The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
ATIYA DOZIER, o/b/o G.R.A.,
Plaintiff, MEMORANDUM & ORDER
19-cv-4588(EK)
-against-
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
------------------------------------x
ERIC KOMITEE, United States District Judge:
Atiya Dozier, proceeding pro se on behalf of her minor
daughter, G.R.A., appeals the denial of G.R.A.’s application for
Supplemental Security Income (SSI) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-1385. The Commissioner of
Social Security (Commissioner) moves for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure, requesting that this Court affirm the Commissioner’s
determination and dismiss the action. As explained below, the
Commissioner’s motion is granted, and this action is dismissed.
I. Background
G.R.A. was born on December 16, 2014, approximately
six weeks before full term. Tr.1 50, 210. On May 14, 2015, when
G.R.A. was roughly six months old, Plaintiff applied for
1 Citations to “Tr.” refer to the Administrative Transcript and its
pagination. See ECF No. 8.
disability benefits on her behalf. Tr. 114-17. The application
listed the following disabling conditions beginning at birth:
“premature birth,” low “gestation age & weight,” and
“developmental delay.” Tr. 128.
On August 31, 2015, the Commissioner issued an initial
determination denying her application, following a report from
state agency consultative doctor J. Pauporte. Tr. 64-81.
Ms. Dozier then requested a hearing before an Administrative Law
Judge (ALJ). Tr. 79-81. The assigned ALJ, Paul Greenberg, held
a video hearing on January 11, 2018; Ms. Dozier participated
without counsel. Tr. 37-63. At the hearing, the ALJ requested
that G.R.A. undergo two consultative examinations, one by a
medical doctor and another by a psychologist. Tr. 61.
Christopher Flach, Ph.D., and Gregory Bard, M.D., conducted
those examinations on February 14, 2018. Tr. 454-63.
The ALJ denied G.R.A.’s application on August 27,
2018. He found that G.R.A.’s impairments were “severe” but
still did not meet the definition of “disabled” under the Social
Security Act. Tr. 12-33. This decision became final on July
16, 2019, when the Social Security Administration’s Appeals
Council denied Ms. Dozier’s request for review. Tr. 1-6.
Ms. Dozier filed this action on August 7, 2019,
seeking this Court’s review of the Commissioner’s decision. ECF
No. 1. After submitting the administrative record, ECF No. 8,
the Commissioner moved for judgment on the pleadings, claiming
its decision was supported by substantial evidence. ECF No. 10.
Ms. Dozier did not respond to the Commissioner’s motion. After
granting her two extensions, the Court allowed the Commissioner
to file its motion unopposed. The Court then held oral argument
on September 21, 2020, where Ms. Dozier appeared without
counsel.
After hearing from Ms. Dozier, the Court granted her a
third opportunity to submit an opposition to the Commissioner’s
motion, which she did on October 8, 2020. ECF No. 18. In her
submission, Ms. Dozier claims the ALJ “did [not] thoroughly look
through [G.R.A.’s] file” or “make the right decision” with
respect to her application. Id. at 3. She notes the tension in
the ALJ’s finding that G.R.A.’s condition was “severe” but not
“severe enough” to approve her application. Id. at 2. Ms.
Dozier also argues that G.R.A.’s “disability had a progression
since birth.” Id.
II. Standard of Review
District courts review SSI denials under 42 U.S.C.
§ 405(g), which grants them “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying,
or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing.”
Id. This statute, however, provides that the “findings of the
Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive.” Id. Accordingly,
in reviewing actions under this section, this Court considers
only “whether the correct legal standards were applied and
whether substantial evidence supports the decision.” Butts v.
Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on reh’g,
416 F.3d 101 (2d Cir. 2005).
“Substantial evidence” is “more than a mere scintilla.
It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). The substantial-evidence
test applies not only to the Commissioner’s factual findings,
but also to the inferences and conclusions of law drawn from
those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.
Supp. 2d 208, 214 (S.D.N.Y. 1999). In determining whether
substantial evidence exists, the Court must examine the entire
record, weighing evidence on both sides to ensure that the claim
was “fairly evaluated.” Brown v. Apfel, 174 F.3d 59, 62 (2d
Cir. 1999). If the Court finds this standard met, it must
uphold the Commissioner’s decision — even if substantial
evidence also supports the applicant’s position, and even if the
Court, starting from scratch, would have reached a different
decision. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990).
III. Statutory and Regulatory Standards
Section 1382c of the Social Security Act provides that
“[a]n individual under the age of 18 shall be considered
disabled” if the individual “has a medically determinable
physical or mental impairment, which results in marked and
severe functional limitations.” 42 U.S.C. § 1382c(a)(3)(c). In
performing this analysis, the Commissioner follows regulations
issued by the Social Security Administration. These regulations
prescribe a sequence of tests to determine eligibility.
20 C.F.R. § 416.924 outlines the analysis for claims like this.
First, the Commissioner must confirm the applicant is
not “doing substantial gainful activity.” § 416.924(a). Then,
the Commissioner must determine whether the applicant has “an
impairment or combination of impairments that is severe.” Id.
To satisfy this inquiry, the applicant must exhibit “medically
determinable impairments,”2 which cause more than “slight
abnormalities” and “minimal functional limitations.”
§ 416.924(c). If such impairments exist, the Commissioner must
then consider whether the child has any combination of medically
determinable impairments that “meets, medically equals, or
functionally equal[s]” one of the SSA’s “listings” in 20 C.F.R.
2 “Medically determinable impairments” are impairments that “result from
anatomical, physiological, or psychological abnormalities that can be shown
by medically clinical and laboratory diagnostic techniques.” 20 C.F.R.
§ 404.1521.
Part 404, Subpart P, Appendix 1 for compensable disabilities.
§ 416.924(d). In this final step, the Commissioner first
examines whether the child has impairments that meet the
criteria and severity level for a specified listing, or whether
the child has an impairment or combination of impairments that
are of “equal medical significance” to one of the listings.
20 C.F.R. § 416.926(a)-(b). If not, the Commissioner considers
whether the applicant’s cumulative impairments, severe or
otherwise, “functionally equal the listings,” even though they
do not meet any particular listing. § 416.926a(a).
In determining whether an applicant’s condition
functionally equals a listed impairment, the Commissioner
considers the applicant’s level of functioning across six
factors, called “domains”:
(i) Acquiring and Using Information
(ii) Attending and Completing Tasks
(iii) Interacting and Relating with Others
(iv) Moving About and Manipulating Objects
(v) Caring for Yourself
(vi) Health and Physical Well-Being
§ 416.926a(b).
To deem a child disabled under this functional test,
the Commissioner must find “marked” limitations in two domains
or an “extreme” limitation in one. § 416.926a(a). A “marked”
limitation is one that “interferes seriously with [the child’s]
ability to independently initiate, sustain, or complete
activities,” and “is the equivalent of the functioning” expected
from “standardized testing with scores that are at least two,
but less than three, standard deviations below the mean.”
§ 416.926a(e)(2)(i). By contrast, an “extreme” limitation
“interferes very seriously with [the child’s] ability to
independently initiate, sustain, or complete activities,”
corresponding to “standardized testing with scores that are at
least three standard deviations below the mean.”
§ 416.926a(e)(3)(i).
IV. The ALJ’s Decision
Here, the ALJ deemed G.R.A. ineligible at the final
step. In other words, the ALJ concluded that G.R.A. was not
“doing substantial gainful activity” and that she had “severe”
medically determinable impairments — namely, a “seizure
disorder” and “learning disorder,”3 Tr. 19 — but that her
conditions did not “meet, medically equal, or functionally equal
the listings.” Specifically, the ALJ considered the listings
for “Epilepsy” (Listing 111.02) and for Developmental Disorders
3 The ALJ found that G.R.A. did not have a severe impairment with
respect to her premature birth, anemia, or visual disturbances. Tr. 19. Ms.
Dozier does not appear to dispute these findings. They are, in any event,
supported by substantial evidence for the reasons stated in the ALJ’s
decision. Id.
in Infants and Toddlers (Listing 112.14) but found that G.R.A.’s
conditions did not meet or medically equal those criteria, or
otherwise cause the level of functional limitations needed to
qualify for SSI.
V. Discussion
For the reasons described below, the ALJ “adequately
explain[ed] his reasoning,” “address[ed] all pertinent
evidence,” and identified “the crucial factors . . . with
sufficient specificity.” Albano v. Colvin, 99 F. Supp. 3d 355,
360 (E.D.N.Y. 2015). Accordingly, the ALJ’s decision was
supported by substantial evidence.
A. Seizure Disorder
With respect to the reported seizure disorder, the ALJ
considered Listing 111.02 for Epilepsy, which requires, among
other things, evidence of “[g]eneralized tonic-clonic seizures .
. . occurring at least once a month for at least 3 consecutive
months” or “[d]yscognitive seizures . . . occurring at least
once a week for at least 3 consecutive months.” 20 C.F.R. Part
404, Subpart P, Appendix 1.
The ALJ found that G.R.A.’s seizure history neither
met this standard nor medically or functionally equaled any
listing. These findings are supported by substantial evidence.
There was no evidence that G.R.A. has suffered seizures with the
frequency described in Listing 111.02. Tr. 19. Although Dr.
Bard diagnosed her with a seizure disorder, the ALJ found that
this diagnosis was supported by “very slim” evidence. Tr. 21-
22. As the ALJ explained, there was no evidence of any
hospitalization, treatment, medication, or any “objective
workup” explaining this diagnosis. Tr. 19-22. The record also
suggests these seizures may have ceased. Tr. 34. (August 15,
2018 report stating that G.R.A. had “symptoms of seizure in
infancy” but “no incidents since then”). Accordingly,
substantial evidence supports the Commissioner’s finding that
G.R.A.’s seizure activity did not meet, medically equal, or
functionally equal any listing, either on its own or together
with other impairments.
B. Developmental Disorder
Turning to Listing 112.14 for Developmental Disorders
in Infants and Toddlers, the ALJ considered the following
criteria:
112.14. Developmental disorders in infants and
toddlers, satisfied by A and B:
A. Medical documentation of one or both of the
following:
1. A delay or deficit in the development of
age-appropriate skills; or
2. A loss of previously acquired skills.
AND
B. Extreme limitation of one, or marked limitation
of two, of the following developmental abilities:
1. Plan and control motor movement
2. Learn and remember
3. Interact with others
4. Regulate physiological functions, attention,
emotion, and behavior.
20 C.F.R. Part 404, Subpart P, Appendix 1.
The Commissioner concluded that G.R.A.’s delay-related
impairments did not meet these criteria, and that they were not
severe enough to medically or functionally equal any listing.
Tr. 20.4
The ALJ found that G.R.A.’s “developmental delays” are
“primarily in speech and motor skills,” Tr. 22, though he
acknowledged inattention and issues with tantrums and crying,
among other things. Based on the record, the closest question
appears to be G.R.A.’s delay in motor skills. As the ALJ noted,
a report from May 29, 2015 found a delay in “gross motor” skills
of “-2.0 SD from the mean.” Tr. 263-64. Citing this report,
Dr. Pauporte, the state agency consultative doctor from the
Commissioner’s initial determination in 2015, found that G.R.A.
had marked limitations in the gross motor domain. Tr. 69. The
ALJ gave Dr. Pauporte’s opinion less weight, however, because
the February 2018 examination by Dr. Bard, conducted more than
two years later with the benefit of a more complete record,
found G.R.A.’s “gross motor skills are normal for [her] age.”
4 Because Listing 112.14 resembles the functional test, the Court
conducts these analyses simultaneously.
Tr. 461. This Court must “defer to the Commissioner’s
conclusions regarding the weight of conflicting evidence.”
Valentin v. Commissioner, 408 F. Supp. 3d 203, 206 (E.D.N.Y.
2019). Because the record offers no other firm evidence of a
marked limitation in motor skills and the ALJ addressed relevant
counterevidence, substantial evidence supports the
Commissioner’s finding of no marked limitation here.
The ALJ’s findings with respect to the other domains
are also supported by substantial evidence. The record does not
demonstrate that G.R.A.’s language delays, inattention, or
behavioral issues (like crying and tantrums) rise to the level
of marked limitations. For instance, the reports from Drs. Bard
and Flach found that G.R.A.’s speech was “age appropriate” or
“normal,” Tr. 456, 461, and that her behavioral and attention
issues ranged from “normal” to “moderate,” Tr. 457, 461. The
record also suggests G.R.A.’s cognitive functioning and adaptive
skills fall within normal limits, though the ALJ observed
certain documented issues there as well.
VI. Plaintiff’s Opposition
Ms. Dozier argues, reasonably, that there is some
tension in the ALJ finding G.R.A.’s conditions “severe” but not
“severe enough” to qualify for SSI. ECF No. 18 at 2. The ALJ,
however, deemed G.R.A.’s impairments “severe” at step two but
“not severe” at step three because the definition of “severe”
changes at different points of the analysis. At step two, where
the ALJ first considered whether G.R.A. had “severe”
impairments, the question was whether G.R.A. had more than a
“slight abnormalit[y]” which caused “minimal functional
limitations.” 20 C.F.R. § 416.924(c). The ALJ found that
G.R.A. met that standard. But then the ALJ needed to decide
whether G.R.A.’s conditions met, medically equaled, or
functionally equaled the listings, which requires finding
G.R.A.’s impairments to be of “listing-level severity.”
§§ 416.926; 416.926a(a). And at this stage, “severe” means
something else. Rather than asking whether G.R.A.’s impairments
exceed “slight abnormalities,” the question becomes whether they
“interfere[] seriously” or “very seriously with [her] ability to
independently initiate, sustain, or complete activities.”
§§ 416.926a(e)(2)-(3) (emphasis added). The ALJ reasonably
concluded that they did not.
* * * * *
In cases like this, ALJs must decide, in their
experience, whether a child meets a standard that is difficult
to define. But so long as the ALJ’s decision finds adequate
support in the record, this Court must defer to it. And in this
case, the ALJ’s decision does find such support.
VII. Conclusion
For the reasons explained above, the Commissioner’s
motion for judgment on the pleadings is granted. The
Commissioner’s decision is affirmed, and this action is
dismissed.
SO ORDERED.
s/ Eric Komitee__________________
ERIC KOMITEE
United States District Judge
Dated: November 30, 2020
Brooklyn, New York