# Brown v. Commissioner of Social Security

> District Court, W.D. New York · December 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10365680

## Case

- **Court:** District Court, W.D. New York
- **Decided:** December 28, 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
____________________________________________

TRINITY B.

Plaintiff,

v. 1:20-CV-1036
(WBC)
COMMISSIONER OF SOCIAL SECURITY,

Defendant.
____________________________________________

APPEARANCES: OF COUNSEL:

LAW OFFICES OF KENNETH HILLER, PLLC KENNETH HILLER, ESQ.
Counsel for Plaintiff JEANNE MURRAY, ESQ.
6000 North Bailey Ave, Ste. 1A
Amherst, NY 14226

U.S. SOCIAL SECURITY ADMIN. OONA PETERSON, ESQ.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, NY 10278

William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
The parties consented, in accordance with a Standing Order, to proceed before
the undersigned. (Dkt. No. 18.) The court has jurisdiction over this matter pursuant to
42 U.S.C. § 405(g). The matter is presently before the court on the parties’ cross-
motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. For the reasons discussed below, Plaintiff's motion is denied, and the
Commissioner’s motion is granted.
I. RELEVANT BACKGROUND
A. Factual Background
Plaintiff was born in 2002. (T. 76.) She was a school-aged child on the date of
application, an adolescent at the time of hearing, and is now an adult. (T. 13.)
Generally, Plaintiff’s alleged disability consists of auditory processing disorder and
attention deficit hyperactivity disorder (“ADHD”), post-concussion syndrome, and low

back pain. (T. 77-78.) Her alleged disability onset date is October 9, 2008. (T. 76.)
B. Procedural History
On October 30, 2014, Plaintiff’s parent applied for Supplemental Security Income
(“SSI”) under Title XVI, of the Social Security Act on Plaintiff’s behalf. (T. 76.) Plaintiff’s
application was initially denied, after which she timely requested a hearing before an
Administrative Law Judge (“the ALJ”). On August 22, 2019, Plaintiff appeared before
the ALJ, Timothy M. McGuan. (T. 43-75.) On September 25, 2019, ALJ McGuan
issued a written decision finding Plaintiff not disabled under the Social Security Act. (T.
7-32.) On June 23, 2020, the Appeals Council (“AC”) denied Plaintiff’s request for

review, rendering the ALJ’s decision the final decision of the Commissioner. (T. 1-6.)
Thereafter, Plaintiff timely sought judicial review in this Court.
C. The ALJ’s Decision
Generally, in his decision, the ALJ made the following findings of fact and
conclusions of law. (T. 13-27.) First, the ALJ found Plaintiff was a school-age child on
the date of application and an adolescent at the time of the hearing. (T. 13.) Second,
the ALJ found Plaintiff had not engaged in substantial gainful activity since October 30,
2014. (Id.) Third, the ALJ found Plaintiff had the severe impairments of auditory
processing disorder; ADHD; learning disorder; post-concussion syndrome; and
headaches. (Id.) Fourth, the ALJ found Plaintiff did not have an impairment that meets
or medically equals one of the listed impairments located in 20 C.F.R. Part 404, Subpart
P, Appendix. 1. (Id.) Fifth, the ALJ found Plaintiff did not have an impairment or
combination of impairments that functionally equaled the severity of the listings. (T. 14.)
Lastly, the ALJ concluded Plaintiff had not been disabled since October 30, 2014. (T.

27.)
II. THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A. Plaintiff’s Arguments
Plaintiff makes one argument in support of her motion for judgment on the
pleadings. Plaintiff argues the ALJ’s determination that Plaintiff did not functionally
equal the listings was not based on substantial evidence. (Dkt. No. 13 at 13-26.)
Plaintiff also filed a reply in which she deemed no reply necessary. (Dkt. No. 15.)
B. Defendant’s Arguments
In response, Defendant makes two arguments. First, Defendant argues

substantial evidence supports the ALJ’s decision. (Dkt. No. 14 at 6-8.) Second, and
lastly, Defendant argues the ALJ properly evaluated the opinion evidence, and his
assessments of domains is supported by substantial evidence. (Id. at 8-18.)
III. RELEVANT LEGAL STANDARD
B. Standard of Review
“The findings of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The “substantial
evidence” standard “means - and means only - such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct.
1148, 1154 (2019). “[I]t is . . . a very deferential standard of review - even more so than
the ‘clearly erroneous’ standard.” Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir.
2012). In particular, it requires deference “to the Commissioner’s resolution of
conflicting evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).
It is not the Court’s “function to determine de novo whether a plaintiff is disabled.”

Brault, 683 F.3d. at 447. “In determining whether the agency's findings were supported
by substantial evidence, the reviewing court is required to examine the entire record,
including contradictory evidence and evidence from which conflicting inferences can be
drawn.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (internal quotation marks
omitted). “If evidence is susceptible to more than one rational interpretation, the
Commissioner's conclusion must be upheld.” McIntyre v. Colvin, 758 F.3d 146, 149 (2d
Cir. 2014). “The substantial evidence standard means once an ALJ finds facts, we can
reject those facts ‘only if a reasonable factfinder would have to conclude otherwise.’ ”
Brault, 683 F.3d at 448. The Court “require[s] that the crucial factors in any

determination be set forth with sufficient specificity to enable [the reviewing Court] to
decide whether the determination is supported by substantial evidence.” Estrella v.
Berryhill, 925 F.3d 90, 95 (2d Cir. 2019) (alterations and internal quotation marks
omitted).
C. Standard to Determine Disability

An individual under the age of eighteen is considered disabled within the
meaning of the Act “if that individual 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). The
Commissioner has set forth a three-step process to determine whether a child is
disabled as defined under the Act. See 20 C.F.R. § 416.924.
At step one, the ALJ determines whether the child is engaged in substantial
gainful work activity. 20 C.F.R. § 416.924(b). If so, the child is not disabled. Id. If not,

the ALJ proceeds to step two and determines whether the child has a medically
determinable impairment(s) that is “severe.” Id. § 416.924(c). If the child does not have
a severe impairment(s), he or she is not disabled. Id. If the child does have a severe
impairment(s), the ALJ continues to step three and examines whether the child’s
impairment(s) meets, medically equals, or functionally equals the listed impairments in
Appendix 1 to Subpart P of Part 404 of the Commissioner’s regulations (the “Listings”).
Id. § 416.924(d). In determining whether an impairment(s) functionally equals the
Listings, the ALJ must assess the child’s functioning 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 him or herself; and (6)
health and physical well-being. Id. § 416.926a(b)(1)(i)-(vi). To functionally equal the
Listings, the child’s impairment(s) must result in “marked” limitations in two domains or
an “extreme” limitation in one domain. Id. § 416.926a(a). A child has a “marked”
limitation when his or her impairment(s) “interferes seriously” with his or her ability to
independently initiate, sustain, or complete activities. Id. § 416.926a(e)(2). A child has
an “extreme” limitation when his or her impairment(s) “interferes very seriously” with his
or her ability to independently initiate, sustain, or complete activities. Id. §
416.926a(e)(3).
If the child has an impairment(s) that meets, medically equals, or functionally
equals the Listings, and the impairment(s) meets the Act’s duration requirement, the
ALJ will find the child disabled. 20 C.F.R. § 416.924(d).
IV. ANALYSIS
Plaintiff argues the ALJ erroneously determination she had less than marked

limitations in the domains of acquiring and using information and attending and
completing tasks based on a cherry-picking and mischaracterization of the record. (Dkt.
No. 13 at 13.)1 Plaintiff does not dispute the ALJ’s findings with respect to the domains
of interacting and relating with others, moving about and manipulating objects, caring for
herself, or health and physical well-being; therefore, only the relevant evidence will be
discussed.
In the domain of acquiring and using information, the ALJ considers how well the
child acquires or learns information and how well they use the information they have
learned. 20 C.F.R. § 416.926a (g)(1). A school-age child “should be able to learn to

read, write, and do math, and discuss history and science.” Id. § 416.926a(g)(2)(iv).
The child demonstrates what they have learned in academic situations by “reading
about various subjects and producing oral and written projects, solving mathematical
problems, taking achievement tests, doing group work, and entering into class
discussions.” Id. The child uses the skills in daily living and the community by, for
example, “reading street signs, telling time, and making change.” Id. A school-age

1 Marked limitation. (i) We will find that you have a “marked” limitation in a domain when
your impairment(s) interferes seriously with your ability to independently initiate, sustain, or complete
activities. Your day-to-day functioning may be seriously limited when your impairment(s) limits only one
activity or when the interactive and cumulative effects of your impairment(s) limit several activities.
“Marked” limitation also means a limitation that is “more than moderate” but “less than extreme.” It is the
equivalent of the functioning we would expect to find on standardized testing with scores that are at least
two, but less than three, standard deviations below the mean. 20 C.F.R. § 416.926a(e)(2).
child should also be able “to use increasingly complex language (vocabulary and
grammar) to share information and ideas with individuals or groups, by asking questions
and expressing [their] own ideas, and by understanding and responding to the opinions
of others.” Id. Adolescents should continue to demonstrate their learning in academic
assignments such as “composition, classroom discussion, and laboratory experiments”

and in independent daily living, e.g., by “going to the store, using the library, and using
public transportation.” Id. § 416.926a (g)(2)(v). An adolescent should also “apply these
skills in practical ways that will help [them] enter the workplace after [they] finish school
(e.g., carrying out instructions, preparing a job application, or being interviewed by a
potential employer).” Id.
In this domain, Plaintiff argues the ALJ’s rejection of the State agency medical
consultant’s opined marked limitation, but acceptance of his lesser limitations, “smacks
of cherry-picking as he picked and chose what evidence in the record supported his
conclusions and ignored conflicting evidence from the same source.” (Dkt. No. 13 at

15.) Contrary to Plaintiff’s assertion, an ALJ does not have to strictly adhere to the
entirety of one medical source’s opinion. See Matta v. Astrue, 508 F. App'x 53, 56 (2d
Cir. 2013) (“Although the ALJ's conclusion may not perfectly correspond with any of the
opinions of medical sources cited in his decision, he was entitled to weigh all of the
evidence available to make an RFC finding that was consistent with the record as a
whole.”). Here, the ALJ adequately explained his reasoning for not adopting the
doctor’s opined “marked limitation” and substantial evidence supported the ALJ’s
determinations in the domains.
On March 12, 2015, State agency medical consultant, Dr. J. Sharif-Najafi,
reviewed Plaintiff’s file as it existed on that date and opined Plaintiff had a marked
limitation in acquiring and using information; less than marked limitations in attending
and completing tasks, interacting and relating with others, caring for herself, and health
and physical well-being; and no limitations in moving about and manipulating objects.

(T. 82-86.) In the domain of acquiring and using information, the doctor considered
evidence that Plaintiff was in a 15:1 classroom, and despite being in the 6th grade she
had an instructional level of 4th grade. (T. 83.) The doctor also relied on a 2015 teacher
questionnaire indicating Plaintiff had “a serious problem” in the activities of:
understanding school and content vocabulary; reading and comprehending written
material; comprehending and doing math problems; expressing ideas in written form;
learning new material; recalling and applying previously learned material; and applying
problem-solving skills in class discussion. (T. 83, 196.)
The ALJ afforded Dr. Sharif-Najafi’s opinion “partial weight.” (T. 20.) The ALJ

reasoned the opinion was “generally supported by and consistent with” the opinions of
consultative examiner Adam Brownfeld, Ph.D., consultative examiner Samuel
Balderman, M.D., and teacher questionnaires. (Id.) The ALJ concluded the doctor’s
opined marked limitation in attending and completing tasks was not supported by
Plaintiff’s individual education plans (“IEPs”), Dr. Louise Ferretti’s records, and Dr.
Brownfeld’s objective examinations. (Id.)
Although the ALJ did not adopt all of the doctor’s opined limitations, the ALJ
provided sufficient analysis to support his determination. As outlined further herein,
substantial evidence supported the ALJ’s determination that Plaintiff had less than
marked limitation in the domain of acquiring and using information. Therefore, Plaintiff’s
argument, that the ALJ impermissibly cherry-picked Dr. Sharif-Najafi’s opinion, fails.
Next, Plaintiff argues the ALJ mischaracterized evidence provided in Plaintiff’s
IEPs because the evidence provided in the IEPs supports a finding of marked limitation.
(Dkt. No. 13 at 16-19.) First, a review of the record and the ALJ’s determination does

not support Plaintiff’s contention that the ALJ mischaracterized IEP evidence. The ALJ
acknowledged that Plaintiff’s IEPs consistently showed she was below average in
reading, writing, and math, and that she required the use of a calculator and graphic
organizer. (T. 15, 182-191, 265-309, 315-333, 368-379.) The ALJ further discussed
cognitive assessments suggested borderline functioning, and short-term working
memory was her most significant weakness, suggesting she would benefit from
repetition in the classroom and pre-exposure to unfamiliar concepts. (T. 15.) The ALJ
noted Plaintiff’s IEPs showed she required multiple accommodations, including
extended time, special seating to assist in focusing, simplified directions, tests read, and

modified instructional presentation. (T. 15-16, 186, 303, 339.) The ALJ also considered
Plaintiff’s most recent IEP, from 2019, which reflected that she was administered the
Wechsler Adult Intelligence Scale IV on November 1, 2018, on which she scored a full-
scale IQ of 87, which was classified as low average, and she scored low average in
perceptual reasoning, verbal comprehension, and working memory. (T. 16, 336.) Her
processing speed was average, and she used a calculator for math and a graphic
organizer for writing. (T. 16, 336-337.) Therefore, the ALJ did not mischaracterize the
information provided in Plaintiff’s IEPs. See Makeda T. v. Comm'r of Soc. Sec., No.
6:20-CV-06867, 2022 WL 4462237, at *6 (W.D.N.Y. Sept. 26, 2022) (plaintiff may
disagree with the ALJ’s characterization of evidence, however, ALJ properly recited
evidence in the record and ALJ’s recitation of evidence did not amount to an improper
mischaracterization).
Second, 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 in the record could support her position. Substantial evidence “means - and
means only - such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504
(2019) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83
L.Ed. 126 (1938)). Plaintiff must show that no reasonable factfinder could have reached
the ALJ’s conclusions based on the evidence in record. See Brault, 683 F.3d at 448.
Plaintiff asserts her ability to solve math with a calculator, strong reading
comprehension skills, and her ability to write simple sentences do not support a less
than marked finding in this domain. (Dkt. No. 13 at 17.) Although the ALJ cited this

evidence in support of his determination in this domain, the ALJ did not rely on this
limited information alone. As outlined herein, the ALJ properly considered the
information presented in the IEPs. The ALJ’s explicit discussion of Plaintiff’s IEPs
“constitutes sufficient consideration of the additional supports [plaintiff] received and
does not undermine the ALJ's determination that [plaintiff] had less than marked
limitations in [acquiring and using information] functional domain.” Tammy S. o/b/o/
A.L.S. v. Comm'r of Soc. Sec., No. 1:20-CV-931, 2022 WL 1488431, at *11 (W.D.N.Y.
May 11, 2022); see Zoe R. on behalf of Y.N.P. v. Comm'r of Soc. Sec., 2021 WL
3270505, at *2–3 (W.D.N.Y. July 30, 2021) (finding an ALJ adequately considered the
supportive services a child was receiving where he “recognized the child was subject to
an [IEP], and behavioral plan and received school counseling ... and recognized that the
child was unable to achieve IEP goals without a considerable amount of consistent adult
support,” and upheld the determination that the child had a less than marked limitation
in acquiring and using information).

In addition to the IEPs, the ALJ also relied on Dr. Brownfeld’s examination and
opinion. (T. 19-20.) Dr. Brownfeld examined Plaintiff and concluded she had “no
evidence of limitation” in many areas, including “in attending, following, and
understanding age-appropriate directions, completing age-appropriate tasks,” and that
she was “moderately limited in responding appropriately to changes in the environment
and learning in accordance to cognitive functioning.” (T. 556.) The ALJ relied on
records from Robert Warner Rehab, Main Pediatrics and Dr. Ferretti. (T. 17-19.)
Indeed, the ALJ relied on records indicating Plaintiff had made good progress in
school in the smaller classroom, that her ADHD type behaviors were improved, and that

no medication was suggested. (T. 16-17, 528.) Although Plaintiff reported headaches,
staring spells, and said she needed help staying organized, her examination was
generally unremarkable, and she was referred for an EEG, which was normal. (T. 17,
534-535, 537, 670.) The ALJ considered testing conducted by Dr. Ferretti in November
2018, in which Plaintiff and her parents expressed concern about Plaintiff’s limited
academic progress, difficulty retaining information, frequent need for repetition,
headaches twice a week, fatigue, and dizziness. (T. 18, 579-580.)
The ALJ noted testing showed she had typical functioning for her age in many
areas of cognitive skills, although it was more variable on timed tasks in the areas of
visual attention/processing and verbal fluency, and she had significant skill delays in
other areas such as auditory memory, visual perception, visual analysis/rotation and
visual-spatial reasoning. (T. 18, 583-584.) Overall, the ALJ considered Dr. Ferretti’s
report and determined that the limitations it showed, including moderate
neurobehavioral compromise and the need for educational accommodations, warranted

a finding of less than marked limitations in attending and completing tasks and acquiring
and using information. Tr. 19.
The ALJ also considered the opinion of Plaintiff’s teacher, Mr. Christopher
Kornow, which was dated January 29, 2015, and which indicated Mr. Kornow had
known Plaintiff for six months. (T. 19, 195-202.) The ALJ considered the opinion was
authored by a teacher who interacted with Plaintiff daily for six months and gave it great
weight, noting the limitations were generally supported by the longitudinal medical and
IEP evidence. (T. 19, 195-202.) The ALJ further relied on Plaintiff’s reported activities
such as cheerleading, photography, and ability to perform household chores. (T. 16,

336.) Although Plaintiff asserts the evidence cited by the ALJ was cherry-picked and
that evidence supports greater limitations, a review of the record indicated the ALJ
properly characterized the evidence and Plaintiff fails to show no reasonable fact finder
could have reached the ALJ’s determination. Therefore, Plaintiff’s argument fails.
The ALJ considered the record as a whole and properly resolved conflicts in the
evidence, as was his duty. Veino, 312 F.3d at 588; see Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998) (“It is for the SSA, and not this court, to weigh the conflicting
evidence in the record”); see also Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d
Cir. 2012) (“In our review, we defer to the Commissioner's resolution of conflicting
evidence.”). “If evidence is susceptible to more than one rational interpretation, the
Commissioner's conclusions must be upheld.” McIntyre v. Colvin, 758 F.3d 146, 149
(2d Cir. 2014).
In addition, Plaintiff argues the ALJ erroneously determined she had less than
marked limitation in the domain of attending and completing tasks for the same reasons

he erred in determining less than marked limitations in the domain of acquiring and
using information. (Dkt. No. 13 at 13-26.) In the domain of attending and completing
tasks, the ALJ will “consider how well [plaintiff is] able to focus and maintain [her]
attention, and how well [she] begin, carry through, and finish [her] activities, including
the pace at which [she] perform[s] activities and the ease with which [she] change[s]
them.” 20 C.F.R. 416.926a(h). School-age children should be able to focus attention to
follow directions, remember and organize school materials, and complete work. Id. §
416.926a(h)(2)(iv). Adolescents should be able to pay attention to increasingly longer
presentations and discussions, maintain concentration while reading textbooks, and

independently plan and complete long-range academic projects. Id. §
416.926a(h)(2)(v). For adolescents, limitations in this domain include, among other
things, being easily startled, distracted, or overreactive to sounds, sights, movements or
touch, being slow to focus on or failing to complete activities of interest, and being
repeatedly sidetracked from activities. Id. § 416.926a(h)(3). However, the presence of
such limitations do not necessarily prove a “marked” or “extreme” limitation is present.
Id.
The ALJ determined Plaintiff had less than marked limitation in the domain of
attending and completing tasks. (T. 23.) The ALJ relied on Plaintiff’s IEPs, her
activities of daily living, examination findings from the Robert Warner Rehabilitation
Center, Dr. Ferretti’s examinations, the opinion of Dr. Brownfeld, Mr. Kornow’s
questionnaire, and Dr. Sharif-Najafi’s opinion. (Id.) For the reasons outlined already
herein, the ALJ properly assessed the evidence in the record. Plaintiff has not met her
burden of proving she was further limited than the ALJ found. While Plaintiff may

disagree with the ALJ's conclusion, Plaintiff's burden is to show that no reasonable
factfinder could have agreed with the ALJ's conclusions, which she has failed to do.
The substantial evidence standard is “a very deferential standard of review –
even more so than the ‘clearly erroneous’ standard,” and the Commissioner's findings of
fact must be upheld unless “a reasonable factfinder would have to conclude otherwise.”
Brault, 683 F.3d at 448 (emphasis in the original). As the Supreme Court explained in
Biestek v. Berryhill, “whatever the meaning of ‘substantial’ in other contexts, the
threshold for such evidentiary sufficiency is not high” and means only “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). The
question is not whether there is evidence to support disability; it is whether there is
“more than a scintilla” of evidence supporting the ALJ's decision. Moran v. Astrue, 569
F.3d 108, 112 (2d Cir. 2009). As explained above, there is such evidence here.
Accordingly, the Court finds no error in the ALJ's determination Plaintiff is not disabled.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 13) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 14)
is GRANTED; and it is further
ORDERED that Defendant's unfavorable determination is AFFIRMED; and it is
further
ORDERED that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED.
Dated: December 28, 2022 EL f / atte □□
William B. Mitchell Carter
U.S. Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365680. Public record. Not legal advice.