Rhodes v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

TANEISHA R. o/b/o N.D.P.,

Plaintiff, DECISION AND ORDER

v.

1:23-CV-00098 EAW

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________

INTRODUCTION

Represented by counsel, Plaintiff Taneisha R. (“Plaintiff”) brings this action on

behalf of N.D.P., a minor child, pursuant to Title XVI of the Social Security Act (the

“Act”), seeking review of the final decision of the Commissioner of Social Security (the

“Commissioner,” or “Defendant”) denying her application for children’s supplemental

security income (“SSI”). (Dkt. 1). This Court has jurisdiction over the matter pursuant to

42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment

on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 6;

Dkt. 7), and Plaintiff’s reply (Dkt. 8). For the reasons discussed below, the

Commissioner’s motion (Dkt. 7) is granted, and Plaintiff’s motion (Dkt. 6) is denied.

BACKGROUND

On September 29, 2020, Plaintiff protectively filed an application for SSI on behalf

of N.D.P., a child under the age of 18. (Dkt. 5 at 19, 194-203).1 Plaintiff alleged N.D.P.’s

disability began on September 4, 2019, due to learning disabilities, difficulties with

concentration and focus, and hyperactivity. (Id. at 19, 195). Plaintiff’s application was

initially denied on December 22, 2020. (Id. at 19, 89-104). On December 22, 2021,

Plaintiff and N.D.P. appeared at a telephonic hearing before administrative law judge

(“ALJ”) Mark Solomon. (Id. at 19, 31-60). On January 19, 2022, the ALJ issued an

unfavorable decision. (Id. at 19-26). Plaintiff requested Appeals Council review, and her

request was denied on December 8, 2022, making the ALJ’s decision the Commissioner’s

final determination. (Id. at 5-10). This action followed.

LEGAL STANDARD

I. District Court Review

“In reviewing a final decision of the [Social Security Administration (“SSA”)], this

Court is limited to determining whether the SSA’s conclusions were supported by

substantial evidence in the record and were based on a correct legal standard.” Talavera

v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C.

§ 405(g). The Act holds that a decision by the Commissioner is “conclusive” if it is

supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more

1 When referencing the page number(s) of docket citations in this Decision and Order,

the Court will cite to the CM/ECF-generated page numbers that appear in the upper

righthand corner of each document.

than a mere scintilla. It means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)

(quotation omitted). It is not the Court’s function to “determine de novo whether [the

claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation

omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.

1990) (holding that review of the Secretary’s decision is not de novo and that the

Secretary’s findings are conclusive if supported by substantial evidence). However, “[t]he

deferential standard of review for substantial evidence does not apply to the

Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003)

(citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).

II. Disability Determination

To qualify as disabled under the Act, a child under the age of eighteen must have “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). An ALJ follows a three-step sequential evaluation to determine

whether a child is entitled to SSI benefits. Encarnacion ex rel. George v. Astrue, 568 F.3d

72, 75 (2d Cir. 2009). “First, the child must not be engaged in ‘substantial gainful activity.’

Second, the child ‘must have a medically determinable impairment(s)’ that is ‘severe’ in

that it causes ‘more than minimal functional limitations.’ Third, the child’s impairment or

combination of impairments must medically or functionally equal an impairment listed in

an appendix to the regulations.” Id. (quoting 20 C.F.R. § 416.924, internal citations

omitted).

The limitations caused by a child’s severe impairment are evaluated pursuant to six

domains of functioning: (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 yourself, and (6) health and physical well-being. See 20 C.F.R.

§ 416.926a(b)(1). “For a child’s impairment to functionally equal a listed impairment, the

impairment must ‘result in “marked” limitations in two domains of functioning or an

“extreme” limitation in one domain.’” Encarnacion, 568 F.3d at 75 (quoting 20 C.F.R.

§ 416.926a(a)). “A marked limitation is more than moderate but less than extreme and

interferes seriously with a child’s ability to independently initiate, sustain, or complete

activities. An extreme limitation is more than marked and interferes very seriously with a

child’s ability to independently initiate, sustain, or complete activities.” Id. (internal

quotations and citations omitted).

DISCUSSION

I. The ALJ’s Decision

In determining whether N.D.P. was disabled, the ALJ applied the three-step

sequential evaluation set forth in 20 C.F.R. § 416.924. Initially, the ALJ determined that

N.D.P. was born on March 11, 2010, and therefore was a school-age child on September

29, 2020, the date the application was filed, and on the date of the written determination.

(Dkt. 5 at 20). At step one, the ALJ determined that N.D.P. had not engaged in substantial

gainful activity since September 29, 2020, the application date. (Id.).

At step two, the ALJ found that N.D.P. suffered from the severe impairment of

attention-deficit hyperactivity disorder (ADHD). (Id.). The ALJ further found that

N.D.P.’s asthma was a non-severe impairment. (Id.).

At step three, the ALJ found that N.D.P. did not have an impairment or combination

of impairments that met or medically equaled the severity of any Listing. (Id.). Similarly,

the ALJ found that N.D.P. did not have an impairment or combination of impairments that

functionally equaled the severity of the Listings. (Id. at 21). In making this determination,

the ALJ considered N.D.P.’s functioning in each of the above-mentioned six domains and

concluded that N.D.P. had no limitation in acquiring and using information, moving about

and manipulating objects, and health and physical well-being. (Id.). He determined that

N.D.P. had less than a marked limitation in attending and completing tasks, and caring for

herself, and a marked limitation in interacting and relating with others. (Id.). Accordingly,

the ALJ found that N.D.P. was not disabled as defined in the Act. (Id. at 25).

II. The Commissioner’s Determination is Supported by Substantial Evidence and

Free from Legal Error

Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the

Commissioner, arguing that he erred in his assessment of the domains of attending and

completing tasks and caring for oneself. (Dkt. 6-1 at 1, 17). Plaintiff generally contends

that the ALJ should have found that N.D.P. had marked limitations in each of these domains

and that his conclusion that she had “less than marked” limitations in both domains was

not supported by substantial evidence.

“An ALJ must set forth the crucial factors justifying his findings with sufficient

specificity to allow a court to determine whether substantial evidence supports the

decision.” Dana F. o/b/o O.E.H. v. Berryhill, No 6:18-CV-1337 (ATB), 2019 WL

7067060, at *3 (N.D.N.Y. Dec. 23, 2019). Further, while “[a]n ALJ is not required to

explicitly analyze every piece of conflicting evidence in the record . . . the ALJ cannot

‘pick and choose’ evidence in the record that supports his conclusions.” Id. (internal

quotations and citation omitted). In the context of child disability proceedings, “[w]hen

reviewing a child’s impairments for functional equivalence, adjudicators must consider all

of the relevant evidence, and employ a ‘whole child’ approach.” Nivia D. o/b/o P.L.D. v.

Comm’r of Soc. Sec., No. 5:18-cv-0634(TWD), 2019 WL 4573262, at *4 (N.D.N.Y. Sept.

20, 2019) (internal quotations and citation omitted). This approach “requires the ALJ to

consider a child’s everyday activities, determine all domains involved in performing them,

consider whether that child’s medically determinable impairment accounts for limitations

in activities, and determine what degree such impairment limits that child’s ability to

function age-appropriately in each domain.” Id.

As an initial matter, Plaintiff’s argument—that the evidence supports marked

limitations in the domains of attending and completing tasks and caring for herself—is

based largely on her disagreement with how the ALJ weighed the evidence. In other words,

Plaintiff’s contention is that the ALJ failed to sufficiently credit certain items of evidence

in the record which she contends support a finding of marked limitations.

Plaintiff’s arguments do not require remand. It is not the function of this Court to

re-weigh evidence or consider de novo whether N.D.P. is disabled. See Urena v. Comm’r

of Soc. Sec., 379 F. Supp. 3d 271, 278 (S.D.N.Y. 2019) (“Importantly, it is not a reviewing

court’s function to determine de novo whether [a claimant] is disabled.” (alteration in

original) (internal quotation and citation omitted)). Rather, “[a]bsent a legal error, the

Court must uphold the Commissioner’s decision if it is supported by substantial evidence,

even if the Court might have ruled differently had it considered the matter in the first

instance.” Russell v. Saul, 448 F. Supp. 3d 170, 175 (D. Conn. 2020); see also Genier v.

Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (“Even where the administrative record may also

adequately support contrary findings on particular issues, the ALJ’s factual findings must

be given conclusive effect so long as they are supported by substantial evidence.”).

The Court has reviewed the ALJ’s written determination, as well as the

administrative record, and finds that the ALJ’s determination is supported by substantial

evidence. While the record supports that N.D.P. has some limitations in functioning, the

ALJ adequately explained how he arrived at his determination that N.D.P. has less than

marked limitations in the domains of attending and completing tasks and caring for herself.

As explained in the written determination, to support his conclusions, the ALJ relied

on the November 30, 2021, Teacher Questionnaire completed by N.D.P.’s classroom

teacher, Ms. Zolatz and math teacher, Ms. Brown, which the ALJ found persuasive. (Dkt.

5 at 25). Specifically, the ALJ explained his assessment of the teachers’ submissions as

follows:

Ms. Brown identified no obvious problems in acquiring and using

information, no serious problems in domains two, three and five, and no

problems in domain four. Ms. Zoladz indicated she knew [N.D.P.] for three

months and taught [N.D.P.] science, writing and advisement. Her ratings

were no problems in domains one and four, and no to serious problems in the

remaining domains. (Ex. B12F). Ultimately, neither teacher found any very

serious problems. There were a few serious problems and some obvious

problems. These opinions are persuasive based on observation and generally

supports less than marked limitations. The record documents [N.D.P.] doing

well in school despite absences and tardiness. Although Ms. Zoladz and Ms.

Brown noted only serious problems in a couple o[f] areas, recent disciplinary

records do show some greater difficulties interacting in terms of behavior,

which they may not have witnessed. I note [N.D.P.] was out of treatment for

several months. The record does not support that the limitations stated have

lasted twelve months since the protective filing date. Per Ex. B10F, [N.D.P.]

was discharged in April 2021, having missed sessions including medication

management sessions, and was assessed with low level of violent aggression.

There is no evidence that [N.D.P.’s] condition would not be improved with

counseling and medication, or that such condition has lasted or would be

expected to last twelve months. In any event, this is the only domain in which

there is a currently a marked limitation.

(Id.).

The ALJ also considered the assessments of the state-agency consultants who found

N.D.P.’s ADHD to be severe and concluded that she had less than marked limitations in

attending and completing tasks and no limits in the other domains. (Id. at 61-71, 72-82).

In finding the opinions persuasive, the ALJ stated:

These opinions are substantially persuasive based upon the records available

to the consultants at the time of their review. Given the later submitted

evidence, I am finding marked limits in [N.D.P.’s] ability to interact with

others as the record shows ongoing disruptive, argumentative, and occasional

violent behavior with peers and authorities, and multiple mental status

examinations noting disengagement, easy distractibility and poor or

intermittent eye contact with her counselor. . . . Additionally, I find [N.D.P.]

displays less than marked limits in the ability to care for herself given that

she is a school-age child who is dependent upon her mother for necessities,

and the teacher questionnaires, report cards and disciplinary records support

greater limitations in this domain than the consultants opined. (Exs. B11F-

B13F).

(Id. at 25).

In her motion, Plaintiff challenges the ALJ’s determinations in the domains of

attending and completing tasks and caring for herself. The Court finds no error.

A. Attending and Completing Tasks

For the domain of attending and completing tasks, the ALJ must assess the

claimant’s ability to focus and maintain attention and begin, carry through, and finish

activities, including not only consideration of the pace that the activities are performed, but

also the claimant’s ease of switching between activities. 20 C.F.R. § 416.926a(h); see also

Martonique A. obo M.Q. v. Comm’r of Soc. Sec., No. 1:21-CV-849-DB, 2023 WL

5723068, at *5 (W.D.N.Y. Sept. 5, 2023) (“The domain of attending and completing tasks

considers how well a child is able to focus and maintain attention, and how well he can

begin, carry through, and finish activities, including the pace at which the child performs

activities and the ease with which she can change them.”). For a school-age child between

the age of 6 and 12, the regulations provide:

When you are of school age, you should be able to focus your attention in a

variety of situations in order to follow directions, remember and organize

your school materials, and complete classroom and homework assignments.

You should be able to concentrate on details and not make careless mistakes

in your work (beyond what would be expected in other children your age

who do not have impairments). You should be able to change your activities

or routines without distracting yourself or others, and stay on task and in

place when appropriate. You should be able to sustain your attention well

enough to participate in group sports, read by yourself, and complete family

chores. You should also be able to complete a transition task (e.g., be ready

for the school bus, change clothes after gym, change classrooms) without

extra reminders and accommodation.

20 C.F.R. at § 416.926a(h)(2)(iv).

The ALJ concluded that N.D.P. had a less than marked limitation in this domain. In

making that determination, the evidence he relied upon included the statement from Ms.

Zoladz that N.D.P. could work well when she was focused but that she was “easily

distracted and very disruptive in class at times.” (Dkt. 5 at 682). Similarly, Ms. Brown

noted that N.D.P. needed prompting to attend to multistep assignments and is “very

impulsive and quick to chat, shout out or socialize.” (Id. at 677). Neither Ms. Zoladz or

Ms. Brown marked a box indicating that any of the thirteen examples of this domain

constituted a “very serious problem,” but Ms. Brown identified “a serious problem” with

N.D.P.’s ability to refocus to task when necessary and working without distracting self or

others. (Id. at 677). Ms. Zoladz opined that N.D.P. had “a serious problem” with changing

from one activity to another, organizing her own things or school materials, completing

assignments, and working without distracting self or others.

To the extent that Plaintiff argues that the assessments of Ms. Brown and Ms. Zoladz

reflecting that N.D.P. has “a serious problem” in certain areas in this domain is inconsistent

with a “less than marked” determination by the ALJ, this contention is without merit.

Indeed, the caselaw in this area does not support the position Plaintiff advances. Lisa T.

o/b/o T.M. v. Kijakazi, No. 21-CV-6052L, 2023 WL 24048, at *2 (W.D.N.Y. Jan. 3, 2023)

(“Although teacher questionnaires are unquestionably probative of a child’s limitations,

courts have consistently rejected the argument that a teacher’s opinion that a child has

‘serious’ or ‘very serious’ limitations in one or more areas of a functional domain is the

equivalent of a ‘marked’ limitation in that domain, particularly where, as here, medical

opinion evidence indicated no more than moderate limitations.”); Sally M. o/b/o C.B. v.

Comm’r of Soc. Sec., No. 20-CV-6210-MJR, 2021 WL 1783007, at *3 (W.D.N.Y. May 5,

2021) (“At the outset, assessments of ‘serious’ and ‘very serious’ problems in a domain

are not necessarily inconsistent with an ALJ’s conclusion that the child’s limitations were

‘less than marked.’”); Nicole A. o/b/o J.D.J.W. v. Comm’r of Soc. Sec., No. 19-CV-1654L,

2021 WL 916016, at *4 n.2 (W.D.N.Y. Mar. 10, 2021) (“[P]laintiff’s argument appears to

be premised, at least in part, on her view that [the teacher’s] opinion that [plaintiff] had

‘serious’ and ‘very serious’ problems in certain functional domains necessarily equates to

a finding of ‘marked’ or ‘extreme’ limitations in those domains for purposes of the ALJ’s

functional equivalence analysis. . . . Other than the wording of the relevant regulations,

however, plaintiff cites no authority for this proposition, and other courts have rejected this

same argument.”); White o/b/o T.R.W. v. Berryhill, No. 17-CV-6367P, 2019 WL 1367382,

at *5 (W.D.N.Y. Mar. 26, 2019) (holding that the fact that plaintiff’s teachers assessed him

having “serious” and “very serious” problems in a domain is “not necessarily inconsistent

with the ALJ’s conclusion that [plaintiff’s] limitations were ‘less than marked’”). The

ALJ’s determination here relied upon and was consistent with the opinions of Ms. Brown

and Ms. Zoladz, as the ALJ’s decision makes clear.

In addition, the ALJ also noted that treatment records from Child and Family

Services Mental Health which reflect that N.D.P. was referred in December 2019 for poor

focus and inability to follow directions and she was given the clinical diagnosis of ADHD.

(Dkt. 5 at 23). Records from July, August, and September of 2020 indicate N.D.P.’s

difficulty sustaining attention, sitting still, and controlling emotions. But in November

2020, N.D.P. reported that medication was helping and she was doing better with virtual

school. A December 2020 treatment record indicates that N.D.P. reported that things were

going “great” and she was doing better with school, but with some difficulty managing

emotions and behaviors. (Id. at 23). The Court finds no error in the ALJ’s consideration

of the medical treatment records or his conclusion that some of N.D.P.’s issues were

improved with or controlled by medication.

In sum, while Plaintiff argues that evidence in the record supported a marked

limitation in this domain, “[t]he ALJ is permitted to resolve such evidentiary conflicts.”

Cotton o/b/o J.T.C. v. Comm’r of Soc. Sec., No. 19-CV-6542-FPG, 2020 WL 5800820, at

*4 (W.D.N.Y. Sept. 28, 2020); see also Casey P. obo Q.F.A. v. Comm’r of Soc. Sec., No.

1:21-CV-831-DB, 2023 WL 6148035, at *9 (W.D.N.Y. Sept. 20, 2023) (“Even assuming,

arguendo, that there was some conflict, it was the ALJ’s sole responsibility to evaluate the

medical evidence and resolve any material conflicts in the record, and in this case, after

weighing all the evidence, the ALJ reasonably found Q.F.A. to have only a marked

limitation in the domain of health and physical well-being.”). The ALJ is only required to

build an accurate and logical bridge between the evidence and the decision to enable a court

to engage in a meaningful review of his conclusions, which, contrary to Plaintiff’s

contentions, he has done here.

B. Caring for Herself

In assessing the domain of caring for oneself, the ALJ must “consider how well [the

child] maintain[s] a healthy emotional and physical state, including how well [the child]

get[s] [his or her] physical and emotional wants and needs met in appropriate ways; how

[the child] cope[s] with stress and changes in [his or her] environment; and whether [the

child] take[s] care of [his or her] own health, possessions, and living area.” 20 C.F.R. §

416.926a(k). This includes consideration of the child’s ability to regulate him or herself

and the ability to respond to changes in emotions as well as to the daily demands of his or

her environment to take care of one’s personal needs, health, and safety. Jenia W. o/b/o

L.J.R. v. Comm’r of Soc. Sec., No. 20-CV-01303, 2022 WL 507345, at *4 (W.D.N.Y. Feb.

18, 2022). “[T]his domain focuses on how well a child relates to herself by maintaining a

healthy emotional and physical state in ways that are age-appropriate and in comparison to

other same-age children who do not have impairments.” Maria E. o/b/o J.M.A. v. Comm’r

of Soc. Sec., No. 1:20-CV-1337 (WBC), 2021 WL 3861422, at *3 (W.D.N.Y. Aug. 30,

2021).

In assessing this domain, the ALJ noted Plaintiff’s testimony that N.D.P. has

difficulty getting up in the morning and relies on Plaintiff to get to school. (Dkt. 5 at 24).

He also credited information in the record documenting N.D.P.’s challenges with self-

regulation. (Id.). In support of his determination, the ALJ relied upon the teacher

questionnaires from Ms. Brown and Ms. Zoladz. Ms. Brown only indicated that N.D.P.

has a serious problem with handling frustration properly, but assessed lesser ratings (i.e.,

no problem, a slight problem, or an obvious problem) for the nine other functional areas.

(Id. at 680). Ms. Zoladz did not identify a serious problem or very serious problem for any

of the ten activities identified. (Id. at 685). The ALJ also cited to multiple mental status

examinations that reflected impaired insight and judgment in concluding that the limitation

was less than marked. (Id. at 24).

Much like with the domain of attending and completing tasks, Plaintiff’s challenges

to the ALJ’s determination amount to an invitation for the Court to re-weigh the evidence

of record, which the Court may not do. Amanda F. o/b/o A.J.F. v. Comm’r of Soc. Sec.,

No. 21-CV-00509, 2023 WL 3686638, at *5 (W.D.N.Y. May 26, 2023) (“In sum, the ALJ

considered all the evidence of record when assessing the limitations in the six functional

domains of functioning. Ultimately, plaintiff’s argument merely emphasizes the existence

of conflicting evidence in the record, but it was the responsibility of the ALJ to evaluate

the conflicting evidence and reasonably determine the degree of limitation in the specific

functional domains.”). While there may be evidence in the record supporting a conclusion

that N.D.P. has greater limitations, including one treatment record reflecting Plaintiff’s

report that N.D.P. made previous threats of self-harm or documentation of her sleep

difficulties, the ALJ is not required to discuss every piece of evidence and it is not this

Court’s function to re-weigh the evidence. The ALJ’s conclusion that N.D.P.’s limitations

do not rise to the level of being marked is well-supported in the record.

In sum, the Court finds that the ALJ’s determination is supported by substantial

evidence. Accordingly, remand is not required.

CONCLUSION

For the foregoing reasons, the Commissioner’s motion for judgment on the

pleadings (Dkt. 7) is granted and Plaintiff's motion for judgment on the pleadings (Dkt. 6)

is denied. The Clerk of Court is directed to enter judgment and close this case.

SO ORDERED.

LIZABETH A. WOEFORD

Chief Judge

United States District Court

Dated: March 18, 2024

Rochester, New York

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