Egnew v. Kijakazi

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

NICOLE M. E. o/b/o E.F.,

Plaintiff,

vs. 6:21-cv-337

(MAD/DJS)

KILOLO KIJAKAZI, Acting Commissioner of

Social Security,

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

THE DEHAAN LAW FIRM P.C. JOHN W. DEHAAN, ESQ.

300 Rabro Drive, Suite 101

Hauppauge, New York 11788

Attorneys for Plaintiff

SOCIAL SECURITY ADMINISTRATION CHRISTOPHER LEWIS POTTER, ESQ.

J.F.K. Federal Building, Room 625

15 New Sudbury Street

Boston, Massachusetts 02203

Attorneys for Defendant

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff applied for Supplemental Security Income ("SSI") on behalf of her minor son,

E.F. ("Claimant"), under Title XVI of the Social Security Act on August 21, 2018. See

Administrative Transcript ("Tr.") at 13. Plaintiff alleges that Claimant has a disability onset date

of January 1, 2012, due to attention deficit hyperactivity disorder ("ADHD"). Id. at 129-134.

Plaintiff's claim was initially denied, and she requested a hearing before an administrative law

judge ("ALJ"). A video hearing was held on October 24, 2019, before ALJ Matthew Malfa, who

subsequently denied Plaintiff's application on November 20, 2019. See id. at 9-24. Plaintiff filed

a request for review by the Appeals Council, which was denied on January 27, 2021, thus making

the ALJ's decision the final determination of the Commissioner of Social Security. See id. at 1-6.

Plaintiff commenced this action on March 23, 2021, seeking review of the decision by the

Commissioner to deny Plaintiff's application for SSI. See Dkt. No. 1. Presently before the Court

are the parties' cross motions for judgment on the pleadings. See Dkt. Nos. 10, 17.

II. BACKGROUND

Claimant was diagnosed with ADHD on June 16, 2014, by Andy Lopez Williams, Ph.D,

and Carrie Corby, MSW. See Tr. at 238. Claimant was administered an Integrated Visual &

Auditory Continuous Performance Test, Plus, which assesses areas of executive functioning

related to ADHD. Id. Claimant's response in the visual domain was deemed invalid due to

random responses, and in the auditory domain, Claimant exhibited average attention but

extremely low response control. Id. Two other tests, WISC-IV and WJ-III were also

administered to evaluate working memory and processing speed. Id. Claimant exhibited "low

average to borderline working memory abilities, with a more pronounced deficit seen in his verbal

working memory." Id. Dr. Lopez-Williams and Ms. Corby recommended cognitive-behavior

therapy, school intervention, and ADHD medication. Id. at 239.

From January13 through April 30, 2015, Claimant was treated by Vijayakuma Komareth,

M.D., a board-certified psychiatrist, at the Faxton-St. Luke's Behavioral Health Clinic for ADHD

and educational problems. Id. at 349. Dr. Komareth reported as follows:

Client has past diagnosis of ADHD and Oppositional Defiant

Disorder. The client has some behavior issues in school. Client has

difficulty sitting still in his seat, he has difficulty focusing in school.

The client has been reported to be staring out the window. Client

has difficulty with complying with school rules. On his report

cards, it is reported that he is disruptive. The client is not

aggressive with other kids or adults. He has difficulty with not

talking throughout class. The client's mom reports that at one point

the client was drawing pictures that had "blood and gore" in them

because he had watched horror movies. However, he has stopped

doing that. Client has some issues with following directives from

authority figures and focusing.

Id. Claimant attended two screening visits and one treatment session with Dr. Komareth. Id. at

351-52. Claimant was the discharged with the same diagnosis. Id. at 350.

On September 14, 2017, Claimant was seen by Andrew Milone, PA, his primary care

provider, to monitor his ADHD. Id. at 282-87. PA Milone noted a history of anger issues and

that Claimant "does not want to do anything, does not like school." Id. at 283. PA Milone also

reported that Claimant's ADHD medication, Guanfacine, was working well and school was

"going fine." Id. On December 11, 2017, PA Milone noted that Claimant was "crying every day,

fights with brother every day." Id. at 277-81. He also reported, "behavior issues at school ….

Problems falling asleep. Yells at mom all the time. He will hit himself in the head if he doesn't

get what he wants." Id. at 278. PA Milone increased Claimant's Guanfacine dosage,

recommended additional therapy, and prescribed Melatonin for insomnia. Id. at 279-80. On

April 9, 2018, PA Milone noted similar behavioral problems and insomnia. Id. at 272-76. PA

Milone increased the Guanfacine and Melatonin dosages. Id. at 275.

On May 4, 2018, PA Milone reported that Claimant "states when he takes am meds, falls

asleep in class, eyes get heavy, not really listening due to being tired …. He does not take the

morning dose then he does not get sleepy. He still finds himself day dreaming, but he is at least

able to redirect his attention once he realizes. Grades have not been great lately. Still having

trouble sleeping as well." Id. at 268. Accordingly, PA Milone stopped Claimant's Guanfacine

and instead prescribed Strattera. Id. at 269-70. On July 17, 2018, PA Milone switched Claimant's

ADHD medication again. Id. at 265. PA Milone reported "that when he is not on medication he

acts crazy or [wild] or some similar description. He is very physically active and displays

difficulty concentrating. Unfortunately there are behavioral issues as well such as beating up on

his younger brother, yelling." Id. Ethan's grandmother reported that the Guanfacine helped but

made him drowsy, and the Strattera "did not do much." Id. PA Milone therefore changed

Claimant's ADHD medication to Concerta. Id. at 265. On August 15, 2018, PA Milone noted

that Claimant was tolerating the Concerta well, was less argumentative, and having fewer fights

with his brother. Id. at 257. On October 2, 2018, PA Milone again noted that Claimant was

improved on the Concerta. Id. at 252.

On December 21, 2018 and March 20, 2019, PA Milone noted difficulties with school.

PA Milone noted that Claimant's mother reported that Claimant "continues to struggle with

school. Some of this clearly is volitional but a large portion I believe is out of his control. He

brought his most recent progress report which shows [him] failing 1 of at least 3 subjects, 1 of

them with a grade of 6 (not 16 and not 60, but 6). He often does not do his homework and when

he does he often does not turn it in." Id. at 338. PA Milone discontinued the Concerta and

prescribed Focalin XR. Id. at 340-41. On April 3 and April 17, 2019, PA Milone increased the

dosage of Focalin XR. Id. at 330, 335. And on May 7, 2019, Claimant reported some

improvement and PA Milone continued the higher dosage. Id. at 324-26.

On October 18, 2019, PA Milone completed a Functional Equivalence Assessment. Id. at

356-59. He opined that "I think there is a good prognosis if given consistent, long-term therapy

supplemented with judicious use of medication." Id. at 359. He also opined that Claimant has a

"Marked Limitation" in Domain 1 – Acquiring and Using Information. Id. at 356. PA Milone

elaborated, "Difficulty following instructions, especially those with multiple steps. Difficulty

with comprehension of both written and spoken information, as well as difficulty expressing his

thoughts in writing. Easily distracted." Id. PA Milone also opined that Claimant has a "Marked

Limitation" in Domain 2 – Attending and Completing Tasks. Id. at 357.

On October 22, 2018, Dante Alexander, Psy.D., performed a consultative examination.

Id. at 292-95. On "Current Functioning," Dr. Alexander noted "[a]ttention and concentration, and

hyperactivity symptoms: Fails to pay attention to details, difficulty sustaining attention in tasks or

play, fails to follow through on instructions or finish work, disorganized, easily distracted, often

fidgets or squirms, excessive talking, and difficulty waiting turn to talk …. Id. at 292. On

"Mental Status Examination," Dr. Alexander reported that attention and concentration were

"mildly impaired due to limited math ability," and "[i]ntellectual functioning was below average."

Id. at 293-94. Dr. Alexander opined that Claimant had only "mild limitations" to sustain

concentration and complete age-appropriate tasks, and to learn in accordance to cognitive

function. Id. at 294.

On October 29, 2018, state agency reviewing pediatrician Dr. Stouter reviewed Claimant's

records. Id. at 85. Dr. Stouter concluded that claimant had less than marked limitations in the

domains of acquiring and using information and attending and completing tasks and no

limitations in the remaining domains. Id. at 86. Therefore, Dr. Souter found that Claimant's

medically determinable impairments do not meet, medically equal, or functionally equal a listed

impairment. Id. at 87.

Claimant's school psychologist, Matthew Boliver, MA, CAS, preformed a triennial

evaluation on September 25 and 28, 2017. Id. at 243-48. Mr. Boliver reported as follows:

Ethan's records indicate that he was referred to Dr. Andy Lopez

Williams of ADHD and Autism Psychological Services and

Advocacy in New York Mills, NY in the spring of 2014. It was

noted that this referral was initiated due to concerns about

disruptive behaviors, aggression, impulsivity, hyperactivity,

noncompliance, social difficulties, adjustment problems and

difficulty focusing. Based on their evaluation, he was diagnosed

with ADHD-Combine Type, Oppositional Defiant Disorder, Mood

Disorder NOS, and Cognitive Disorder NOS. It was recommended

that the school utilize a Daily Report Card so that Ethan's teachers

might evaluate him on his behavior, homework completion, and

attendance. This information was to be shared with his parents on a

daily basis. Utilization of a long acting stimulant medication to

treat ADHD symptoms was recommended.

Id. at 243. Mr. Boliver administered the Wechsler Abbreviated Scale Intelligence Test (2nd Ed.).

Id. at 245, 248. Mr. Boliver reported that Ethan had a Verbal Comprehension Index

Score of 88, which correlated to the average/low average range; a Perceptual Reasoning Index

Score of 82, which is in the average/borderline range; and a Full Scale IQ score of 83, which is in

the low average/borderline range. Id. at 245. Mr. Boliver also administered the Kaufman Test of

Educational Achievement-Third Edition, Brief Form. Claimant's Academic Skills Battery

Composite Score was 76, which is in the below average/low range. Id. Claimant's teachers also

completed a BASC-3, TRS Form to assess his behavior in school. Based on these, Mr. Boliver

determined that Claimant was "at risk" for attention problems, learning problems, adaptability,

study skills, functional communication, executive functioning, and resiliency. Id. at 246, 248.

Claimant's seventh and eighth grade teachers, in October 2017 and October 2018,

respectively, filled out individualized education program questionnaires. See id. at 138, 184. On

October 19, 2018, Claimant's special education teacher, Bill Hornig, completed a Teacher

Questionnaire at the request of Social Security. Id. at 166. Mr. Hornig opined that Claimant has

"a serious problem" understanding school and content vocabulary; reading and comprehending

written material; comprehending and doing math problems; understanding and participating in

class discussions; providing organized oral explanations and adequate descriptions; expressing

ideas in written form; learning new material; recalling and applying previously learned material;

and applying problem solving skills in class discussion. Id. at 167. He also stated Claimant has a

"serious problem" focusing, carrying out multi-step instructions; changing from one activity to

another; working without distracting self or others; and working at a reasonable pace/finishing on

time. Id. at 168. The teacher further stated that Claimant has "an obvious problem" paying

attention when spoken to directly and refocusing to task when necessary; and "a slight problem"

carrying out single step instructions. Id. at 168.

III. DISCUSSION

A. Standard of Review

The Social Security 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,

if he "has a medically determinable physical or mental impairment, which results in marked and

severe functional limitations, and which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than 12 months." 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).

Regulations enacted by the Social Security Administration set forth

a three-step analysis for evaluating whether a child's impairment

meets this definition of disability: First, the ALJ considers whether

the child is engaged in "substantial gainful activity." 20 C.F.R. §

416.924(b). Second, the ALJ considers whether the child has a

"medically determinable impairment that is severe," which is

defined as an impairment that causes "more than minimal functional

limitations." Id. § 416.924(c). Finally, if the ALJ finds a severe

impairment, he or she must then consider whether the impairment

"medically equals" or "functionally equals" a disability listed in the

regulatory "Listing of Impairments." Id. § 416.924(c)-(d).

Miller v. Comm'r of Soc. Sec., 409 Fed. Appx. 384, 386 (2d Cir. 2010) (quotation omitted).

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: "(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 [oneself]; and (vi) Health and

physical well-being." 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.

In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does

not determine de novo whether a claimant is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3);

Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court

must examine the Administrative Transcript to ascertain whether the correct legal standards were

applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221

F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). "Substantial

evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as

"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Richardson v. Perales, 402 U.S. 389, 401 (1971).

If supported by substantial evidence, the Commissioner's finding must be sustained "even

where substantial evidence may support the plaintiff's position and despite that the court's

independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan,

805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.

1982)) (other citations omitted). In other words, this Court must afford the Commissioner's

determination considerable deference, and may not substitute "its own judgment for that of the

[Commissioner], even if it might justifiably have reached a different result upon a de novo

review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)

(citation omitted).

B. The ALJ's Decision

Using the three-step disability evaluation, the ALJ found at step one that Claimant has not

engaged in any substantial gainful activity since August 21, 2018, the application date. Tr. at 13.

At step two, the ALJ concluded that Claimant has a severe impairment consisting of ADHD and

oppositional defiant disorder ("ODD"). Id. At the third step of analysis, the ALJ found that

Claimant does not have an impairment or combination of impairments that meets, medically

equals, or functionally equals any of the listed, presumptively disabling conditions set forth in

Appendix 1 of the Regulations. See id. The ALJ specifically considered whether Claimant met

or medically equaled Listing112.11, but concluded he did not have an extreme limitation in one,

or marked limitation in two, of the areas of mental functioning in Listing 112.11(B). Id. at 13-14.

ALJ Malfa found that Claimant had a marked limitation in understanding, remembering, or

applying information; moderate limitations in interacting with others and concentrating,

persisting, or maintaining pace; and a mild limitation in adapting or managing himself. Id. at 14.

ALJ Malfa then determined that, "[t]he claimant does not have an impairment or combination of

impairments that functionally equals the severity of the listings (20 C.F.R. [§§] 416.924(d) and

416.926a)." Id. at 14. Specifically, ALJ Malfa found that Claimant has a marked limitation in

acquiring and using information; less than marked limitations in attending and completing tasks

and interacting and relating with others; and no limitations in moving about and manipulating

objects, caring for himself, and in health and physical well-being. Id. at 14-15. After reviewing

the record, the ALJ concluded that Claimant is not disabled and denied the claim. Id. at 21.

C. Analysis

Plaintiff argues that ALJ Malfa applied the incorrect standard, improperly weighed the

evidence, and that the record establishes that Claimant's impairments are functionally equivalent

to Listing 112.11. The Court disagrees and finds that ALJ Malfa properly weighed the medical

source opinions, and that substantial evidence supports the finding that Claimant's impairments

did not meet or equal a listed impairment. ALJ Malfa relied on the expert assessments of Dr.

Alexander and Dr. Stouter. He also relied on Claimant's mother's testimony, Claimant's mental

status examinations, and a September 2017 evaluation by Mr. Boliver.

First, Plaintiff argues that ALJ Malfa improperly substituted his own layperson assessment

of the evidence for the evidence of the medical and educational experts. See Dkt. No. 10 at 23-26.

Plaintiff states that ALJ Malfa erred by considering medical and educational opinion only "to the

extent consistent" with his own findings. Id. at 24-25. Plaintiff argues that "[t]his constituted an

'impermissible interpretation of raw medical data,' that requires reversal." Id. at 25 (quoting

Sherry v. Berryhill, No. 1:17CV01102, 2019 WL 441597, *7 (W.D.N.Y. Feb. 5, 2019)).

Plaintiff applied for benefits on or after March 27, 2017, which is after the effective date

of 20 C.F.R. § 416.920c(a), altering the treating physician rule. Now, the agency "will not defer

or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) ...

including those from your medical sources." Id. Instead, the ALJ is required to explain how he

considered the factors of supportability and consistency. 20 C.F.R. § 416.920c(b)(2). Here, ALJ

Malfa followed that standard and extensively evaluated the persuasiveness of the medical and

educational professionals' opinions. See Tr. at 18-20. ALJ Malfa's conclusory remarks at the end

of an extensive evaluation of the medical and educational professionals' opinions limiting the

persuasiveness "to the extent consistent with the findings herein" is not evidence that ALJ Malfa

substituted his own opinion.

Plaintiff relies on Collins v. Comm'r of Soc. Sec., No. 20-CV-4693, 2021 WL 3054964, *5

(E.D.N.Y. July 20, 2021), to argue that ALJ Malfa's reasoning is circular; that "ALJ Malfa found

the persuasiveness of each medical and educational professional's opinion hinged upon how much

it comported with his own interpretation of the evidence." Dkt. No. 10 at 25. The court in Collins

stated as follows:

At times, the decision in this case reads as if the ALJ came to an

RFC determination herself before evaluating any of the evidence.

For example, the ALJ evaluated evidence based on its

"consisten[cy] with my residual functional capacity assessment."

This rationale strikes me as circular, as I don't see how the ALJ can

reject an opinion as consistent or inconsistent with her own

assessment when she should not be making her own assessment

until she has considered that opinion.

Collins, 2021 WL 3054964, at *5 (alteration in original). First, the court in Collins did not solely

rely on these passing statements for remand. The court also found that the "ALJ improperly

rejected the opinions of plaintiff's treating physicians as inconsistent with the record based on

cherry-picked evidence when, in fact, the opinions were largely consistent with each other,

medical evidence in the record, and plaintiff's own testimony." Id. Second, ALJ Malfa did not

discount the medical and educational professional's opinions because they did not comport with

his own interpretation of the underlying data. Rather, he had first extensively analyzed the

opinions for supportability and consistency as required by 20 C.F.R. § 416.920c(b)(2) and 20

C.F.R. § 416.920c(c). After performing that analysis, in conclusion, he stated that the opinions

remained persuasive to the extent it is consistent with the remainder of the opinion. At no point

did ALJ Malfa discount an opinion solely because it did not comport with his own ultimate

conclusion, as the district court found the ALJ had done in Collins. Accordingly, the Court finds

that ALJ Malfa did not apply the incorrect standard or substitute his own opinion for those of the

medical and educational professionals.

Next, Plaintiff argues that ALJ Malfa improperly evaluated the opinion of PA Milone.

ALJ Malfa found that PA Milone's opinion was "inconsistent with the substantial evidence of

record, including the opinions of Drs. Alexander and Stouter and the reports from the claimant's

teachers indicating meaningful, but not profound, deficits in the domain of attending and

completing tasks." Tr. at 20. Plaintiff argues that ALJ Malfa relied on Drs. Alexander and

Stouter's opinions to discount PA Milone's, but had also found their opinions to be inconsistent

with the medical record. See Dkt. No. 10 at 29. Plaintiff contends that if ALJ Malfa had properly

evaluated the opinion evidence, "he would have been forced to concede that PA Milone's

assessment was very persuasive," and Claimant is disabled. Id.

The Court disagrees. Dr. Alexander opined that Claimant had only mild limitation in

sustaining concentration and completing age-appropriate tasks, and mild limitation in learning in

accordance to cognitive function. Tr. at 294. ALJ Malfa concluded that Dr. Alexander's opinion

was "generally persuasive," but that Claimant's treatment notes and academic records actually

"supported a somewhat higher degree of restriction than assessed by" Dr. Alexander. Id. at 18.

Plaintiff first argues that, because ALJ Malfa found a different level of restriction than Dr.

Alexander, it was improper to use Dr. Alexander's opinion to discredit PA Milone's. It has been

repeatedly recognized that an ALJ may properly depart from an opinion in a manner that favors

the claimant. Tammy Lynn B. v. Comm'r of Soc. Sec., 382 F. Supp. 3d 184, 195 (N.D.N.Y. 2019);

Vicky M. v. Comm'r of Soc. Sec., No. 8:17-cv-521, 2018 WL 4119112, *9 (N.D.N.Y. Aug. 28,

2018). Moreover, "the ALJ's resolving such conflicts in the medical evidence is not interpreting

raw medical data or substituting his own lay opinion for that of a medical professional." Terri G.

v. Comm'r of Soc. Sec., No. 3:18-CV-0066, 2019 WL 1318074, *9 (N.D.N.Y. Mar. 22, 2019).

ALJ Malfa found that Dr. Alexander's opinion was supported by his own examination and

was "fairly consistent with the substantial evidence of record." Tr. at 18. The ALJ was not

required to adopt Dr. Alexander's opinion in its entirety. Plaintiff is incorrect in asserting that Dr.

Alexander's opinion was "not supported by or consistent with" the record simply because the ALJ

found the record to support a more restrictive assessment. An ALJ may properly "credit those

portions of a consultative examiner's opinion which the ALJ finds supported by substantial

evidence of record and reject portions which are not so supported." Viteritti v. Colvin, No. 14-

6760, 2016 WL 4385917, *11 (E.D.N.Y. Aug. 17, 2016) (citing Pellam v. Astrue, 508 Fed. Appx.

87, 89 (2d Cir. 2013)).

Plaintiff also suggests it was improper to rely on Dr. Alexander's opinion because he only

examined Claimant once. "It is well-settled that the opinion of a consultative examiner who only

examined a patient once can constitute substantial evidence in support of the ALJ's determination

if supported by the record." Teddy N. v. Berryhill, No. 8:18-CV-234, 2019 WL 1429519, *3

(N.D.N.Y. Mar. 29, 2019). The ALJ's decision that Dr. Alexander's opinion was generally

persuasive is support by substantial evidence.

Plaintiff makes similar arguments regarding the opinion of Dr. Stouter. In October 2018,

Dr. Stouter reviewed Claimant's record and concluded that Claimant had less than marked

limitations in the domains of acquiring and using information and attending and completing tasks

and no limitations in the remaining domains. Tr. at 86-87. ALJ Malfa found that the record

supported a higher degree of limitation, "particularly in the domains of acquiring and using

information and interacting and relating with others," than determined by Dr. Stouter. Id. at 18-

19. ALJ Malfa, accordingly, concluded that Dr. Stouter's assessment was only "partially

persuasive," as it was generally consistent with the substantial evidence of record that indicated

Claimant had "meaningful, but not profound, functional deficits." Id. at 19.

An ALJ may find a state agency physician's opinion to be "partially persuasive" without

dismissing their findings entirely. See Dowling v. Comm’r of Soc. Sec., No. 5:14-CV-0786, 2015

WL 5512408, *12 (N.D.N.Y. Sept. 15, 2015); Thogode v. Colvin, No. 3:14-1051, 2015 WL

5158733, *9 (N.D.N.Y. Sept. 2, 2015). A state agency physician's opinion is not deemed

"inconsistent with the record" because the ALJ concluded a more restrictive assessment was

appropriate. Dr. Stouter's findings were supported with reasonable explanations and "generally

consistent with the substantial evidence of record." Tr. at 19.

Plaintiff also argues that Dr. Stouter's opinion is not substantial evidence because she did

not have the opportunity to review the entire record. See Dkt. No. 10 at 31. Dr. Stouter

conducted her examination in October 2018 and therefore did not review Claimant's teachers'

February 2019 questionnaire and PA Milone's October 2019 assessment. The Court finds that the

additional medical and educational records were not materially different than PA Milone's and

Claimant's teachers' October 2018 assessment on which Dr. Stouter relied. See Camille v. Colvin,

652 Fed. Appx. 25, 28 n.4 (2d Cir. 2016) (holding that the ALJ could rely on a medical opinion,

despite it being rendered prior to subsequent records from the same sources, where additional

notes post-dating the opinion were not materially different from those pre-dating it). There is no

"unqualified rule" that a medical opinion is superseded by additional material in the record. Id.

Dr. Stouter reviewed Claimant's teachers' October 2018 questionnaire, which reported that

Claimant has "a serious problem focusing long enough to finish" an activity, changing activities,

completing work accurately, working without distracting himself or others, and that he "needs

support with assignments and reminders to focus." Tr. at 86. Claimant's teachers' October 2019

questionnaire reported similar sentiments. PA Milone's October 2019 assessment similarly does

not detail any stark changes in Claimant's ability to concentrate or follow instruction. Id. at 356-

57. Accordingly, the ALJ properly weighed Dr. Stouter's opinion.

Plaintiff further contends that ALJ Malfa did not properly evaluate the opinion of PA

Milone. ALJ Malfa considered PA Milone's October 2019 opinion that Claimant had marked

limitations in the domains of acquiring and using information as well as attending and completing

tasks. See Tr. at 19-20 (citing Tr. at 356-359). ALJ Malfa also acknowledged PA Milone's

opinion that Claimant was easily distracted and had difficulty following instructions, focusing

long enough to complete tasks on time, changing between activities without being disruptive, and

working without distracting himself or others. Id. at 20 (citing Id. at 356-57)). ALJ Malfa,

however, found PA Milone's opinion to be "only somewhat persuasive" because it was

inconsistent with the substantial evidence of record, "including the opinions of Drs. Alexander

and Stouter as well as the reports from [Claimant's] teachers[.]" Id. at 20.

The Court finds that ALJ Malfa properly evaluated the persuasiveness of PA Milone's

opinion in light of the key factors of supportability and consistency as required by the regulations.

See 20 C.F.R. § 416.920c(b)(2). ALJ Malfa extensively supported his determination that PA

Milone's opinion was "only somewhat persuasive." Tr. at 20. For example, ALJ Malfa noted that

Claimant was alert and cooperative, displayed normal mood and affect, and had normal span and

concentration, and was acting perfectly fine during an April 2018 examination. Id. at 17 (citing

id. at 272-76). And in October 2018, Claimant informed PA Milone that he was tolerating his

Concerta dosage well and that it "definitely makes a difference" in his ability to concentrate. Id.

PA Milone reported that a mental examination revealed alert and cooperative behavior, normal

mood and affect, and normal attention span and concentration. Id.

Accordingly, substantial evidence supports ALJ Malfa's analysis. The Court will not

reweigh the evidence. See e.g., Walsh ex rel. S.J.W. v. Comm'r of Soc. Sec., No. 1:16-cv-1413,

2018 WL 1229827, *5 (N.D.N.Y. Mar. 9, 2018) ("It is not the function of this Court to re-weigh

evidence ….") (citing cases). Here, Plaintiff "is essentially arguing that the evidence in the record

supports her contention[s]. However, under the substantial evidence standard of review, it is not

enough for Plaintiff to merely disagree with the ALJ's weighing of the evidence or to argue that

the evidence of record could support her position. Plaintiff must show that no reasonable

factfinder could have reached the ALJ's conclusions based on the evidence in the record." Z.J.F.

by Conkling v. Comm'r of Soc. Sec., No. 6:16-CV-1397, 2018 WL 1115516, *6 (N.D.N.Y. Feb.

27, 2018).

The Court also finds that substantial evidence supports ALJ Malfa's finding that

Claimant's impairments did not meet or equal a listed impairment. ALJ Malfa found that

Claimant's impairments did not meet listing 112.11. Tr. at 13-24. In reaching this conclusion,

ALJ Malfa properly relied on Dr. Alexander's and Dr. Stouter's medical opinions, as discussed

above. In order to satisfy the paragraph B criteria, a child must have an extreme limitation in one,

or marked limitation of two, of the following areas of mental functioning: (1) understanding,

remembering, or applying information; (2) interacting with others; (3) concentrating, persisting,

or maintaining pace; and (4) adapting or managing oneself. 20 C.F.R. pt. 404, subpt. P, App. 1, §

112.11(b) (Mar. 27, 2017). ALJ Malfa found that claimant had a marked limitation in his ability

to understand, remember, or apply information; moderate limitation in interacting with others;

moderate limitation in his ability to concentrate, persist, or maintain pace; and mild limitation in

adapting or managing himself. Tr. at 13-14. ALJ Malfa's determination is supported by

substantial evidence and, contrary to Plaintiff's contentions, the evidence does not compel the

conclusion that Claimant had a marked limitation in his ability to concentrate, persist, or maintain

pace.

The area of concentrating, persisting, and maintaining pace refers to the abilities to focus

attention on activities and stay on task age-appropriately. 20 C.F.R. pt. 404, subpt. P, App. 1, §

112.00(E)(3). In finding Claimant had no more than moderate limitations in this area, ALJ Malfa

relied on treatment notes documenting his ability to maintain focus, the assessments of the

consultative examiner and state agency physician, and his improved ability to concentrate and pay

attention while adhering to his medication regimen. Tr. at 13-20; see 20 C.F.R. §

416.924a(b)(9)(i) (SSA "will consider the effects of medication on [a child's] symptoms . . . and

functioning," including whether "any of his functional limitations . . . persist, even if there is

improvement from the medications"). ALJ Malfa also relied on Dr. Stouter's and Mr. Boliver's

opinions, which supported a moderate limitation finding. See Tr. at 16-19. ALJ Malfa furhter

noted Claimant's longitudinal record of improvement when consistently abiding by his medical

regimen. Id. at 17. Accordingly, substantial evidence supports ALJ Malfa's conclusion that

Claimant has a "moderate" rather than "marked" limitation in his ability to concentrate, persist, or

maintain pace.

Lastly, substantial evidence also exists to support ALJ Malfa's determination that

Claimant's impairments do not functionally equal listing 112.11. "Functional equivalency" may

be measured in a number of ways, most specifically in "domains" such as (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. 20 C.F.R. § 416.926a(b)(1). To be functionally equivalent to a listing, a child's

impairments "must result in [either] 'marked' limitations in two domains of functioning or an

'extreme' limitation in one domain." 20 C.F.R. § 416.926a(a).

Plaintiff argues that Claimant has marked limitations in the following domains: (1)

acquiring and using information; and (2) attending and completing tasks. Alternatively, Plaintiff

contends that the ALJ should have concluded that Claimant has an extreme limitation in acquiring

and using information. Substantial evidence supports ALJ Malfa's determination regarding those

domains.

Upon mental status examination in October 2018, Dr. Alexander observed below average

intellectual functioning and mildly impaired attention and concertation, but otherwise grossly

unremarkable findings, including coherent and goal-directed thought processes, euthymic mood,

intact memory, and appropriate insight and judgment. Tr. at 18. Dr. Alexander noted only mild

limitations to sustaining concentration and completing age-appropriate tasks and mild limitation

to learning in accordance to cognitive functioning. Id. at 294. Dr. Stouter similarly assessed a

less than marked limitation in attending and completing tasks. Id. at 86. And Claimant's school

psychologist evaluation further supported this finding. Mr. Boliver reported that Claimant

"seemed appropriately focused on the tasks," "at no time exhibiting elevated activity levels during

testing." Id. at 244. He added that in the school setting, "[Claimant] was not observed to be

hyperactive, noncompliant, aggressive, or as having social difficulties." Id. at 246.

Substantial evidence also supports ALJ Malfa's marked, rather than extreme, limitation

finding in acquiring and using information. In finding that Claimant had marked limitation in this

domain, ALJ Malfa wrote:

It is recognized that the claimant has had a significant degree of

limitation in the domain of acquiring and using information, as

evidenced by his academic struggles and need for supportive

educational services. However, intelligence testing does not

suggest such difficulties are due to profound cognitive deficits, and

some of the claiman's acknowledged activities, including playing

video games, knowing how to perform household chores when

motivated to do so, and being able to prepare simple meals, indicate

the claimant is not extremely limited in his capacity to learn and use

what he has learned.

Tr. at 20. ALJ Malfa relied on the medical and education evidence discussed above to reach this

conclusion. ALJ Malfa's determination is supported by Dr. Alexander's opinion, Dr. Stouter's

opinion, teacher questionnaires, and positive notes from PA Milone regarding increased dosage of

Focalin.

Plaintiff's attempt to overcome this evidence is impermissibly asking this Court to reweigh

the evidence. See Walsh, 2018 WL 1229827, at *5 (citing cases). Substantial evidence supports

ALJ Malfa's decision, which fully considered and weighed the medical and educational evidence

of record.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that the decision denying benefits is AFFIRMED; and the Court further

ORDERS that Plaintiff's motion for judgment on the pleadings is DENIED; and the Court

further

ORDERS that Defendant's motion for judgment on the pleadings is GRANTED; and the

Court further

ORDERS that the Clerk of Court shall enter judgment in Defendant's favor and close this

case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on all parties in accordance with the Local Rules.

IT ISSO ORDERED.

Dated: August 18, 2022 Me Hf ve liga bite 3

Albany, New York Mae A. D’Agostino~/

U.S. District Judge

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