Fuller v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

MICHELLE F. on behalf of I.M.U., a minor,

Plaintiff,

v. Civil Action No.

5:21-CV-0350 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

OLINSKY LAW GROUP MELISSA DELGUERCIO, ESQ.

250 South Clinton St., Suite 210 HOWARD D. OLINSKY, ESQ.

Syracuse, New York 13202

FOR DEFENDANT

SOCIAL SECURITY ADMIN. DANIEL S. TARABELLI, ESQ.

625 JFK Building

15 New Sudbury St

Boston, MA 02203

DAVID E. PEEBLES

U.S. MAGISTRATE JUDGE

DECISION AND ORDER1

1 This matter is before me based upon consent of the parties, pursuant to 28

U.S.C. § 636(c).

Plaintiff has commenced this proceeding, pursuant to 42 U.S.C. §§

405(g) and 1383(c)(3), to challenge a determination of the Commissioner of

Social Security (“Commissioner”) finding that her minor daughter, I.M.U.,

(“claimant”), was not disabled at the relevant times and, accordingly, is

ineligible for the supplemental security income (“SSI”) benefits for which

plaintiff applied on the claimant’s behalf. For the reasons set forth below, I

recommend a finding that the Commissioner’s determination resulted from

the application of proper legal principles and is supported by substantial

evidence.

I. BACKGROUND

Claimant was born in November of 2005, and is currently sixteen

years of age. She was eight years old at the date her alleged disability

began and twelve years old at the time of her mother’s application for

benefits on her behalf. Claimant measured approximately five feet and two

inches at the time her application was filed and weighed approximately one

hundred and seventy-six pounds. Claimant resides with her mother, her

younger sister, and her mother’s boyfriend.

Claimant was in the sixth grade at the time that her mother applied

for benefits, and in eighth grade at the time of the administrative hearing

held to address her claim. She attends regular classes, although her

mother testified at the hearing that she was in the process of trying to

obtain a Section 504 plan to provide the claimant with accommodations at

school related to her impairments.

Plaintiff alleges that claimant suffers from a cyclic vomiting disorder

with concurrent dizziness and tiredness, as well as anxiety. During the

relevant period, claimant has been treated for these conditions by

professionals at St. Joseph’s Hospital Health Center, Oswego Hospital

Primary Care, Upstate Golisano Children’s Hospital, ARISE Child and

Family Services, and Upstate Gastroenterology. At the time of the

administrative hearing, plaintiff reported that claimant took nortriptyline for

her cyclic vomiting disorder and was seeing a therapist at her school to

address her anxiety.

Plaintiff reported during the administrative hearing held to address

her claim for benefits on claimant’s behalf that her daughter becomes dizzy

two or three times per week, typically toward the middle of the day, which

causes her to vomit. Those episodes occur randomly and are not

associated with certain foods, but happen more frequently in the warmer

months, or when the claimant is more active or anxious. The claimant will

typically sleep when she has a vomiting episode, but will often have to

wake up to vomit more. She experiences anxiety in addition to her

gastrointestinal symptoms. Her vomiting caused her to miss many days of

school during the previous school year (2018-2019), but she has been

absent only a few days during the current school year (2019-2020)

because the more recent episodes have been occurring after the close of

the school day. Plaintiff reports that claimant is a good student, but her

learning has been affected by missing days and her lack of confidence,

such that she is struggling in a few subjects. She further reports that her

daughter’s impairments and symptoms affect her whole life, cause issues

with her hygiene, prevent her from making plans with friends, and cause

her to be agitated or irritable at times.

II. PROCEDURAL HISTORY

A. Proceedings Before the Agency

Plaintiff applied for Child SSI payments under Title XVI of the Social

Security Act on April 6, 2018. In support of that application, she alleged a

disability onset date of June 1, 2014, and asserted that claimant is disabled

based on a cyclic vomiting disorder, dizziness, tiredness, and anxiety.

A hearing was conducted on March 11, 2020, by administrative law

judge (“ALJ”) Laura Bernasconi, to address plaintiff’s application. Following

that hearing, ALJ Bernasconi issued an unfavorable decision on April 10,

2020. That opinion became a final determination of the agency on January

28, 2021, when the Social Security Appeals Council (“Appeals Council”)

denied plaintiff’s request for review of the ALJ’s decision.

B. The ALJ’s Decision

In her decision, ALJ Bernasconi applied the familiar three-step

evaluation procedure for assessing whether a child claimant meets the

standard for disability under the regulations. At step one, she found that

claimant had not engaged in substantial gainful activity during the relevant

time period. At step two, ALJ Bernasconi found that claimant suffers from

severe impairments that impose more than minimal limitations on her

functional abilities, including cyclic vomiting syndrome, gastroesophageal

reflux disorder (“GERD”), and anxiety. The ALJ also considered claimant’s

obesity but found that it did not impose any limitations on her functioning,

and additionally concluded that scattered notations of posttraumatic stress

disorder (“PTSD”) did not constitute a separate medically determinable

impairment apart from her anxiety.

At step three, ALJ Bernasconi examined the governing regulations of

the Commissioner setting forth presumptively disabling conditions (the

“Listings”), see 20 C.F.R. Pt. 404, Subpt. P, App. 1, and concluded that the

claimant’s conditions do not meet or medically equal any of the listed,

presumptively disabling conditions set forth in the regulations, specifically

considering Listings 105.00 and 112.06. ALJ Bernasconi went on to find

that claimant’s impairments do not functionally equal any of the childhood

listings, determining that she has less than marked limitations in the

domains of interacting and relating with others and health and physical

wellbeing, and no limitations in the other domains of functioning.

Based upon these findings, ALJ Bernasconi concluded that claimant

is not disabled.

C. This Action

Plaintiff commenced this action on March 27, 2020.2 In support of

her challenge to the ALJ’s determination, plaintiff argues that the ALJ erred

in failing to provide any legally sufficient rationale to support her finding

regarding the subjective reports of the claimant and her mother related to

the intensity, persistence and limiting effects of her symptoms. Dkt. No. 14.

Oral argument was conducted in this matter, by telephone, on

September 22, 2022, at which time decision was reserved.

III. DISCUSSION

A. Scope of Review

2 This action is timely, and the Commissioner does not argue otherwise. It has

been treated in accordance with the procedures set forth in General Order No. 18.

Under that General Order, the court treats the action procedurally as if cross-motions for

judgment on the pleadings have been filed pursuant to Rule 12(c) of the Federal Rules

of Civil Procedure.

A court’s review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a final

decision by the Commissioner is subject to a “very deferential” standard of

review, and is limited to analyzing whether the correct legal standards were

applied, and whether the decision is supported by substantial evidence.

Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012);

Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221

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

1998). Where there is reasonable doubt as to whether the ALJ applied the

proper legal standards, the decision should not be affirmed even though

the ultimate conclusion reached is arguably supported by substantial

evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). If,

however, the correct legal standards have been applied, and the ALJ’s

findings are supported by substantial evidence, those findings are

conclusive, and the decision will withstand judicial scrutiny regardless of

whether the reviewing court might have reached a contrary result if acting

as the trier of fact. Veino, 312 F.3d at 586; Williams v. Bowen, 859 F.2d

255, 258 (2d Cir. 1988); see also 42 U.S.C. § 405(g).

The term “substantial evidence” 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. 390, 401 (1971) (quoting

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord, Jasinski v.

Barnhart, 341 F.3d 182, 184 (2d Cir. 2003). To be substantial, there must

be “more than a mere scintilla” of evidence scattered throughout the

administrative record. Richardson, 402 U.S. at 401 (internal quotation

marks omitted); Williams, 859 F.3d at 258. “To determine on appeal

whether an ALJ’s findings are supported by substantial evidence, a

reviewing court considers the whole record, examining evidence from both

sides, because an analysis on the substantiality of the evidence must also

include that which detracts from its weight.” Williams, 859 F.2d at 258

(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951);

Mongeur v. Hechler, 722 F.2d 1033, 1038 (2d Cir. 1983)).

B. Disability Determination: The Childhood Disability Evaluation

Process

An individual under the age of eighteen is disabled, and thus eligible

for SSI benefits, if he or she has not engaged in substantial gainful activity

and 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 twelve months. 42 U.S.C. §

1382c(a)(3)(C)(i); see Hudson v. Astrue, 1:06-CV-1342, 2009 WL 1212114,

at *3-4 (N.D.N.Y. Apr. 30, 2009) (discussing the standard for children’s

disability benefits).

The agency has developed a three-step protocol to be employed in

determining whether a child can meet the statutory definition of disability.

20 C.F.R. § 416.924; Kittles v. Barnhart, 245 F. Supp. 2d 479, 487-88

(E.D.N.Y. 2003); Ramos v. Barnhart, 02 Civ. 3127, 2003 WL 21032012, at

*7 (S.D.N.Y. May 6, 2003). The first step of the test requires a

determination of whether the child has engaged in substantial gainful

activity. 20 C.F.R. § 416.924(b); Kittles, 245 F. Supp. 2d at 488. If so, then

by statute and by regulation, the child is ineligible for SSI benefits. 42

U.S.C. § 1382c(a)(3)(C)(ii); 20 C.F.R. § 416.924(b).

If the child has not engaged in substantial gainful activity, the second

step of the test requires examination of whether he or she suffers from one

or more medically determinable impairments that, either alone or in

combination, are properly regarded as “severe,” in that they cause more

than a minimal functional limitation. 20 C.F.R. § 416.924(c); Kittles, 245 F.

Supp. 2d at 488; Ramos, 2003 WL 21032012, at *7. If the child is found to

have a severe impairment, the Commissioner must then determine, at the

third step, whether the impairment meets or equals a presumptively

disabling condition identified in the listing of impairments set forth in 20

C.F.R. Pt. 404, Subpt. P., App. 1. Id. Equivalence to a listing can be either

medical or functional. 20 C.F.R. § 416.924(d); Kittles, 245 F. Supp. 2d at

488; Ramos, 2003 WL 21032012, at *7. If an impairment is found to meet,

or qualify as medically or functionally equivalent to, a listed impairment, and

the twelve-month durational requirement is satisfied, the claimant will be

found to be disabled. 20 C.F.R. § 416.924(d)(1); Ramos, 2003 WL

21032012, at *8.

“Functional” equivalence must be examined only if it is determined

that the claimant’s impairment does not meet or medically equal the criteria

for a listed impairment. Analysis of functionality is informed by

consideration of how a claimant functions in six main areas referred to as

“domains.” 20 C.F.R. § 416.926a(b)(1); Ramos, 2003 WL 21032012, at *8.

The domains are 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 domains include (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).

Functional equivalence is established with the finding of an “extreme”

limitation, meaning “more than marked,” in a single domain. 20 C.F.R. §

416.926a(a); Ramos, 2003 WL 21032012, at *8. An “extreme limitation” is

an impairment which “interferes very seriously with [the claimant’s] ability to

independently initiate, sustain, or complete activities.” 20 C.F.R. §

416.926a(e)(3)(i) (emphasis added).

Alternatively, a finding of disability is warranted if a “marked”

limitation is found in any two of the listed domains. 20 C.F.R. §

416.926a(a); Ramos, 2003 WL 21032012, at *8. A “marked limitation”

exists 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). “A marked limitation may arise when several activities or

functions are impaired, or even when only one is impaired, as long as the

degree of limitation is such as to interfere seriously with the ability to

function (based upon age-appropriate expectations) independently,

appropriately, effectively, and on a sustained basis.” 20 C.F.R. Pt. 404,

Subpt. P, App. 1, § 112.00(C).

C. Analysis

In this appeal, plaintiff does not appear to directly challenge the ALJ’s

assessment of whether she meets or equals a childhood listing, but rather

focuses on the ALJ’s assessment of the subjective reports related to the

intensity, persistence and limiting effect of the claimant’s symptoms.

Specifically, plaintiff argues that the ALJ failed to provide any other

explanation for her finding as to this issue other than to state that those

reports “are not entirely consistent with the medical evidence and other

evidence in the record.” Dkt. No. 14, at 6-9. Plaintiff asserts that this error

is harmful because the claimant has reported that she becomes sick or

dizzy multiple times per week, and that, as such, her reports are consistent

with an opinion indicating that the claimant is absent frequently and has

marked limitations in the domains of acquiring and using information and

attending and completing tasks. Id. I find these arguments to be

unpersuasive.

Under the two-step review protocol applicable in social security cases

for assessing a claimant’s subjective reports of symptoms, an ALJ must

first determine whether the individual has a medically determinable

impairment that could reasonably be expected to produce the alleged

symptoms, and, if so, the ALJ must then evaluate the intensity and

persistence of those symptoms and determine the extent to which those

symptoms limit the claimant’s ability to perform work-related activities.

Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *3-8. When

addressing this second prong, an ALJ must consider the objective medical

evidence and other evidence in the record, including statements by the

claimant and reports from both medical and non-medical sources, and must

evaluate the intensity, persistence, and limiting effects of the claimant’s

symptoms, considering relevant factors which include evidence regarding

(1) daily activities, (2) the location, duration, frequency, and intensity of pain

or other symptoms, (3) factors that precipitate or aggravate the claimant’s

symptoms, (4) the type, dosage, effectiveness, and side effects of

medication, (5) any treatment other than medication that is used to relieve

the symptoms, (6) other measures to obtain relief of symptoms, and (7) any

other relevant factors. Id.

If the ALJ finds that a claimant’s subjective testimony should be

rejected, he or she must explicitly state the basis for doing so with sufficient

particularity to enable a reviewing court to determine whether those

reasons for disbelief were legitimate and whether the determination is

supported by substantial evidence. Martone v. Apfel, 70 F. Supp. 2d 154,

151 (N.D.N.Y. 1999) (citing Brandon v. Bowen, 666 F. Supp. 604, 608

(S.D.N.Y. 1987)). The ALJ’s decision need not contain a discussion of all

of the potentially relevant factors listed above, provided that it is clear from

the decision that the ALJ considered all of the evidence and that he or she

provided specific reasons for his or her determination as to the intensity,

persistence, and limiting effect of the claimant’s symptoms. See Cichocki

v. Astrue, 534 F. App’x 71, 76 (2d Cir. 2013) (finding that failure to discuss

certain factors did not require remand because the ALJ provided specific

reasons for his determination “and the record evidence permits us to glean

the rationale of the ALJ’s decision”). Where the ALJ’s findings are

supported by substantial evidence, the decision to discount subjective

testimony may not be disturbed on court review. Aponte v. Sec’y, Dep’t of

Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984).

In her decision, the ALJ acknowledged testimony that claimant

becomes sick or dizzy two or three times per week toward the middle or

end of the school day, causing her to vomit and also resulting in anxiety

and nervousness, but that, according to the plaintiff, this has not caused

many absences from school during the current school year. Administrative

Transcript (“AT”) at 14.3 She also noted plaintiff’s reports that claimant’s

symptoms affect her life at school, socially, and at home, that they cause

her to be irritated and agitated, and that she is taking medication and

attending therapy to address her impairments. AT 14-15. The ALJ

concluded that, although the claimant’s medically determinable

impairments could reasonably be expected to cause the alleged symptoms,

the allegations regarding the intensity, persistence and limiting effects of

3 The administrative transcript is found at Dkt No. 11, and will be referred to

throughout this decision as “AT __.”

those symptoms “are not entirely consistent with the medical evidence and

other evidence in the record.” AT 15. She then discussed the treatment

evidence related to the claimant’s impairments, including that she

underwent various diagnostic procedures related to her vomiting and

GERD that revealed few or no abnormalities, that the claimant reported

exacerbation of her cyclic vomiting when exposed to hot weather or

anxiety, and that she was taking hydroxyzine for a period of time, which

reportedly helped. AT 15. The ALJ acknowledged that the claimant was

prescribed a number of medications during the relevant period, including

nortriptyline, periactin, Miralax, and omeprazole, and that, in December of

2019, the claimant reported a decrease in her vomiting symptoms over the

past few months, which she noted “suggest[s] improvement in her physical

and mental condition with treatment.” AT 15-16.

Contrary to plaintiff’s argument, the ALJ did not merely state that the

subjective reports were not entirely consistent with the evidence in the

record without providing any elaboration of that finding or assessing any of

the relevant factors in the regulations. As was discussed above, the ALJ

discussed the type of treatment claimant underwent, including diagnostic

testing and medications. She explicitly indicated that the record showed

that claimant’s cyclic vomiting symptoms had decreased in the last quarter

of 2019 with treatment through medication and therapy. AT 290. She

discussed that the claimant’s gastrointestinal providers were not able to

find any obvious physical cause of her cyclic vomiting syndrome and

accordingly referred her to a psychiatrist and/or neurologist for further work-

up. She also discussed the reported frequency of the symptoms to the

extent documented by the record and identified potential triggers for those

symptoms, such as hot weather and anxiety. The ALJ therefore

considered many of the relevant factors outlined in the regulations, and her

discussion shows how she found this evidence was inconsistent with the

allegations of greater disability.

Apart from the fact that the ALJ clearly did consider many of the

relevant factors related to the assessment of subjective reports, plaintiff has

also not provided any concrete argument that a more fulsome analysis of

the subjective reports would have altered the outcome here. Indeed, the

only report that plaintiff points to is the testimony that claimant becomes

sick or dizzy “multiple times per week.” Dkt. No. 14, at 9. However, I note

that the actual testimony indicated that these spells occurred specifically

two or three times per week, often during the middle of the day. AT 33-34.

At an appointment with her gastroenterologist in November of 2019, it was

reported that the claimant’s vomiting happened only once per week, for a

period of three or four hours, and that such episodes improve with sleep.

AT 282. It is therefore not clear how, even if the ALJ accepted the reports

that claimant vomits once or twice per week, such reports would be

suggestive of the requisite level of impairment in any of the relevant

domains of functioning. Although there are allegations that the claimant

experiences anxiety along with her physical issues, there is very little

documented treatment for anxiety and the evidence that is available shows

that combined treatment for her impairments with medication and therapy

has helped to lessen the frequency of her symptoms. Additionally,

although not specifically discussed by the ALJ, it was noted in a treatment

record from December of 2018 that the claimant was “able to control her

vomiting” when she avoided exertional activity such as gym class, but that

the vomiting episodes began to recur when she started playing sports

again at school. AT 276. This evidence suggests that the claimant’s

symptoms were not as random and uncontrolled as she alleged, and that

they could be mitigated or reduced to some extent through avoidance of

such types of physical activity in addition to her treatment.

As plaintiff observes, the record contains a statement dated March 3,

2020, from individuals who appear to be various school personnel that the

ALJ did not acknowledge or address in her decision.4 AT 211-17. In this

statement, the authors opined that claimant has a number of “serious” and

“obvious” problems in her functioning within the domain of acquiring and

using information, and a few such problems in the domain of attending and

completing tasks, but otherwise has no observable limitations in the other

domains. Id. However, any failure of the ALJ to assess this opinion is not

error meriting remand. Notably, the applicable regulations in this case

specify that “[w]e are not required to articulate how we considered evidence

from nonmedical sources using the [factors and requirements that apply to

medical opinions and prior administrative medical findings].” 416.920c(d).

Given that there is no indication that those sources were medical sources,

there was therefore no requirement for the ALJ to explain how she

considered this statement. Nor do I find credible plaintiff’s argument that

the ALJ would have been required to find claimant disabled based on this

statement had she properly assessed the subjective reports. Firstly, even if

this statement had been accepted, I am not convinced that it necessarily

substantiates either an extreme limitation in one domain or marked

4 The form does not list the positions or titles of the four individuals who signed it,

and it is ambiguous in that it is titled “Teacher/School Questionnaire” and ends with

spaces for signatures of “all teachers, school psychologists/counselors, etc. who

complete this form . . . .” Although not critical, I infer from the fact that the form

identifies four subjects and states that the four persons saw the claimant daily for forty

minute classes that they were the claimant’s teachers.

limitations in two domains. Cf. Christina B. v. Comm’r of Soc. Sec., 19-CV-

1192, 2020 WL 5848732, at *7-8 (N.D.N.Y. Oct. 1, 2020) (Baxter, M.J.)

(finding that a teacher opinion indicating an obvious problem in the majority

of the areas in a domain was not necessarily contradictory to the ALJ’s

finding that the claimant has a less-than-marked limitation in that domain,

particularly when considering it in conjunction with all of the evidence in the

record); Perkins ex rel. J.P. v. Astrue, 32 F. Supp. 3d 334, 342-43

(N.D.N.Y. 2012) (Bianchini, M.J.) (finding an overall marked limitation in a

domain where a teacher found a number of “very serious” areas of

limitation and indicated the claimant took an extremely long time to

complete tasks even with help, that she never turned in homework

assignments, and that she required a great deal of support in the

classroom). I note, moreover, that, based on the explanations provided by

those school personnel in the form, there is no apparent connection made

between the opined limitations and either claimant’s vomiting or anxiety,

other than to note that absences related to her cyclic vomiting “leads to

gaps in learning.” AT 211-16. Lastly, the form is contrary to every other

opinion in the record, including a previous statement from claimant’s sixth

grade teacher, as well as plaintiff’s subjective reports that the claimant

does not have many issues with completing homework or classwork other

than as caused by her self-esteem and missing classes; however, plaintiff

reported that the claimant had not missed many days during the relevant

current school year. AT 50-51, 157-65, 252, 258. Simply put, even

crediting the subjective allegations and adopting the above opinion would

not have resulted in any reasonable change in the outcome of this case, as

neither of those things nor the rest of the evidence of record undermine the

ALJ’s finding that claimant fails to meet or functionally equal one of the

childhood listings.

IV. SUMMARY AND RECOMMENDATION

After considering the record as a whole and the issues raised by the

plaintiff in support of her challenge of the Commissioner’s determination, I

recommend a finding that the determination resulted from the application of

proper legal principles and is supported by substantial evidence.

Accordingly, it is hereby respectfully

ORDERED that defendant’s motion for judgment on the pleadings

(Dkt. No. 15) is GRANTED, plaintiff’s motion for judgment on the pleadings

(Dkt. No. 14) is DENIED, the Commissioner’s decision is AFFIRMED, and

plaintiff’s complaint is DISMISSED; and it is further respectfully

ORDERED that the clerk enter judgment consistent with this opinion.

bd I

Dated: September 27, 2022 . suit,

Syracuse, NY DAVID E. PEEBLES

U.S. Magistrate Judge

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