WILLIAM C. TURNOFF, Magistrate Judge.
Plaintiff, on behalf of her minor son, R. C. (hereinafter "Claimant"), submitted an application for supplemental security income ("SSI") benefits, on October 17, 2007, alleging a disability onset date of October 8, 2007.
On April 4, 2011, the SSA notified Plaintiff that Claimant no longer qualified for SSI as his disability had ceased in January 2011. [Tr. 64]. Accordingly, the SSA informed Plaintiff that Claimant's SSI benefits would stop on June 1, 2011. [Tr. 39, 64]. Plaintiff appealed the decision, but was unsuccessful. [Tr. 39].
On April 14, 2011, Plaintiff filed a request for reconsideration. [Tr. 67]. A hearing on the matter was held on August 22, 2011. [Tr. 85]. On September 13, 2011, the disability hearing officer issued a decision in which he stated that Claimant's impairments had improved to the point where Claimant could no longer be considered disabled and eligible to receive SSI benefits. [Tr. 85-93]. On September 26, 2011, Plaintiff requested a hearing before an administrative law judge ("ALJ"). [Tr. 39, 98].
On May 9, 2013, a hearing was held before ALJ Thomas W. Snook to determine whether Claimant was considered disabled for purposes of receiving SSI payments.
On April 3, 2015, the SSA Appeals Council denied Plaintiffs request for review of the ALJ's decision. [Tr. 1-7]. The instant motion followed.
On January 15, 2008, approximately three months after Claimant's birth, he underwent an initial developmental evaluation with Dr. Arielle Rigaud-Riveira. [Tr. 337-38]. After examination, Dr. Rigaud-Riveira found that Claimant suffered from premature birth and cognitive delay, a slight heart murmur, and silent gastric reflux resulting from a potential underlying allergy to cow-based milk.
On November 11, 2010, Claimant, then three years old, underwent an at-home, clinical assessment by Dr. Laura Moreno Chavez with the Institute for Child and Family Health. [Tr. 290-311]. In the evaluation, the doctor noted Claimant's anxious nature, which she attributed to the lack of time Claimant spent with his parents. [Tr. 290]. She also noted Claimant's fidgety, overactive posture; limited ability to focus or function in certain settings; difficulty in toilet-training;
Dr. Chavez diagnosed Claimant with reactive attachment disorder of infants or early childhood, allergies, and problems with his primary support system. [Tr. 302]. She recommended that Claimant undergo four (4) units of individual therapy per week for a six (6) month period.
On February 29, 2011, Claimant saw Gilda C. Duffey with the Institute for Child and Family Health.
On May 9, 2011, Duffey issued a monthly report of clinical services rendered to Claimant. [Tr. 344]. She noted slow progress in Claimant's treatment, which consisted of once-weekly on-site treatment and once-weekly outpatient treatment at a clinic.
On May 10, 2012, Duffey issued another report in which she noted that Claimant had been seeing her once a week for therapy since December 19, 2010. [ECF No. 333, 345]. She noted further that Claimant had made satisfactory progress in therapy thus far, but was currently experiencing various emotional problems due to his father's recent return to Argentina.
On April 1, 2011, Dr. Lionel Henry issued a childhood disability determination report regarding Claimant's impairment from his reactive attachment disorder and allergies. [Tr. 316-21]. When evaluating Claimant's impairment, he considered seven factors: (1) how Claimant's functioning compared to that of children the same age who do not have impairments, (2) the combined effects of multiple impairments and the interactive and cumulative effects of an impairment(s) on Claimant's activities, (3) how well Claimant performs activities with respect to interacting and relating with others, (4) how well Claimant functions in unusual settings, (5) early intervention and school programs, (6) any impact of chronic illness and how it interferes with Claimant's activities over time, and (7) the effects of treatment and if they interfere with Claimant's day-to-day functioning. [Tr. 317].
Dr. Henry found that Claimant suffered no degree of limitation in moving about and manipulating objects or in his health and physical well-being. [Tr. 318-19]. He found that Claimant suffered a less than marked degree of limitation in acquiring and using information, interacting and relating with others, and caring for himself.
In May 2011, Claimant saw Dr. Michael Pfeffer at IMA Evaluations, Inc., for an initial consultation and pediatric examination. [Tr. 322-26]. The doctor noted that Plaintiff reported Claimant to be hyperactive, to have a decreased attention span and bad temper, and to fight with other children. [Tr. 322]. However, Dr. Pfeffer stated that Claimant's general appearance seemed normal and that Claimant related to others in an age-appropriate manner, though Claimant did appear to be somewhat hyperkinetic and to have a decreased attention span for his age. [Tr. 323]. Based on these findings, the doctor advised Plaintiff to seek pediatric evaluation for possible testing and therapy for ADHD symptoms. [Tr. 325].
On May 20, 2011, Dr. Edith O. Davis issued a childhood disability determination report regarding Claimant's impairment from his reactive attachment disorder of infancy and early childhood. [Tr. 327-32]. In her evaluation, Dr. Davis relied, in part, upon a function report dated March 17, 2011, one dated November 11, 2010, and another dated May 19, 2011. [Tr. 329-30]. She noted that Claimant had a history of hyperactive disorder, but concluded that while Claimant's impairment or combination of impairments was severe, it did not meet, medically equal, or functionally equal the listings. [Tr. 327].
Dr. Davis found that, based upon past records, Claimant suffered from less than marked limitation in acquiring and using information, attending and completing tasks, interacting and relating with others, and caring for himself. [Tr. 329-30]. Additionally, she found that Claimant suffered no limitation in moving about and manipulating objects or in his health and physical well-being.
On October 31, 2011, Joaly Tejeiro, with Bio Networks, Inc., issued an occupational therapy review of Claimant's current plan of care based on collateral information, parental reports, standardized testing, and professional and/or clinical observation of Claimant. [(Tr. 334-3 6, 341-4 3]. Tejeiro noted a medical diagnosis of developmental delay with good rehabilitation potential and motivation to attend therapy, but also noted that Claimant's attendance at therapy had been inconsistent due to his parents' schedule and transportation issues.
On August 7, 2012, Claimant underwent another occupational therapy evaluation with Tejeiro. [Tr. 371-75]. In her evaluation, Tejeiro noted that Claimant's parents had expressed concerns regarding Claimant's aggression, easily frustrated nature, and inclination to overreaction. [Tr. 372]. She observed that Claimant was easily distracted and had profound delays in all areas of the Beery VMI.
Claimant has visited his primary care physician, Dr. Isidro A. Lopez, at least once a month, since he was born. [Tr. 44].
Claimant visited Dr. Lopez numerous times in 2011. In January, Claimant visited the doctor after complaining of urinary tract infections. [Tr. 362]. In February, Claimant visited Dr. Lopez twice: once complaining of a cough, and again complaining of diarrhea and vomiting. [Tr. 359, 360]. In March, he visited the doctor for pain in his right knee. (Tr. 358). In May, he again visited the doctor.
Claimant visited Dr. Lopez five times in 2012. [Tr. 348-52]. In January, Claimant visited twice: once complaining of a cough, andagaincomplainingofvomitinganddiarrhea. [Tr. 351, 352]. In April, he visited for a checkup. Dr. Lopez noted that Claimant appeared to be a normal and healthy four-year-old.
On February 2, 2011,
Plaintiff filed an appeal to the February 2, 2011 SSA Disability Report, alleging that Claimant had become "very, very hyper," was "always getting sick and very hyperactive" and was "getting more and more like his brother." [Tr. 237-241].
Also on February 2, 2011, Plaintiff completed a Continuing Disability Review Report listing Claimant's prematurity and low birth weight, as well as hyperactivity, as physical and mental conditions limiting Claimant's ability to do the same things as other children of the same age. [Tr. 52-63]. She claimed that Claimant had not visited a medical professional for any mental conditions, but had done so for physical conditions. [Tr. 53].
On March 17, 2011, Plaintiff completed an SSA Function Report form. [Tr. 223-230]. In it, she noted Claimant's difficulty in explaining himself, as well as his issues with behaving badly due to his "hyperactive" and "greedy" nature.
On April 14, 2011, an SSA interviewer issued a Disability Report regarding Claimant. [Tr. 235-236]. The interviewer did not have contact with Claimant, but noted that there was no initial level SSI claim for Claimant. Plaintiff filed an appeal alleging that Claimant's condition was getting worse, as he was "very hyperactive" and "showing signs of ADHD." [Tr. 258, 261].
On November 16, 2012, eQHealth Solutions approved speech therapy services for Claimant to last for thirty (30) minutes, once per week, for one year. [Tr. 371].
On October 2, 2012, Candy House Day Care (Claimant's daycare center) sent a letter to Plaintiff notifying her that Claimant did not pass his language screening test. [Tr. 377]. The letter also informed Plaintiff that results of Claimant's vision screening test indicated that he needed further evaluation by an eye doctor.
In August 2012, Alicia Sekizawa, with the Miami Behavioral Health Center, issued a bio-psychosocial assessment of Claimant. [Tr. 402-407]. The assessment included Plaintiffs primary complaint regarding Claimant's restless and rebellious nature but described Claimant as a friendly, outgoing, and affectionate child who likes to learn. [Tr. 402-03]. Sekizawa rated Claimant as having relatively high social behaviors, but as having low listening skills, low ability to cope with problems or manage anger, and low insight into problems, among other things. [Tr. 404]. Sekizawa also noted that Claimant was fidgety and had extremely accelerated body movements and speech. [Tr. 406]. In fact, she noted that his level of functioning was impaired due to "severe" symptoms of ADHD and difficulty in adjusting to his father's four-month absence.
In September 2012, psychiatrists at Miami Behavioral Health Center issued a treatment plan for Claimant. [Tr. 384]. The plan noted that Claimant had difficulty sitting and staying still for prolonged periods, constantly moved about and interrupted others, and engaged in risky behavior on a daily basis. [Tr. 385]. The plan listed Claimant's diagnosis as "ADHD," and his primary goal for treatment was to decrease restlessness, sit still for longer periods of time, and work to control his impatience on a daily basis. [Tr. 384, 386]. The plan also recommended that Claimant undergo psychiatric evaluation and comply with a psychiatrist's recommendations regarding medication. [Tr. 386].
A subsequent psychiatric evaluation in late September 2012 described Claimant's general attitude as impulsive, hyperactive, and defiant. [Tr. 398]. It listed Claimant's diagnostic descriptor as "ADHD." [Tr. 399]. The evaluation noted that Claimant had a low level of functioning and recommended he undergo further psychiatric evaluation.
In November 2012, a psychiatrist noted Claimant's depressed and anxious mood, as well as his poor attention span and impulsive, hyperactive nature. [Tr. 393].
On February 5, 2013, Dr. Marlen Castellano, a psychiatrist at Miami Behavioral Health Center, Inc., submitted a review of Claimant's treatment plan. [Tr. 380]. In it, Dr. Castellano noted that Claimant and his parents had been compliant with policies and regulations and that Claimant had been receiving individual and family therapy.
In March 2013, a reviewing psychiatrist noted Claimant's diagnosis of ADHD but did not indicate the presence of any unusual characteristics, like hyperactivity or impulsivity, in Plaintiffs demeanor or attitude. [Tr. 391-92].
A June 2013 evaluation of Claimant yielded no unusual characteristics in regard to Claimant's nature or attitude, though his diagnosis of ADHD was noted. [Tr. 389-90].
On July 12, 2013, Dr. Castellano issued another treatment plan review.
Claimant visited Dr. Rothe, a psychologist, approximately "four or five months," according to Plaintiff. [Tr. 44].
After the hearing, and upon careful review of the record, the ALJ issued an unfavorable opinion. [Tr. 9-28]. The ALJ found that, at the time of the CPD, Claimant had a medically determinable impairment of prematurity that functionally equaled the disability listings in 20 C.F .R. § 416.924(d) and 416.926(a). [Tr. 18]. Moreover, at present, Claimant had a severe impairment of ADHD that caused more than minimal functional limitations. [Tr. 19]. However, the ALJ concluded that Claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ noted that Claimant's medically determinable impairment could reasonably be expected to produce Claimant's alleged symptoms. [Tr. 22]. He found that the statements concerning the intensity, persistence, and limiting effects of Claimant's symptoms, however, were not credible since April 1, 2011, because they were inconsistent with medical findings to the contrary.
In summary, the ALJ concluded that, while Claimant suffered from ADHD, this condition did not markedly limit Claimant's daily living and functioning. [Tr. 22]. Accordingly, the ALJ found that Claimant has not suffered from a disability, as defined by the SSA, since April 1, 2011, and has not become disabled again since that date. [Tr. 28].
When evaluating an ALI's decision in a disability case, this court must determine: (1) whether the record contains substantial evidence sufficient to support the ALI's findings, and (2) whether the correct legal standards were applied.
The deferential standard of review that attaches to findings of fact does not, however, apply to this court's review of the legal standard used in computing the ALJ's conclusion.
The Social Security Administration regulations utilized by the ALJ provide a three-step evaluation process to determine whether an individual who has not attained age eighteen (18) is disabled. 20 C.P.R. § 416.994a(b) (2016). Should the ALJ find that the individual's impairment(s) have medically improved and no longer result in marked and severe functional limitations, the individual will no longer be considered disabled.
In step one, the ALJ determines whether there has been medical improvement from the time of the most recent medical determination of a claimant's disability, i.e., the CPD. 20 C.F.R. § 416.994a(b)(1). Medical improvement is any decrease in the medical severity of the impairment(s) present and documented at the CPD, provided it is more than a minor change.
At step two, if the CPD was made before January 2, 2001, as was the case here, the ALJ determines whether the claimant's CPD impairment(s) now meets or medically equals the same listing that it met, medically equaled, or functionally equaled at the time of the CPD, as the listing was written at that time. (Tr. 16). If it does, then the individual continues to be disabled, unless an exception to the medical improvement applies.
At step three, the ALJ determines whether the claimant is currently disabled under 20 C.F.R. § 416.924(c) and (d), considering all the impairments that the claimant presently has, including any not present or not considered at the CPD.
In determining whether a claimant's impairment or combination of impairments functionally equals the listings, the ALJ assesses the individual's functioning in six domains: (1) acquiring and using information, (2) attending and completing tasks, (3) interacting and relating with others, (4) moving about and manipulating objects, (5) self-care, and (6) health and physical well-being.
The ALJ adequately considered and explained the weight accorded to both medical and non-medical evidence before him. Pursuant to 20 C.P.R. § 416.927(c), when determining whether an individual is disabled, the SSA evaluates every medical opinion it receives, regardless of its source. 20 C.P.R. § 416.927(c).
In making the disability determination, the ALJ must give the testimony of an individual's treating physician considerable weight, unless good reason to the contrary is shown.
Any other medical source opinions on issues reserved to the SSA Commissioner are not considered medical opinions and "are not given any special significance." 20 C.P.R. § 416.927(d). Examples of such include source opinions that an individual is disabled or whether an individual's impairment(s) meets or equals the impairment(s) in the Listing of impairments in appendix I to subpart P of part 404 of this chapter.
Plaintiff argued that the ALJ did not properly consider and explain the weight accorded to evidence relied upon in making his decision. This, however, is not the case. Although the ALJ did not explicitly articulate specific reasons for discounting certain evidence, he nonetheless considered all appropriate evidence before him in making the disability determination.
Plaintiff argued that the ALJ failed to properly assess or articulate the weight afforded to a November 2010 mental status evaluation by Dr. Laura Chavez. Not only is this argument incorrect, but it is also irrelevant.
In his decision, the ALJ concluded that "[t]he claimant's disability ended as of April 1, 2011," five months after Dr. Chavez' evaluation. [Tr. 28]. Prior to April 1, 2011, however, both parties agree that Claimant was considered disabled for purposes of SSI benefits. [Tr. 15]. Thus, reliance upon Dr. Chavez' November 2010 findings is moot, as the ALJ conceded in his decision that Claimant was, in fact, disabled at that time. Accordingly, any error attributable to the ALJ not assigning proper weight to Dr. Chavez' November 2010 evaluation was harmless, because not only did it occur several months prior to the medical improvement date, but also it would not otherwise contradict his findings.
Plaintiff also claimed that the ALJ failed to properly assess and articulate the weight afforded to developmental and occupational therapy testing conducted by therapist Joaly Tejeiro in October 2011 and September 2012. The undersigned finds this argument to be unpersuasive.
The ALJ was not required to articulate a specific reason for discounting Tejeiro's opinions because Tejeiro is not considered a treating source for purposes of determining medical impairment.
Assuming, arguendo, that Tejeiro was considered a treating physician, her opinion would still not be given special significance because it was on an issue reserved exclusively for the ALJ.
Although the ALJ would be required to consider Tejeiro's opinion in making his determination, the law clearly states that the ultimate decision would belong to the ALJ.
Upon careful consideration, the undersigned finds that the ALJ sufficiently considered and explained the weight afforded to medical and non-medical evidence before him when making the disability determination.
The ALJ conducted a proper credibility assessment in determining that Claimant was not disabled. SSA guidelines require that "there must be medical signs and laboratory findings which show that [an SSI claimant has] a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged" in order for an individual to establish disability. 20 C.F.R. § 416.929(a). Subjectively-reported symptoms by a claimant or other individual will not, alone, establish disability.
Plaintiff argued that the ALJ erred in finding portions of her testimony not credible for purposes of establishing Claimant's disability. (ECF No. 20). She claimed that the ALJ "selectively cit[ed] from the record" and failed to include relevant testimony from Plaintiff that, in her opinion, constituted evidence capable of supporting a greater limitation than the ALJ determined.
The ALJ properly considered the evidence of record. The ALJ found that Plaintiffs statements concerning the intensity, persistence, and limiting effects of Claimant's symptoms were not credible to the extent that they were inconsistent with the record evidence. [Tr. 22]. The ALJ noted that Claimant "has good reported activities of daily living," and that Plaintiff even testified at the ALJ hearing that Claimant had improved with therapy.
Even if the court were to assume that Plaintiffs testimony was credible, the record as a whole nevertheless supports the ALJ's assessment. In his decision, the ALJ noted that Claimant suffered from ADHD that caused "more than minimal functional limitations." [Tr. 19]. The ALJ did not find, however, that Claimant's ADHD met or medically equaled one of the listed impairments in 20 C.P.R.§§ 416.924(d), 419.926a, 416.994a(b)(2), or S.S.R. 05-03p. [Tr. 20]. In his decision, the ALJ cited to multiple medical findings, including an October 2011 assessment by Claimant's primary care physician, Dr. Lopez; a May 2011 examination by a pediatric physician, Dr. Pfeffer; and therapy notes from both Bio Networks, Inc. and the Institute for Child and Family Health, Inc.
While most of the afore-mentioned sources, indeed, noted ADHD symptoms in Claimant, all appeared to concur in finding that Claimant's ADHD was not so severe as to present extreme hardship or limitation in his daily functioning. For instance, Dr. Pfeffer noted that, while Claimant "appeared to be somewhat hyperkinetic" and "appeared to have a decreased attention span for his age," his fine motor skills, general appearance, speech, and gait were all "age appropriate." [Tr. 21]. Therapy notes from the Institute for Child and Family Health, Inc. noted satisfactory progress with therapy, even taking into account Claimant's anxiety, defiance, and lack of concentration.
In conclusion, the undersigned finds that the ALJ sufficiently articulated adequate reasons for questioning the credibility of certain portions of Plaintiffs testimony. As this finding is supported by substantial evidence, it should not be disturbed.
Substantial record evidence supports the ALJ's functional capacity assessment that Claimant is not disabled. Pursuant to 20 C.F.R. § 416.906, an individual under age eighteen (18) will be considered disabled if he or she has "a medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 416.906. In making this determination, anALJ utilizes a three-step process where he first determines whether the claimant is engaged in substantial gainful activity.
The ALJ then determines whether a claimant has a severe, medically determinable impairment or combination of impairments. 20 C.F.R. § 416.924(c);
According to Listing 112.11 in Appendix 1 of 20 C.F.R. part 404, subpart P, a child suffering from ADHD will be found disabled if his condition is "[m]anifested by developmentally inappropriate degrees of inattention, impulsiveness, and hyperactivity." 20 C.F.R. Part 404, Subpart P, Appendix 1, Part B2, Listing 112.11. In making this finding, an ALJ must consider the extent to which the ADHD limits the child's ability to function in the following six "domains" of life: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being.
A child's ADHD constitutes a disability if the child's limitations are "marked" in two of the six life domains, or if the child's limitations are "extreme" in one domain. 20 C.P.R. § 416.926a(d). A "marked" limitation "interferes seriously with [the] ability to independently initiate, sustain, or complete activities," and is "more than moderate." 20 C.P.R. § 416.926a(e)(2)(I);
Here, substantial record evidence supports the ALJ's finding that Claimant is not disabled, as he did not suffer from extreme limitations in any one of the six domains, or marked limitations in at least two of the six domains. First, substantial evidence supported the ALI's determination that Claimant had less-than-marked limitations in the domain of acquiring and using information. In October 2011, Claimant's primary care physician, Dr. Lopez, noted in an annual health maintenance assessment that Claimant could copy a square, name three to four colors, and count to five, though he could not button clothing or draw a three-part man. [Tr. 354]. In fact, Plaintiffs own statements support the ALJ's determination. At the ALJ hearing, Plaintiff noted that Claimant had improved at school, and although he still had some problems, he was "getting better." [Tr. 43, 47]. In addition, both a reviewing physician and a reviewing psychologist noted a less-than-marked degree of limitation in this domain. [Tr. 318-19, 329]. In April 2011, reviewing physician Dr. Henry found that Claimant had no trouble talking, could explain himself most of the time, could identify colors and count to ten, and knew his age. [Tr. 318-19]. In May 2011, reviewing psychologist Dr. Davis agreed.
Substantial evidence also supported the ALJ's determination that Claimant had less-than-marked limitations in the domain of interacting with and relating to others. Dr. Chavez, a psychologist with the Institute for Child and Family Health, described Claimant as "friendly" and "cooperative," and noted that, though he fought often, he had many friends. [Tr. 296, 300]. Plaintiffs own statements also bolster the ALJ's determination. In the most recently submitted function report, dated March 2011, Plaintiff noted that Claimant "takes part in conversations with other children," "enjoys being with other children the same age," and "shows affection" towards other children and his parents. [Tr. 226, 228]. Although Plaintiff noted that Claimant "likes to bug other kids especialy [sic] he's [sic] brother" [Tr. 230], this statement does not discredit the ALJ's determination of less-than-marked limitations in the domain of interacting with and relating to others. Further, Plaintiff failed to allege any additional evidence to support a claim of marked or extreme limitation in this domain in either the Disability Report Appeal or at the ALJ hearing. [Tr. 258-63, 36-49]. Additionally, state reviewing physicians, Dr. Henry and Dr. Davis, found a less-than-marked degree of limitation in this domain.
Further, substantial evidence supported the ALJ's finding that Claimant had less-than-marked limitations in the domain of moving about and manipulating objects. In October 2011, his primary care physician, Dr. Lopez, reported that, though Claimant could not button clothing or draw a three-part man, he could hop on one foot, balance for five seconds, copy a square, and catch a ball. [Tr. 354]. In May 2011, an evaluative physician, Dr. Pfeffer, noted that Claimant's gait was normal for his age. [Tr. 323]. His fine motor activity was "age appropriate," and he could hold both large and small objects in an age-appropriate manner. [Tr. 324]. In standardized tests administered by therapist Joaly Tejeiro,
Substantial evidence also supported the ALJ's finding that Claimant had less-than-marked limitations in the domain of self-care. Plaintiff stated in her most recent function report, dated March 2011, that Plaintiff could eat with a fork and spoon by himself, dress and brush his teeth with help, and put his toys away. [Tr. 229]. At the August 2011 disability hearing, Plaintiff also noted that Claimant changes DVD's himself if he gets bored and puts his shoes on with help from Plaintiff in tying the shoelaces. [Tr. 86]. Plaintiff claimed in March 2011 that Claimant "won't learn" to use the restroom by himself, but in August 2011 at the disability hearing, she stated that he wears underwear during the day and goes to the bathroom by himself, but calls her to clean him up.
Substantial evidence supported the ALJ's finding that Claimant had less-than-marked limitations in the functional domain of health and physical well-being. Dr. Lopez, Claimant's primary care physician, consistently recorded physical and neurological examinations within the normal range.
Although the evidence indicates that Claimant had a more serious problem in the domain of attending and completing tasks than he had in other domains, substantial evidence supports the ALJ's decision that Claimant's limitations in this domain were less-than-marked, particularly in light of the fact that the ALJ was permitted to consider the improvements effected by Claimant's participation in occupational therapy.
Finally, even if substantial evidence did not support the ALI's determination that Claimant had less-than-marked limitations in the domain of attending and completing tasks, any such error was harmless.
Ultimately, the burden of proving his disability belongs to Claimant.
Pursuant to Local Magistrate Rule 4(b), the parties have fourteen (14) days from service of this Report and Recommendation within which to serve and file written objections, if any, with Judge Gayles. Failure to file objections timely shall bar the parties from attacking on appeal the factual findings contained herein.
