# Casero v. Commissioner of Social Security

> District Court, W.D. New York · March 15, 2024

URL: https://www.frixlaw.com/law-library/cases/10367013

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 15, 2024
- **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
______________________________________

TERRI C. o/b/o M.N.C.,1

Plaintiff, DECISION AND ORDER

v.
1:21-cv-01266 (JJM)
COMMISSIONER OF SOCIAL SECURITY,

Defendant.
______________________________________

This is an action brought pursuant to 42 U.S.C. §§405(g) and 1383(c)(3) to review
the final determination of the Commissioner of Social Security that M.N.C., a minor, was not
entitled to Supplemental Security Income (“SSI”) benefits. Before the court are the parties’
cross-motions for judgment on the pleadings [8, 9]. 2 The parties have consented to my
jurisdiction [12]. Having reviewed their submissions [8, 9], the Commissioner’s motion is
granted.
BACKGROUND
The parties’ familiarity with the 1,794-page administrative record [6, 7] is
presumed. Further, the parties have comprehensively set forth in their papers plaintiff’s treatment
and other records and the relevant medical evidence. Accordingly, I refer below only to those
facts necessary to explain my decision.

1 In accordance with the guidance from the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, which was adopted by the Western District
of New York on November 18, 2020 in order to better protect personal and medical information of non-
governmental parties, this Decision and Order will identify the plaintiff by first name and last initial.
2 Bracketed references are to the CM/ECF docket entries. Page references to the administrative
record are to the Bates numbering. All other page references are to the CM/ECF pagination.
Plaintiff’s mother filed an application for benefits on her behalf on September 26,
2019, when plaintiff was nine years old (she was born in March 2010), alleging a disability
beginning on August 1, 2015, due to asthma, a heart murmur, and having a pacemaker.
Administrative Record [6] at 10, 11, 241. Plaintiff later also claimed disability due to anxiety
disorder. Id. at 30 (transcript of hearing) (“the claimant also does experience anxiety disorder”).

A prior application for benefits had been denied. Id. at 10.
An administrative hearing was held on February 10, 2021 before Administrative
Law Judge (“ALJ”) John Carlton. Id. at 24-49 (transcript of hearing). Plaintiff’s mother
testified. Id. at 31-48. Plaintiff was represented at the hearing. Id. at 26.
On April 14, 2021, ALJ Carlton issued a decision finding that plaintiff had not
been disabled as defined in the Social Security Act since the date of her application. Id. at 17.
ALJ Carlton found that plaintiff’s severe impairments were chronic heart failure with pacemaker
placement, asthma, obesity, and anxiety. Id. at 11. He also found that plaintiff’s severe
impairments did not meet the elements of a listed impairment, nor were they functionally

equivalent to the severity of the listings. Id. at 11-17. Thereafter, this action ensued.

DISCUSSION
In seeking remand for further administrative proceedings, plaintiff argues that
ALJ Carlton erred in two ways:
1. by failing to develop the record concerning plaintiff’s anxiety disorder (plaintiff’s
Memorandum of Law [8-1] at 9-14); and

2. by rejecting Dr. Hongbiao Liu’s July 2018 opinion concerning plaintiff’s ability to
tolerate pulmonary irritants as “irrelevant because it was ‘remote to the application date’”
(id. at 15).
Specifically, plaintiff argues that ALJ Carlton lacked medical expert evidence to support his
finding that plaintiff had “less than marked” limitations in multiple domains due to her anxiety
disorder. Had he further developed the record or properly analyzed evidence already in the
record, he could have determined that plaintiff’s limitation in the domain of caring for herself
was marked. Id. at 12. Plaintiff further argues that, had ALJ Carlton considered the limitations

opined by Dr. Liu in the context of plaintiff’s limitations in the domain of health and physical
well-being, he could have found plaintiff’s limitations in that domain “extreme” as opposed to
“marked”. Id. at 16.
The Commissioner responds that substantial evidence supports the ALJ’s
functional equivalence findings. Commissioner’s Brief [9-1] at 6. More specifically, the
Commissioner argues there was no gap in the record that required further development, and the
ALJ properly analyzed the evidence already in the record concerning plaintiff’s anxiety
diagnosis and symptoms. Id. at 11-19. With respect to Dr. Liu’s report, the Commissioner
argues that the ALJ correctly ascertained the relevant period for SSI claims and that, in any

event, Dr. Liu’s opinions and the remaining record evidence cited by the ALJ support his finding
that plaintiff had a marked, rather than extreme, limitation in the functional area of health and
physical well-being. Id. at 20-21. For the following reasons, I agree with the Commissioner.

A. Standard of Review
“A district court may set aside the Commissioner’s determination that a claimant

is not disabled only if the factual findings are not supported by ‘substantial evidence’ or if the
decision is based on legal error.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42
U.S.C. §405(g)). Substantial evidence is that which a “reasonable mind might accept as
adequate to support a conclusion”. Consolidated Edison Co. of New York. Inc. v. NLRB, 305
U.S. 197, 229 (1938). “In reviewing a final decision of the 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.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013).
See also Biestek v. Berryhill, __ U.S. __, 139 S. Ct. 1148, 1154 (2019); Colgan v. Kijakazi, 22

F.4th 353, 359 (2d Cir. 2022) (“[a]lthough . . . the evidentiary threshold for the substantial
evidence standard ‘is not high,’ . . . the substantial evidence standard is also not merely
hortatory: It requires relevant evidence which would lead a ‘reasonable mind’ to concur in the
ALJ’s factual determinations”).
“For SSI applications, the relevant period is between the date of the application
and the date of the ALJ’s decision”. Leisten v. Astrue, 2010 WL 1133246, *1, n. 2 (W.D.N.Y.
2010). Accordingly, the issue here is whether plaintiff was disabled between September 26,
2019, the date her claim was filed, and April 14, 2021, the date of ALJ Carlton’s decision.

B. The Infant Disability Standard
A claimant under 18 years of age is “disabled” under the Social Security Act
(“SSA”) if she has a medically determinable physical or mental impairment (or combination of
impairments) that results in “marked and severe functional limitations . . . 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). Under the applicable regulations, plaintiff must show that she is not working,
that she has a “severe” impairment or combination of impairments, and that the impairment or
combination of impairments is of listing-level severity - i.e., medically or functionally equal to
the severity of a listed impairment. 20 C.F.R. §§416.924(a)-(d). “The burden of proof rests on
the claimant at each of the three steps.” Brown o/b/o C.M.B. v Colvin, 2014 WL 7272964, *3
(W.D.N.Y. 2014) (internal alterations omitted).
Functional equivalence of limitations in children is evaluated in six domains:
acquiring and using information; attending and completing tasks; interacting and relating with
others; moving about and manipulating objects; caring for oneself; and health and physical well-

being. 20 C.F.R. §§416.926a(b)(1)(i)-(vi). Marked limitations in two domains of functioning or
an extreme limitation in one domain constitutes functional equivalence to a listed impairment.
Id. §416.926a(d). Plaintiff challenges the ALJ’s analysis in the domains of caring for oneself
and health and physical well-being. See Plaintiff’s Memorandum of Law [8-1] at 12, 16. ALJ
Carlton found that Plaintiff had a “less than marked” limitation in he domain of caring for
oneself, and a “marked” limitation in the domain of health and physical well-being.
Administrative Record [6] at 14, 17.
The SSA’s regulations discuss the functional elements of each domain and
describe the abilities assessed under each to determine if a child has a marked or extreme

limitation, and provides some examples of possible limitations under each domain. See 20
C.F.R. §416.926a. A “marked” limitation in any domain exists when a claimant’s
“impairment(s) interferes seriously with your ability to independently initiate, sustain, or
complete activities.” Id. §416.926a(e)(2)(i).
The domain of caring for yourself concerns how well a child is able to “maintain
a healthy emotional and physical state, including how well you get your physical and emotional
wants and needs met in appropriate ways; how you cope with stress and changes in your
environment; and whether you take care of your own health, possessions, and living area”. Id.
§416.926a(k). Generally, this domain of functioning includes “employ[ing] effective coping
strategies, appropriate to your age, to identify and regulate your feelings, thoughts, urges, and
intentions”. Id. §416.926a(k)(1)(ii). Children aged 6 to 12 should “begin to develop
understanding of what is . . . acceptable and unacceptable behavior. You should begin to
demonstrate consistent control over your behavior, and you should be able to avoid behaviors
that are unsafe or otherwise not good for you”. Id. §416.926a(k)(2)(iv). Examples of limited

functioning in this domain could include “express[ing] frustration by destroying school
materials” or “engag[ing] in self-injurious behavior”. SSR 09-7p, Title XVI: Determining
Childhood Disability – The Functional Equivalence Domain of “Caring for Yourself”, 2009 WL
396029, *3, *6 (2009).
The domain of health and physical well-being concerns “the cumulative physical
effects of physical or mental impairments and their associated treatments or therapies” on a
child’s functioning. 20 C.F.R. §416.926a(l). “[L]imitations in your physical functioning
because of your treatment” are considered in this domain. Id. The Commissioner may consider
a child to have a marked limitation in this domain if he or she is:

“Frequently ill because of your impairment(s) or have frequent
exacerbations of your impairment(s) that result in significant,
documented symptoms or signs. For purposes of this domain,
‘frequent[’] means that you have episodes of illness or
exacerbations that occur on an average of 3 times a year, or once
every 4 months, each lasting 2 weeks or more. We may also find
that you have a ‘marked’ limitation if you have episodes that occur
more often than 3 times in a year or once every 4 months but do
not last for 2 weeks, or occur less often than an average of 3 times
a year or once every 4 months but last longer than 2 weeks, if the
overall effect (based on the length of the episode(s) or its
frequency) is equivalent in severity.”

Id. §416.926a(e)(2)(iv). An “extreme” limitation in this domain indicates that a child is
“frequently ill because of your impairment(s) or have frequent exacerbations of your
impairment(s) that result in significant, documented symptoms or signs substantially in excess of
the requirements for showing a ‘marked limitation’”. Id. §416.926a(e)(3)(iv).

C. ALJ Carlton’s Analysis of Plaintiff’s Functional Limitations is Supported by
Substantial Evidence

“In reviewing a final decision of the 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.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). Here,
ALJ Carlton included in his decision significant analysis of the opinion and other evidence. I
agree with the Commissioner that ALJ Carlton’s conclusions concerning the severity of
plaintiff’s impairment in the domains at issue are amply supported by his analysis and consistent
with evidence in the record. Accordingly, I find that ALJ Carlton’s decision is supported by
substantial evidence.
ALJ Carlton found that plaintiff has a “less than marked” limitation in the domain
caring for oneself and a “marked” limitation in the domain of health and physical well-being.
Administrative Record [6] at 14. In support of his conclusions, he outlined the opinion and other
evidence in the record, including medical and other evidence related to plaintiff’s anxiety and
asthma, described how persuasive he found the opinion evidence, discussed which portions of
the opinions he assessed were consistent with other evidence in the record, and explained why he
found less persuasive those portions of the record that could support a finding of greater

limitation. Id. at 14-17. I address each of these functional domains separately.
1. Domain of Caring for Herself
I do not agree with plaintiff that ALJ Carlton had “no medical expert evidence”
upon which to base his finding that plaintiff had “less than marked” limitations in this domain, or
that the ALJ was required on this record to order a consultative examination. Plaintiff’s
Memorandum of Law [8-1] at 9, 11. As noted by plaintiff, there are several notations in the

record concerning anxiety.
Plaintiff’s pediatric cardiologist noted in his March 30, 2019 treatment note that
plaintiff had complaints concerning her pacemaker device shocking her. The cardiologist was
able to “reproduce this during interrogation by pacing at different rates/outputs, holding pacing,
and placebo maneuvers such as changing stored electrogram parameters”. Id. at 1335. He felt
the reported shocking sensation was “a somatic manifestation of her device related anxiety.” Id.
Plaintiff got a different pacemaker implanted in June of 2019 and visited with her
cardiologist for a follow up visit on September 25, 2019. Plaintiff’s mother reported going for a
pacemaker check at plaintiff’s former doctor’s office, where she reported that they “shocked” the

plaintiff during the pacemaker check. Id. at 1081. Her doctor explained that he believed the
reported “shock” was “the discomfort of VVI pacing for the threshold check”. Id. Upon
examination, plaintiff appeared healthy and “in no distress”. Id. at 1082. He concluded the
plaintiff “has done well” since the device revision and that “[s]he is completely recovered from
the procedure with no complications”. Id. at 1084. He noted that plaintiff “had a complete
emotional meltdown at the idea of a pacemaker check and would barely let the programmer near
her”. Id.
Less than one month later, on October 15, 2019, plaintiff’s brother-in-law took
plaintiff to her primary care physician because plaintiff had complained of chest pain and
dizziness at school and the nurse wanted her to be checked before returning to school. Id. at
1390. Plaintiff’s brother-in-law reported that plaintiff had been “manipulative to find ways of
getting out of school[.] Will pick her own nose to make it bleed to be sent home[.] She now
knows what to say (regarding heart) to get out of school[.] Told school Friday she was dizzy and
got sent home. Child admitted she faked this.” Id. The plaintiff stated she “[d]oes not like

school. . . . Admits another boy in school [was] bullying her”. Id.
On December 16, 2019, plaintiff presented to the emergency department “with
epistaxis” (i.e. a nosebleed) “for the past 3 days which resolve[d] at home with pressure”. Id. at
1459. Her nose started bleeding again in the emergency department, and staff “[a]pplied
neosynephrine soaked gauze which resolved the bleed”. Id. at 1461. She was “[a]dvised to
continue to use neosynephrine and saline spray to keep the mucosa moist”. There is no notation
in this record that plaintiff’s nosebleed was suspected to be self inflicted.
Plaintiff was seen in the emergency department again on January 1, 2020 with
complaints of abdominal pain and throat pain, but denied any vomiting. Id. at 1428. Upon

examination, her mental status was noted to be “[c]ooperative”, with “appropriate mood [and]
affect” Id. at 1430. She was discharged and advised to follow up with her primary care
physician. Id. Plaintiff was sent home from school on January 21, 2020 “for vomiting” and was
seen again in the emergency department on January 22, 2020. Id. at 1508. Plaintiff also reported
abdominal pain, nausea, and diarrhea. Id. Upon discharge, she was advised to follow up with
her primary care physician. Id. at 1510.
Plaintiff received a diagnosis of anxiety disorder in February 2020 after visiting
her primary care doctor because she had been vomiting at school several times per week.
Administrative Record [7] at 1575, 1577. Plaintiff’s brother-in-law, who took the plaintiff to the
visit, reported that plaintiff had been missing 2-3 days per week for several months. It was his
feeling that plaintiff was vomiting intentionally to stay home. Id. at 1575. The doctor concluded
plaintiff’s vomiting was “most likely self-induced, likely related to some school phobia and
desire to go home”. Id. at 1577. However, he felt there “may also be a GERD component” and
placed her on medication, which she was still using two months later. Id. at 1577, 1571.

Plaintiff was given a referral to a psychologist for counseling. Id. at 1577.
At a visit on April 17, 2020, plaintiff reported she “only had one asthma flair up
this year”, and did not report any vomiting or psychiatric symptoms. Id. at 1571. She was
advised to “[a]void any respiratory irritants, especially cigarette smoke, and irritants which might
have been noted to flare wheezing or cough in the past”. Id. at 1572. Plaintiff’s anxiety
diagnosis was not discussed, nor did plaintiff report any psychiatric symptoms.
Plaintiff reported to a WellNow on July 22, 2020 with complaints of dizziness and
vomiting. Id. at 1667. She had no abdominal tenderness and her EKG was normal. She was
discharged to home are and instructed to follow up with her doctor. Id. At her well child visit on

October 22, 2020, plaintiff did not note any complaints concerning vomiting or anxiety. Id. at
1669. She complained of pain in her ankle. Id. Her asthma was noted to be “uncomplicated”
and plaintiff was again advised to “[a]void any respiratory irritants, especially cigarette smoke,
and irritants which might have been noted to flare wheezing or cough in the past”. Id. at 1671.
Her anxiety diagnosis was noted and plaintiff’s treating nurse practitioner stated that he
discussed with plaintiff “way[s] to naturally deal with depression and anxiety”, such as sleep,
exercise, fresh air, and a healthy diet. Id. No other recommendations were made, nor was
plaintiff referred for counseling. There is no indication in this treatment note that any attempts
were being made by either plaintiff’s doctor’s office or her mother to arrange counseling.
Plaintiff’s attorney requested that plaintiff’s treating doctor complete a Treating
Medical Source Statement. In response, Dr. Ferguson stated on February 6, 2021:
“[Plaintiff] has medical problems includ[ing] Junctional
Bradycardia, pacemaker placement and asthma. She was felt to
have some school related anxiety 2/5/2020. After thoroughly
reviewing this form and its exploration of [plaintiff’s] mental
health, DSM-10 Axis, mental health review, IQ and any functional
abilities, I feel that it will be best completed by a psychologist.”

Id. at 1784.
The ALJ discussed each of these records and the findings contained therein.
Administrative Record [6] at 15-16. He also considered three separate Teacher Questionnaires
completed by plaintiff’s fourth grade teacher, Pamela Bianca. Id. at 16, discussing id. at 250-257
(October 21, 2019), 264-74 (December 17, 2019 form), and 299-306 (September 3, 2020 form).
Ms. Bianca noted some “slight problem[s]” in some activities in the “attending and completing
tasks” functional domain in October 2019, but no problems in any functional domain in
December 2019. She did, however, indicate on the December 2019 form that plaintiff “has
missed may days or has gone home early”. Id. at 267. She indicated on both forms that plaintiff
had a heart condition and did not participate in gym. In December 2019, she also noted that
plaintiff used an inhaler and indicated that plaintiff “frequently miss[ed] school due to illness”.
Id. at 256, 273.
On the September 2020 form, Ms. Bianca noted that she had not seen plaintiff
since March of the previous school year.3 She indicated up to a “moderate problem” in two
activities under the “attending and completing tasks” functional category and three activities
under the “caring for himself or herself” functional category. Id. at 301, 304. She also checked
the box indicating plaintiff had “a serious problem” “identifying and appropriately asserting

3 Schools shut down and shifted to remote learning in March of 2020 due to the pandemic.
emotional needs” and explained, “[plaintiff] has anxiety. She would often make herself vomit so
she could go home”. Id. at 304. The ALJ concluded that the noted limitations were “consistent
with less than marked limitation and persuasive, as it is supported by the record.”
ALJ Carlton determined that “[o]verall, the record supports a finding that the
child has ‘marked’ limitations in her health.” Id. at 17. Concerning plaintiff’s anxiety, ALJ

Carlton explained that “[d]ue to anxiety . . . the child has ‘less than marked’ limitation in all
other domains, but no issues in acquiring information”. Id. He explained further that he “has
also considered the child’s anxiety, manifesting as vomiting and avoiding school and finds the
child has ‘less than marked’ limitation in her ability to complete tasks, interact with others, and
care for herself”. He found:
“It is important to note that the child’s mother did not follow-up
with care after the emergency admissions and the child missed
school because the mother did not have time to bring the child to
school or provide on-line classes. . . . The teachers even noted that
CPS (Child Protective Services) were involved to improve the
child’s attendance . . . . The claimant has not seen her cardiologist
since September 2019 and her heart issues are managed well with
the pacemaker . . . The child never followed up with a
psychotherapist or counseling . . . however, she does have a
diagnosis of anxiety”.

Id.
Based upon this record, I find that the ALJ adequately explained his reasoning for
finding a less than marked limitation in this domain based upon plaintiff’s anxiety, and identified
the evidence he used to support his finding. The ALJ had no obligation to develop additional
evidence. Medical records do not appear to be missing, and the ALJ had the benefit of a
complete and legible treatment record. Lowry o/b/o J.B. v. Astrue, 474 F. App’x 801, 804 (2d
Cir. 2012) (“where there are no obvious gaps in the administrative record, and where the ALJ
already possesses a complete medical history, the ALJ is under no obligation to seek additional
information in advance of rejecting a benefits claim”); compare Pratts v. Chater, 94 F.3d 34 (2d
Cir. 1996) (“[m]uch of Pratt’s medical history is missing . . . the medical records that do appear
in the record are frequently incomplete or illegible and provide no coherent overview of Pratt’s
treatment”).
I agree with plaintiff that the ALJ appears to misstate the record when he notes

that “the child missed school because the mother did not have time to bring the child to school or
provide on-line classes”. Administrative Record [6] at 17 (emphasis added), see also Plaintiff’s
Memorandum of Law [8-1] at 12-13. In fact, plaintiff’s mother testified that she had not taken
plaintiff for a follow up visit with her cardiologist because she lacked the time due to caring for
her mother, who also had health conditions, and because of her car:
“Q: [W]hy weren’t you back -- before the pandemic, why
weren’t you back to cardiology?

A: My mom’s 84 years old, and I take care of her too. And
my mom has a heart problem too, so my mom’s been very sick.
And I explained to them that it’s hard for me: cause I’m the only
one that takes her back and forth to the doctor, who does anything.
. . . And they said, well, just keep an eye on her and if --
everything’s okay, and the machine’s working all right, : cause
they’re monitoring it. She’s fine if you can -- you know, if you
want to wait until like later in the future, later, as long as they can
like see what’s going on with it. Because the pacemaker
machine’s gotta be right here in her bag . . . so in case they do a
test on it. . . . so they can tell. So I told them well, okay, then I’ll
bring her then in, you know, 2021, I’ll bring her in March when the
weather’s better, : cause I have a real old car and, you know, all the
way in Rochester. It’s hard for me to get back and forth in the
wintertime.”

Administrative Record [6] at 41. However, it also appeared from the mother’s testimony that the
plaintiff’s most absences for the majority of the current school year were related to computer or
other issues, as she was attending school virtually at the time:
“Q: Well, why is she missing online?
A: Well, I called the school the other day, and she’s having a
problem with the computer. We gotta take it in like next week to
get updated. Because she tries to go on it, and she’ll be on it for a
few minutes, and then, the computer boots her off, where it won’t
let her back on to it.

Q: Okay. So when did that start happening in that she’s
having a problem with this computer?

A: It started like a month ago. We brought it in to get fixed,
they fixed it. Then she started going back on it, and it just keeps
doin’ it. So, they told me to bring it in so they can see what’s
wrong with it.

Q: Okay. So, you say it started about a month ago, so before
that, was she actually attending online every day like she was
supposed to be?

A: Yes. Yes, I try to make sure she does.”

Id. at 35-36.
Under these circumstances, I do not agree with plaintiff that the ALJ’s error
warrants remand. ALJ Carlton did not appear to misstate or cherry-pick any of the other
evidence or the medical records, and the plaintiff has not highlighted any other misstatements or
mischaracterizations in her papers. On this record, I find that ALJ Carlton’s error misstating the
non-impairment-related reason for plaintiff missing school - when there was a non-impairment-
related reason stated in plaintiff’s mother’s testimony - was, at most, a harmless error.
Plaintiff also argues that “the ALJ absolutely needed to evaluate if [plaintiff’s]
poor school attendance was a symptom of her anxiety and school phobia - rather than a personal
failing on the part of her mother. Yet he did not. ALJs are not allowed to look at ‘symptoms’ of
a behavior disorder as simply ‘choices.’” Plaintiff’s Memorandum of Law [8-1] at 13. I agree
that an ALJ is not at liberty to characterize, and dismiss, behavioral symptoms of a mental
condition as “choices”, however, the ALJ did not do that here.
ALJ Carlton expressly outlined, considered, and discussed all the record evidence
concerning the plaintiff’s anxiety diagnosis. Administrative Record [6] at 15-16. He
“considered the child’s anxiety, manifesting as vomiting and avoiding school”. Id. at 17. He
considered the evidence of plaintiff missing school and the various reasons stated in the record
for her poor attendance. He also found it significant that plaintiff’s mother had not pursued

treatment for plaintiff’s anxiety condition, even after the emergency department visits, and that
the record contained evidence suggesting that the school may have involved Child Protective
Services to address the attendance issue. Id. at 17.
All of these facts suggest that the plaintiff’s conditions were not as large a
component in plaintiff’s absences as her mother now claims, and the ALJ was entitled to weigh
this evidence to conclude that the plaintiff’s impairment-related limitations in the domain of
caring for herself were less than marked. Based upon this record, the ALJ satisfied his obligation
to “construct an accurate and logical bridge between his recitation of the facts and the
conclusions he reached”. Lopez obo Y.T. v. Commissioner, 2020 WL 4504987, *2 (W.D.N.Y.

2020) (internal quotation omitted). Although there is evidence in the record that could support
different findings, “there is substantial evidence to support the ALJ’s decision. The
Commissioner, not the Court, is responsible for weighing conflicting evidence.” Pagan o/b/o
Delgado v. Barnhart, 409 S.Supp.2d 217, 220 (W.D.N.Y. 2006).

2. Domain of Health and Physical Well-Being
I reach the same conclusion with respect to the ALJ’s conclusions concerning the
severity of plaintiff’s limitations in the health and physical well-being functional domain.
Plaintiff argues that “[t]he ALJ’s failure to reconcile Dr. Liu’s limitations was decidedly a
harmful error” because he failed to “look at her heart condition and her asthma in combination”.
Plaintiff’s Memorandum of Law [8-1] at 16. I do not agree. ALJ Carlton explicitly, and
properly, considered plaintiff’s asthma condition in his decision.
ALJ Carlton devoted an entire paragraph of his decision to Dr. Liu’s report and
conclusions. Administrative Record [6] at 16. Although he noted that Dr. Liu’s report of his

July 2018 examination of plaintiff was “consistent with the record and persuasive”, he
nonetheless found it was “not relevant” because the opinion “is remote to the application date”.
Id. Plaintiff argues that this conclusion was improper because it was “offered just two months”
before the “relevant period began” on September 14, 2018 (i.e. one year prior to the application
date). However, “[f]or SSI applications, the relevant period is between the date of the
application and the date of the ALJ’s decision”. Leisten v. Astrue, 2010 WL 1133246, *1, n. 2
(W.D.N.Y. 2010). Accordingly, the issue here is whether plaintiff was disabled between
September 26, 2019 and April 14, 2021, the date of ALJ Carlton’s decision. The ALJ did not
err, therefore, by finding that Dr. Liu’s report was not relevant to the plaintiff’s condition over a

year later.
Further, ALJ Carlton relied upon other, more timely evidence of plaintiff’s
asthma condition to make his findings. For example, he referenced plaintiff’s April 17, 2020
treatment note which stated that plaintiff reported she “doing well and only had one asthma
attack all year”. Administrative Record [6] at 15, citing id. at 1571 (exhibit 25F). He also
considered the plaintiff’s October 22, 2020 treatment note, in which plaintiff’s asthma was noted
to be “uncomplicated”, and plaintiff was advised to “[a]void any respiratory irritants, especially
cigarette smoke, and irritants which might have been note to flare wheezing or cough in the
past”. Id at 15-16, citing id at 1670-71 (exhibit 27F). Notably, this recommendation is similar to
the recommendation in Dr. Liu’s report that plaintiff “should avoid dust and other irritant factors
leading to asthma attack” and his indication on the check box form attached to his report that
plaintiff could “never” “tolerate exposure” to “humidity and wetness” and “dust, odors, fumes
and pulmonary irritants”. Id. at 1060, 1065.
Here, contrary to plaintiff’s arguments, ALJ Carlton demonstrated in his decision

that he considered relevant and timely evidence of plaintiff’s asthma condition when he made his
determination concerning the severity of plaintiff’s limitation in the health and physical well-
being functional domain. Further, the frequency of plaintiff’s asthma attacks, as reported to her
doctor, do not approach the frequency or severity required for even a marked limitation. See 20
C.F.R. §416.926a(e)(2)(iv). Again, ALJ Carlton satisfied his obligation to “construct an accurate
and logical bridge between his recitation of the facts and the conclusions he reached” with
respect to this functional domain. Lopez obo Y.T., supra. Accordingly, his determination with
respect to this domain is supported by substantial evidence.

CONCLUSION
For these reasons, the Commissioner’s cross-motion [9] is granted, and plaintiff’s
motion [8] is denied.
SO ORDERED.

Dated: March 15, 2024 ___/s/ _Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10367013. Public record. Not legal advice.