Johnson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_______________________________________________

SABRINA J. J. o/b/o T.I.J.,

DECISION AND ORDER

Plaintiff,

20-CV-1327L

v.

KILOLO KIJAKAZI,

Acting Commissioner of Social Security,

Defendant.

________________________________________________

Plaintiff, on behalf of her minor daughter, T.I.J. (“claimant”), appeals from a denial of

supplemental security income benefits by the Commissioner of Social Security (“the

Commissioner”), based on the Commissioner’s finding that T.I.J. was not disabled.

Plaintiff protectively filed an application for supplemental security income on May 15,

2017, on T.I.J.’s behalf, claiming disability as of May 15, 2016. That claim was initially denied on

September 19, 2017. Plaintiff requested a hearing, which was held on June 13, 2019 via

videoconference before Administrative Law Judge (“ALJ”) Brian Battles. (Dkt. #10 at 15). On

July 30, 2019, the ALJ issued a decision concluding that T.I.J. was not disabled. (Dkt. #10 at

15-27). That decision became the final decision of the Commissioner when the Appeals Council

denied review on July 22, 2020. (Dkt. #10 at 1-3). Plaintiff now appeals.

Plaintiff has moved (Dkt. #12) and the Commissioner has cross moved (Dkt. #13) for

judgment on the pleadings pursuant to Fed. R. Civ. Proc. 12(c). For the reasons that follow, I find

that the Commissioner’s decision is supported by substantial evidence, and was not the product of

legal error.

DISCUSSION

I. Relevant Standards

Because the claimant is a child, a particularized, three-step sequential analysis is used to

determine whether she is disabled. First, the ALJ must determine whether the claimant is engaged

in substantial gainful activity. See 20 CFR §416.924. If so, the claimant is not disabled. If not, the

ALJ proceeds to step two, and determines whether the claimant has an impairment, or combination

of impairments, that is “severe” within the meaning of the Act. If not, the analysis concludes with

a finding of “not disabled.” If so, the ALJ continues to step three.

At step three, the ALJ examines whether the claimant’s impairment meets or equals the

criteria of a listed impairment. If the impairment meets or medically equals the criteria of a listing

and meets the durational requirement (20 CFR §416.924) – that is, if the child’s impairments are

functionally equivalent in severity to those contained in a listed impairment – the claimant is

disabled. If not, she is not disabled. In making this assessment, the ALJ must measure the child’s

limitations in six domains: (1) acquiring and using information; (2) attending and completing tasks;

(3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for

himself; and (6) health and physical well-being. Medically determinable impairments will be found

to equal a listed impairment where they result in “marked” limitations in two or more domains of

functioning, or an “extreme” limitation in one or more. 20 CFR §§416.926a(a), (d) (emphasis

added).

The Commissioner’s decision that T.I.J. is not disabled must be affirmed if it is supported

by substantial evidence, and if the ALJ applied the correct legal standards. See 42 U.S.C. §405(g);

Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002).

II. The ALJ’s Decision

The ALJ initially found that since the May 15, 2017 application date, T.I.J. (8 years old at

the time of the application) has had the severe impairments of attention deficit hyperactivity

disorder, opposition defiant disorder, and specific learning disability. (Dkt. #10 at 18). The ALJ

proceeded to analyze whether T.I.J. has any “marked” or “extreme” limitations in any of the six

domains of functioning.

Based on the medical, educational and testimonial evidence presented, the ALJ concluded

that T.I.J. had a less than marked limitation in acquiring and using information, a less than marked

limitation in attending and completing tasks, a less than marked limitation in interacting and

relating with others, no limitation in moving about and manipulating objects, a less than marked

limitation in caring for herself, and no limitations in health and physical well-being. The ALJ

accordingly concluded that T.I.J. was “not disabled.” (Dkt. #10 at 23-27).

III. The ALJ’s Assessment of the Domains of: (1) Acquiring and Using Information; and

(2) Attending and Completing Tasks

Plaintiff argues that the ALJ failed to properly evaluate the domains of acquiring and using

information, and attending and completing tasks.1 Specifically, plaintiff argues that the ALJ erred

in finding T.I.J.’s limitations in these two domains “less than marked,” rather than marked or

extreme.

1 Plaintiff does not meaningfully challenge the ALJ’s findings with respect to the other domains of functioning, and I

find no error in the ALJ’s analysis thereof.

In assessing T.I.J.’s ability to acquire and use information, the ALJ considered the opinions

of consulting psychiatrist Dr. Gregory Fabiano, which the ALJ found “persuasive.” (Dkt. #10 at

21-22). Dr. Fabiano examined T.I.J. on August 5, 2017. He noted that although she had needed to

repeat kindergarten, her intellectual functioning was “borderline to below average,” and her

psychiatric and cognitive problems were not significant enough to interfere with her ability to

function on a daily basis. Dr. Fabiano assessed “moderate” limitations in the domains of acquiring

and using information, maintaining attention and concentration, and social interaction. (Dkt. #10

at 78, 299-309). The ALJ also took note of T.I.J.’s improved attendance and grades in her

coursework. Her grades ranged from 75 to 94 in 2017-18 (third grade), and 85 to 100 during the

2018-19 school year (fourth grade). (Dkt. #10 at 22, 313, 315, 317). Based on T.I.J.’s academic

performance and Dr. Fabiano’s opinion, the ALJ concluded that T.I.J.’s limitations in acquiring

and using information were less than marked. (Dkt. #10 at 22).

In determining T.I.J.’s limitations in attending and completing tasks, the ALJ mentioned

testimony by T.I.J.’s mother that she does not finish tasks she starts, such as chores or homework,

but is able to get to school on time. (Dkt. #10 at 21, 23). Nonetheless, plaintiff’s fourth grade

teacher had indicated that T.I.J. had no problems in five of the thirteen categories assessed for the

domain of attending and completing tasks, including maintaining focus, and finishing tasks such

as coursework and homework. (Dkt. #10 at 272-79). Finding the teacher’s opinion “somewhat

persuasive” and elsewhere noting that plaintiff’s mother had reported at T.I.J.’s most recent

medication management visit that “everything seems to be going well” and that T.I.J.’s symptoms

were typically noted to be under good control, the ALJ determined that T.I.J.’s limitations in

attending and completing tasks were less than marked. (Dkt. #10 at 20, 23, 333, 356-58).

In arguing that the ALJ’s findings in these two domains were erroneous, plaintiff relies on

the opinion of T.I.J.’s fourth grade teacher, who had indicated that T.I.J. was performing at a grade

level of 2.0-2.5 despite her grade point average, and that T.I.J. had “moderate” problems in eight

out of ten categories assessed for the domain of acquiring and using information. (Dkt. #10 at

272-79). The teacher also noted five “slight” problems, one “moderate” problem, and one

“serious” problem out of the thirteen categories, presenting “weekly,” in the domain of attending

and completing tasks. Id.2

I find no error in the ALJ’s finding that the teacher’s opinion was “somewhat persuasive,”

or in his implicit determination that it did not support a finding of “marked” or greater limitations

in any domain. The Court observes that although teacher questionnaires are manifestly probative

of a child’s limitations, courts have consistently rejected the argument that a teacher’s opinion that

a child has some “serious” limitations in one or more areas of a functional domain necessarily

translates into a “marked” limitation in that domain, particularly where, as here, medical opinion

evidence indicated no more than moderate limitations. See e.g., White o/b/o T.R.W. v. Berryhill,

2019 U.S. Dist. LEXIS 50673 *12 n.3 (W.D.N.Y. 2019)(collecting cases). The case law cited by

plaintiff in favor of a contrary finding (Dkt. #12-1 at 11) is inapposite. See Stanley v.

Commissioner, 32 F. Supp. 3d 382, 397 (N.D.N.Y. 2012) (cited by plaintiff in support of the

proposition that a teacher assessment noting moderate or serious problems is “compelling

evidence” of a marked limitation), report and recommendation rejected by 32 F. Supp. 3d 382,

388 (N.D.N.Y. 2014) (declining to adopt report and recommendation because, inter alia, a

2 The levels of limitation assessed on the form permit the reviewer to rate a child’s limitations, in comparison with

same-aged children with no impairments, as: (1) no problem; (2) a slight problem; (3) a moderate problem; (4) a

serious problem; and (5) a very serious problem. (Dkt. #10 at 272-79). Frequency estimates for problems in the domain

of attending and completing tasks can be assessed as occurring “monthly,” “weekly,” “daily,” or “hourly.” (Dkt. #10

at 275).

teacher’s opinion identifying “moderate” or “serious” limitations does not support an

administrative finding of marked or greater limitations, especially where contradicted by a

physician’s opinion).

On balance, I find that the ALJ’s determination that T.I.J.’s limitations in acquiring and

using information, and attending and completing tasks, were “less than marked,” was supported

by substantial evidence, including the opinion of consulting psychologist Dr. Fabiano, T.I.J.’s

treatment records, her academic records, and the assessment of her fourth grade teacher.

Plaintiff also argues that the ALJ improperly failed to consider T.I.J.’s limitations in the

absence of a structured setting. Plaintiff is correct that, “[u]nder the Social Security Rulings, a

child who ‘needs a person[], treatment, device, or structured, supportive setting to make his

functioning possible or improve the functioning . . . has a limitation, even if he is functioning well

with the help or support.’” Martin v. Kijakazi, U.S. Dist. LEXIS 240990 at *15-*16 (E.D. Pa.

2021)(quoting Brown v. Colvin, 193 F. Supp. 3d 460, 466 (E.D. Pa. 2016)). Because a supportive

setting “may minimize signs and symptoms of [the claimant’s] impairment(s),” an ALJ must

“consider [the claimant’s] need for a structured setting and the degree of limitation in functioning

[the claimant has] or would have outside the structured setting.” 20 C.F.R. §416.924a(b)(5)(iv)(C).

For example, “if [the claimant’s] symptoms or signs are controlled or reduced in a structured

setting,” the ALJ must “consider . . . the amount of help [the claimant needs] from [his] parents,

teachers, or others to function as well as [he does]; adjustments [made] to structure [the claimant’s]

environment; and how [the claimant] would function without the structured or supportive setting.”

20 C.F.R. §416.924a(b)(5)(iv)(E).

Here, however, it does not appear that the ALJ erroneously failed to consider T.I.J.’s

supportive educational setting in assessing her limitations. The ALJ’s decision explicitly noted

that he had taken account of T.I.J.’s functioning in all settings including school and home, and

“considered the type, extent, and frequency of help the claimant needs to function.” (Dkt. #10 at

19). The ALJ’s decision acknowledges the supports provided to T.I.J., including ADHA

medication and monitoring, special education classes, and an individualized education program

(“TEP”). (Dkt. #10 at 20-22).

I have considered the rest of plaintiffs claims, and find them to be without merit.

CONCLUSION

For the foregoing reasons, I find that the ALJ’s decision is supported by substantial

evidence, and was not the product of legal error. The plaintiff's motion for judgment on the

pleadings (Dkt. #12) is denied, the Commissioner’s cross motion for judgment on the pleadings

(Dkt. #13) is granted, and the complaint is dismissed.

IT IS SO ORDERED.

DAVID G. LARIMER

United States District Judge

Dated: Rochester, New York

February 10, 2022.