Blauvelt v. Berryhill

Filing 19

DECISION AND ORDER granting 11 Motion for Judgment on the Pleadings; denying 15 Motion for Judgment on the Pleadings. Based on its review of the Record, the Court grants Plaintiffs motion for judgment on the pleadings, ECF No. 11, and denies th e Commissioners cross-motion, ECF No. 15. This matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for an expedited rehearing. Signed by Hon. Charles J. Siragusa on 6/19/19. (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KELLY RENEE BLAUVELT o/b/o S.R.B.,
-vs-

Plaintiff,

DECISION AND ORDER
17-CV-6533-CJS

ANDREW M. SAUL, COMMISSIONER OF
SOCIAL SECURITY 1,
Defendant.
APPEARANCES
For Plaintiff:

Ida M. Comerford, Esq.
Kenneth R. Hiller, Esq.
Law Offices of Kenneth Hiller, PPLC
6000 North Bailey Avenue, Suite 1A
Amherst, NY 14226
[phone]

For the Commissioner:

Michelle Lynn Christ. Esq.
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, NY 10278
[phone]
Dennis J. Canning, Esq.
Office of the General Counsel
Social Security Administration
601 E. 12th Street, Room 965
Kansas City, MO 64106
[phone]
Kathryn L. Smith, Esq.
U.S. Attorney's Office
100 State Street
Rochester, NY 14614
[phone]

The president nominated Andrew M. Saul to be Commissioner of Social Security and the
Senate confirmed his appointment on June 4, 2019. He is substituted pursuant to Fed. R. Civ. P.
25(d). The Clerk is directed to amend the caption to comply with this substitution.
1

INTRODUCTION
Siragusa, J. Kelly Renee Blauvelt (“Plaintiff”) has brought this action on behalf of her
infant son (“S.R.B.” or “Claimant”) pursuant to Title XVI of the Social Security Act (“the Act”),
seeking review of the final decision of the Commissioner of Social Security (“the
Commissioner”) denying S.R.B.’s application for Supplemental Security Income (“SSI”). This
Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
PROCEDURAL STATUS
Plaintiff filed an application for SSI on January 8, 2014, alleging disability beginning
October 11, 2009. R. 24. 2 The Social Security Administration denied her application on April
4, 2014. R. 24. Plaintiff filed a written request for a hearing on May 21, 2014, which hearing
was held on October 14, 2015, via video teleconference. Plaintiff, S.R.B., and his grandmother
appeared in Rochester, New York, while an administrative law judge (“ALJ”) presided from
Alexandria, Virginia. Neither Plaintiff nor S.R.B. was represented by counsel at the hearing.
The ALJ issued an unfavorable decision on January 5, 2016, finding that S.R.B. was
not disabled. The Appeals Council denied review on June 15, 2017. Plaintiff filed the present
action on August 7, 2017.
STANDARD OF REVIEW
A determination by the Commissioner that a claimant is not disabled will be set aside
when the factual findings are not supported by “substantial evidence” or when the decision is
based upon legal error. See 42 U.S.C. § 405(g). “Where the Commissioner’s decision rests on
adequate findings supported by evidence having rational probative force,” a reviewing court
may not substitute its judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d
578, 586 (2d Cir.2002). However, this deferential standard is not applied to the

2

No. 8.

References are to pages in the Record of Proceedings filed on November 29, 2017, ECF

2

Commissioner’s application of the law. Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984).
“Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles,
application of the substantial evidence standard to uphold a finding of no disability creates
an unacceptable risk that a claimant will be deprived of the right to have [his] disability
determination made according to the correct legal principles.” Johnson v. Bowen, 817 F.2d
983, 986 (2d Cir. 1987).
DISABILITY CLAIMS BY CHILDREN
To qualify as disabled under the Act, a child under the age of eighteen must have “a
medically determinable physical or mental impairment, which results in marked and severe
functional limitations, and which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 1382c(a)(3)(C)(i). By regulation, the Commissioner has promulgated a three-step analysis
to determine whether a child is eligible for SSI benefits based on a disability. Encarnacion ex
rel. George v. Astrue, 586 F.3d 72, 75 (2d Cir. 2009) (citing 20 C.F.R. § 416.924, et seq.).
First, the ALJ determines whether the child is engaged in “substantial gainful activity.” 20
C.F.R. §§ 416.924(a), (b). Second, the ALJ considers whether the child has a “medically
determinable impairment that is severe,” in that it causes “more than minimal functional
limitations.” Id., § 416.924(c). Third, if a severe impairment is present, the ALJ must then
consider whether the impairment “meets, medically equals,” or “functionally equals” a
presumptively disabling condition listed in the regulatory “Listing of Impairments.” Id.,
§ 416.924(d); 20 C.F.R. Pt. 404, Subpt. P, App. 1.
The ALJ must evaluate limitations caused by a child’s severe impairment or
combination of impairments in the context of the following six domains of functioning:
(1) acquiring and using information;

3

(2) attending and completing tasks;
(3) interacting and relating with others;
(4) moving about and manipulating objects;
(5) caring for oneself; and
(6) the child’s health and physical well-being.
20 C.F.R. § 416.926a(b)(1). “For a child’s impairment to functionally equal a listed
impairment, the impairment must ‘result in “marked” limitations in two domains of functioning
or an “extreme” limitation in one domain.’” Encarnacion, 568 F.3d at 75 (quoting 20 C.F.R.
§ 416.926a(a)). An “extreme limitation” is an impairment which “interferes very seriously with
[the claimant’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R.
§ 416.926a(e)(3)(i). A “marked limitation” is an impairment that “interferes seriously with [the
claimant’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R.
§ 416.926a(e)(2)(i). “A marked limitation may arise when several activities or functions are
impaired, or even when only one is impaired, as long as the degree of limitation is such as to
interfere seriously with the ability to function (based upon age-appropriate expectations)
independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. Pt. 404, Subpt.
P, App. 1, § 112.00(C).
THE ALJ’S DECISION
The ALJ noted that S.R.B.’s date of birth was October 11, 2006, making him a
preschooler when the application was filed, and, at the time of the decision, a school-age
child. The ALJ determined that S.R.B. had not engaged in substantial gainful activity since the
application date. R. 27. He further determined that S.R.B. has the following severe limitations:
attention-deficit hyperactivity disorder (ADHD); obsessive compulsive disorder (OCD); and
oppositional defiant disorder (ODD). R. 27.

4

The ALJ concluded that “contrary to allegations of disabling impairment, the record
indicates symptoms largely resolved with medication 3 compliance. (Exhibit 2F/25).” R. 29.
The ALJ relied on a January 2014 examination where S.R.B. was described as “polite,
pleasant, and able to successfully complete his work,” or if he refused to finish it, “instead of
being disruptive” he simply “sat quietly.” R. 29. The ALJ determined that,
when examined on medication the claimant’s motor activity, speech, affect,
mood, and thought process were noted to be appropriate and within normal
limits. (Exhibit 2F/34). Finally, his impulse control, insight, and judgment were
characterized as fair. (Exhibit 2F/34). Similarly, his instructors and mother
noted that his difficulties focusing, irritability, and hyperactivity resolved with
treatment. (Exhibit 5F/2; 1E/5, 14; 5F/4).
R. 29. The ALJ afforded the opinion of a state agency medical consultant, M. Puttanniah, M.D.,
great weight. Dr. Puttanniah “opined that the claimant had no limitation in moving/manipulating objects and health/wellbeing with less than marked limitations in self-care,
interacting with others, attending tasks, and acquiring information. (Exhibit 1A/4–5).” R. 29–
30. The ALJ concluded that S.R.B. had no limitation in self-care. R. 30.
Turning to the domain of acquiring and using information, the ALJ determined that with
medication, S.R.B. had no limitation in this functional area. At to this conclusion, he gave some
weight to the opinion of Christopher Singer, M.S., a school psychologist, who determined that
once S.R.B. began taking medication, “he was able to control himself, remain safe, and
engage in learning. (Exhibit 1E/9).” R. 30.
In the domain of attending and completing tasks, the ALJ determined that S.R.B. had
less than a marked limitation. In coming to this conclusion, the ALJ relied on Dr. Singer’s
assessment which noted that S.R.B.’s ability to transition to other tasks and avoid becoming

The Record indicates that S.R.B. started a medication called methylphenidate on December
17, 2013. R. 311.
3

5

over involved in activities improved dramatically with medication. R. 32--33. The ALJ also
relied on S.R.B.’s testimony “that he had no difficulty focusing on video games for 3 to 4 hours
at a time.” R. 33.
Regarding interacting and relating with others, the ALJ determined that S.R.B. had less
than a marked limitation when medicated. For this, he relied on Dr. Singer’s opinion and the
fact that S.R.B. testified that he played with his neighbors for three to four hours a day. R. 34.
In moving about and manipulating objects, the ALJ determined that S.R.B. had no
limitation. In this regard, it appears he relied heavily on S.R.B.’s own report of being able to
play video games to come to this conclusion. R. 35.
For the domain of caring for yourself, the ALJ determined that because S.R.B. was well
groomed, he had no limitation in this area. The ALJ rejected Dr. Singer’s opinion that S.R.B.
had obvious to serious problems in this domain. S.R.B.’s mother noted he was very good at
attending to his self-care. R. 36.
Finally, about health and physical well-being, the ALJ determined S.R.B. has no
limitation. For this, the ALJ relied on Dr. Singer’s notations and stated further that even though
the claimant is in the overweight range, “there is no indication that the claimant’s weight
results in any limitations.” R. 36.
DISCUSSION
Plaintiff argues that the ALJ did not reconcile evidence showing that S.R.B. met the
functional equivalence of the listings regarding the domains of attending and completing
tasks, interacting and relating with others, and caring for one self. Pl.’s Mem. of Law 15, Mar.
30, 2018, ECF No. 11-1. Plaintiff also contends that the ALJ “failed to obtain important school
and medical records which were mentioned in the record,” and seemed to rely on S.R.B.’s
mother, “a woman said to have a low intellectual functioning.” Id.; R. 305.

6

Attending and Completing Tasks
Turning to the domain of attending and completing tasks, Plaintiff contends that the
ALJ gave no consideration to the fact that Plaintiff was in a 6:1:1 classroom with a designated
aid who sat next to him throughout the day to help him stay focused on tasks, give him
reminders about his behavior, and make sure that he remained in his seat. R. 184. Dr.
Puttanniah, the non-examining state agency medical source to whom the ALJ gave great
weight, wrote that in the domain of attending and completing tasks: “2 / 14 TQ: at times over
involved in work; and obsessive, but dramatic improvement since using meds. Per mom,
hyperactivity and difficulty focusing have resolved w /meds. 3 / 14 CE: attn /cone WNL.” R.
70. Dr. Puttanniah found that S.R.B. had a less than marked limitation in this domain. As did
the ALJ, Dr. Puttanniah relied on the mother’s assessment, but did not reference the
assessments of the teachers or school counselors. The Court finds that the ALJ erred in giving
Dr. Puttanniah’s assessment the greatest weight without analyzing the other evidence,
especially from school sources.
Plaintiff points out that at the onset date in 2009, S.R.B. was in preschool and the ALJ
made no mention of his frequent aggressiveness that caused the school to send him home.
In fact, Plaintiff points out that the record contains no evidence from his preschool program
at Head Start. Pl.’s Mem. of Law 18. Moreover, Plaintiff points out that the ALJ’s decision
makes no mention of the Keuka Lake evaluation, R. 343, or school psychologist Deanna L.
Marconi-Rowley’s report, R. 313.
Plaintiff further directs the Court’s attention to the fact that the draft IEP formulated
on May 1, 2014, after S.R.B. had been medicated for almost five months, required an aid to:
Sit next to [S.R.B.] throughout the day to help him stay focused on the task at
hand[.] Give reminders about behavior[.] Help him stay in his seat[.] Teach him
strategies to help him cope when he does not get his own way[.] Help him play
successfully with his peers[.] Provide choices to help improve problem solving

7

skills[.] Provide appropriate words to use when he becomes upset[.] Provide
appropriate coping strategies[.] Rubbing/massaging his back[.] Deep pressure
on the shoulders[.] Using a brush (i.e. paint brush, small plastic brush) with soft
strokes on forearms[.]
R. 261–62. The record also contains an assessment by one of his in-school counselors who
saw S.R.B. individually once a week for 20 minutes, in a group two times a week for 30
minutes and checked in on him daily. R. 147. That counselor had known S.R.B. for three years.
Id. For the domain of attending and completing tasks, that counselor wrote the following on
the assessment form:
Since [S.R.B.] has started his medication, this area has improved dramatically.
At times [S.R.B.] may be over involved in his work and obsessive. He has a
difficult time transitioning to new activities and working at an appropriate pace.
R. 149. One of the Commissioner’s rules provides that a preschooler without an impairment
“should usually be able to wait his turn and to change his activity when a caregiver or teacher
says it is time to do something else.” R. 32. Based on the counselor’s note, however, even
when medicated, S.R.B. was unable to meet this requirement.
A Pediatric Neurodevelopmental Evaluation by Stephen Bauer, M.D., dated October
23, 2014, was initiated over the summer of 2014. Dr. Bauer referred to a teacher report
indicating that “[a]t times [S.R.B.] can be very ‘irrational or aggressive’ and he easily shuts
down or blames others for problems.” R. 477. Dr. Bauer also noted that S.R.B.’s “behaviors
become more difficult off medication with him being more active and impulsive,” R. 477, and
that “[o]ver the years he is sometimes aggressive to mother. He has occasional ‘breakdowns’
where he becomes extremely angry with yelling, swearing, and sometimes aggression. Those
can last over 20 minutes.” R. 478. In his Recommendations, Dr. Bauer wrote:
The recent change to a day treatment level of service there is appropriate and
has reportedly been helpful. I suggest that he continue at that level of care,
particularly since it will allow him to receive ongoing mental health supports
including medication management through the school.… I suggest that he

8

continue on stimulant medication.… If he shows increasing difficulties with
mood instability and highly activated behaviors or rages, it would be appropriate
to consider treatment with a more behavior stabilizing medication….
Medication decisions should be made by the treating physicians in the day
treatment program with input from teachers and family.… [S.R.B.] will continue
to benefit from a careful behavior management plan at school using strategies
shown to be effective for students with ADHD and oppositional defiant disorder
but also addressing his anxiety and compulsive symptoms.
R. 481–82. The ALJ’s decision makes no mention of Dr. Bauer’s report. As the Honorable John
T. Curtin of this Court observed in Smith v. Massanari, No. 00-CV-0402C, 2002 U.S. Dist. LEXIS
26503 (W.D.N.Y. Mar. 16, 2002):
[T]he Commissioner’s regulations require the ALJ to consider the effects of a
structured or highly supportive setting (such as the day treatment program at
Baker Victory) on the claimant’s functioning and, if the claimant’s symptoms or
signs are controlled or reduced by the structured environment, the ALJ is
required to consider the claimant’s functioning outside of the highly structured
setting. 20 C.F.R. § 416.924c(d).
Smith, 2002 U.S. Dist. LEXIS 26503, at *17-18. The ALJ did not analyze the highly-structured
environment of S.R.B.’s 6:1:1 classroom with an aid whose job was to:
Sit next to [S.R.B.] 5 x Weekly throughout the day to help him stay focused on
the task at hand[.] Give reminders about behavior[.] Help him stay .in his seat[.]
Teach him strategies to help him cope when he does not get his own way[.] Help
him play successfully with his peers[.] Provide choices to help improve problem
solving skills[.] Provide appropriate words to use when he becomes upset[.]
Provide appropriate coping strategies[.]
R. 184 (IEP of Jul. 8, 2013–May 1, 2014, role of his aid).
Having reviewed the discrepancies in the ALJ’s decision, the Court determines that
regarding the domain of attending and completing tasks, the ALJ has not supported his
conclusion with substantial evidence.
Interacting and Relating with Others
Turning to the domain of interacting and relating with others, the ALJ disregarded Dr.
Singer’s opinion that S.R.B. had slight to serious problems relating with others. Instead, he
relied on an opinion from a special education teacher, S.R.B.’s ability to play video games with

9

his neighbors, and his mother’s testimony. R. 34. Plaintiff points out that the record does not
contain the weekly treatment notes from the Ontario County Department of Mental Health,
but the discharge summary of September 2013 from the Department related that S.R.B.
“made statements about a voice in his head that tells him to ‘be mean.’” R. 270. The
discharge summary noted the following:
The client’s mother is seeking treatment for him due to hyperactivity and
aggressiveness at home and at school. The client was evaluated by CPEP while
at school on 7/27/12, after having a “week of tough behavior with physical
aggression.” The client reportedly was eating his breakfast that day at school
and started stabbing his breakfast with his spoon handle. When told to stop by
staff, he started hissing and making animal noises at the staff. He became
aggressive and was “held” 3 times and staff requested a CPEP evaluation.
R. 270. On December 6, 2013, S.R.B. received an evaluation at the Clifton Springs Hospital
& Clinic because of having bitten a school bus monitor. R. 413–14 (“Pt also states peers and
the driver are ‘mean’ to him on the bus. Pt almost appears proud to have bit the bus monitor.”).
During a psychiatric examination on January 10, 2014, after S.R.B. had been on
medication for almost a month, his mother stated that her son “does go back to getting angry
when med wears off.” R. 305. The examiner, Inge de Weille, M.D., wrote, “[g]iven mom’s own
limitations in intellectual functioning, his teacher and school psychologist will be important for
feedback about his progress.” R. 305. The ALJ does not address Dr. Weille’s exam.
A psychiatric evaluation by Wendy V. Proctor, PMHNP-BC, 4 at the Elmira Psychiatric
Center on October 8, 2014, noted:
[S.R.B.] is an almost 8 y/o Caucasian male who has had problems with behavior
since age 3. He has been in Red Jacket since first grade, and has been having
some problems with his behavior in that setting. He is being admitted to WFLDT
6:1:1 program for a more structured and therapeutic environment.
R. 499. At the time of that examination, S.R.B. had been on medication for almost ten months.
According to the New York State Education Department, Office of the Professions, Ms.
Proctor is a licensed nurse practitioner in psychiatry with prescriptive privilege.
4

10

R. 498.
Considering the errors that the Court has already encountered in reviewing the ALJ’s
decision, it finds that the decision is not supported by substantial evidence. Remand is
required. Consequently, the Court need not continue its review of the ALJ’s decision and will
direct remand and an expedited rehearing.
CONCLUSION
Based on its review of the Record, the Court grants Plaintiff’s motion for judgment on
the pleadings, ECF No. 11, and denies the Commissioner’s cross-motion, ECF No. 15. This
matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for an expedited
rehearing.
IT IS SO ORDERED.
DATED:

June 19, 2019
Rochester, New York

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

11