MAE A. D'AGOSTINO, District Judge.
Plaintiff Christina Hamedallah brings the above-captioned action on behalf of her minor daughter, E.B., pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision to deny E.B.'s application for supplemental security income ("SSI").
On August 8, 2008, plaintiff filed an application on E.B.'s behalf for Supplemental Security Income ("SSI"). (Administrative Transcript at p. 63).
The medical record establishes that E.B. suffered a traumatic brain injury as a result of an in utero stroke. On June 12, 2003, when E.B. was nine days old, she treated was at Schenectady Family Health Services and diagnosed with seizure disorder. In April 2004, E.B. was hospitalized for seizures and at her fifteen month well child visit, the doctors diagnosed E.B. with seizure disorder and developmental delay. (T. 478). The doctors referred E.B. to a pediatric neurologist.
In April 2006, E.B. had a three year well child visit at Hometown Health Center. The doctors noted that she had been "off seizure meds since 12/05". E.B.'s speech
On April 10, 2008, during a visit at Hometown Health Centers, plaintiff complained that E.B. exhibited disruptive behavior after a visit with her biological father. Plaintiff claimed the E.B.'s father alleged "odd behavior with an eight year old girl" and that E.B. went "under covers with a boy". The doctor noted, "suspected sexual abuse by father", "history concerning". (T. 541). The doctor gave plaintiff the telephone number for "peds assault" and noted that plaintiff was comfortable with plan and indicated that E.B. would not be alone with father. (T. 541).
On August 22, 2008, E.B. was seen for a 5 year well-child visit. Plaintiff stated that E.B. had been exhibiting behavioral problems once a month consisting of urinating, breath holding, tantrums and smearing feces. The doctor noted that plaintiff behaved well with teachers and at summer camps. The doctor also noted that plaintiff had not experienced any seizures for the last four years. The doctor referred plaintiff and E.B. for family counseling. (T. 413).
On September 8, 2008, E.B. was assessed at Northeast Parent and Child Society, Child Guidance Center by Mary Baker, LMHC and Ms. Baker's supervisor, Karen Nabors, LCSW. Plaintiff complained that E.B. was defiant with a history of distress in utero with developmental delays and slow speech. Plaintiff also complained that E.B. was difficult with her peers and inattentive. The evaluators noted that E.B. had visits with her father but that there was a history of domestic violence between her mother and father and that her mother was verbally abusive towards E.B. (T. 430). The evaluators also noted that E.B.'s stepfather provided well-needed structure. At the time of the examination, E.B. was receiving occupational and speech therapy services. The evaluators noted that more information was necessary to determine whether E.B. met the criteria for ADHD. E.B. was diagnosed with cognitive delays and environmental influences which "greatly impeded her self-organization and social development", oppositional defiance disorder and noted as "extremely disorganized". Ms. Baker opined that E.B.'s problems would improve if her parents provided structure and expectations.
On January 6, 2009, Seth Rigberg, Ph.D. evaluated E.B. at the request of the agency. Plaintiff advised that E.B. was learning disabled with behavioral problems and indicated that E.B. received services at school consisting of occupational therapy, speech therapy and physical therapy. Plaintiff stated that E.B. loses her temper and becomes physical but otherwise is a happy child who does what she is told and pays attention. Upon examination, Dr. Rigberg noted that E.B. was cooperative, she had mild to moderate articulation problems and her judgment was poor. Dr. Rigberg diagnosed E.B. with phonological disorder
On February 20, 2009, A. Herrick completed a Childhood Disability Form at the request of the agency.
On March 18, 2009, E.B. was seen at Hometown Health Center. The doctor noted that E.B.'s last seizure was one to two years prior. At the time of the visit, E.B. was not being treated by a pediatric neurologist and was no longer taking any medication for her seizures. Plaintiff stated that E.B. last took medication for seizures two to three years ago.
On April 2, 2009, E.B. underwent a CT scan at Albany Medical Center which was compared to a prior MRI taken in September 2003.
On January 19, 2010, E.B. had a six year well child visit. A Department of Health check up indicated that E.B. was accompanied by her foster mother with whom E.B. had been living since December 2009. The doctor noted that she was doing well since being removed from her home due to domestic violence and plaintiff's refusal to leave. E.B. exhibited no behavior problems, was a good eater and good with social interactions. E.B. had supervised visits with her biological father and the doctor indicated that she received special education services. (T. 562).
On July 28, 2010, E.B. was examined at Ellis Hospital Mental Health Services. (T. 481). Upon mental examination, E.B. exhibited slow speech, anxious mood and affect, her thought process was coherent and goal directed. E.B.'s judgment and impulse control were fair and it was noted that she had only mild impairments. E.B. was diagnosed with anxiety disorder.
On October 19, 2010, Ms. Baker authored a letter addressed "To Whom It May Concern" stating that she treated E.B. for two years and "observed that she is unfocused". Ms. Baker opined that E.B. has significant inattention and distractibility that interferes with her learning and further, that she is oppositional at home. (T. 573).
In March 2008, an IEP was prepared for the 2008/2009 school year. E.B.'s disability classification was noted as "traumatic brain injury". The evaluators noted that she required adult supervision to navigate her relationships with her peers, her impulsivity decreased and her attentiveness was increased but she had difficulties with directions. E.B. would "shut down" and was easily distracted. (T. 208).
On October 15, 2008, E.B.'s special education teacher, Sheila McPherson completed a Teacher Questionnaire. At the time
On November 10, 2008, E.B.'s kindergarten teacher completed a Teacher Questionnaire. Ms. Cutty indicated that she knew E.B. for two months at the time she prepared the evaluation. The teacher opined that E.B. had serious problems with acquiring and using information, specifically with reading and comprehension and expressing ideas. E.B. also exhibited slight to obvious problems daily with attending and completing tasks and slight to obvious problems interacting and relating with others. No behavior modification was necessary and the teacher was able to understand E.B.'s speech. E.B. had no limitations moving and manipulating objects and only slight difficulties caring for herself. (T. 362).
On April 21, 2009, Ms. McPherson completed a second Teacher's Questionnaire and indicated that she knew E.B. for seven months. Ms. McPherson noted that E.B. was in an "inclusion class" and required support to be independent. E.B. had difficulties focusing in large groups and required a behavior management plan. E.B. received occupational therapy and was "shut down" on occasion.
On September 28, 2010, Gregory Osenko completed a Psycho-Educational Report for the Schenectady City School District. Mr. Osenko noted that E.B. suffered a traumatic brain injury due to a stroke in utero. As a result, E.B. suffered brain damage and her ability to control her impulses and judgment was impaired. E.B. received special education services at school with speech and language therapy. (T. 505). Mr. Osenko noted that E.B.'s intellectual functioning was in the "borderline range" with difficulties in the verbal comprehension and perceptual reasoning index. E.B.'s capacity to process information was in the "average range" and her capacity to remember information was in the "low average range". (T. 503).
On October 15, 2010, the Committee on Special Education held a transfer meeting with respect to E.B.'s 2010-2011 IEP. The Committee noted that E.B. made a "nice adjustment" to second grade at a new school. She was noted as, "sweet, talkative, outgoing" and "a pleasure to have in class". E.B. was able to work independently and in small groups and her abilities were noted as "slightly below grade level". E.B. had difficulties with vocabulary skills and some "speech sound errors" however, these deficiencies did not impact her intelligibility. However, her difficulties affected her ability to understand and follow multi-step directions. E.B. was noted as "attentive in the Resource Room" and "excelled in all areas". E.B. was "age appropriate" with no displays of negative behavior. She made friends easily and assisted her peers with tasks. Physical therapy was not needed as E.B. was able to function independently in a safe manner. E.B. still required adult support to "stay on task" and focused in a large classroom. It was recommended that E.B. attend the Resource Room five times a week and that she continue to receive speech
The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." An individual under the age of eighteen is disabled, and thus eligible for SSI benefits, if he
42 U.S.C. § 1382c(a)(3)(C)(i). That definitional provision goes on to exclude from coverage any "individual under the age of 18 who engages in substantial gainful activity...." 42 U.S.C. § 1382c(a)(3)(C)(ii).
Miller v. Comm'r of Soc. Sec., 409 Fed. Appx. 384, 386 (2d Cir.2010).
Equivalence to a Listing can be either medical or functional. 20 C.F.R. § 416.924(d); Kittles ex rel. Lawton v. Barnhart, 245 F.Supp.2d 479, 488 (E.D.N.Y.2003). If an impairment is found to meet, or qualify as medically or functionally equivalent to, a listed disability, and the twelve month durational requirement is satisfied, the child will be deemed disabled. 20 C.F.R. § 416.924(d)(1); see also Pollard v. Halter, 377 F.3d 183, 189 (2d Cir.2004).
Under the Social Security Regulations (the "Regulations"), analysis of functionality is performed by consideration of how a claimant functions in six areas which are denominated as "domains," and described as "broad areas of functioning intended to capture all of what a child can or cannot do." 20 C.F.R. § 416.926a(b)(1). Those prescribed domains include:
20 C.F.R. § 416.926a(b)(1). A finding of disability is warranted if a "marked" limitation, defined as when the impairment "interferes seriously with [the claimant's] ability to independently initiate, sustain, or complete activities," 20 C.F.R. § 416.926a(e)(2)(i), is found in two of the listed domains. 20 C.F.R. § 416.926a(a). Functional equivalence also exists in the event of a finding of an "extreme" limitation, meaning "more than marked," representing an impairment which "interferes very seriously with [the claimant's] ability to independently initiate, sustain, or complete activities," and this rating is only "give[n] to the worst limitations". 20 C.F.R. § 416.926a(e)(3)(i); see also Pollard, 377 F.3d at 190.
Using the three-step disability evaluation, the ALJ found at step one that E.B. has never engaged in any substantial gainful activity. (T. 15). At step two, the ALJ concluded that E.B. had severe impairments consisting of: traumatic brain injury at birth; history of seizure disorder; cognitive delays; borderline intellectual functioning vs. mild mental retardation, phonological disorder; parent-child relational problem; and anxiety disorder. (T. 15). At the third step of the analysis, the ALJ found that none of E.B.'s severe impairments meet, medically equal, or functionally equal any of the listed, presumptively disabling conditions set forth in Appendix 1 of the Regulations. (T. 16). The ALJ evaluated E.B.'s functional abilities in the six domains established by 20 C.F.R. § 416.926a(b)(1) and found that E.B.'s limitations were "less than marked" in all six domains: acquiring and using information; attending and completing tasks; interacting and relating with others; moving about and manipulating objects; caring for herself; and health and physical well-being. (T. 20-26). Consequently, the ALJ concluded that E.B. was not disabled. (T. 27).
In seeking federal judicial review of the Commissioner's decision, plaintiff argues that: (1) the ALJ erred when he failed to assign controlling weight to the opinion of Seth Rigberg, Ph.D; (2) the ALJ erred when he failed to find that E.B.'s impairments meet or equal a listed impairment; (3) the ALJ erred by failing to find that E.B.'s impairments are functionally equivalent to the Listings.; and (4) the ALJ improperly evaluated plaintiff's mother's and stepfather's credibility. (Dkt. No. 13).
Initially, the Court is compelled to address the inadequacies of plaintiff's Memorandum of Law and arguments. Cohesive arguments, attention to detail and appropriate citations are always required. That requirement is particularly important when representing a minor. As the Court is compelled to conduct a de novo review, the Court will analyze the ALJ's assessments of the Listings and Functional Domains as well as his evaluation of the opinion evidence and credibility.
Plaintiff claims that E.B. meets the following listed impairments: 112.05D and 112.05E.2. By regulation, the Commissioner has set forth a series of listed impairments describing a variety of physical and
The Commissioner's determination as to whether the claimant's impairment meets or equals the Listings must reflect a comparison of the symptoms, signs, and laboratory findings about the impairment, including any functional limitations that result from the impairment, with the corresponding criteria shown for the listed impairment. 20 C.F.R. §§ 416.925, 416.926a; see also Giles v. Chater, 1996 WL 116188, at *5-6 (W.D.N.Y.1996). Where the claimant's symptoms, as described by the medical evidence, appear to match those described in the Listings, the ALJ must provide an explanation as to why the claimant failed to meet or equal the Listings. Booker v. Heckler, 1984 WL 622, at *3 (S.D.N.Y. 1984). When evaluating a claimant's impairments, the ALJ must refer to the specific criteria set forth in the Listing. Morales v. Barnhart, 218 F.Supp.2d 450, 459-60 (S.D.N.Y.2002). Mere recitation of the medical evidence is insufficient unless the reports referred to contain substantiated conclusions concerning the Listings, and the ALJ expressly adopts the reasoning of those conclusions. Id. The ALJ (not the Commissioner's lawyers) must "build an accurate and logical bridge from the evidence to [his] conclusion to enable a meaningful review". Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir.2002) (internal citations omitted). A court "cannot ... conduct a review that is both limited and meaningful if the ALJ does not state with sufficient clarity the legal rules being applied and the weight accorded the evidence considered." Morgan on Behalf of Morgan v. Chater, 913 F.Supp. 184, 188-189 (W.D.N.Y.1996) (quoting Ryan v. Heckler, 762 F.2d 939, 941 (11th Cir.1985)).
An ALJ has a legal duty to consider "all evidence" in the case record before making a determination as to whether a claimant is eligible for disability benefits. 20 C.F.R. § 416.920(a)(3); see Sutherland v. Barnhart, 322 F.Supp.2d 282, 289 (E.D.N.Y.2004) ("It is not proper for the ALJ to simply pick and choose from the transcript only such evidence as supports his determination, without affording consideration to evidence supporting the plaintiff's claims. It is grounds for remand for the ALJ to ignore parts of the record that are probative of the plaintiff's disability claim."); see also Lopez v. Sec'y of Dep't of Health & Human Servs., 728 F.2d 148, 150-51 (2d Cir.1984) ("We have remanded cases when it appears that the ALJ has failed to consider relevant and probative evidence which is available to him."). The ALJ must provide adequate explanations with regard to § 112.05 including a discussion of whether claimant has an impairment or combination of impairments that meets or medically equals § 112.05 of the Listings. Setting forth a single sentence is insufficient. Martinbeault v. Astrue, 2009 WL 5030789, at *6 (N.D.N.Y.2009) (on remand, the ALJ should consider and provide a detailed statement of reasons as whether the IQ test scores, combined with the ADHD and adjustment disorder (which were already found to be severe), meet or medically equal § 112.05(D) of the Listings).
Listing § 112.05 involves mental retardation which is, "[c]haracterized by
To meet the requirements of 112.05D, a claimant must establish a valid verbal, performance or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant limitation of function. 20 C.F.R. Pt. 404, Subpt. P, App. 1. To satisfy the second prong, the claimant must demonstrate that an impairment or combination of impairments, separate and distinct from a low IQ, imposes more than a slight or minimal limitation on the claimant's functioning. Williams v. Astrue, 2008 WL 4755348, at *10 (S.D.N.Y.2008).
To meet Listing 112.05E, the claimant must exhibit:
20 CFR Pt. 404, Subpt. P, App. 1.
In this case, the ALJ specifically discussed Listing 112.05D and found that plaintiff did not meet or equal any of the listing. The ALJ concluded that while plaintiff had a valid verbal, performance or full scale IQ of 60 through 70, "the undersigned finds that the evidence fails to show that she has a physical or other mental impairment imposing additional and significant limitation of functioning as is also required in the listing". (T. 15)
Plaintiff argues that E.B. meets Listing 112.05D because, "the child's (remarkably consistent) IQ scores of 65/67 and concurrent severe mental and physical impairments meet the criteria". Plaintiff also summarily states that E.B. meets 112.05E.2 because she, "has a marked impairment in age appropriate cognitive/communicative functioning". Plaintiff argues that Dr. Rigberg's examination and E.B. teacher evaluations support this assertion.
The Commissioner argues that E.B. does not meet either Listing because WISC-IV IQ testing established that E.B.
With respect to the second prong of 112.05D, the Court has reviewed the administrative record and finds that the ALJ's determination is not supported by substantial evidence. "There is authority in this Circuit for the proposition" that where the ALJ concludes that there are additional impairments that are "severe" under § 416.924(c), "then the claimant meets the prong two requirement of 112.05D". Juckett ex rel. K.J. v. Astrue, 2011 WL 4056053, at *7-8 (N.D.N.Y.2011) (citations omitted) (collecting cases); see also Vazquez ex rel. Jorge v. Barnhart, 2005 WL 2429488, at *7 (S.D.N.Y.2005); see also Edmond v. Barnhart, 2006 WL 2769922, at *7-9 (W.D.N.Y.2006) (a "severe" impairment is considered to be the equivalent of a "significant" limitation for the purposes of Listing § 112.05D).
Here, at Step Two of the sequential analysis, the ALJ found that E.B. suffered from several "severe" impairments. Even if this Court declines to adopt the view that a "severe impairment" is necessarily construed as a "significant" impairment, the ALJ's analysis is nonetheless flawed. The ALJ failed to discuss, or even address, whether E.B.'s severe impairments created a mental impairment imposing an additional and significant work-related limitation of function under § 112.05D. Despite the ALJ's conclusion at Step Two, that plaintiff suffered from several severe impairments, including a traumatic brain injury at birth, history of seizure disorder, cognitive delays, borderline intellectual functioning, phonological disorder, parent-child relational problems and anxiety disorder, the ALJ did not address the impact, if any, that these "severe impairments" had on the determination that plaintiff did not meet any criteria of § 112.05D. See Cruz ex rel. Vega v. Barnhart, 2005 WL 2010152, at *12 (S.D.N.Y.2005) (the ALJ's determination that the plaintiff had four severe impairments, a determination supported by the available evidence, is tantamount to a finding that each of these impairments satisfies the second prong of Listing 112.05). The ALJ provided a one-sentence, conclusory analysis without any recitation of the facts or medical evidence. The ALJ's failure to explain the conclusion is plain error. See Morgan o/b/o Morgan v. Chater, 913 F.Supp. 184, 188-189 (N.D.N.Y.1996) (holding that a one-sentence denial is insufficient to support the determination, especially in light of the evidence to the contrary). In this matter, the ALJ failed to provide an analysis of plaintiff's impairments sufficient to enable this Court to conclude that the ALJ's finding is supported by substantial evidence.
Upon remand, the ALJ must address this issue and if the ALJ determines that E.B's impairments do not satisfy § 112.05D, the record should be more fully developed, and the decision should explain why claimant's IQ scores — in conjunction with her traumatic brain injury, history of seizure disorder, cognitive disorder, borderline intellectual functioning, phonological disorder, parent-child relational problems and anxiety disorder — do not meet the listing for mental retardation under § 112.05D. See Hall ex rel. Lee v. Apfel, 122 F.Supp.2d 959, 967 (N.D.Ill.2000).
Moreover, the Court finds that the ALJ's failure to mention or discuss Listing 112.05E necessitates remand. The ALJ failed to discuss whether or not claimant's impairments met the specific requirements of § 112.05E of the Listings. Upon a review of the record, the Court finds that the ALJ made conclusory findings and failed to apply the appropriate legal standard. The Second Circuit has held that, "[w]here 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 legal principles." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987). On remand, the ALJ should specifically address whether E.B.'s impairments meet § 112.05E of the Listings and further, should specifically address the factors listed in § 112.02B. The ALJ should have provided some explanation as to why claimant's impairments do not meet the criteria of the specified listings and should have discussed the applicable paragraphs of § 112.02B.
In light of the ALJ's failure to provide a sufficient rationale, the Court is unable to conclude that the ALJ's finding that E.B. fails to meet or medically equal a listed impairment is supported by substantial evidence. Upon remand, the ALJ should consider the evidence and determine whether plaintiff meets any of the aforementioned subsections of 112.05.
As discussed supra, the ALJ must analyze whether claimant has an impairment or combination of impairments that functionally equals a Listing based upon an analysis of six domains: (1) attending and completing tasks; (2) acquiring and using information; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). Plaintiff briefly and vaguely asserts that E.B. suffers from an extreme/marked limitation in all six domains. Plaintiff provides only conclusory assertions with regard to E.B.'s impairments in the first three domains with minimal citations to the record. Plaintiff fails to provide any coherent argument in support of her claim that the ALJ erred with respect to the final three domains. (Dkt. No. 13).
The Regulations define an extreme limitation as:
20 C.F.R. § 416.926a(e)(3)(i); § 416.926a(e)(3)(iii).
The Regulations define a marked limitation as:
20 C.F.R. § 416.926a(e)(2)(i); § 416.926a(e)(2)(iii).
In assessing this domain, the ALJ must consider how well a child acquires or learns information, and how well he can use the information she has learned. Edmond v. Barnhart, 2006 WL 2769922, at *9 (W.D.N.Y.2006). For children E.B.'s age, the Regulations provide:
20 C.F.R. § 416.926a(g)(2)(iii).
An analysis of this domain should include school records including non-medical evidence provided by a teacher, who works with a child on a daily basis and observes her in a social setting with peers as well as
Here, the ALJ found that plaintiff had a "less than marked" limitation in this domain. (T. 20). The ALJ concluded:
The ALJ relied upon E.B.'s 2008-2009 IEP which indicated that she made progress in speech and language development. (T. 20). The ALJ also discussed plaintiff's teachers' opinions but found their opinions inconsistent and noted that in 2009, E.B. developed "better functioning in this domain".
Upon review of the record, the Court finds that substantial evidence does not support the ALJ's conclusion for various reasons. Arguably, there is some evidence that E.B.'s functioning improved in this domain, however, the ALJ failed to discuss critical portions of the record and failed to properly analyze the medical evidence. Specifically, the record contains a copy of E.B.'s 2010-2011 IEP. The ALJ failed to mention, discuss or analyze this evaluation. As a result of the 2010-2011 IEP review, E.B.'s services were modified. The Committee recommended that E.B. no longer receive special education services, rather, she was referred to the Resource Room five times a week. However, it was recommended that E.B. continue to receive speech therapy and social counseling. While these adjustments to E.B.'s services may support the ALJ's finding that E.B. does not display a "marked" limitation in this area of functioning, the ALJ ignored the 2010-2011 IEP and failed to discuss the recommendations in any respect. Further, "good performance in a special education setting does not mean that [a child is] functioning at the same level as other children [his] age who do not have impairments". F.M. v. Astrue, 2009 WL 2242134, at *9 (E.D.N.Y.2009) (holding that the claimant was "the beneficiary of the devoted efforts of teachers", but that fact was insufficient to support a finding that his limitations were not marked) (citing 20 C.F.R. 416.924a(b)(7)(iv). A finding of "less than marked" is unsupported by substantial evidence when the ALJ fails to consider that the child's improvements in behavior occurred only in the structured special education setting). Gonzalez ex rel. C.C. v. Astrue, 2009 WL 4724716, at *6 (N.D.N.Y. Dec. 2, 2009). As stated, this Court will not engage in an analysis that is more appropriately performed by the ALJ.
The ALJ also failed to discuss A. Herrick's opinion with respect to this domain. A. Herrick, an alleged specialist in psychology, evaluated E.B.'s records and opined that she displayed a "marked" limitation in this domain. The ALJ failed to mention this opinion, assign weight to this opinion, or specifically reject this opinion. Indeed, the Court is unable to ascertain what evidence that ALJ relied upon because he failed to assign any weight to any consultative opinion, treating physician opinion, treatment notes or records. The
Because the ALJ failed to assign weight or to explain the weight he afforded to any conclusions or opinions, the Court is constrained to find that his conclusions are supported by substantial evidence. Accordingly, on remand, the ALJ should discuss and analyze claimant's medical records, E.B.'s 2010-2011 IEP and may consider obtaining testimony from individuals concerning claimant's abilities outside of her special education setting. See Martinbeault, 2009 WL 5030789, at *7-8.
The domain of attending and completing tasks gauges how well a child is able to focus and maintain attention. 20 C.F.R. § 416.926a(h). For children of E.B.'s age (age 3 to age 6), the regulations provide:
20 C.F.R. § 416.926a(h)(2)(iii).
Some examples of limited functioning include: (1) being "easily startled, distracted, or over reactive to sounds, sights, movements, or touch"; (2) "being slow to focus on, or fail to complete activities of interest"; (3) becoming repeatedly sidetracked from activities or frequently interrupting others; and (4) being easily frustrated and giving up on tasks. See 20 C.F.R. § 416.926a(h)(3)(i)-(v); see also Morgan v. Barnhart, 2005 WL 925594, at *13 (S.D.N.Y. Apr. 21, 2005).
Here, the ALJ found that plaintiff had a "less than marked" limitation in this domain. (T. 21). The ALJ discussed E.B.'s IEP noting:
The ALJ also discussed the teacher questionnaires noting that E.B. displayed "slight" to "obvious" problems in areas of this domain. However, the ALJ relied upon the lack of any documented diagnosis of ADHD and lack of any medication to treat ADHD as a basis for his conclusion that E.B. has "only a less than marked limitation in this domain".
The ALJ ignored plaintiff's special educations teacher's observations regarding plaintiff's "daily/obvious problems" completing work. All of E.B.'s teachers opined that she exhibits "daily/obvious problems" working without distracting others and paying attention and is "easily distracted" and has difficulty focusing. E.B.'s teachers unanimously opined that E.B. "shuts down" when she disagrees with adults or refused to obey instructions. Plaintiff also testified that E.B. displays these tendencies. The ALJ ignored Ms. Baker's opinion that E.B. was "extremely disorganized". Instead, the ALJ relied upon the lack of any evidence or diagnosis of ADHD. Again, the Court notes that the 2010-2011 IEP may provide some support for the conclusion that E.B. improved in this area. The Committee noted that E.B. was "very attentive" while in the Resource Room. However, as noted above, because the ALJ failed to properly apply the regulations with respect to the medical evidence, the Court cannot find that the conclusions with respect to this domain are supported by substantial evidence. Upon remand, the ALJ should consider the Regulations and assign and explain the weight afforded to all of the opinion evidence. The ALJ must analyze the entire record and support his decision with evidence in the record rather than the absence of a specific diagnosis.
Plaintiff contends that the ALJ erred by failing to find that E.B. has an extreme or marked impairment in the domain of interacting and relating to others. The domain of interacting and relating with others considers how well the child initiates and sustains emotional connections with others, develops and uses the language of his community, cooperates with others, complies with rules, responds to criticism, and respects and takes care of the possessions of others. 20 C.F.R. § 416.926a(i). For school-age children of E.B.'s age (age 3 to attainment of age 6), the Regulations further provide:
20 C.F.R. § 416.926a(i)(2)(iii).
Here the ALJ found that plaintiff has less than marked limitations in this area. (T. 23). The ALJ relied upon the 2008-2009 IEP and the lack of any treatment, despite the diagnosis, for oppositional defiance
The ALJ found that E.B. has a less than marked limitation in this domain. (T. 25). The Regulations provide:
20 C.F.R. § 416.926a(j)(2)(iii).
The ALJ relied upon the 2008-2009 IEP and noted that E.B. improved in this domain with services including occupational and physical therapy. The 2010-2011 IEP further supports the ALJ's determination as the Committee found that E.B. functions safely and independently at school and E.B. no longer receives services in this area. As the evidence as a whole shows that E.B. has made continuous improvement in this domain, substantial evidence supports the ALJ's determination that E.B. does not suffer from a marked impairment in this area. See Watson ex rel. K.L.W. v. Astrue, 2008 WL 3200240, at *3 (W.D.N.Y.2008).
The ALJ found that E.B. has a less than marked limitation in this domain. The Regulations provide:
20 C.F.R. § 416.926a(k)(2)(iii).
The ALJ acknowledged plaintiff's allegations that E.B. has frequent toileting accidents at home. However, while pediatric records confirm these events, the last documented incident occurred in 2008. Furthermore, the ALJ properly noted that E.B. has never been prescribed any medication for this issue. Moreover, E.B.'s
20 CFR § 416.926a(l). In the domain of health and physical well-being, a marked limitation will be found if the child's impairments cause episodes of illness or exacerbations that result in significant, documented symptoms that occur on a regular basis. Surita ex rel. Cifuentes v. Astrue, 2008 WL 4998426, at *4 (S.D.N.Y.2008) (20 C.F.R. § 416.926a(e)(2)(iv)).
Here, the ALJ concluded that E.B. has a less than marked limitation in this domain. The ALJ acknowledged the diagnoses of oppositional defiance disorder, parent-child relational problems and anxiety disorder. However, the ALJ also noted that there was no evidence of any treatment relating to these diagnoses. Moreover, while E.B. suffered from seizures in the past, the last seizure occurred one to two years ago and E.B. is not longer taking medication for this issue and is not under the care of any specialist including a pediatric neurologist. (T. 27).
Based upon the record, substantial evidence supports the ALJ's determination in this regard. Williams v. Astrue, 2012 WL 760738, at *9 (N.D.N.Y.2012) (the plaintiff did not suffer from a marked limitation with respect to health and well-begin because anxiety/depression is not treated with any medication).
Plaintiff vaguely argues that her testimony is credible and consistent with the record and claims that, "the claimant's testimony is entitled to be accorded great weight".
SSR 96-7p requires ALJs to articulate the reasons behind credibility evaluations:
1996 WL 374186, at *4 (S.S.A. July 2, 1996).
As a fact finder, the ALJ is free to accept or reject testimony of a claimant's parent. Williams on behalf of Williams v. Bowen, 859 F.2d 255, 260 (2d Cir.1988). A finding that a witness is not credible must be set forth with sufficient specificity to permit intelligible review of the record. Id. (citing Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 644 (2d Cir. 1983)). If the child claimant is unable adequately to describe his symptoms, the ALJ must accept the description provided by testimony of the person most familiar
"The ALJ has discretion to assess the credibility of a claimant's testimony regarding disabling pain and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant." Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). If plaintiff's testimony concerning the intensity, persistence or functional limitations associated with his impairments is not fully supported by clinical evidence, the ALJ must consider additional factors in order to assess that testimony, including: 1) daily activities; 2) location, duration, frequency and intensity of any symptoms; 3) precipitating and aggravating factors; 4) type, dosage, effectiveness and side effects of any medications taken; 5) other treatment received; and 6) other measures taken to relieve symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vi), 416.929(c)(3)(i)-(vi). The issue is not whether the clinical and objective findings are consistent with an inability to perform all substantial activity, but whether plaintiff's statements about the intensity, persistence, or functionally limiting effects of his symptoms are consistent with the objective medical and other evidence. See SSR 96-7p, 1996 WL 374186, at *2 (SSA 1996). One strong indication of credibility of an individual's statements is their consistency, both internally and with other information in the case record. Id. at *5.
After considering plaintiff's subjective testimony, the objective medical evidence, and any other factors deemed relevant, the ALJ may accept or reject plaintiff's subjective testimony. Saxon v. Astrue, 781 F.Supp.2d 92, 105 (N.D.N.Y.2011) (citing 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)). An ALJ rejecting subjective testimony must do so explicitly and with specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his decision is supported by substantial evidence. Melchior v. Apfel, 15 F.Supp.2d 215, 219 (N.D.N.Y.1998) (quoting Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y.1987) (citations omitted)). The Commissioner may discount a plaintiff's testimony to the extent that it is inconsistent with medical evidence, the lack of medical treatment, and activities during the relevant period. Howe-Andrews v. Astrue, 2007 WL 1839891, at *10 (E.D.N.Y.2007).
In this case, the ALJ determined that:
Having reviewed the Administrative Transcript in its entirety, the Court finds that the ALJ correctly applied the standard, enumerated in 20 C.F.R. § 404.1529(c)(3)(i)-(iv), in assessing their credibility. In the decision, the ALJ summarized plaintiff's testimony and E.B's stepfather's testimony in two detailed paragraphs. The ALJ considered the testimony of plaintiff and determined that the evidence did not demonstrate that the child is as limited as plaintiff contends. Throughout the decision, the ALJ articulated the inconsistencies upon which he relied in discrediting plaintiff's testimony
Upon review of the record, the Court finds that the ALJ's assessment of plaintiff's credibility is supported by substantial evidence including the objective medical evidence, school reports and teacher questionnaires. The ALJ complied with the Regulations and articulated the inconsistencies upon which he relied in discrediting the testimony of disabling impairments. Because substantial evidence in the record supports this finding, the Court will not substitute its judgment for the ALJ, who was in a better position to assess credibility. Accordingly, remand on this issue is not warranted. See Scott ex rel. McQuarters v. Astrue, 2010 WL 750062, at *3-4 (W.D.Mo.2010).
For the foregoing reasons, it is hereby
20 CFR Pt. 404, Subpt. P, App. 1.
