# Cummings v. Commissioner of Social Security

> District Court, W.D. New York · January 18, 2022

URL: https://www.frixlaw.com/law-library/cases/10364669

## Case

- **Court:** District Court, W.D. New York
- **Decided:** January 18, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________

MELISSA C. o/b/o M.C.,
DECISION AND ORDER
Plaintiff,
20-CV-0885L

v.

KILOLO KIJAKAZI,
Acting Commissioner of Social Security,

Defendant.
________________________________________________

Plaintiff, on behalf of her minor son, M.C. (“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 M.C. was not disabled.
Plaintiff protectively filed an application for Supplemental Security Income on February
16, 2017, on M.C.’s behalf, claiming disability as of February 7, 2016. That claim was initially
denied on May 1, 2017. Plaintiff requested a hearing, which was held on May 6, 2019 before
Administrative Law Judge (“ALJ”) Dale Black-Pennington. (Dkt. #10 at 10). On May 30, 2019,
the ALJ issued a decision concluding that M.C. was not disabled. (Dkt. #10 at 11-24). That
decision became the final decision of the Commissioner when the Appeals Council denied review
on May 15, 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 was not supported by substantial evidence, and was the product
of legal error, and that remand for further proceedings is warranted.
DISCUSSION
I. Relevant Standards
Because M.C. is a child, a particularized, three-step sequential analysis is used to determine

whether he 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, he 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
oneself; 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 at least two domains of
functioning, or an “extreme” limitation in at least one. 20 CFR §§416.926a.
The Commissioner’s decision that M.C. 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 February 16, 2017 application date, M.C. (5 years
old at the time of the application) has had the severe impairments of attention deficit hyperactivity
disorder (“ADHD”) and impulse control disorder. (Dkt. #10 at 13). The ALJ proceeded to analyze
whether M.C. 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
during the relevant period, M.C. 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, a less than marked limitation in moving about
and manipulating objects, a less than marked limitation in caring for himself, and no limitation in
health and physical well-being. The ALJ accordingly concluded that M.C. is “not disabled.” (Dkt.
#10 at 18-24).
III. The ALJ’s Analysis
Plaintiff argues that the ALJ mischaracterized the record, by generally describing M.C.’s

functioning – particularly in the domains of acquiring and using information, social interaction,
and attending to tasks – as having improved with medication,1 and that the ALJ failed to properly
address M.C.’s abilities in light of his highly supportive educational setting.
The Court concurs. “Under 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

1 Plaintiff does not explicitly argue that the ALJ erred in his analysis of the domains of moving and manipulating
objects, caring for himself, or health and physical well-being. Indeed, none of M.C.’s teachers suggested any
appreciable issues in these domains, and I find no error in the ALJ’s finding that M.C.’s limitations in these domains
were “none” or “less than marked.”
F. Supp. 3d 460, 466 (E.D. Pa. 2016)). Because a supportive setting “may minimize signs and
symptoms of [the claimant’s] impairment(s),” the 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, the ALJ failed to engage in this analysis with respect to M.C.’s abilities to, inter alia,
acquire and use knowledge, relate and interact with others, and attend and complete tasks, despite
acknowledging M.C.’s Individualized Education Plan (“I.E.P.”), which provided him with daily
resource room services, biweekly small group occupational therapy, and extra refocusing and
redirection in the classroom, in addition to the regular medication management and biweekly
therapy he received outside of school. (Dkt. #10 at 236-42). Instead, the ALJ’s decision focused

upon M.C.’s progress with all accommodations and support services in place.
The ALJ’s failure to assess how M.C. would function without this degree of support is
legal error, and merits remand. See Lopez v. Commissioner, 2020 U.S. Dist. LEXIS 139722 at *8
(W.D.N.Y. 2020)(remand required where ALJ made “no effort to determine whether [the
claimant] can ‘function independently, appropriately, and effectively in an age-appropriate manner
outside of [his] highly structured setting’”)(quoting Bonet ex rel. T.V. v. Colvin, 2015 U.S. Dist.
LEXIS 19517 at *14 (W.D.N.Y. 2015)). See also Borrero o/b/o J.L.Q. v. Saul, U.S. Dist. LEXIS
85265 (W.D.N.Y. 2020)(same); Appleberry o/b/o R.A. v. Commissioner, U.S. Dist. LEXIS 173807
(W.D.N.Y. 2019)(same).
Nor can the ALJ’s error be said to be harmless, as reassessment of M.C.’s limitations in
these areas could potentially result in a finding of marked limitations in two of those functional
domains, or an extreme limitation in one.2 A questionnaire completed on March 31, 2017 by
M.C.’s kindergarten teacher, Heather Carlson, identified “serious” or “very serious” problems in
almost all areas of the domains of acquiring and using information, and attending and completing

tasks. (Dkt. #10 at 228-34). Ms. Carlson also noted that, when not properly medicated, M.C. had
“very serious” issues in all aspects of interacting and relating with others. Id. A questionnaire by
M.C.’s kindergarten resource room teacher, Bridget B. Herod, similarly assessed “serious”
problems in most areas of acquiring and using information, and attending and completing tasks.
(Dkt. #10 at 218-19). State agency reviewer Jennifer Meyer opined, based on a review of M.C.’s
kindergarten assessments, that M.C. had a “marked” limitation in the area of attending and
completing tasks. (Dkt. #10 at 74-75). The ALJ assigned “some” value to the opinions of plaintiff’s
kindergarten teachers, and implicitly declined to credit Ms. Meyer’s opinion.
Subsequent academic reports from M.C.’s first and second grade teachers noted that he

was “making academic gains” and “has grown so much,” but continued to reference M.C.’s
struggles with “attention span and behaviors [that] have impacted his ability to flourish
academically,” (Dkt. #10 at 283-84). They attributed any improvements to the
“modifications/differentiation [that were provided] when needed within the classroom …” (Dkt.
#11 at 1601). M.C.’s first grade report card rated his cooperation with adults and peers consistently
as, “needs improvement.” (Dkt. #10 at 283-84).

2 The Court observes that although the teacher questionnaires noting “serious” and “very serious” problems could be
read to support a marked or extreme limitation, they do not, by themselves, compel such a finding. Courts have rejected
the argument that a teacher’s opinion that a child has “serious” or “very serious” limitations in a particular area
necessarily translates into a “marked” or “extreme” limitation in a particular domain. 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 record also testified to a troubling pattern of changes to M.C.’s psychiatric medications
and dosages, designed to combat a recurring problem with the “wearing off” of medications before
the end of the school day. Reports by M.C.’s mother indicated that despite those adjustments, M.C.
remained unable to sit still, maintain focus, control impulses, or follow rules, and suggested that
outside of the supportive setting of school, his social behaviors, attention span, and lack of

self-control, were significantly more problematic. (Dkt. #10 at 500-501, 512, 711, 744-45, 769).
In short, taken together, the evidence of record could, when reconsidered under the
appropriate standards, result in a finding of disability. Because the ALJ failed to analyze the effect
of M.C.’s structured and supportive setting on his ability to perform in the functional domains of
acquiring and using information, attending and completing tasks, and interacting and relating with
others, remand is required.

CONCLUSION
For the foregoing reasons, I find that the ALJ’s decision was not supported by substantial

evidence, and was the product of legal error. The plaintiff’s motion for judgment on the pleadings
(Dkt. #12) is granted, the Commissioner’s cross motion for judgment on the pleadings (Dkt. #13)
is denied, and the matter is remanded for further proceedings consistent with this opinion. On
remand, the ALJ is directed to reassess M.C.’s functioning, particularly with respect to the domains
of acquiring and using information, attending and completing tasks, and interacting and relating
with others, and to issue a new decision that applies the correct legal standards.
IT IS SO ORDERED.

DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
January 18, 2022.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364669. Public record. Not legal advice.