Ramos Gonzalez v. Commissioner of Social Security

Filing 19

ORDER granting in part and denying in part 13 Motion for Judgment on the Pleadings and denying 16 Motion for Judgment on the Pleadings. The decision of the Commissioner is vacated, and the matter is remanded for further administrative proceedings consistent with this decision. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 8/19/2019. (AMD)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JESSICA RAMOS GONZALEZ o/b/o
J.A.M., a minor,
Plaintiff,
18-CV-6240
DECISION AND ORDER

v.
ANDREW SAUL, Commissioner of Social
Security,
Defendant.

On March 22, 2018, the plaintiff, Jessica Ramos Gonzalez, brought this action
under the Social Security Act ("the Act") on behalf of the claimant, J.A.M., a minor child
under 18 years of age. She seeks review of the determination by the Commissioner of
Social Security ("Commissioner") that J.A.M. was not disabled. Docket Item 1. On
November 9, 2018, Gonzalez moved for judgment on the pleadings, Docket Item 13; on
January 8, 2019, the Commissioner responded and cross-moved for judgment on the
pleadings, Docket Item 16; and on January 29, 2019, Gonzalez replied; Docket Item 17.
For the reasons stated below, this Court grants Gonzalez’s motion in part and
denies the Commissioner’s cross-motion.

BACKGROUND
PROCEDURAL HISTORY
On August 1, 2014, Gonzalez applied for Children’s Supplemental Security
Income benefits on behalf of J.A.M. Docket Item 9 at 125. She claimed that J.A.M. had
been disabled since June 6, 2014. Id.
On October 7, 2014, Gonzalez received notice that her application was denied
because J.A.M. was not disabled under the Act. Id. at 66. Gonzalez requested a
hearing before an administrative law judge ("ALJ"), id. at 123, which was held on
November 28, 2014, id. at 18. The ALJ then issued a decision on April 20, 2017,
confirming the finding that J.A.M. was not disabled. Id. at 30. Gonzalez appealed the
ALJ’s decision, but her appeal was denied, and the decision then became final. Id. at 4.
CHILDREN’S DISABILITY STANDARD
A child under 18 is disabled under section 1614(a)(3)(C)(i) of the Social Security
Act if he or she 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.” In denying Gonzalez’s application, the ALJ evaluated her claim
under the Social Security Administration’s three-step evaluation process to determine
whether an individual under the age of 18 is disabled. See 20 C.F.R. § 416.924(a).
At the first step, the ALJ must determine whether the claimant is currently
engaged in substantial gainful activity (“SGA”), defined as work activity that is both
substantial and gainful. Id. § 416.972. “Substantial work activity” involves significant
physical or mental activities. Id. § 416.972(a). “Gainful work activity” is work usually
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done for pay or profit, whether or not profit is realized. Id. § 416.972(b). If the claimant
is engaged in SGA, the claimant is not disabled regardless of medical condition, age,
education, or work experience. Id. at § 416.924(b). If the claimant is not engaged in
SGA, the ALJ proceeds to the next step. Id.
At step two, the ALJ must determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is “severe.” Id. at
§ 416.924(a). For a claimant under the age of 18, a medically determinable impairment
or combination of impairments is not severe if it is a slight abnormality or a combination
of such abnormalities that causes no more than minimal functional limitations. Id.
§ 416.924(c). If the claimant has a severe impairment, the ALJ proceeds to the third
step; if not, the claimant is not disabled. Id. § 416.924(a).
At step three, the ALJ must determine whether the impairment or combination of
impairments meet, medically equal, or functionally equal an impairment in the listings.
Id. § 416.924(d). If the claimant has an impairment or combination of impairments that
meet, medically equal, or functionally equal the severity of one in the listings, and if
such impairments have lasted or are expected to last for a continuous period of at least
12 months, then the claimant is disabled; if not, then the claimant is not disabled. Id.
§ 416.924(d).
To determine whether impairments meet or medically equal one in the listings,
the ALJ compares the limitations to explicit criteria in the listings. 20 C.F.R § 416.925.
To determine whether impairments functionally equal one in the listings, the ALJ
assesses the claimant’s functioning in six separate “domains”: (1) acquiring and using
information; (2) attending and completing tasks; (3) interacting and relating with others;

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(4) moving about and manipulating objects; (5) caring for yourself; and (6) health and
physical well-being. Id. § 416.926a(b)(1). That assessment compares how the child
performs in each of these domains with the typical functioning of a child of the same
age without impairment. Id. § 416.926a(b). The child’s impairment functionally equals a
listing if there are “marked” limitations in at least two domains or an “extreme” limitation
in one domain. Id. § 416.926a(d). In determining whether impairments are “marked” or
“extreme,” the ALJ considers functional limitations that result from all impairments,
including impairments that have been deemed not severe, and their cumulative effects.
Id. §§ 416.923, 416.924a(b)(4), 416.926a(a), (c), and (e)(1)(i).
A “marked” limitation results when impairments “seriously interfere with [the
child’s] ability to independently initiate, sustain, or complete activities.” Id.
§ 416.926a(e)(2)(i). A “marked” limitation is “more than moderate” but “less than
extreme.” Id. On a standardized test designed to measure abilities within a certain
domain, a “marked limitation” means a score of at least two, but less than three,
standard deviations below the mean and a level of day-to-day functioning consistent
with that score. Id. § 416.926a(e)(2)(i), § 416.926a(e)(2)(iii). For example, in the
domain of “health and well-being,” a child is considered to have a “marked” limitation if
he or she is frequently ill as a result of his or her impairments or exhibits frequent
worsening of symptoms resulting in medically-documented exacerbations. Id.
§ 416.926a(e)(2)(iv). “Frequent” means episodes that occur on average every four

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months and lasting two weeks or more, or more often than three times a year but lasting
less than two weeks, or less often but of overall equivalent severity. Id.
An “extreme” limitation, on the other hand, results when impairments “interfere[ ]
very seriously with [the child’s] ability to independently initiate, sustain, or complete
activities.” Id. § 416.926a(e)(3)(i). An “extreme” limitation is one that is “more than
marked.” Id. The ALJ will determine a limitation to be “extreme” when a comprehensive
standardized test designed to measure functioning in a particular domain results in a
score of three or more standard deviations below the mean and day-to-day functioning
consistent with that score. Id. § 416.926a(e)(3)(iii). In the domain of “health and wellbeing,” for example, the ALJ will consider a child to have an “extreme” limitation if the
child is frequently ill or if impairments frequently become exacerbated, resulting in
medically documented symptoms significantly more than those of a “marked” limitation.
Id. § 416.926a(e)(3)(iv).
THE ALJ’S DECISION
The ALJ determined that J.A.M. was born on February 16, 2007, and therefore
was school-aged on June 6, 2014, and on the date the application was filed. Docket
Item 9 at 21. At step one, the ALJ found that J.A.M. had not engaged in SGA since the
alleged disability onset date. Id. At step two, the ALJ found that J.A.M. suffered from
several impairments: “learning disability; attention deficit hyperactivity disorder (ADHD);
obstructive sleep apnea; allergic rhinitis; chronic uticaria; and angioedema.”1 Id.
Although the ALJ found these impairments to be severe, at step three he determined

1

Uticaria is commonly known as hives, and angioedema is associated swelling in
soft tissues such as the eyelids or mouth.
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that they did not meet, medically equal, or functionally equal the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
The ALJ gave “specific consideration” to three listings: 108.05 Dermatitis, 112.05
Intellectual Disorder, and 112.11 Neurodevelopmental Disorders. Id. The ALJ’s
decision discussed all three together and determined that the “medical evidence of
record does not document signs, symptoms, and/or laboratory findings indicating any
impairment or combination of impairments severe enough to meet the criteria of any
listed impairment.” Id. Further, the ALJ noted that “no treating, examining, or nonexamining medical source has mentioned findings or rendered an opinion” that the
claimant’s impairments met the criteria of any listed impairments, either singly or in
combination. Id.
As required by 20 C.F.R. § 416.924a(a) and SSR 09-2p, the ALJ considered all
relevant evidence in the case record—including objective medical evidence; information
from other sources such as school teachers, family members, or friends; and other
relevant evidence—in reaching his determination. Id. The ALJ also explicitly
considered the “whole child,” as required by 20 C.F.R. § 416.926a(b) and (c) and
explained in SSR 09-1p. Id. at 22. In doing so, the ALJ evaluated how J.A.M. functions
in all settings and at all times as compared to other children the same age who do not
have impairments. Id. The ALJ also assessed the interactive and cumulative effects of
J.A.M.’s impairments, as well as the degree of J.A.M.’s limitation in each of the six
functional equivalence domains. Id. at 24-29.

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STANDARD OF REVIEW
“The scope of review of a disability determination . . . involves two levels of
inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first
decide whether [the Commissioner] applied the correct legal principles in making the
determination.” Id. This includes ensuring “that the claimant has had a full hearing
under the . . . regulations and in accordance with the beneficent purposes of the Social
Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz v.
Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s] whether the
determination is supported by ‘substantial evidence.’” Johnson, 817 F.2d at 985
(quoting 42 U.S.C. § 405(g)). “Substantial evidence” means “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)). “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 her disability
determination made according to correct legal principles.” Johnson, 817 F.2d at 986.
DISCUSSION
ALLEGATIONS
Gonzalez objects to the ALJ’s decision at step three. Docket Item 13-1 at 11.
She specifically argues that the ALJ erred by failing to properly evaluate Listing 112.05
Intellectual Disorder. Id. Gonzalez further argues that the ALJ’s findings in the domains

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of acquiring and using information, attending and completing tasks, and caring for self
were based on a selective reading of the record, warranting remand. Id. at 18. This
Court agrees with Gonzalez that remand is warranted to consider whether J.A.M.
explicitly meets Listing 112.05(B).2
ANALYSIS
At step three of the sequential analysis, the ALJ must determine whether the
claimant’s impairment or combination of impairments “meets, medically equals, or
functionally equals” an impairment in the listings. 20 C.F.R. § 416.924(a). The ALJ
must “conduct a distinct analysis that would permit adequate review on appeal.” Aung
Winn v. Colvin, 541 Fed. Appx. 67, 70 (2d Cir. 2013) (quoting Kohler v. Astrue, 546 F.3d
260 (2d Cir. 2008)) (summary order). A “one-sentence, conclusory analysis without any
recitation of the facts or medical evidence” will not “provide an analysis of [the
claimant’s] impairments sufficient to enable [the court] to conclude that the ALJ’s finding
is supported by substantial evidence.” Hamedallah ex rel. E.B. v. Astrue, 876
F.Supp.2d 133, 144 (N.D.N.Y. 2012). So the ALJ must “‘build an accurate and logical
bridge from the evidence to his conclusion to enable a meaningful review.’” Id. at 142
(quoting Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)).
Listing 112.05 Intellectual Disorder, provides the relevant criteria for determining
whether a child between the ages three and eighteen has an intellectual challenge
severe enough to constitute a disability under the Act. Either one of two sets of

Because the “remaining issues . . . may be affected by the ALJ’s treatment of
this case on remand,” this Court does not reach them. Watkins v. Barnhart, 350 F.2d
1297, 1299 (10th Cir. 2003).
2

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requirements can satisfy that listing. One set, 112.05(B), is satisfied when the claimant
meets two criteria:
1. Significantly subaverage general intellectual functioning evidenced by a or b:
a. A full scale (or comparable) IQ score of 70 or below on an individually
administered standardized test of general intelligence; or
b. A full scale (or comparable) IQ score of 71–75 accompanied by a verbal
or performance IQ score (or comparable part score) of 70 or below on an
individually administered standardized test of general intelligence; and
2. Significant deficits in adaptive functioning currently manifested by extreme
limitation of one, or marked limitation of two, of the following areas of mental
functioning:
a. Understand, remember, or apply information (see 112.00E1); or
b. Interact with others (see 112.00E2); or
c. Concentrate, persist, or maintain pace (see 112.00E3); or
d. Adapt or manage oneself (see 112.00E4).
20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 112.05(B).3
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The full text of Listing 112.05 is:

112.05 Intellectual disorder (see 112.00B4), for children age 3 to attainment of age 18,
satisfied by A or B:
A. Satisfied by 1 and 2 (see 112.00H):
1. Significantly subaverage general intellectual functioning evident in your
cognitive inability to function at a level required to participate in
standardized testing of intellectual functioning; and
2. Significant deficits in adaptive functioning currently manifested by your
dependence upon others for personal needs (for example, toileting,
eating, dressing, or bathing) in excess of age-appropriate dependence.
OR
B. Satisfied by 1 and 2 (see 112.00H):
1. Significantly subaverage general intellectual functioning evidenced by a
or b:
a. A full scale (or comparable) IQ score of 70 or below on an
individually administered standardized test of general intelligence;
or
b. A full scale (or comparable) IQ score of 71–75 accompanied by a
verbal or performance IQ score (or comparable part score) of 70 or
below on an individually administered standardized test of general
intelligence; and
2. Significant deficits in adaptive functioning currently manifested by
extreme limitation of one, or marked limitation of two, of the following
areas of mental functioning:
a. Understand, remember, or apply information (see 112.00E1); or
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The ALJ discussed three separate child intelligence evaluations of J.A.M.
Docket Item 9 at 23. The first was a “WRAT-IV standard achievement measure test”
administered in September 2014 by consultative examiner Yu-Ying Lin, Ph.D., that
yielded a full-scale IQ score of 73 and a Verbal Comprehension Index score of 77. Id.
at 23, 221. The second was a “WISC-IV test” administered in December 2014 by Loni
Coleman, a certified school psychologist, that resulted in a full-scale IQ score of 83 and
a Verbal Comprehension Index score of 81. Id. at 23, 234. The last was a “WISC-V
test” administered in May 2016 by Ms. Coleman that resulted in a full-scale IQ score of
73. Id. at 555. On that most recent test, however, J.A.M.’s Verbal Comprehension
Index score was 65, which fell within the very low and mildly deficient range. Id.
While the first two evaluations do not meet the first prong of 112.05(B), the most
recent one does. J.A.M.’s full scale IQ score of 73 falls between 71 and 75, and
J.A.M.’s verbal score of 65 falls below 70, meeting the explicit criteria of
112.05(B)(1)(b). When discussing the May 2016 test, the ALJ mentioned only the full
scale score of 73 and noted that “the claimant’s processing speed continued to return
high scores,” which suggested “continued significant varying cognitive abilities.” Id. at
23. But he did not address J.A.M.’s verbal score, even though with that score J.A.M.
met the first prong of 112.05(B).4

b. Interact with others (see 112.00E2); or
c. Concentrate, persist, or maintain pace (see 112.00E3); or
d. Adapt or manage oneself (see 112.00E4).
Gonzalez suggests that the ALJ might have evaluated J.A.M.’s impairments
using an older standard under which J.A.M. would not have met the criteria, even with
the May 2016 evaluation. But the error requires remand regardless of whether or not
that is true.
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Even more significantly, the ALJ did not discuss whether J.A.M.’s most recent
evaluation possibly met both 112.05(B) criteria and therefore evidenced a disability
under that listing. Instead, he wrote only that after “specific consideration was given to
listing[] . . . 112.05 intellectual disorder[,] . . . the medical evidence of record does not
document signs, symptoms, and/or laboratory findings indicating any impairment or
combination of impairments severe enough to meet the criteria of any listed
impairment.” Id. at 21. Especially in light of the ALJ’s failure to address the most recent
test scores, that conclusory statement does not build a bridge between the evidence
and his conclusion.
Although the ALJ did not discuss the second prong of Listing 112.05(B), it is
possible that J.A.M. met its requirements, too, and so the ALJ’s error was not harmless.
The Commissioner argues that “the ALJ’s thorough explanation as to how Plaintiff did
not satisfy the requirements for functional equivalence contains the reasoning
supporting those earlier determinations, and so remand is not required.” Docket Item
16-1 at 11. The Commissioner cites Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109,
112-13 (2d Cir. 2015), in which the Second Circuit noted that “the absence of an
express rationale for an ALJ’s conclusion does not prevent [the court] from upholding [it]
so long as we are able to look to other portions of the ALJ’s decision” to determine that
it was supported by substantial evidence. But that is not the case here.
While there may be some overlap between the subject matter of the six domains
covering functional equivalence and the requirements of the second prong of 112.05(B),
the ALJ’s consideration of whether J.A.M.’s impairments functionally equal the listing is
not the same as considering whether those impairments literally meet the explicit

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provisions of 112.05(B)(2). And even if the ALJ’s discussion of functional equivalence
did enable the Court to glean how the ALJ would have treated the second prong, that
still would not demonstrate how or whether the ALJ considered J.A.M.’s May 2016
verbal score. That score is simply not addressed in the decision,5 and because it could
have affected the ALJ’s determination of whether J.A.M. met Listing 112.05(B), remand
is required for the ALJ to explicitly consider that listing.
Because the ALJ failed to discuss whether J.A.M. met the 112.05(B) criteria in
light of the May 2016 evaluation—when J.A.M.’s scores fell within the first prong of that
listing—the ALJ “failed to provide a sufficient explanation for why Listing [112.05] was
not met or medically equaled in this case.” Ellen Skuse Powers v. Colvin, 2016 WL
5661976, at *6 (W.D.N.Y. Oct. 3, 2016). Specifically, in light of the ALJ’s conclusory
and “boilerplate statement . . . that he only considered medical evidence from medical
sources,” id. (internal citations omitted), the Court cannot tell whether the ALJ
specifically considered the May 2016 evaluation in light of the 112.05(B) criteria. The
ALJ therefore failed to “‘build an accurate and logical bridge from the evidence to his
conclusion to enable a meaningful review,’” Hamedallah ex rel. E.B., 876 F.Supp.2d at
142 (internal quotations omitted), and remand is required.

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The ALJ cited the page in the record on which that score appears when
evaluating the first domain, acquiring and using information: “multiple cognitive test[s]
yielded scores that revealed the claimant’s cognitive abilities varied significantly.”
Docket Item 9 at 25. But the ALJ also noted that “the claimant’s verbal comprehension
and perceptual reasoning scores generally indicated the claimant was underdeveloped
when compared to his peers.” Id. That discussion begs the question of how the ALJ
resolved the discrepancy between the recent test score that meets listing criteria and
those that did not.
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CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the
pleadings, Docket Item 16, is DENIED, and Gonzalez’s motion for judgment on the
pleadings, Docket Item 13, is GRANTED in part and DENIED in part. The decision of
the Commissioner is VACATED, and the matter is REMANDED for further
administrative proceedings consistent with this decision.
SO ORDERED.
Dated:

August 19, 2019
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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