The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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AARON CAMILO ECKERT,
Plaintiff,
MEMORANDUM & ORDER
-against- 19-CV-0763(JS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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APPEARANCES
For Plaintiff: Francesca Zeltmann, Esq.
Persaud & Zeltmann
P.O. Box 283
Massapequa, New York 11758
For Defendant: Candace S. Appleton, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
SEYBERT, District Judge:
Plaintiff Aaron Camilo Eckert (“Plaintiff”) brings this
action pursuant to 42 U.S.C. § 405(g) challenging the Commissioner
of Social Security’s (the “Commissioner”) denial of his
application for Supplemental Security Income (“SSI”). (Compl.,
D.E. 1.) Presently pending before the Court are the parties’
cross-motions for judgment on the pleadings. (Pl. Mot., D.E. 10;
Comm’r Mot., D.E. 12.) For the following reasons, Plaintiff’s
motion is DENIED and the Commissioner’s motion is GRANTED.
BACKGROUND
The background is derived from the administrative record
filed by the Commissioner on May 9, 2019. (R., D.E. 9.) For
purposes of this Memorandum & Order, familiarity with the
underlying administrative record is presumed. The Court’s
discussion of the evidence is limited to the challenges and
responses raised in the parties’ briefs.
Plaintiff applied for disability benefits on June 11,
2015, alleging disability since May 25, 1998. (R. 15; 153-59.)
The claim was denied, Plaintiff requested a hearing (R. 15), and
a hearing was held before the ALJ on February 5, 2018 (R. 38-61).
In a March 6, 2018 decision, the ALJ found Plaintiff was not
disabled. (R. 15-28.) The Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision
of the Commissioner. (R. 1-5.) This action followed.
I. The Hearing
A. Plaintiff’s Testimony
Plaintiff lives with his parents, sister, and nieces in
Roslyn Heights, New York. (R. 41-42.) He has a high school
diploma and graduated in 2008. (R. 44; Pl. Br., D.E. 10-1, at 3.)
He took remedial college classes in 2008 and 2009 but failed most
of them and dropped out. (R. 44-45.) The classes were “just too
stressful.” (R. 44.) In 2017, he worked for approximately three
to four months as a movie theater usher and cleaner. The manager
let him go because the theater was not really making money. (R.
42-43.) He also worked at Stop and Shop for approximately one
week. He started in the bakery department doing janitorial work;
he was told he was not fast enough and in less than a day, was
assigned to cart retrieval. He only did that for about five days.
(R. 45-46.) He had problems following supervisors’ instructions
at his jobs but did not tell them that. (R. 54.) However, he
testified that there would “not really” be a problem with him doing
that kind of work in the future. (R. 50.)
Plaintiff does not drive. (R. 47.) He occasionally
takes the bus depending on where he has to go. (R. 51.) He spends
his time playing video games, hanging out with friends, looking
for jobs, and doing household chores such as taking out the
garbage, taking care of the family’s two dogs, picking up his
nieces from the bus stop, and doing his laundry. (R. 47-49.)
Sometimes he goes to get himself take-out food. (R. 49.) He
dresses himself each day but does not always shower on a regular
basis because he gets “sidetracked.” (R. 54.) His mother reminds
him to shower and take his medication. (R. 54.)
Plaintiff takes seizure medications which control his
seizures. He has not had a seizure in “a while” because he is on
the medication. (R. 47.)
Plaintiff believes that his “anxiety” and “nervousness”
prevent him from working. (R. 46.) He does not have any physical
limitations, “just mental” issues and “really bad anxiety . . .
that holds [him] back.” (R. 53.) By his own account, he has not
seen a doctor or psychiatrist in “years,” not since “high school.”
(R. 46.) He went to VESID (Vocational and Educational Services
for Individuals with Disabilities) but they stopped working with
him “the first time” because “they felt [he] wasn’t ready to work
and the second time just didn’t work out . . . because [we] couldn’t
communicate with each other” because his cell phone did not get
reception in the basement of his house and “they’d be calling [him]
but [he] just wouldn’t receive the calls.” (R. 48.) Plaintiff
missed appointments and consultations because he overslept and
showed up to one interview unshaven with dirty fingernails. (R.
56.)
B. Vocational Evidence
As to jobs, a supported employment coordinator at
Abilities, Inc., a Medicaid Service, stated that Plaintiff was
unable to keep a job because he
cannot always do the tasks that are required
. . . works at a much slower pace than is
required . . . does not take initiative but
will just stand around if he has nothing to do
. . . is resistant to suggestions from a job
coach . . . has difficulty multi-tasking and
saying focused . . . [and] has difficulty with
short term memory.
(R. 207.) A VESID evaluation noted that Plaintiff “is able to
follow simple written and oral instructions” but “all work [was]
being done at [a] very slow pace.” (R. 465.) It identified his
vocational limitations as having little to no peer interaction,
needing a structured learning environment and a low pressure
setting, having low energy, being unable to stay focused on tasks,
and having little interest in any aspect of training. (R. 465-
66.) During a five-day situational assessment, Plaintiff
“complained of being tired, refused to remove his jacket and was
frequently asleep and/or off task.” He worked “at a slow pace
with variable scores.” “He showed little interest or motivation
for training.” (R. 468.)
Progress notes from his vocational services counselors
indicate that Plaintiff was consistently unmotivated and failed to
maintain contact. In February 2016, Plaintiff did not want onsite
job coaching at Stop and Shop and was “not cooperating.” (R. 561-
62.) In March 2016, his counselor stated her “main concern with
[Plaintiff] obtaining and maintaining a job is that he does not
listen to the job developer and the job coach and follow[ ] through
on suggestions. He tends to forget to call back and communication
is challenging with him. He refuses to cooperate at times.”
(R. 556-57.) In May 2016, Plaintiff was “not motivated to work.”
He did not show up for a career fair and “did not show up to call
of explain why” and his counselor learned “he overslept to 3:00pm
on that day. With respect to his most recent interview, he showed
up . . . looking unshaven with dirty fingernails. He was extremely
fidgety. At the interview he said he had a lifting limitation and
that he would have to call his neurologist. It turns out that he
called his neurologist and she said he does not have a listing
limitation.” (R. 541-42.) Because Plaintiff failed to communicate
with his counselor, she recommended closing his case. (R. 542.)
In November 2016, his counselor wrote that Plaintiff “has returned
to his old habits of not returning any calls and continues to lack
reliability. He forgets to hand in applications for six weeks and
does not remember to call back with pertinent information which
would help him obtain job interviews.” (R. 531-32.) His case was
closed in May 2017. (R. 529.)
Plaintiff also submitted educational records to the ALJ.
(See R. 208-400, 431-456.)
C. Dr. Kathleen Acer
Psychologist Dr. Acer, Ph.D. (R. 518), performed a
consultative examination of Plaintiff in October 2015 (R. 515-18).
Plaintiff reported “ongoing anxiety on a situational basis” and
feeling “anxious, nervous, jittery, restless, and tense at times,
but not on a daily basis.” He had “some difficulties at times
focusing and concentrating.” (R. 515.) He dressed, bathed, and
groomed himself. He cleaned and did laundry, but generally did
not cook or shop. He did not manage his own finances or drive.
He reported adequate socialization with family and friends.
(R. 517.)
Dr. Acer observed Plaintiff to be well-groomed and
dressed appropriately, cooperative, coherent, clear, alert and
oriented, with intellectual skills slightly below average. (R
516.) She diagnosed attention deficit/hyperactivity disorder
(“ADHD”) and unspecific anxiety disorder, and concluded that “the
results of the evaluation [were] consistent with some psychiatric
issues; however, in and of itself, it does not appear to be
severely hampering functioning.” (R. 517.) She opined that
With regard to his vocational capacities, he
can follow and understand simple instructions
and directions, appropriately perform simple
tasks, maintain attention and concentration at
least on a short term basis, [and] maintain a
regular schedule. He may have some
difficulties at times learning and performing
more complex tasks independently [and]
adequately relating with others. He may have
some difficulty dealing with stress.
(R. 517.) Dr. Acer recommended ongoing counseling and job
coaching. (R. 517.)
D. Dr. John Heverin
Psychologist Dr. Heverin saw Plaintiff in March 2016.
(R. 523-28.) Dr. Heverin administered cognitive tests and found
Plaintiff’s “general cognitive ability is within the low average
range of intellectual functioning.” (R. 525.) His “ability to
sustain attention, concentrate, and exert mental control is in the
low average range.” (R. 526.) He had a “low level of adaptive
functioning” in daily living skills. (R. 527.) “His social skills
are a strength that he may use to compensate for skills in other
areas.” (R. 528.) Dr. Heverin diagnosed Plaintiff with ADHD,
predominantly inattentive type. (R. 528.)
E. Dr. Carl Anderson
Dr. Carl Anderson, a state agency psychiatric
consultant, reviewed medical evidence and records (including but
not limited to records from Plaintiff’s pediatric neurologist
Dr. Taff, Long Island Jewish Hospital, VESID, and Plaintiff’s
schools (R. 63-75)) and opined that Plaintiff’s conditions “did
not meet or equal any listed impairment.” (R. 21, 69.) Dr.
Anderson concluded that Plaintiff had mild restrictions in daily
living activities; mild difficulties in maintaining social
functioning; moderate difficulties in maintaining concentration,
persistence or pace; and no repeated episodes of decompensation.
(R. 69.) He classified Plaintiff’s “overall cognitive ability .
. . in the low average range” and stated that “from a psych
perspective, there are no marked impairments in [Plaintiff’s]
ability to understand, concentrate, remember, adapt, relate, or
persist with tasks on a sustained basis.” (R. 74.)
F. Dr. Ingrid Taff
Plaintiff first saw Dr. Taff, a pediatric neurologist,
in 2001 for seizures. (R. 484-87.) He continued seeing her over
the years. In a 2015 medical source statement, she noted that
Plaintiff “need[s] supported employment” and “very specific
direction and supervision” and was a “limited decision maker.”
(R. 486-87.)1 She opined that he was “not ready for competitive
employment.” (R. 487.)
DISCUSSION
I. Legal Standards
The Court may set aside the final decision of the
Commissioner only if it is not supported by substantial evidence
or if it is based upon an erroneous legal standard. 42 U.S.C. §
405(g); Lockwood v. Comm’r of Soc. Sec. Admin., 914 F.3d 87, 90–
91 (2d Cir. 2019); Burgess v. Astrue, 437 F.3d 117, 127 (2d Cir.
2008). If there is no legal error and the Court finds that
substantial evidence exists to support the Commissioner’s
decision, the decision will be upheld, even if evidence to the
contrary exists. See Johnson v. Barnhart, 269 F. Supp. 2d 82, 84
(E.D.N.Y. 2003). “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.” Moran v.
Astrue, 569 F.3d 108, 112 (2d Cir. 2009).
To be eligible for SSI benefits, a claimant must be aged,
blind, or disabled as defined in 42 U.S.C. § 1382c and meet the
resource and income limits specified in the Social Security Act.
See 42 U.S.C. §§ 1381a, 1382(a); 20 C.F.R. § 416.202. For SSI
1 Dr. Taff’s (incorrectly denoted in Plaintiff’s papers as “Dr.
Taft”) records are often illegible and difficult to read.
benefits, disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has lasted
or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). A
claimant must establish he is unable to work due to a mental
impairment resulting from “anatomical, physiological, or
psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” 42
U.S.C. § 1382c(a)(3)(D). In evaluating disability in young adults,
Once [the SSA has] evidence from an acceptable
medical source that establishes the existence
of at least one medically determinable
impairment (MDI), [it] consider[s] all
relevant evidence in the case record to
determine whether a young adult2 is disabled.
This evidence may come from acceptable medical
sources and from a wide variety of “other
sources.” Although [the SSA] always need[s]
evidence from an acceptable medical source,
[it] will determine what other evidence [it]
need based[s] on the facts of the case.
Titles II & XVI: Documenting & Evaluating Disability in Young
Adults, SSR 11-2P (S.S.A. Sept. 12, 2011), 2011 WL 4055665
(emphasis added).
In evaluating disability, the Commissioner must follow
the familiar five-step process, and determine: (1) whether the
2 SSR 11-2p applies to young adults aged 18-25, and applies here
because Plaintiff was 24 years old when he filed for SSI. (Pl.
Reply Br., D.E. 15, at 2.)
claimant is engaged in substantial gainful activity; (2) whether
the claimint has a medically determinable impairment or a
combination of medically determinable impairments that is severe;
(3) whether the impairment(s) are severe enough to meet or
medically equal the criteria in a listed impairment; (4) if no
listed impairment, the claimant’s residual functional capacity
(“RFC”), or ability to do physical and mental work activities on
a sustained basis, and whether the claimant can perform past
relevant work with that RFC; and (5) if the claimant cannot perform
past relevant work, whether he can perform any other work and
whether jobs exist in the national economy. See R. 15-17; 20
C.F.R. §§ 404.1520, 416.920.
As relevant here, in evaluating a claimant with a mental
impairment, the ALJ must apply a “special technique” commonly
referred to as the “Psychiatric Technique” (“PRT”). 20 C.F.R.
§ 404.1520a. It requires the ALJ to assess how the mental
impairment impacts four functional areas: activities of daily
living; social functioning; concentration, persistence, or pace;
and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3-4).
More generally, “[a]ssessment of [mental] functional limitations
is a complex and highly individualized process that requires [the
ALJ] to consider multiple issues and all relevant evidence to
obtain a longitudinal picture of [the] overall degree of functional
limitation.” 20 C.F.R. § 404.1520a(c)(1).
II. The ALJ’s Decision
A. The Mental Impairments
The ALJ concluded that Plaintiff’s anxiety disorder,
ADHD, and learning disorder were severe impairments, but that
Plaintiff did not have an impairment or combination of impairments
that met or equaled a listed impairment. (R. 17-18.)
Specifically, he found that Plaintiff’s mental impairments did not
“result in at least one extreme or two marked limitations in a
broad area of functioning” as required by paragraph B of listings
12.02, 12.06, and 12.11. (R. 18.) He classified a “marked
limitation” as a serious limit to functioning in an area
independently, appropriately, and on a sustained basis and an
“extreme limitation” as the inability to function in an area. (R.
18.)
First, the ALJ found Plaintiff had a moderate limitation
in understanding, remembering or applying information. (R. 18.)
He noted Plaintiff had “low average intellect and his ability to
sustain attention, concentrate and exert mental control was also
in the low average range.” (R. 18.) He further noted that
Plaintiff had obtained a high school diploma. (R. 18.)
Second, the ALJ found Plaintiff had mild limitation in
interacting with others. He recounted that Plaintiff was assessed
to have strength in social skills, had friends, and reported
adequate socialization to an examiner. (R. 18.)
Third, the ALJ found Plaintiff had moderate limitation
in concentrating, persisting, or maintaining pace. Although
Plaintiff had been diagnosed with ADHD, the consultative examiner
stated that Plaintiff could function in this area. (R. 18-19.)
Fourth, the ALJ found Plaintiff had mild limitation in
adapting or managing himself. He noted that Plaintiff could engage
in a wide variety of daily activities on his own. (R. 19.)
B. RFC Finding
The ALJ found Plaintiff had the RFC “to perform a full
range of work at all exertional levels but with the following
nonexertional limitations: in additional to normal breaks for 95%
of the work day can perform simple, routine, repetitive tasks but
not at an assembly line pace; can frequently interact with
supervisors and coworkers; and can frequently deal with changes in
a routine work setting.” (R. 19.)
C. Discussion
The ALJ gave great weight to the opinions of Dr. Heverin
(because it was “based on a complete examination and [was]
consistent with the other opinions in the record and [Plaintiff’s]
testimony”), Dr. Acer (“since it [was] based on a comprehensive
evaluation and is consistent with the other opinions in the
record”), and Dr. Anderson (because it was “expert opinion evidence
from a non-examining source”). (R. 21-22.) He gave some weight
to opinions from vocational counselors and evaluations because
they were based on complete examinations and consistent with other
opinions in the record. (R. 20, 21.) The ALJ did not accord
Plaintiff’s school records any weight because they were “dated
considerably prior to the application date . . . [and were] not
probative of [Plaintiff’s] condition as of the application date.”
(R. 22.)
Based on the foregoing, the ALJ concluded that Plaintiff
was not disabled. (R. 23.)
III. Analysis
Plaintiff argues that (1) the ALJ failed to properly
perform a listings analysis, and (2) the ALJ erred in providing
great weight to the opinion of a state agency consultant. (Pl.
Br., at 1.) The Commissioner contends that (1) the ALJ properly
performed a listings analysis and concluded that Plaintiff did not
meet the Paragraph A or B criteria in Listing 12.02 or 12.11, and
(2) the ALJ properly assigned great weight to the state agency
consultant’s opinion. (Comm’r Br., D.E. 13, at 21, 23.) The
parties do not argue over the ALJ’s physical disability and RFC
determinations.
Plaintiff claims impairment under Listing 12.11
(Neurodevelopmental Disorders) Paragraphs A and B. (Pl. Br. at
11-13.) Impairment under Listing 12.11 requires
A. Medical documentation of the requirements
of paragraph 1, 2, or 3:
1. One or both of the following:
a. Frequent distractibility,
difficulty sustaining attention,
and difficulty organizing tasks;
or
b. Hyperactive and impulsive
behavior (for example, difficulty
remaining seated, talking
excessively, difficulty waiting,
appearing restless, or behaving as
if being “driven by a motor”).
2. Significant difficulties learning
and using academic skills; or
3. Recurrent motor movement or
vocalization.
. . .
B. Extreme limitation of one, or marked
limitation of two, of the following areas of
mental functioning [ ]:
1. Understand, remember, or apply
information [ ].
2. Interact with others [ ].
3. Concentrate, persist, or maintain
pace [ ].
4. Adapt or manage oneself [ ].
20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.11.
“SSR 11-2p ‘instructs that ALJs consider evidence from
other sources who are not medical sources, but who know and have
contact with the young adult, such as family members or educational
personnel, to assist in evaluating the severity and impact of a
young adult’s impairment(s).’” Coppola v. Berryhill, No. 18-CV-
599, 2019 WL 1292848, at *20 (S.D.N.Y. Mar. 21, 2019) (quoting
Samuel v. Comm’r of Soc. Sec., 14-CV-4634, 2015 WL 5774850 at *13
(E.D.N.Y. Sept. 30, 2015). “SSR 11-2p permits consideration of
school records for young adults . . . .” Brown v. Comm’r of Soc.
Sec., 17-CV-7566, 2018 WL 4210134 at *6 (E.D.N.Y. Sept. 4, 2018).
While an ALJ may consider educational records, they are not
required to. See SSR 11-2p(I)(C)(“Evidence from school programs,
including secondary and post-secondary schools, can also help us
evaluate the severity and impact of a young adult's impairment(s)”
(emphasis added)); SSR 11-2p(II)(A) (“we may have evidence about
a young adult’s functioning from school programs, including IEPs.
This evidence may indicate how well a young adult can use his or
her physical or mental abilities to perform work activities. . .
. [and] school-reported difficulties might indicate difficulty
with work activities” (emphasis added)).
Plaintiff’s primary listings argument is that the ALJ
did not consider all record evidence, including his school records
and vocational program records. (Pl. Reply, D.E. 15, at 3.) He
claims that “the ALJ only considered three forms of evidence, the
consultative examiner Dr. Acer’s report, the opinion of the State
Agency consultant and [Plaintiff’s] brief testimony.” (Pl. Br. at
10.) This is inaccurate. The ALJ gave great weight to Dr. Acer,
Dr. Anderson and Dr. Heverin’s opinions. He also gave some weight
to the reports from Plaintiff’s vocational counselors. (R. 20-
21.) The ALJ considered Plaintiff’s own--not necessarily brief--
testimony about his limitations and daily activities. Although
the ALJ did not explicitly consider the school records, he noted
in his listings discussion that Plaintiff had obtained a high
school diploma and was not in special education classes. (R. 18.)
Plaintiff’s below average scores in certain
categories and his documented unwillingness and lack of
cooperation in connection with working does not compel the
conclusion that he is disabled to the point where he cannot work.
See Saenz v. Berryhill, No. 16-CV-574, 2017 WL 1944158, at *7-*8
(S.D.N.Y. May 10, 2017) (ALJ properly gave great weight to licensed
clinical social worker’s reports that the claimant did not “want”
to work despite being able to even where it conflicted with
treating physician’s opinion that the claimant had “moderate
limitations with regard to maintaining action for two hours periods
of time, performing regularly scheduled activities, punctuality,
accepting instruction, performing consistently without an
unreasonable number of rests, completing normal work week without
interruption, and working in coordination with or near others
without being distracted.”). Notably, in 2017, after applying for
SSI benefits, Plaintiff worked as an usher (one of the jobs the
vocational expert opined he could perform (R. 59)) for three to
four months. By his own account, he obtained that job on his own,
without assistance from a vocational service, and he was let go
due to the business’s financial constraints, not because of his
job performance.
All opinions given great weight by the ALJ indicate that
Plaintiff is capable of working in accordance with the given RFC.
Plaintiff gives no reason why this evidence should be discounted.
Even if there is evidence in the record that could support
Plaintiff’s claims, “‘[w]here there is substantial evidence to
support either position, the determination is one to be made by
the factfinder.’ The ALJ’s conclusion that Plaintiff was not
disabled was adequately supported by substantial evidence, not
legal error, and must be upheld.” Id. at *11 (quoting Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)). Accordingly, the
Court finds that the ALJ’s listings conclusion is supported by
substantial evidence.
Plaintiff also argues that the ALJ erred in giving great
weight to state agency consultant Dr. Anderson’s opinion and not
giving adequate reason for doing so. (Pl. Br. at 13-14.) He
claims that “it is not even clear whether the consultant is a
psychologist, psychiatrist or neurologist.” (Pl. Br. at 14.)
However, the record demonstrates that Dr. Anderson is a
psychiatrist because it references “Code 37” next to his name.
(R. 74; see SSA Program Operations Manual System (“POMS”) MS DI
24501.004(B), Medical Specialty Codes, available at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004). The ALJ
did not err in giving Dr. Anderson’s opinion, which was based on
a thorough review of medical evidence spanning from 2005 to 2015,
great weight.3 In any event, any perceived error would be harmless,
as the ALJ did not base his entire decision on Dr. Anderson’s
evaluations--the ALJ also afforded great and some weight to other
sources in arriving at his conclusions.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion
(D.E. 12) is GRANTED and Plaintiff’s motion (D.E. 10) is DENIED.
The Clerk of the Court is directed to enter judgment accordingly
and mark this case CLOSED.
SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: November 25__, 2019
Central Islip, New York
3 Plaintiff makes no treating physician argument regarding Dr.
Taff. In any event, Dr. Anderson reviewed Dr. Taff’s records in
formulating his opinion.