Minto v. Commissioner of Social Security
Filing
13
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 11 Defendant's Motion for Judgment on the Pleadings and affirming the Commissioner's decision. The Clerk of the Court is requested to send a copy of this Decision and Order to the pro se plaintiff. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 9/20/16. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CONRAD O. MINTO, JR.,
Plaintiff,
DECISION and ORDER
No. 6:15-cv-06698(MAT)
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Pro se plaintiff Conrad Minto, Jr. (“Plaintiff”) brought this
action 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”) denying his application for
childhood Supplemental Security Income (“SSI”). This Court has
jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
On October 10, 2012, Plaintiff’s mother protectively filed an
application for SSI on Plaintiff’s behalf, alleging that he was
disabled
due
to
a
learning
disability
and
a
speech/language
impairment. T.120, 124.1 The application was denied initially on
1
Numbers preceded by “T.” refer to pages from the administrative transcript,
submitted by Defendant electronically on CM/ECF.
-1-
March 7, 2013. T.46-55. A hearing was held before administrative
law judge William Manico (“the ALJ”) on June 10, 2014, at which
Plaintiff’s mother appeared pro se and testified. T.27-45. On July
21, 2014, the ALJ issued an unfavorable decision. T.11-24. That
decision became the Commissioner’s final decision on October 16,
2015, when the Appeals Council denied Plaintiff’s request for
review. T.1-3. Plaintiff then timely commenced this action.
The Commissioner has filed a motion for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. Plaintiff has not cross-moved for judgment on the
pleadings and has not responded to the Commissioner’s motion. The
Court adopts and incorporates by reference herein the undisputed
and
comprehensive
factual
recitation
contained
in
the
Commissioner’s brief. The Court will discuss the record evidence in
further detail as necessary to the resolution of the Commissioner’s
motion.
For
the
reasons
discussed
below,
the
Commissioner’s
decision is affirmed.
DISCUSSION
I. Eligibility for Childhood SSI
For the purpose of evaluating eligibility for childhood SSI
benefits, an individual under the age of 18 is considered disabled
if he 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
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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
establish a sequential evaluation for determining whether a child
claimant meets this definition of disabled, and requires the
claimant to show (1) that he is not working; (2) that he has a
severe impairment or combination of impairments; and (3) that his
impairment
or
combination
of
impairments
is
of
Listing-level
severity—that is, the impairment(s) meets, medically equals, or
functionally equals the severity of an impairment in the Listings.
See 20 C.F.R. § 416.924. A child’s functional limitations are
evaluated in the context of six broad functional areas, called
“domains of functioning.” See 20 C.F.R. § 416.926a(b)(1). If a
child
has
marked
limitations
in
two
domains
or
an
extreme
limitation in one domain, the child’s impairment or combination of
impairments is functionally equivalent to a listed impairment. See
20
C.F.R.
§
416.926a(d). A
“marked”
limitation
means
that a
claimant’s impairment “interferes seriously with [his] ability to
independently
initiate,
sustain,
or
complete
activities.
[A
claimant’s] day-to-day functioning may be seriously limited when
[his]
impairment(s)
limits
only
one
activity
or
when
the
interactive and cumulative effects of [his] impairment(s) limit
several activities. ‘Marked’ limitation also means a limitation
that is ‘more than moderate’ but ‘less than extreme. . . .’” 20
C.F.R. § 416.926a.
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II.
The ALJ’s Decision
The ALJ found that Plaintiff’s learning disorder was a severe
impairment pursuant to 20 C.F.R. § 416.924(c). T.14. The ALJ next
determined that Plaintiff’s impairment did not meet or medically
equal
any
of
the
impairments
in
the
Listings.
T.14-15.
In
particular, the ALJ found that Plaintiff had less than marked
limitations in the domains of Acquiring and Using Information and
Attending
and
Completing
Tasks,
and
had
no
limitations
in
Interacting and Relating with Others; Moving About and Manipulating
Objects; Caring for Oneself; and Health and Physical Well-being.
T.18-23. Because the ALJ found that Plaintiff did not have an
extreme limitation
in
any domain
of functioning
or
a marked
limitation in at least two domains of functioning, Plaintiff did
not functionally equal an impairment in the Listings. T.15-23.
Accordingly, the ALJ entered a finding of not disabled. T.24.
III. Scope of Review of the Commissioner’s Decision
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
supported
by
substantial
record
evidence
and
whether
the
Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
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See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted).
Substantial evidence is more than a mere scintilla;
“[i]t 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) (internal quotation marks and citation
omitted).
However,
substantial
“[t]he
evidence
conclusions of law.”
does
deferential
not
standard
apply
to
the
of
review
for
Commissioner’s
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.
2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.
1984)).
IV.
Whether the Commissioner’s Decision is Legally Correct and
Supported by Substantial Evidence
In his Complaint, Plaintiff did not identify any legal errors
in the Commissioner’s decision. Plaintiff also did not file a
motion for judgment on the pleadings or file papers in opposition
to
the
Commissioner’s
motion.
The
Court
has
reviewed
the
Commissioner’s decision and finds no clear error in the application
of the relevant regulatory and legal standards. Accordingly, the
Court
proceeds
to
review
the
substantiality
of
the
evidence
supporting the Commissioner’s decision.
A.
Substantial
Evidence
Supports
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Findings
of
Less
than
Marked Limitations in Acquiring and Using Information and
Attending and Completing Tasks; and No Limitations in
Interacting and Relating with Others, Moving About and
Manipulating Objects, and Health and Physical Well-Being
The ALJ found that Plaintiff had less than marked limitations
in the domains of Acquiring and Using Information and Attending and
Completing Tasks. The domain of Acquiring and Using Information
“consider[s] a child’s ability to learn information and to think
about and use the information.” Social Security Ruling (“SSR”)
09-3P, 2009 WL 396025, at *2 (S.S.A. Feb. 17, 2009); see also 20
C.F.R. § 416.926a(g). The domain of Attending and Completing Tasks
considers, inter alia, “a child’s ability to focus and maintain
attention, and to begin, carry through, and finish activities or
tasks” and “to initiate and maintain attention, including the
child’s alertness and ability to focus on an activity or task
despite distractions. . . .”
SSR 09-4P, 2009 WL 396033, at *2
(S.S.A. Feb. 18, 2009).
The
ALJ
also
found
no
limitations
in
the
domains
of
Interacting and Relating with Others, Moving About and Manipulating
Objects, Caring for Oneself, and Health and Physical Well-Being.
T.18-23. For a claimant such as Plaintiff who is in adolescence
(i.e., age 12 until the attainment of age 18), the domain of
Interacting and Relating with Others looks at the child’s ability
to initiate and develop friendships with children who are his own
age and to relate appropriately to other children and adults, both
individually
and
in
groups.
The
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domain
of
Moving
About
and
Manipulating Objects looks at the child’s gross and fine motor
skills. The domain of Health and Physical Well-Being considers the
cumulative physical effects of physical or mental impairments and
their
associated
treatments
or
therapies
on
the
claimant’s
functioning that were not considered when assessing the other five
domains.
Substantial evidence supports the ALJ’s findings regarding
these
five
domains,
including
the
report
of
consultative
psychologist Dr. Kavitha Finnity, who evaluated Plaintiff at the
Commissioner’s request on February 28, 2013. See T.217-20. Born in
July of 1996, Plaintiff was sixteen years-old at the time of Dr.
Finnity’s examination.
He was living with his mother and was in
the ninth grade at the School of the Arts in the Rochester City
School District. Plaintiff was in the special education program
through
learning
which
he
received
disability.
He
consultant
also
teacher
received
services
speech
therapy
for
a
from
kindergarten fourth grade.
As to his current functioning, Plaintiff reported that he lost
his temper easily and could become aggressive, but he denied
experiencing depression or anxiety. His mother, however, reported
that she felt he did have depressed moods and some irritability.
Plaintiff reported using marijuana, and said he had last used it
about a month prior to Dr. Finnity’s exam. Plaintiff stated that he
was able to dress, bathe, and groom himself. He reported having a
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good relationship with his peers and his family. For hobbies, he
enjoyed listening to music and playing video games.
During the exam, Plaintiff was cooperative and related with
Dr.
Finnity
in
an
age-appropriate
manner.
He
was
dressed
appropriately and was well groomed. His gait, posture, and motor
behavior were normal, and his eye contact was appropriate. When
speaking, he was intelligible and fluent, and used age-appropriate
expressive and receptive language. Plaintiff’s thought processes
were coherent and goal directed. Plaintiff was able to do counting
and calculations but had difficulty with serial 3s. Dr. Finnity
concluded
that
Plaintiff’s
ability
to
pay
attention
and
his
concentration skills were mildly impaired. Plaintiff was able to
recall 3 out of 3 objects immediately; 1 out of 3 objects after
five minutes; and 5 digits forward and no digits backwards. Based
on this testing, Dr. Finnity concluded that Plaintiff’s recent and
remote memory skills were mildly impaired. While Dr. Finnity opined
that his general fund of information was appropriate to age, she
estimated
his
cognitive
functioning
to
be
below
average.
Plaintiff’s insight was fair, and his judgment was fair.
Dr. Finnity’s diagnoses were learning disorder, not otherwise
specified
(“NOS”),
disorder,
with
Plaintiff
with
a
depressed
continue
with
rule
mood.
out
Dr.
diagnosis
Finnity
educational
of
adjustment
recommended
placement
and
that
seek
psychological treatment and assessed his prognosis as fair to good.
-8-
For her medical source statement, Dr. Finnity opined that, even
though
Plaintiff
had
difficulty
learning
and
his
psychiatric
symptoms “may interfere” with his ability to function on a daily
basis, he nevertheless could attend to and follow age-appropriate
directions, complete age-appropriate tasks, maintain appropriate
social
behavior,
respond
to
changes
in
the
environment,
ask
questions appropriately, recognize danger, and interact with peers
and adults. T.219.
In March of 2013, state agency medical consultant Dr. M.
Apacible reviewed the record evidence and opined that, although
Plaintiff had a learning disorder that qualified as a “severe”
impairment, he did not have an impairment that met or medically
equaled a listed impairment. See T.52-53. Similarly to Dr. Finnity,
Dr. Apacible found that Plaintiff’s limitations in the domains of
Acquiring and Using Information and Attending and Completing Tasks
were less than marked. T.52. Again, like Dr. Finnity, Dr. Apacible
opined that Plaintiff was not limited in the domains of Interacting
and Relating with Others, Moving About and Manipulating Objects,
Caring for Oneself, and Health and Physical Well-Being.
Throughout
the
application
process,
Plaintiff’s
mother
provided statements that have failed to support findings of marked
or
extreme
limitations
in
any
of
the
functional
domains.
In
December 2012, Plaintiff’s mother completed a function report.
See T.110-18. She indicated that he had no problem seeing, hearing,
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talking, or communicating and that his physical abilities were not
limited by his impairments. According to Plaintiff’s mother, he had
problems in the following areas: understanding and using what he
had learned; socializing with other people; taking care of his
personal needs and safety; and paying attention and sticking with
a task. Specifically, he could not complete household chores such
as washing dishes, making beds, sweeping, vacuuming, raking the
yard, mowing the lawn, or doing laundry; could not get to school on
time; study; do homework; take needed medication; accept criticism
or correction; ask for help when needed; work on arts and crafts
projects; keep busy on his own; or finish things he started.
However, Plaintiff’s mother stated that Plaintiff could read and
understand comics, cartoons, books, magazines, and newspapers;
spell words of more than four letters; tell time; add, subtract,
multiply,
and
divide
numbers
over
ten;
understand
money
and
calculate correct change; understand, carry out, and remember
simple instructions; maintain friendships with friends his own age;
make new friends; get along with others; play team sports; take
care of his personal hygiene; wash and put away his clothes; cook
a meal for himself; use public transportation by himself; keep out
of trouble; obey rules; and avoid accidents.
At the administrative hearing in June of 2014, Plaintiff’s
mother testified that Plaintiff had been held back in school twice
(in fifth and ninth grades), and had dropped out when he was in
-10-
grade.2
ninth
comprehend
In
Plaintiff’s
as
things
mother’s
as
quickly
the
opinion,
average
he
did
person,
not
which
negatively affected his mood and motivation. She reported that
Plaintiff did not do household chores and would forget to do things
such as locking his bike when it was not in use. Plaintiff’s mother
also testified that Plaintiff got along with his peers, and got
along
better
with
individuals
who
were
younger
than
him.
Plaintiff’s mother acknowledged that his ability to care for
himself was fair and that Plaintiff had no physical problems.
B.
The Record Evidence Indicates that Plaintiff
Limitation in the Domain of Caring for Oneself
Has
a
The ALJ found that Plaintiff has no limitations in the domain
of Caring for Oneself, which considers how well the claimant
maintains a healthy emotional and physical state, copes with stress
and changes in his environment, and takes care of his own health,
possessions, and living area. As examples of limited functioning in
the domain of Caring for Oneself, the Commissioner’s regulations
list
“engag[ing]
in
self-injurious
behavior
(e.g.,
suicidal
thoughts or actions, self-inflicted injury, or refusal to take
[one’s] medication). . . .” 20 C.F.R. § 416.926a(k)(3)(iv).
During the consultative psychological assessment, Dr. Finnity
observed that Plaintiff’s affect was depressed, although his mood
2
The Court notes that Plaintiff’s failure to graduate from high school
contravened Dr. Finnity’s recommendation that he continue with educational
placement.
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was neutral, and he was oriented to person, place, and time.
Plaintiff
himself
denied
being
depressed,
and
there
are
no
treatment note from any mental health providers. Plaintiff’s mother
mentioned Plaintiff’s one instance of suicidal ideation almost as
an afterthought at the end of the hearing and described it as the
saddest day of “her life,” not her son’s life. She informed that
ALJ that when Plaintiff had to repeat the ninth grade, he “was just
ready to end his life. He had pills, he had a knife, he had
everything in the closet. He told [her] if he had to go back to
school, he had to repeat the grade he was just going to end his
life.” T. 44. At that time, Plaintiff was not on any prescription
drugs for any mental health issue, but he had obtained a “bottle of
pills from somewhere.” T.45. Plaintiff did not carry out his plan,
and his mother apparently never sought any mental health counseling
or other treatment for him.
The foregoing constitutes at least some evidence to contradict
the ALJ’s finding that Plaintiff has no limitations whatsoever in
the domain of Caring for Oneself. However, Plaintiff clearly does
not have an “extreme” limitation in this domain, which is the
rating
given
“to
the
worst
limitations.”
20
C.F.R.
§
416.926a(e)(3)(i). Any error in the ALJ’s finding regarding this
domain could have an effect on the outcome of the case only if the
limitation was “extreme,” since the ALJ’s findings regarding the
other five domains are supported by substantial evidence. Thus,
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even if Plaintiff had a “marked” limitation in this domain, the ALJ
would not have been able to enter a finding of disability, because
“marked” limitations in at least two domains, or an “extreme”
limitation in one domain, is required under the Act. A finding of
an “extreme” limitation in this domain is unsupportable based on
the present record since there is no evidence that Plaintiff’s
impairment
“interferes
very
seriously
with
[his]
ability
to
independently initiate, sustain, or complete activities[,]” 20
C.F.R. § 416.926a(e)(3)(i).
CONCLUSION
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s determination was not erroneous as a matter of law
and
was
supported
by
substantial
evidence.
Accordingly,
the
Commissioner’s motion for judgment on the pleadings (Dkt #11) is
granted, and the Commissioner’s decision is affirmed. The Clerk of
the Court is directed to close this case.
SO ORDERED.
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
September 20, 2016
Rochester, New York
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