Burrow v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

REBECCA B.1 O/B/O A.S.L.C.,

DECISION AND ORDER

Plaintiff,

6:22-cv-6492-JJM

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______________________________________

Plaintiff brings this action on behalf of her minor grandchild A.S.L.C. pursuant to

42 U.S.C. §§405(g) and 1383(c)(3) to review the final determination of the Commissioner of

Social Security that she was not disabled. Before the court are the parties’ cross-motions for

judgment on the pleadings [6, 7].2 The parties have consented to my jurisdiction [10]. Having

reviewed their submissions [6, 7, 8], the Commissioner’s motion is granted, and plaintiff’s

motion is denied.

BACKGROUND

The parties’ familiarity with the 701-page administrative record [5] is presumed.

On March 10, 2020, plaintiff filed an application for Social Security Income on behalf of

A.S.L.C., alleging disability as of January 1, 2015, due to static encephalopathy fetal alcohol

spectrum disorder, gender dysphoria, disinhibited social engagement disorder, and anxiety.

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.

Administrative Record [5] at 58, 130. Plaintiff’s claim was denied initially, and again upon

reconsideration. Id. at 58. At plaintiff’s request, a hearing was conducted. Id.

A. The Hearing

On August 13, 2021, Administrative Law Judge (“ALJ”) Brian Kane conducted a

telephonic hearing. Id. at 77-107. Plaintiff was represented by an attorney. Id. At the hearing,

A.S.L.C. testified that she was working part-time helping with pony rides at Homesteads for

Hope. Id. at 84. She also helped care for the chickens and other animals on her family’s property.

Id. at 85. She had just completed her freshman year of high school. Id. at 87. She attended class

in a “regular” classroom but received extra help under a 504 plan. Id. at 88.3 She would

sometimes stutter or have trouble speaking due to her anxiety. Id. at 89. She would get distracted

and forget to do things. Id. at 91-92. She sometimes needed help to understand instructions. Id. at

96. She was seeing a therapist at Genesee Behavioral Mental Health for anxiety and depression.

Id. at 93-94. She took hydroxyzine for anxiety at bedtime. Id. at 99. She had several close friends

and a boyfriend. Id. at 94.

ALJ Kane noted that he did not have records from Genesee Behavioral Mental

Health. Id. at 100. A.S.L.C.’s attorney stated that they had requested those records, but did not

have them yet. Id. ALJ Kane held open the record until August 21, 2021. Id. at 106.

B. The ALJ’s Decision

On November 26, 2021, ALJ Kane issued a Notice of Decision denying plaintiff’s

claim. Id. at 55-71. At step two of his decision, he found that A.S.L.C. had the severe

impairments of attention deficit hyperactivity disorder (“ADHD”) and depressive syndrome. Id.

3 A 504 plan, which gets its name from Section 504 of the Rehabilitation Act of 1973, provides

supports so a student with a disability can learn alongside their peers in general education.

at 59. He found that her previous diagnoses of fetal alcohol syndrome and gender dysmorphia

had stabilized, did not cause any significant limitations, and were thus nonsevere. Id.

At step three, ALJ Kane found that A.S.L.C. did not have an impairment or

combination of impairments that met or medically equaled the severity of one of the listed

impairments of 20 C.F.R. Part 404, Subpart P, Appx. 1 (the “Listings”). Id. at 60. In making that

determination, he considered the “paragraph B” criteria and assessed A.S.L.C. with a mild

limitation in understanding, remembering, or applying information; a moderate limitation in

concentrating, persisting or maintaining pace; and no limitations in interacting with others or in

adapting or managing oneself. Id. at 60-61.

ALJ Kane further found that A.S.L.C. did not have an impairment or combination

of impairments that functionally equaled the severity of the Listings. He considered the six

functional domains under 20 C.F.R. §§416.924(d) and 416.926(a), and found that A.S.L.C. had

less than marked limitation in acquiring and using information; less than marked limitation in

attending and completing tasks; no limitation in interacting and relating with others; no

limitation in moving about and manipulating objects; no limitation in the ability to care for

herself; and no limitation in health and physical well-being. Id. at 62.

Accordingly, ALJ Kane found that A.S.L.C. was not disabled. Id. at 71.

C. Record Evidence Considered by the ALJ

In reaching his determination, ALJ Kane reviewed A.S.L.C.’s hearing testimony,

primary care records, teacher questionnaires, and the medical opinions of Todd Deneen, Psy.D.,

Christie L. M. Petrenko, Ph.D., Catherine Goodfellow, M.D., Jeffery Snarr, Ph.D, and State

Agency medical consultants B. Stouter, M.D., and G. Wang, M.D. Id. at 62-71.

In July 2020, Dr. Deneen performed a consultative examination of A.S.L.C. Id. at

412. At the exam, A.S.L.C. reported having sleep disturbances due to anxiety, being easily

distractible, a past (but no present) history of suicidal ideation and self-harm, and that she

experienced “random” anxiety, as well as anxiety and restlessness when asked to do something.

Id. at 412-13. However, she reported getting along with others, as well as being able to care for

herself, perform household tasks and recreational activities. Id. at 412-13, 415. Her mental status

examination findings were unremarkable. Id. at 413-15. Dr. Deneen found that A.S.L.C. had no

significant limitations with regards to attending to, following, and understanding age-appropriate

directions, responding to changes and asking questions. Id. at 415. However, he assessed

A.S.L.C. with mild limitations in sustaining concentration, completing age-appropriate tasks,

adequately maintaining appropriate social behavior, learning in accordance with cognitive

functioning, and interacting adequately with peers. Id. ALJ Kane found Dr. Deneen’s opinion to

be persuasive as being generally consistent with the treatment evidence. Id. at 67.

On April 30, 2021, primary care physician Dr. Goodfellow completed a checkbox

medical statement indicating that A.S.L.C. had “extreme” difficulties in attending and

completing tasks due to being “very scattered” and having problems focusing, as well as

difficulty finishing the tasks she starts. Id. at 515. Dr. Goodfellow further opined that A.S.L.C.

had moderate limitations in acquiring and using information, due to taking longer to process new

information than compared to her peers, and in interacting and relating with others due to being

very anxious in settings with others her own age and functioning better with adults in a one-on-

one situation. Id. Dr. Goodfellow also assessed A.S.L.C. with moderate limitations in moving

about and manipulating objects due to being “exceedingly clumsy” and in caring for herself

because she still required prompts for selfcare and to show respect to others and their things. Id.

ALJ Kane found Dr. Goodfellow’s opinion to be generally unpersuasive as being inconsistent

with the medical record, except for A.S.L.C. having a moderate limitation in attending and

completing tasks. Id. at 68.

On September 11, 2021, treating psychologist Dr. Snarr submitted checkbox

medical statement indicating that he had previously diagnosed A.S.L.C. with social anxiety

disorder and gender dysphoria, but he believed she no longer met the criteria for anxiety

disorder. Id. at 551. To that end, he opined that A.S.L.C. had no limitations in any of the six

functional domains, and that her gender dysphoria would improve once she left her “toxic” home

environment. Id. at 552. ALJ Kane found Dr. Snarr’s opinion persuasive as to the stability of

A.S.L.C.’s anxiety as being consistent with the record. Id. at 69.

D. Appeals Council

Plaintiff submitted a request to review ALJ Kane’s Decision to the Appeals

Council as well as additional treatment records from Dr. Snarr and Genesee Behavioral Mental

Health Center. Id. at 1-2. The Appeals Council denied the request, finding that the newly

submitted evidence “does not show a reasonable probability that it would change the outcome of

the decision”. Id. at 2. The Appeals Council also rejected records concerning A.S.L.C.’s

treatment after the November 26, 2021 hearing as unrelated to the relevant period. Id. at 2.

ANALYSIS

Plaintiff argues that: (1) ALJ Kane failed to evaluate A.S.L.C.’s anxiety disorder

at steps two and three; (2) ALJ Kane’s assessment of A.S.L.C.’s ability to care for herself is not

supported by substantial evidence; and (3) the Appeals Council improperly rejected new and

material evidence. Plaintiff’s Memorandum of Law (“MOL”) [6-1] at 1.

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); see also Biestek v. Berryhill, 587 U.S. 97, 103 (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”).

In determining the disability of children, a three-step sequential analysis is used.

See 20 CFR §416.924; Melissa C. o/b/o M.C. v. Kijakazi, 2022 WL 167534, *1 (W.D.N.Y.

2022). Step one requires the ALJ to determine whether the child has engaged in substantial

gainful activity. See id. Step two requires a determination of whether the claimant has an

impairment, or combination of impairments, that is “severe” within the meaning of the Act. See

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

criteria of a listed impairment. See id.

Equivalence to a Listing can be either medical or functional. See §416.924(d);

Tonya B. o/b/o A.M.C. v. Commissioner of Social Security, 2022 WL 4616971, *2 (N.D.N.Y.

2022). Functional equivalence requires a consideration of how the child functions in six sets of

activities called “domains”. See §416.926a(b); Tonya B., 2022 WL 4616971 at *2. Functional

equivalence is established upon a finding of an “extreme” limitation in one domain, or “marked

limitations” in two domains. 20 C.F.R. §416.926a(a). “[T]he 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); see generally Talavera v. Astrue, 697 F.3d 145, 151 (2d. Cir. 2012).

B. Step Two and Three evaluation of anxiety disorder

At step two, the ALJ must determine whether the claimant has an impairment, or

combination of impairments, that is “severe”. 20 C.F.R. §416.924(a). A severe impairment is one

that causes “more than minimal functional limitations”. §416.924(c); see Jennifer F. o/b/o

M.C.W. v. Commissioner of Social Security, 2022 WL 600841, *1 (W.D.N.Y. 2022). The

severity standard “is de minimis and is intended only to screen out the very weakest cases”.

McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014). “However, despite this lenient standard,

the ‘mere presence of a disease or impairment, or establishing that a person has been diagnosed

or treated for a disease or impairment’ is not, by itself, sufficient to render a condition ‘severe’”.

Ciara B. v. Commissioner of Social Security, 610 F. Supp. 3d 515, 520 (W.D.N.Y. 2022)

(citations omitted).

Here, A.S.L.C. claimed anxiety as a disabling condition in her initial application.

[5] at 130. At the hearing, she testified that she had anxiety, was receiving therapy for anxiety,

and was taking medication for anxiety. Id. at 89, 93-94, 99. She also reported having anxiety to

her treating providers (see id. at 424, 430) and the consultative examiner (id. at 412-13) and was

diagnosed with anxiety disorder by both. Id. at 415, 514-15. While none of these circumstances,

by themselves or together, necessitate a finding that her anxiety was a severe impairment, it does

call into question why ALJ Kane declined to even discuss the condition at step two, particularly

where he discussed the other conditions he considered and determined to be nonsevere. Id. at 59

(discussing fetal alcohol syndrome and gender dysmorphia). Indeed, as the ALJ is required to

consider all impairments about which he “receive[s] evidence” (20 C.F.R. §404.1512(a)(1)), his

failure to assess a diagnosed impairment at step two is legal error. See Bradley o/b/o C.B. v.

Berryhill, 2017 WL 8287642, *2 (W.D.N.Y. 2017).

Nonetheless, such error is harmless if the ALJ’s analysis at subsequent steps

reveals that he sufficiently considered the omitted condition. See Reices-Colon v. Astrue, 523 F.

App’x 796, 798 (2d Cir. 2013) (Summary Order) (“in those subsequent steps, the ALJ

specifically considered [claimant’s] anxiety and panic attacks. Because these conditions were

considered during the subsequent steps, any error was harmless”). More generally, “[a]n ALJ

does not have to state on the record every reason justifying a decision.” Brault v. Social Security

Administration Commissioner, 683 F.3d 443, 448 (2d Cir. 2012). Rather, the courts “conduct a

plenary review of the administrative record to determine if there is substantial evidence,

considering the record as a whole, to support the Commissioner’s decision and if the correct

legal standards have been applied”. McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014).

ALJ Kane did discuss A.S.L.C.’s anxiety and related treatment at various points

in his step three analysis. He recounted A.S.L.C.’s testimony that she had recently begun treating

with a therapist for anxiety and depression. Id. at 63. He noted that, in June 2019, she reported to

Dr. Goodfellow having suicidal thoughts with no plan or intent, as well as anxiety, poor ability to

concentrate, poor energy, and depressed mood. Id. at 64. He noted that Dr. Goodfellow

“recommended several medications”, including escitalopram for daily use and hydroxyzine for

sleep. Id. at 64; see id. at 431 (prescribing such medications). He recounted A.S.L.C.’s June 2020

consultative exam, in which she reported to Dr. Deneen having sleep disturbances due to anxiety

as well as “random anxiety” and restlessness when asked to do something. Id. at 65. As further

noted, she continued to complain of anxiety to Dr. Goodfellow in July, though she admitted not

taking her medication and that she preferred not to. Id. at 65, 424. Dr. Goodfellow advised her to

follow up with Dr. Snarr on this issue as well as her compulsive behaviors. Id. at 65-66, 425.

ALJ Kane gave particular weight to Dr. Snarr’s September 11, 2021 opinion, in

which he rescinded his previous diagnosis of anxiety disorder, and stated that she no longer met

the criteria for such conditions and was “not psychologically disabled”. Id. at 68, 551 (emphasis

in original). ALJ Kane concluded that “[t]he evidence supports Dr. Snarr’s opinion as there is no

evidence of an anxiety order”. Id. at 69. He found this conclusion to be supported by the

longitudinal record, observing that, among other things, A.S.L.C. had responded well to

treatment, was looking forward to the new school year, participating in sports, and enjoyed

working for Homestead for Hope. Id. at 69. I note that A.S.L.C. did continue to treat with

licensed master social worker (“LMSW”) Shannon Sullivan and Zaid Saeed, D.O., for alleged

anxiety, mood swings, panic attacks, sleep issues, stress, and severe social anxiety. Id. at 28-45.

However, those records were not before ALJ Kane when he made his decision.

Thus, despite ALJ Kane’s failure to discuss A.S.L.C.’s anxiety disorder at step

two, it is clear from his findings at step three that he did consider the condition. Reading the

ALJ’s decision as a whole, as a reviewing court is tasked to do, ALJ Kane adopted Dr. Snarr’s

opinion that A.S.L.C.’s anxiety disorder had resolved to the point that it did not cause any

functional limitations. The opinion of a treating psychologist regarding a mental condition is

plainly substantial evidence upon which an ALJ can rely. See Siham H. v. Kijakazi, 2022 WL

4465462, *5 (N.D.N.Y. 2022) (“[a]lthough ‘ALJs are no longer directed to afford controlling

weight to treating source opinions . . . the regulations still recognize the ‘foundational nature’ of

the observations of treating sources,’ particularly in cases involving mental health”) (citations

omitted).

While there is room for debate as to whether there was indeed “no evidence of an

anxiety disorder” or that such disorder had resolved, that is not the proper inquiry on appeal. On

appeal, “[t]he relevant inquiry is whether the ALJ applied the correct legal standards and whether

[the ALJ’s] determination is supported by substantial evidence”. Cichocki, 729 F.3d at 177.

Ultimately, “[t]he ALJ was well within his duty to reconcile the conflicting evidence and

determine that the plaintiff’s impairments, or combination of impairments, did not meet or equal

a listing”. Richard B. v. Commissioner of Social Security, 2021 WL 4316908, *6 (W.D.N.Y.

2021). “It is not the Court’s role to reweigh the evidence supporting the ALJ’s contrary

determination.” Angelo Michael G. v. Kijakazi, 2023 WL 4763792, *6 (N.D.N.Y. 2023); see

Cage v. Commissioner of Social Security, 692 F.3d 118, 122 (2d Cir. 2012) (“we defer to the

Commissioner’s resolution of conflicting evidence.”). 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.

In any event, plaintiff does not suggest what additional limitations would be

required if A.S.L.C.’s anxiety disorder had been considered a severe impairment. To show

functional equivalence to a Listing, a child claimant must have an “extreme” limitation in one

functional domain, or “marked limitations” in two domains. 20 C.F.R. §416.926a(a). Plaintiff

bears the burden of proof in this regard. See Brown o/b/o C.M.B., 2014 WL 7272964 at *3.

While there is evidence in the record that A.S.L.C.’s anxiety caused some limitations in the

domain of interacting and relating with others, there is no evidence that such limitations were

more than moderate. See [5] at 515 (Dr. Goodfellow’s opinion). As a less-than-marked limitation

cannot support a finding of disability for a child claimant, there is no reason for remand. See

Barry v. Colvin, 606 F. App’x 621, 622 (2d Cir. 2015) (Summary Order) (“[a] lack of supporting

evidence on a matter for which the claimant bears the burden of proof, particularly when coupled

with other inconsistent record evidence, can constitute substantial evidence supporting a denial

of benefits.”); Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (“[r]emand is unnecessary . . .

‘where application of the correct legal standard could lead to only one conclusion’”) (citation

omitted).

C. Ability to care for oneself

In the domain of caring for yourself, “[the Commissioner] consider[s] how well

[claimants] maintain a healthy emotional and physical state, including how well [they] get [their]

physical and emotional wants and needs met in appropriate ways; how [they] cope with stress

and changes in [their] environment; and whether [they] take care of [their] own health,

possessions, and living area”. 20 C.F.R. §416.926a(k). Among several examples of limited

functioning in this domain, the regulation lists: “(i) You continue to place non-nutritive or

inedible objects in your mouth . . . (iv) You engage in self-injurious behavior (e.g., suicidal

thoughts or actions, self-inflicted injury, or refusal to take your medication).” §416.926a(k)(3).

However, “the[se] examples do not necessarily describe a ‘marked’ or ‘extreme’ limitation”. Id.

As plaintiff points out, there was some evidence in the record that A.S.L.C. had

engaged in both compulsive consumption and self-harm. See [6-1] at 10-12; [5] at 109, 120, 121,

473, 479. To that end, ALJ Kane expressly addressed A.S.L.C.’s hospitalization for suicidal

threats and her reported historical self-harm, and found that her condition had stabilized through

ongoing therapy. Id. at 63-34. ALJ Kane relied on the psychiatric opinions of Dr. Deneen and

Dr. Snarr, who assessed A.S.L.C. as being able to care for herself, perform household tasks and

recreational activities, and as having unremarkable mental status examination findings. Id. at

413-15. Neither assessed her with any limitations in the category of self-care. Id. at 415, 552. He

also cited to teacher questionnaires indicating that A.S.L.C. was capable of regulating emotions,

controlling behavior, maintaining well-being by adapting to changes, maintaining personal

hygiene, and being aware of and able to avoid hazards. Id. at 61.

While there is also evidence that cuts in favor of plaintiff’s claim, there is ample

evidence supporting ALJ Kane’s determination, and the court is prohibited from reweighing the

evidence on appeal. See Krull v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016) (“Krull’s

disagreement is with the ALJ’s weighing of the evidence, but the deferential standard of review

prevents us from reweighing it”). In any event, there is no evidence in the record that A.S.L.C.’s

limitations in the functional domain of self-care were more than moderate. See [5] at 515 (Dr.

Goodfellow’s opinion). As such, there is no basis for remand. See Barry v. Colvin, 606 F. App’x

at 622; Zabala v. Astrue, 595 F.3d at 409.

D. The Appeals Council and later submitted evidence

The Appeals Council “will review a case at a party’s request or on its own motion

if . . . the Appeals Council receives additional evidence that is new, material, and relates to the

period on or before the date of the hearing decision, and there is a reasonable probability that the

additional evidence would change the outcome of the decision”. 20 C.F.R. §416.1570(a)(5).

“The concept of materiality requires . . . a reasonable possibility that the new evidence would

have influenced the [ALJ] to decide claimant’s application differently.” Pollard v. Halter, 377

F.3d 183, 193 (2d Cir. 2004); see Rutkowski v. Astrue, 368 F. App’x 226, 229 (2d Cir. 2010)

(Summary Order) (affirming the Appeals Council where the new evidence “d[id] not add so

much as to make the ALJ’s decision contrary to the weight of the evidence”).

Plaintiff argues that the Appeals Council improperly rejected new and material

evidence, specifically A.S.L.C.’s records from Genesee Behavioral Mental Health Center

regarding her treatment for anxiety. [6-1] at 7-8. As plaintiff suggests, those records tend to

indicate that A.S.L.C. had continued to seek mental health treatment after the issuance of Dr.

Snarr’s opinion, which could potentially undermine his conclusion that her anxiety disorder had

resolved. However, the Appeals Council found that the new evidence “does not show a

reasonable probability that it would change the outcome of the decision”. [5] at 2.

The operative question for the Appeals Council is whether the additional evidence

would likely change the outcome of the decision. See §416.1570(a)(5). For the reasons discussed

above, I agree that it does not. Even with the new evidence, there is no evidence in the record

that A.S.L.C.’s anxiety caused any more than moderate limitations. See [5] at 515. Thus, there is

no reason for remand. See Barry v. Colvin, 606 F. App’x at 622; Zabala v. Astrue, 595 F.3d at

409.

CONCLUSION

For these reasons, the Commissioner’s motion for judgment on the pleadings [7]

is granted, and plaintiff’s motion [6] is denied.

SO ORDERED.

Dated: September 29, 2025

/s/ Jeremiah J. McCarthy

JEREMIAH J. McCARTHY

United States Magistrate Judge