CHARLES J. SIRAGUSA, District Judge.
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied the application of Elizabeth Jones for Supplemental Security Income ("SSI") benefits on behalf of her son, DXJ, who was a minor at the time of the application. Plaintiff alleged that DXJ is disabled due to Attention Deficit Hyperactivity Disorder ("ADHD"), dysthymia and oppositional defiant disorder ("ODD"), but the Commissioner found otherwise. Now before the Court is Plaintiff's motion (Docket No. [#8]) for judgment on the pleadings and Defendant's cross-motion [#10] for the same relief. For the reasons discussed below, Plaintiff's motion is denied, Defendant's motion is granted, and this action is dismissed.
42 U.S.C. § 405(g) states, in relevant part, that "[t]he findings of the Commissioner of Social security as to any fact, if supported by substantial evidence, shall be conclusive." The issue to be determined by this Court is whether the Commissioner's conclusions "are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). 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." Id.
In determining whether a child is entitled to SSI benefits pursuant to 20 C.F.R. 416.924,
Arsenault v. Colvin, No. 13-cv-6589 (SAS), 2015 WL 631403 at *6 (S.D.N.Y. Feb. 13, 2015) (citations and footnotes omitted).
In the instant case, Plaintiff does not contend that the child's impairments meet or medically equal a listed impairment, but contends that they "functionally equal" the listings. In such case,
Arsenault v. Colvin, 2015 WL 631403 at *6 (emphasis added; citations and footnotes omitted); see also, 20 CFR § 416.924.
The instant action involves alleged "functional equivalence" based upon limitations in four domains: acquiring and using information; attending and completing tasks; interacting and relating with others; and caring for self.
For example, with regard to "acquiring and using information," the regulation indicates that adolescents "should be able to comprehend and express simple and complex ideas, using increasingly complex language (vocabulary and grammar) in learning and daily living situations," and should learn "to apply these skills in practical ways that will help [them] enter the workplace after [they] finish school."
With regard to "attending and completing tasks," adolescents should "be able to pay attention when [spoken to directly], sustain attention to [their] play and learning activities, and concentrate on activities like putting puzzles together or completing art projects."
With regard to "interacting and relating with others," adolescents should be able to "initiate and develop friendships with children [of their same age]," "relate appropriately to other children and adults both individually and in groups," "be able to solve conflicts between [themselves] and peers or family members or adults outside [their families]," "recognize that there are different social rules for [themselves and their friends] and for acquaintances and adults," "be able to intelligently express [their] feelings," "ask for assistance in getting [their] needs met," "seek information," "describe events," and "tell stories, in all kinds of environments."
With regard to "caring for yourself," adolescents should be able to "feel more independent from others and [be] increasingly independent in all of [their] day-to-day activities," "begin to discover appropriate ways to express [their] feelings, both good and bad," and "think seriously about [their] future plans."
The reader is presumed to be familiar with the facts and procedural history of this action. The Court will briefly summarize the record as necessary for purposes of this Decision and Order.
On August 22, 2014, DXJ's mother, Ms. Jones, filed the subject application for SSI benefits, at which time the child was twelve years of age and about to start Eighth Grade, in regular education classes.
Shortly thereafter, three of DXJ's eighth-grade teachers completed "Teacher Questionnaires."
DXJ's math teacher reported that the child did not have an unusual degree of absenteeism; that he had a slight problem in several areas involving acquiring and using information, due to being easily distracted by other students; that he had a slight problem in several areas related to attending and completing tasks, and three obvious problems in that domain, involving waiting to take turns, changing activities without being disruptive, and working without distracting himself or others; that he had a slight problem in several areas relating to interacting and relating with others, and four obvious problems in that domain, involving following rules, using appropriate language, taking turns in conversation and interpreting the meaning of verbal cues; that he had no problem moving about and manipulating objects; and that in the domain of caring for himself, he had a slight problem adjusting to changes in his own mood and an obvious problem being patient.
The third teacher, who identified herself as "(Team J Rep) Teacher," indicated that DXJ had a few slight problems in the domain of acquiring and using information, and one obvious problem in that domain, involving his ability to express ideas in written form; that in the domain of attending and completing tasks, he had serious problems related to completing work without making careless mistakes, working without distracting himself or others, and working at a reasonable pace, and a very serious problem with completing homework and assignments; that he had no problems interacting and relating with others or moving about and manipulating objects; and that he had several obvious problems in the domain of caring for himself, which involved handling frustration appropriately, being patient, and using appropriate coping skills. This same teacher commented, "Attendance is a major issue. [DXJ] is absent a lot from school which interferes with academic success."
On December 9, 2014, agency review pediatrician J. Meyer ("Meyer") evaluated the records in support of the application, which at that point consisted of various medical and therapy records, as well as the teacher questionnaire from DXJ's math teacher. Meyer concluded that DXJ had ADHD and asthma, but that he was not disabled. In that regard, Meyer found that DXJ had less-than-marked limitations in the domains of acquiring and using information, attending and completing tasks, caring for himself and health and physical well being, and no limitations in the domain of moving about and manipulating objects.
Subsequently, DXJ failed his freshman year of high school (the 2015-2016 school year). Toward the end of DXJ's freshman year, Ms. Jones requested that he be evaluated for learning disabilities. On June 1, 2016, school psychologist Deanne Giambra, M.A. ("Giambra"), prepared a psychological evaluation. Giambra reported that according to Ms. Jones, DXJ's behavior problems began about three years earlier, and may have been connected to the child's father leaving, and/or the child having been diagnosed with ADHD.
Giambra further reported on the results of her testing, summarizing them as follows:
Transcript at 301.
On July 6, 2016, Plaintiff's mental health therapist, D. Valente, N.P. ("Valente"), completed a mental residual functional capacity questionnaire.
However, Valente indicated that DXJ did not have a low IQ, a learning disability or reduced intellectual functioning. Further, when asked to rate DXJ's functional limitations in various domains, she indicated that he had "no limitation" in the domains of "interacting and relating with others" and "moving about and manipulating objects"; "moderate limitation" in the domains of "acquiring and using information" and "caring for self"; and "marked limitation" in the domain of "attending and completing tasks."
On July 11, 2016, a hearing was held before the ALJ. DXJ and his mother both testified at the hearing.
During the July hearing, Plaintiff's attorney informed the ALJ that he was still attempting to obtain two particular groups of records concerning DXJ: 1) disciplinary records from DXJ's school; and 2) records from Niagara County Probation Department. With regard to the latter group, it appears that DXJ and his mother were involved in a probation adjustment program, which is a precursor to the filing of a petition in Family Court for a Person in Need of Supervision ("PINS") under the age of eighteen.
Transcript at 41-42. Plaintiff's attorney indicated that the Probation Department had acknowledged his request for records, and that he was hopeful that he would receive the records "pretty quickly."
The ALJ responded that the records already in his possession contained many references to DXJ having conflicts with school authorities, but that they did not indicate that he had at least a marked impairment in the domain of interacting and relating with others. In particular, the ALJ referenced Exhibit 12F, the report from Nurse Practitioner Valente, which referred to DXJS's repeated conflicts with his mother and with school authorities, but which also indicated that Plaintiff had "no limitation" in interacting and relating with others, and only a "moderate limitation" in caring for himself.
During the hearing, the ALJ frankly pointed out to Plaintiff's attorney that the evidence in the record at that time, including the report from NP Valente, did not appear to support a finding that DXJ had marked impairments in at least two domains. Plaintiff's counsel admitted that was true, but, again, indicated his hope that the Probation Records, once obtained, would help establish functional equivalence.
DXJ's mother, Ms. Jones, testified that the child was disrespectful and disobedient toward her, that he refused to get out of bed and go to school, that she needed to remind him to take care of his personal hygiene, that she received weekly calls from school about problems with him, that he had been suspended several times and been sent to alternative educational locations, and that he fought with his older brother. Ms. Jones indicated that DXJ's focus and concentration were not good, that he was easily distracted, that he could not sit still, and that his doctors had recently changed his medications because they felt that his prior medications were not helping. Ms. Jones stated that DXJ would have to repeat ninth grade, because he had failed all of his classes, and that he was refusing to attend summer school. She further stated that at school, DXJ would often leave the classroom without permission and either walk the halls or hide in the bathroom. Ms. Jones noted, however, that DXJ's hobby was baseball, and that he played pitcher and catcher on a travel league baseball team, and that he had no problems with his teammates or his coaches.
Regarding DXJ's involvement with Niagara County Probation, Ms. Jones indicated that she had initiated such involvement "to have some assistance," due to the child's unwillingness to obey her.
Transcript at 48-49. Ms. Jones further testified:
Transcript at 53.
DXJ also testified, articulately, and agreed that he frequently missed school, even though his mother attempted to make him go, because he chose to wake up late and stay home. DXJ indicated that he "sometimes" had conflicts with teachers and administrators, and that he got into trouble for insubordination, but suggested that it often involved him getting angry at the way people spoke to him.
At the close of the hearing, the ALJ told Plaintiff's attorney that he would be awaiting the additional documentation that counsel was attempting to obtain. See, Transcript at 63 ("ALJ: Okay. I will look for that additional information. We can get a clearer picture — ATTY: Thank you, Your Honor.").
Subsequently, on August 9, 2016, Plaintiff's counsel wrote to the Office of Disability Adjudication and Review to request the issuance of a subpoena, to Niagara County Probation. In that regard, Plaintiff's counsel indicated that he had already contacted that office five times, requesting whatever records they had.
On December 13, 2016, the ALJ issued his decision, denying Plaintiff's application. The ALJ began his decision by noting that he was denying Plaintiff's request for a subpoena because she had not complied with the procedural requirements for such a request.
With regard to functional equivalence, the ALJ found that Plaintiff had no limitation in the domain of moving about and manipulating objects, and a less-than-marked limitation in the other five domains. In explaining this finding, the ALJ reviewed and summarized the evidence, and found, first, that while DXJ indeed had problems with school, his "excessive absences and tardiness [were a] significant cause of th[o]se difficulties." In that regard, the ALJ noted that "intelligence testing corroborates this conclusion." Additionally, the ALJ stated that while AXJ had certainly demonstrated a variety of behavior problems, the record established that he could focus and exercise self control when it suited him to do so, such as when he was playing baseball. The ALJ also noted that according to the school psychologist, AXJ had been "polite, respectful, cooperative and well-engaged during the intelligence testing."
With regard to the various opinion evidence, the ALJ gave significant weight to most of Valente's opinion, but less weight to the portion of her opinion in which she indicated that DXJ had a marked restriction with regard to attending and completing tasks, due to the fact, as already discussed, that Plaintiff's academic difficulties were primarily the result of his absenteeism. The ALJ gave significant weight to the entire opinion of Dr. Meyer, finding that it was "generally consistent with the overall evidence of record." The ALJ gave some weight to the opinions of DXJ's three teachers, even though they were not acceptable medical sources, since their opinions were generally consistent with the opinions of Valente and Meyer. Based upon these findings, the ALJ concluded that DXJ was not disabled.
Plaintiff appealed, but on December 6, 2017, the Appeals Council declined to review the ALJ's decision.
On February 5, 2018, Plaintiff commenced this action. On September 4, 2018, Plaintiff filed the subject motion [#8] for judgment on the pleadings. In support of that motion, Plaintiff contends that the Commissioner's decision must be reversed for the following reasons: 1) the ALJ's functional equivalence findings are not supported by substantial evidence; 2) the ALJ failed to develop the record by obtaining records from Niagara County Probation; 3) the ALJ failed to properly evaluate the opinion evidence; 4) the ALJ failed to evaluate the credibility of DXJ's mother, Ms. Jones.
On November 2, 2018, Defendant filed the subject cross-motion [#10] for judgment on the pleadings.
The Court has reviewed the administrative transcript and the parties' submissions, and concludes that Plaintiff's arguments lack merit.
At the outset, the Court finds that the ALJ did not violate his well-established duty to develop the record when he denied Plaintiff's request to subpoena records from Niagara County Probation.
Rivera v. Colvin, No. 15-CV-50S, 2016 WL 6155575, at *3 (W.D.N.Y. Oct. 24, 2016).
As mentioned earlier, during the hearing before the ALJ, Plaintiff's counsel indicated that he was attempting to obtain the records from Niagara County Probation as evidence that DXJ had at least a marked impairment in the domain of interacting and relating with others. In particular, Counsel indicated that the records would show that DXJ tends to have conflicts with authority figures.
The ALJ indicated that the Probation records were "not reasonably necessary for the full presentation of the case," and the Court finds that determination is supported by substantial evidence. The Probation records would have been merely cumulative, since the record is already replete with instances of DXJ misbehaving toward authority figures at various times. For example, school records indicate that on May 3, 2016, a teacher made this report concerning DXJ: "[DXJ] was not supposed to be in here due to earlier discipline infractions. I asked him to leave, his response, "You're a pretty ass little kid."
The Court also finds that the ALJ's functional equivalence findings are supported by substantial evidence, contrary to what Plaintiff maintains. See, e.g., Grant v. Colvin, No. 12-CV-962 MAT, 2015 WL 3746707, at *6 (W.D.N.Y. June 15, 2015) (ALJ's finding, that claimant had less-than-marked impairment in domain of acquiring and using information, was supported by substantial evidence, where "Plaintiff's negative academic achievement was mostly attributed to her high level of absenteeism."); Briggs v. Colvin, No. 7:15-CV-0071 (GTS), 2016 WL 344973, at *11 (N.D.N.Y. Jan. 27, 2016) ("Although D.H. further admitted to having fought with his brothers (and the incident on the school bus involved one of his brothers), the regulations do not suggest that any child who does not get along with his older brothers also has a marked limitation in this domain [(Interacting and relating with others)]."); Sepulveda ex rel. A.S. v. Colvin, 964 F.Supp.2d 228, 236 (N.D.N.Y. 2013) ("Although there are a few instances where it is noted that plaintiff could be defiant and disrespectful, substantial evidence in the record supports the ALJ's conclusion that she has less than marked limitations in interacting and relating with others."); Jeffrey A. on behalf of J.M.A. v. Saul, No. 5:18-CV-195 (CFH), 2019 WL 3081092, at *11 (N.D.N.Y. July 15, 2019) ("[S]ubstantial evidence supports the ALJ's determination that J.M.A. had a less than marked limitation in the domain of interacting and relating to others. The Court acknowledges that evidence exists in the record demonstrating that J.M.A. had limitations in this domain; however, in assessing the entire record, the Court finds that it is not enough to overcome this highly deferential standard."). Further the Court finds that the ALJ properly evaluated the opinion evidence and gave good reasons for the weight that he assigned to the various opinions.
As for Plaintiff's contention that the ALJ erred by failing to specifically indicate whether he found Ms. Jones to be a credible witness, the Court disagrees. Plaintiff's argument on this point appears to rest on the premise that because the ALJ found DXJ not disabled, he must have found that Ms. Jones was not credible. See, e.g., Pl. Memo of Law [#8-1] at p. 29 ("The ALJ provided no cogent link between the evidence, and what he specifically found to contradict [DXJ's] mother's testimony across the remaining domains."). However, the ALJ's decision does not indicate that he found that Ms. Jones was not credible. On this point, Ms. Jones primarily testified that DXJ was disrespectful and disobedient toward her, that he did not get along with his older brother, that he frequently got into trouble at school, and that he was performing poorly academically. However, as to her testimony, the ALJ noted that other evidence, particularly school records, also documented these same behaviors.
The Court has considered all of Plaintiff's remaining arguments and finds that they also lack merit.
Plaintiff's application [#8] is denied, defendant's application [#10] is granted, and this action is dismissed. The Clerk of the Court is directed to enter judgment for defendant and close this action.
So Ordered.
