintiff “can generally perform his activities of
daily living in an age-appropriate manner, can interact socially
with
only
mild
to
moderate
limitations,
and
can
maintain
concentration, persistent and pace with a mild to moderate degree
of difficulty.” T. 26. The ALJ pointed out that Plaintiff’s speech
delays
lessened
over
the
course
-19-
of
his
schooling,
and
that
Plaintiff was able to maintain a conversation with him at the
hearing “without significant difficulty.”
T. 26.
He also pointed
out that Plaintiff reported being able to use the microwave,
toaster, and prepare meals for himself, is able to self-medicate,
can exist in his home independently in the case of an emergency,
and can handle small amounts of money on a weekly basis.
T. 26,
366-557.
As a final matter, the Court rejects Plaintiff’s argument that
the ALJ was derelict in his duty to develop the record by failing
to
obtain
the
opinion
of
a
medical
Plaintiff’s autism equaled a Listing.
expert
to
determine
Pl’s Mem. at 20.
if
He cites
to SSR 96-6p in support of his contention, which provides that the
ALJ must obtain an updated medical opinion from a medical expert:
1. When no additional medical evidence is
received,
but
in
the
opinion
of
the
administrative law judge, of the Appeals
Council the symptoms, signs, and laboratory
findings reported in the case record suggest
that a judgment of equivalence may be
reasonable; or
2. When additional medical evidence is
received
that
in
the
opinion
of
the
administrative law judge or the Appeals
Council may change the State agency medical or
psychological consultant's finding that the
impairment(s) is not equivalent in severity to
any impairment in the Listing of Impairments.
Neither situation considered by SSR 96-6p, 1996 SSR LEXIS 3 is
present in this case.
First, the record contains an opinion from
a medical expert that no Listing was met or equaled. Specifically,
-20-
State Agency consultant Dr. Harding reviewed the evidence in the
file and determined that Plaintiff was not disabled.
305.
T. 68, 290-
Dr. Harding found that Plaintiff’s autism did not meet or
equal any Listed Impairment, and he also reported that Plaintiff
had some friends, his thought processes were goal-directed and
coherent, his attention, concentration, and memory were intact, his
insight and judgment were good and he could perform most household
chores.
T. 68.
The opinions of non-examining physicians can
constitute substantial evidence when, as here, they are consistent
with other medical evidence of record.
Diaz v. Shalala, 59 F.3d
307, 313 n. 5 (2d Cir. 1995).
Nor does Plaintiff meet the second criteria of SSR 96-6p, 1996
SSR
LEXIS
3.
Neither
Plaintiff
nor
the
record
present
any
additional medical evidence received after Dr. Harding’s findings
that could reasonably be expected to change his opinion.
Accordingly, the Court finds that the ALJ’s Step 3 analysis is
proper as a matter of law and is supported by substantial evidence
in the record.
V.
The ALJ’s Credibility Determination
Plaintiff argues that the ALJ’s credibility determination is
flawed because it “is unclear for what reasons the ALJ found
Plaintiff ‘not entirely credible,’” it failed to consider the
“extensive measures Plaintiff and his family took throughout his
lifetime to manage his symptoms,” and because it failed to consider
-21-
that Plaintiff “required a highly supportive environment both at
school and at home.”
Pl’s Mem at 20-21.
The Commissioner
maintains that the ALJ properly assessed Plaintiff’s credibility
and his determination is supported by substantial evidence.
Def’s
Mem at 15-16.
A claimant’s statements of pain or other subjective symptoms
cannot alone serve as conclusive evidence of disability. Genier v.
Astrue,
606
F.3d
§ 404.1529(a)).
46,
49
(2d.
Cir.
2010)
(citing
20
C.F.R.
In evaluating a claimant’s assertions of his
subjective symptoms, the ALJ must follow a two-step analysis.
First,
the
determinable
produce
ALJ
determines
impairment
the
symptoms
§ 404.1529(b)).
if
that
a
claimant
could
has
reasonably
alleged.”
Id.
a
be
Id.
“medically
expected
(citing
20
to
C.F.R.
Second, if an impairment of that nature is
present, the ALJ must then determine “the extent to which [the
claimant’s] symptoms can reasonably be accepted as consistent with
the
objective
medical
administrative record.
evidence
and
other
evidence”
in
the
Id. (alteration in original) (quoting
20 C.F.R. § 404.1529(a).
If
the
plaintiff
offers
statements
about
pain
or
other
symptoms that are not substantiated by the objective medical
evidence, “the ALJ must engage in a credibility inquiry.”
Meadors
v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (summary order)
(citing 20 C.F.R. § 404.1529(c)(3)).
-22-
In making this credibility
determination,
the
ALJ
must
consider
seven
factors:
(1)
the
claimant’s daily activities; (2) the location, duration, frequency,
and intensity of pain or other symptoms; (3) any precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side
effects of any medications taken; (5) other treatment received;
(6) other measures taken to relieve symptoms; and (7) any other
factors concerning the individual’s functional limitations and
restrictions
due
to
pain
§ 404.1529(c)(3)(i)-(vii);
n.1.
or
other
symptoms.
20
C.F.R.
see also Meadors, 370 F. App’x at 184
“Because the ALJ has the benefit of directly observing a
claimant’s demeanor and other indicia of credibility,” his decision
to discredit subjective testimony is “entitled to deference” and
may not be disturbed on review if his disability determination is
supported
by
substantial
evidence.
Brown
v.
Astrue,
No. CV-08-3653, 2010 U.S. Dist. Lexis 62348, at *19 (E.D.N.Y. June
22, 2010) (citing Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir.
1999); Aponte v. Sec’y of Health and Human Servs., 728 F.2d 588,
591 (2d Cir. 1984)).
Here,
following
the
two-step
analysis
for
evaluating
a
claimant’s assertions of his subjective symptoms, the ALJ first
found that Plaintiff’s “medically determinable impairments could
reasonably be expected to produce the alleged symptoms[.]”
T. 18.
At step two, however, the ALJ found that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of these
-23-
symptoms are not entirely credible.”
T. 19, 25.
The ALJ discussed
the credibility factors set forth above in his evaluation of
Plaintiff's credibility and set forth sufficient reasoning for
discounting Plaintiff’s statements, explaining that Plaintiff’s
“medical records, and the testimony at the hearing do not support
the
assertion
that
the
claimant’s
autism
causes
such
severe
limitations in his ability to function to render him disabled under
the [A]ct.”
T. 25.
Specifically, the ALJ noted that Plaintiff testified that his
autism makes it difficult for him to learn and that it affects his
ability to pay attention to certain activities.
T. 25.
However,
as the ALJ noted, Plaintiff also testified that he is learning to
drive, attended a vocational job training program, that he is able
to complete chores (although he sometimes he can forget to perform
them), and that he is able to follow a list of chores left by his
mother.
Additionally, the ALJ pointed out that Plaintiff reported
that he is able to care for his pet cat, read, fishes, and takes
martial arts classes.
Further, the ALJ noted that Plaintiff
reported that he uses the internet to watch videos.
T. 25.
The ALJ also discussed Plaintiff’s mother’s testimony.
He
acknowledged that while Plaintiff’s mother testified that Plaintiff
sometimes forgets to perform chores, she nonetheless testified that
Plaintiff is able to perform chores and tasks.
She also testified
that Plaintiff has a savings account that she is teaching him to
-24-
use, and that Plaintiff uses the internet to research things that
interest him.
T. 25.
In arriving at his credibility determination the ALJ also
discussed the school and medical evidence in the record, which
showed that despite having suffered from autism from a young age,
Plaintiff still retained “significant” functional abilities as an
adult.
T. 17-21, 26.
The ALJ discussed Plaintiff’s treatment
history and noted, in particular, that “the claimant’s speech
delays lessened over the course of his schooling.”
The
ALJ
also
discussed
the
September
27,
T. 17-21, 26.
2011
report
from
Dr. Ransom, in which she assessed that Plaintiff was cooperative,
socially appropriate, that his mental status exam was generally
within normal limits, his cognition was low average, and he had
good insight and judgment. T. 26, 286-288. The ALJ also discussed
the September 14, 2011 affidavit from Plaintiff’s pediatrician
Dr. Breen, in which he reported that Plaintiff was ambulatory and
spoke in a soft voice.
T. 26, 565-568.
Accordingly, the Court finds that the ALJ properly discounted
Plaintiff’s allegations of disabling symptoms related to his autism
during
the
relevant
time
period
to
the
extent
inconsistent with the other evidence in the record.
they
were
The ALJ’s
credibility determination is therefore supported by substantial
evidence.
-25-
VI.
The ALJ’s Step 5 Determination
Plaintiff argues that the ALJ’s Step 5 determination is
unsupported by substantial evidence because the ALJ relied on VE
testimony elicited in response to an incomplete and unsupported
hypothetical.
Pl’s Mem at 21-22.
The Commissioner asserts that
the ALJ’s Step 5 is supported by substantial evidence in the
record.
Def’s Mem at 16-17.
In this case, the ALJ asked the VE to consider a hypothetical
individual of Plaintiff’s age, education, and vocational profile,
who had no exertional limitations, but was limited to simple,
routine
tasks
and
working
in
a
low
stress
environment
with
occasional decision-making, occasional changes in work setting,
occasional judgment required, no production and pace work, who
needed to be reminded of tasks twice per day, and also requires a
ten minute break every two hours.
T. 59-60.
The VE testified that
such an individual could work as a sorter, grocery bagger, or
laundry worker.
T. 59-60.
At step five, the burden is on the Commissioner to prove that
“there is other gainful work in the national economy which the
claimant could perform.”
1998).
Balsamo v. Chater, 142 F.3d 75 (2d Cir.
The ALJ properly may rely on an outside expert, but there
must be “substantial record evidence to support the assumption upon
which
the
vocational
expert
based
his
opinion.”
Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983).
-26-
Dumas
v.
A VE’s opinion in
response to an incomplete hypothetical question cannot provide
substantial evidence to support a denial of disability. See DeLeon
v. Secretary of Health and Human Servs., 734 F.2d. 930, 936
(2d Cir. 1984).
The ALJ is entitled to rely on the vocational
expert’s testimony that Plaintiff could perform other jobs that
exist in significant numbers in the national economy. 20 C.F.R.
§404.1560(b)(2). Here, there is substantial evidence in the record
to support the ALJ’s RFC assessment, and the Court therefore finds
that the ALJ’s Step 5 determination is supported by substantial
evidence.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings is
granted, the Plaintiff’s motion is denied, and the Complaint is
dismissed in its entirety with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
August 11, 2014
Rochester, New York
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