Marrero v. Commissioner of Social Security

Filing 13

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Commissioner's 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 9/29/15. (JMC)

42ITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BEATRIZ SANTOS MARRERO,
Plaintiff,

14-cv-06142
DECISION AND ORDER

-vsCAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

Plaintiff Beatriz Santos Marrero (“plaintiff”) brings this
action

pursuant to Title XVI of the Social Security Act (the

“SSA”), seeking review of the final decision of the Commissioner of
Social Security ("defendant" or "the Commissioner") denying her
application for supplemental security income("SSI") on behalf of
her 12-year-old son (“JOCS”).
Presently before the Court are the parties’ competing motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.

For the reasons set forth below,

plaintiff’s motion is denied and defendant’s motion is granted.

PROCEDURAL HISTORY
On August 13, 2010, plaintiff filed an application for SSI
benefits on behalf of JOCS alleging disability since July 26, 2010.
Administrative Transcript (“T.”) 233-244.

Following a denial of

that application, a hearing was held at plaintiff’s request on

October 16, 2012 before administrative law judge ("ALJ") Stanley K.
Chin, and testimony was given by plaintiff and her son. T. 13-28.
The ALJ, in his review of the evidence, applied the required
three-step

analysis

set

forth

in

the

Social

Security

Administration's SSI regulations (see 20 C.F.R. § 416.924[a]) and
made the following findings: (1) JOCS was a school-aged child on
July 31, 2002; (2) he had not engaged in substantial gainful
activity since July 26, 2010, the SSI application date; (3) his
speech

language

attention

disorder,

deficit

mutism, learning

pervasive

hyperactivity
disability,

developmental

disorder

adjustment

(“ADHD”),

disorder,

disorder,
selective

and

anxiety

disorder were severe impairments;(4) his impairments did not meet
or medically equal the severity of any impairments listed in 20 CFR
Part 404, Subpart P, Appendix 1; (5) his impairments did not
functionally equal the severity of the listings (20 CFR 416.924[d]
and 416.926[a]); and (6) JOCS had not been disabled as defined by
the Act since July 26, 2010. T. 48-57.
With respect to finding number four, the ALJ considered
Listings 112.02, 112.04, 112.06, 112.10, and 112.11, but found that
none of the criteria was met. T. 24.

In finding number five, the

ALJ, after considering the objective medical opinion evidence, the
testimony, teacher reports, claimant's statements, and the opinions
of family and friends, found that, as result of his impairments,
JOCS

had

(1)

a

marked

limitation

2

in

acquiring

and

using

information, (2) a less than marked limitation in attending and
completing tasks, (3) a less than marked limitation in interacting
and relating with others, (4) no limitation in moving about and
manipulating objects, (5) no limitation in the ability to care for
himself, and (6) no limitation in health and physical well-being.
T. 48-57.
The Appeals Council denied plaintiff's request for review of
the ALJ's decision. T. 1.

This action ensued.
DISCUSSION

I.

General Legal Principles
42 U.S.C. § 405(g) provides that the District Court “shall

have the power 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.” 42 U.S.C. § 405(g) (2007).

This

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.
When

determining whether

the

Commissioner’s

findings

are

supported by substantial evidence, the Court's task is “‘to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.’” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir.1999), quoting Mongeur v. Heckler, 722 F.2d
1033, 1038 (2d Cir.1983) (per curiam).
3

Section 405(g) limits the

scope

of

the

Court’s

review

to

two

inquiries:

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. See Green–Younger v.
Barnhart, 335 F.3d 99, 105–06 (2d Cir.2003).
II.

Educational and Medical Evidence
A January 2009 clinical psychologist report reveals that JOCS

had received special education services in Puerto Rico since 2005.
T. 455.

He was referred by his teacher, Ms. Perez, to whom he

presented with severe speech and language problems, visual-motor
coordination problems, and poor attention span with “lots of
individual help and support” needs. T. 455.
pervasive

disorder

NOS,

with

sub

He was diagnosed with

findings

of

speech-language

disorder, perceptual-motor immaturity, ADHD, sensory problems, and
below-average intelligence (“with great development potential”),
hypoglycemia and visual problems, and academic problems. T. 455.
The continuation of special education and more individualized help
was recommended. T. 455.
In a functional report completed in August 2010, plaintiff
reported that JOCS had vision and speech problems. T.
could

be

understood

some

of

the

time

and

247-249.

deliver

He

telephone

messages, repeat stories, uses sentences with “because,” “what if,”
and “should have been,”

and talk with family and friends. T. 250.

JOCS’s learning progress was limited to reading

4

capital letters

and simple words and printing his name and some letters. T. 251.
Although JOCS did not make new friends or play team sports, he had
friends of his own age and he generally got along with adults.
T. 253.

With respect to his ability to care for himself, JOCS did

not tie shoelaces, choose his clothes, pick up and put away his
toys

or

clothes,

criticism. T. 254.

obey

requests

or

safety

rules,

or

accept

He was able to keep busy on his own, but not

complete homework or chores, finish tasks, or work on art projects.
T. 255.
In September 2010, Dr. Harbinder Toor performed a consultative
pediatric examination of JOCS and found no abnormalities apart from
a speech impairment and JOCS’s history of learning and speech
difficulty, ADHD, and asthma. T. 407-408. Dr. Toor noted that JOCS
enjoyed, among other things, playing with his siblings and doing
homework. T. 406.

JOCS appeared to have a normal attention span,

and he related to the doctor in an age-appropriate way. T. 406.

In

a November 2010 childhood disability evaluation, consultative state
examiner Dr. Weir, a speech language pathologist, found that JOCS
had a marked limitation in the domain of acquiring and using
information,

a

less

than

marked

limitation

in

the

domain

of

interacting and relating to others, and no limitation in the
domains

of

attending

and

completing

tasks,

moving

about

and

manipulating objects, caring for self, and health and physical
well-being. T. 409-413.

5

In a first-quarter second grade report card from Ivan Green
primary school for the 2010-2011 school year, it was noted that
JOCS failed to meet grade-level standards in nine sub-areas of
reading, writing, and math, but met standards in nine other sub
areas with moderate to minimal assistance and redirecting. T. 328330. His “academic and social behaviors [were] excellent.” T. 331.
His teacher, Ms. Kamb-Shepard further commented that JOCS: was
cooperative and respectful; followed follow directions; got along
with his peers; was eager to learn; and asked questions or checked
to

see

what

other

directions. T. 331.

were

doing

if

he

did

not

understand

the

By the second quarter, his teacher noted that

although JOCS was working below grade level, he continued to learn
new information quickly and was able to speak up in the classroom,
his mathematic achievement improved and he continued to have good
academic and social behaviors, despite being off-topic and having
trouble focusing on

difficult lessons at times. T. 336-338.

JOCS’s English language skills also improved with an increase of
sight words, vocabulary, and simple sentence writing. T. 346-347.

In her teacher report dated October 18, 2010, Ms. Kamb-Shepard
noted that, since moving from Puerto Rico and starting school in
September, JOCS had quickly learned new concepts and vocabulary,
including the ability to track and read predictable print and
familiar books, despite being unable to identify any English sight

6

words when he started school. T. 452.

She further noted that

although he seemed to stare off at times, he was “mostly” focused
and did not socialize much in the classroom. T. 453. In a teacher
questionnaire dated October 12, 2010, Ms. Kamb-Shepard noted that
JOCS’s dominate language was Spanish.

T. 272.

Out of ten

activities related to acquiring and using information, JOCS had: an
obvious

problem

reading

and

comprehending

written

material,

providing adequate oral explanations and adequate descriptions, and
expressing ideas in written form; a slight problem comprehending
oral instructions, understanding school and content vocabulary, and
comprehending and doing math problems; and no problem understanding
and participating in class discussions, learning new material,
recalling and applying previously learned material, and applying
problem-solving skills in class discussions. T. 273.

Ms. Kamb-

Shepard further noted that JOCS was picking up the English language
quickly, but still appeared to have some issues understanding oral
instructions and reading and writing in English. T. 273.

She

revealed that JOCS had no problems in the domain of attending and
completing tasks, stating: “[t]he only difficulty that occurs in
this area is due to Spanish/english language.” T. 274.
Shepard found

no

problems in

the

domains

of

Ms. Kamb-

interacting

and

relating with others, moving about and manipulating objects, and
caring for himself. T. 275-277.

7

In a November 2010 progress report for IEP goals, Ms. KambShepard noted that JOCS was progressing satisfactorily toward all
but one goal. T. 333-334.

At a December 2010 IEP meeting, it was

noted that: JOCS’s speech milestones were delayed; his visual motor
score fell in the 95th percentile; occupational therapy was not
recommended; he was learning English quickly, but ESOL services
should continue; he was able to independently learn new concepts;
and he needed more time in a regular education setting. T. 351-352.
By June 2011, he had achieved most of his IEP goals, apart from
solving single digit addition and subtraction problems. T. 355-357.
A speech-language-hearing evaluation, conducted over three
sessions in February and March 2012 by Ellie Shulman, a bilingual
speech-language pathologist, revealed that JOCS’s overall receptive
language

skills,

auditory

processing

skills,

and

language skills were severely delayed. T. 315-317.

expressive

The Clinical

Evaluation of Language Fundamentals-4 (“CELF-4”) results placed
JOCS in the first percentile or less for core, receptive, and
expressive language skills, with a score of 55 for core language.
Ms. Shulman

advised,

however,

that

the

test score

should

be

“interpreted with caution, as the CELF-4 was normed on Hispanic
students and part of this evaluation were administered in English.”
T. 315. She noted that JOCS “exhibits a range of abilities,
suggesting more potential than indicated by a single subtest
score.”

T.

315.

JOCS

“appeared

8

to

be

a

visual,

tactile,

kinesthetic

learner,”

and

verbal

information

needed

to

be

“repeated, paraphrased, and broken down into short, sequential
steps.” T. 317.
hearing,

Ms. Shulman found that JOCS exhibited normal

articulation,

voice,

and

fluency

skills

with

mildly

delayed pragmatic language skills and several areas in need of
improvement, including vocabulary, following multi-step directions,
short-term auditory memory, auditory comprehension, syntax and
morphology, verbal reasoning and phonological awareness. T. 317.
Although JOCS was proficient in neither English or Spanish, he was
emerging as English dominant, and he exhibited a true language
disorder, not weaknesses due to second language interference.
T. 317.
In her school performance questionnaire dated March 26, 2012,
special education teacher Lori May opined that JOCS had an extreme
impairment in learning new material, reading and comprehending
written

material,

expressing

ideas

effectively
and

using

communicating

problem

solving

learned
skills,

material,
becoming

distracted, conversing, in his expressive language skills. T. 363365.

He had a moderate impairment in comprehension and following

directions,

receptive

language

skills, recalling

and

applying

learned material, needing redirection and supervision, carrying out
instructions, making and keeping friends, and relating stories.
T. 363-365.

He had a mild impairment in maintaining in age-

appropriate pace and completing tasks, expressing basic wants and

9

needs. T. 364-365.

He had no problem with overactivity and

restlessness, implusivity, frustration, getting along and taking
turns with other children, class rules, fine and gross motor
skills, coordination, injurious behavior, safety rules, and hygiene
or self care. T. 363-366.

Ms. May, as a familiar listener, could

understand most of JOCS’s speech if the topic was known, no more
than half if the topic was unknown, and most or all of his speech
with repetition regardless of the topic. T. 365.
A multidisciplinary evaluation, dated May 11, 2012, by Erin
Bezek reveals that JOCS, a nine-year-old third grader at the time,
received special education in an integrated classroom with speech
and language therapy in Spanish twice per six-day cycle, counseling
once per cycle, and English language learner (“ELL”) services every
other day for 45 minutes. T. 307.

Ms. Bezek noted that JOCS was

previously diagnosed with ADHD, selective mutism, and pervasive
developmental disorder not otherwise specified, and a history of
hypoglycemia. T. 307.

JOCS was born in Puerto Rico, where he

attended Head Start at three and four years old, kindergarten at
five years old, and first grade in regular education. T. 308.
Ms. Bezek noted that, in 2010, JOCS moved to Rochester with his
family and received special education services as a second grader
in the East Irondequoit School District and as third grader in West
Irondequoit. T. 308.

Ms. Bezek evaluated JOCS’s current cognitive

functioning

the

using

Comprehensive

10

Test

of

Nonverbal

Intelligence(“CTONI"),

which

is

used

to

evaluate

non-English

speaking individuals with language disorders, among others. T. 309.
JOCS’s performance on the pictorial scale subtests was in the
average range, and his performance on the geometric scale was below
average. T. 310.

Ms. Bezek concluded that the results of the

cognitive assessment revealed poor to average abilities, stating
that JOCS “performed well on the task that required him to use
categorical reasoning in order to deduce the relationship between
two stimulus figures in pictorial[, but] he struggled with the task
that required him to problem solve a progression format using
pictures.” T. 311.
categorical
pictures

She found, therefore, that “his analogical and

reasoning

than

abilit[ies]

unfamiliar

were

designs,”

better

apart

from

developed
his

with

sequential

reasoning, where he “performed better with the unfamiliar designs.”
T. 311.
A May 2012 assessment of JOCS’s academic achievement
areas

revealed

executive

his

elevated

functioning

inattention,

difficulties,

and

learning
problems

in nine

problems,
with

peer

relations at home and in school. T. 321-327.

The 2011-2012 report

card for grade three revealed that, by the

fourth-quarter, JOCS

was

meeting

standards

in

21

academic

areas

and

approaching

standards and nearing stated goals in the remaining 23 areas, apart
from when he exceeded standards in four areas of physical education
and learner characteristics. T. 380-381.

11

An IEP summary sheet

for the 2012-2013 school year reveals that JOCS, a strong visual
learner, made improvements across all areas, but he was performing
below grade level and benefitted from a structured classroom with
clear expectations and adults to support him throughout his day.
T. 305-306.
III. Non-medical or educational evidence
At the hearing, plaintiff testified that JOCS, a ten-years-old
fourth grader, started special education after first grade and had
ADHD, a speech impediment, and maturity issues, and he received
speech therapy in school. T. 16.

Plaintiff testified that she was

on the waiting list for JOCS to receive mental health treatment
through the Easter Seals. T. 17.

Plaintiff observed that JOCS had

trouble concentrating and that he will insist on having something
even after she told that he cannot have it. T. 17-18.

He has

difficulty completing homework, understanding some school material,
and following directions at times. T. 18-19.

JOCS got along well

with his siblings, but he was reserved and timid around others.
T. 20.

He read on his own, slept well, continued to have speech

difficulties, and took no medication. T. 20-21.

Plaintiff felt

that JOCS suffered from anxiety, becoming, for example, excessively
upset when he lost at a game. T. 22.

JOCS had difficulty choosing

his clothes and tying his shoe laces, but he would do assigned
household chores. T. 22-23. JOCS testified that he enjoyed school,
doing homework, playing Super Mario Galaxy, and going on field

12

trips. T. 24, 26-27.

He had friends at school and outside of

school. T. 25-26.

IV.

The Commissioner’s Decision Denying Plaintiff Benefits is
Supported by Substantial Evidence.
Plaintiff contends that the ALJ’s findings that JOCS had a

marked limitation in the functional domain of acquiring and using
information and less than marked limitation in the domains of
interacting and relating to others and attending and completing
tasks

are

memorandum

not

findings

of
are

supported
law,

p.

by

substantial

17-29.

supported

by

evidence.

Defendant

substantial

responds
evidence.

Plaintiff’s
that

these

Defendant’s

memorandum of law, p. 15-22.
Under the SSA, an individual under the age of 18 is entitled
to SSI benefits when she has a medically determinable physical or
mental impairment that results in marked and severe functional
limitations, and which have lasted or can be expected to last for
a continuous period of not less than 12 months. See 42 U.S.C.
§ 1382c(a)(3)(C)(i).

The regulations set forth a three-step

sequential process for the ALJ to follow when evaluating SSI claims
for minor children. See 20 C.F.R. § 416.924.

The burden of proof

rests on the claimant at each step. See Jonson v. Colvin, 2013 WL
1314781, at *2 (W.D.Pa.2013).
A finding of disability is warranted if a “marked” limitation
is found in any two of the six domains, or an “extreme” limitation
13

in a single domain listed in 20 C.F.R. § 416.926a: (1) acquiring
and

using

information;

(2)

attending

and

completing

tasks;

(3) interacting and relating with others; (4) moving about and
manipulating objects; (5) caring for yourself; and (6) health and
physical well-being. See 20 C.F.R. § 416.926a(b)(1)(i)-(vi); Ramos
v. Barnhart, 2003 WL 21032012, at *8 (S.D.N.Y.2003). A “marked”
limitation exists when the impairment “interferes seriously with
[the] ability to independently initiate, sustain, or complete
activities.” 20 C.F.R. § 416.926a(e)(2)(i) (internal quotation
marks omitted).
“[A]n extreme limitation . . . interferes very seriously
with [the] ability to independently initiate, sustain, or
complete activities . . . Extreme limitation is the
rating [given] to the worst limitations. However, [it]
does not necessarily mean a total lack or loss of ability
to function. It is the equivalent of the functioning
[one] would expect to find on standardized testing with
scores that are at least three standard deviations below
the mean.”
20 C.F.R. § 416.926a(e)(3)(i).

Although test scores will be

considered, “[n]o single piece of information taken in isolation
can establish whether [the claimant has] a ‘marked’ or an ‘extreme’
limitation in a domain.” 20 C.F.R. § 416.926a(e)(4)(i).

Test

scores are to be considered “together with the other information
[concerning]

functioning,

including

reports

of

classroom

performance and the observations of school personnel and others.”
20 C.F.R. § 416.926a(e)(4)(i) and (ii).

14

Here, the ALJ's finding that JOCS has a marked limitation in
the domain of acquiring and using information is supported by
substantial evidence in the record.
ALJ's

finding

that

JOCS

exhibited

Plaintiff maintains that the
a

“marked

limitation”

in

acquiring and using information was an error because JOCS’s core
language score on the CELF-4 was 55, which is, “three standard
deviations from the mean,” and therefore “meets the definition of
an extreme limitation.” Plaintiff’s memorandum of law, p. 18.

In

his decision, however, the ALJ specifically responds to plaintiff's
argument for an extreme limitation in this domain and finds that it
“is not persuasive,” finding that although the record reveals
JOCS’s special education program and his below-grade-level academic
performance, his
“present school records also note that in his more
restrictive environment, he is starting to make
improvements in many of his classes.
He receives
services
including
individualized
attention,
preteaching, and re-teachings.
Ms. Shepard opined up to
less than marked limitations in this domain. The State
agency speech consultant opined a marked limitation in
this domain. Based on all of the evidence of the record,
including the fact that the claimant has not actually
repeated any grades during the relevant period, I find no
more than a marked limitation in the first domain.”
T. 51.
It is clear that the ALJ properly considered this issue, and
there

is

substantial

evidence

in

the

record

to

support

his

conclusion that JOCS has no more than a marked limitation in the
domain of acquiring and using information.

15

The CELF-4 score alone

does not give rise to the level of extreme, particularly in light
of the examiner’s warning.

Moreover, contrary to plaintiff’s

contention, there is no indication in the record that the ALJ
relied solely on JOCS’s IQ score in making this finding, nor that
the ALJ ignored the teachers’ evaluations, JOCS’s other test
scores, and the restrictive nature of his educational placement.
Plaintiff’s memorandum of law, p. 18-24.

“While the ALJ must

clearly set forth the essential considerations with sufficient
specificity to enable the reviewing court to decide whether the
determination is supported by substantial evidence, he need not
explicitly reconcile every conflicting shred of medical testimony.”
Pena v. Chater, 968 F. Supp. 930, 938 (S.D.N.Y.1997), aff'd Pena v.
Apfel, 141 F.3d 1152 (2d Cir.1998).

By and large, the record

evidence reveals that JOCS has a marked limitation in the domain of
acquiring and using information, but not to the extent that his
limitation

“very

seriously”

interferes

with

his

ability

to

independently initiate, sustain, or complete activities. 20 C.F.R.
§ 416.926a(e)(3)(i). JOCS’s school progress reports, report cards,
teacher evaluations and reports, IEP reports all establish a
pattern of academic and social improvement throughout the school
year.

The ALJ’s determination is further supported by, among

others in the record, Dr. Weir’s consultative examination results,
JOCS’s second grade report card, Ms. Kamb-Shepard’s reports and
observations, the evaluations of Ms. Shulman and Ms. Bezek, and

16

JOCS’s IEP progress reports.

T. 273, 310-311, 315-317, 331, 336-

338, 346-347, 351-352, 409-413, 452, 453, 380-381.
Accordingly, the Court finds no error in the ALJ’s decision
with the respect to the domain of acquiring and using information.
The Court has considered plaintiff’s remaining contentions that the
ALJ’s determination that JOCS had less than marked limitations in
the domains of interacting and relating to others and attending and
completing tasks is not based on substantial evidence, and finds
them to be without merit.
With respect to interacting and relating with others, the ALJ
noted in his decision that although the record reveals that JOCS is
shy around non-family members, has difficulty being understood at
times, and is defiant to his mother occasionally, the evidence
shows that JOCS plays with and gets along well with his siblings
and peers,

has

friends

at

school,

converses with

his

family

members, friends and teachers, repeats stories, speaks up in the
classroom, and is cooperative and pleasant.

There is an abundance

of record evidence, including the testimony of JOCS and plaintiff
as described above, that clearly supports the ALJ’s finding that
JOCS, despite his speech-language delays, had a less than mark
limitation in the domain of interacting and relating with others.
Likewise, the Court reject’s plaintiff’s contention that the ALJ’s
finding that JOCS had a less than marked limitation in attending
and completing task.

This finding is supported by substantial

17

evidence in the record that includes, but is not limited to, the
majority of JOCS’s school records, his evaluation results, his IEP
progress reports and notes, plaintiff’s testimony, and the opinion
of Ms. Kamb-Shepard and Dr. Weir that JOCS had no problems in this
domain.
Based on the foregoing, this Court finds that the record as a
whole

establishes

that

the

ALJ’s

decision

is

supported

by

substantial evidence.
CONCLUSION
Accordingly, the defendant’s cross-motion for judgment on the
pleadings is granted, and plaintiff's motion for judgment on the
pleadings is denied.
with prejudice.

The complaint is dismissed in its entirety

The ALJ’s decision denying plaintiff’s claim for

SSI is supported by the substantial evidence in the record.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: Rochester, New York
September 29, 2015

18