The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHAKARLA M., O/B/O C.W.,
Plaintiff, 6:22-CV-6081Sr
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
DECISION AND ORDER
As set forth In the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all proceedings
in this case, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g).
Dkt. #13.
BACKGROUND
Plaintiff applied for supplemental security income (“SSI”), with the Social
Security Administration (“SSA”), on February 7, 2019, alleging disability on behalf of her
child, age 7, due to attention deficit hyperactivity disorder (“ADHD”). Dkt. #7, p.70.
On June 2, 2020, plaintiff and the child appeared with counsel and
testified at an administrative hearing conducted by telephone before Administrative Law
Judge (“ALJ”), Michael W. Devlin. Dkt. #7, pp.44-58. At the outset of the hearing,
counsel advised the ALJ that he was “waiting on records from Exploration Elementary
Charter School for Science and Technology.” Dkt. #7, p.47. The ALJ advised that he
would keep the record open for three weeks and assured plaintiff that counsel would be
in touch if the records did not arrive as expected. Dkt. #7, pp.56-57.
Plaintiff testified that her son, age 8, was diagnosed with ADHD in
November of 2019. Dkt. #7, p.48. He was prescribed two doses of medication daily,
which helps him to be a little bit more focused, but he is still very talkative and “all over
the place.” Dkt. #7, p.49. He has an an Individualized Education Plan for his behavior
because he is behind in reading and math. Dkt. #7, p.49. His grades had improved, but
had dropped again since the beginning of the pandemic. Dkt. #7, p.51. He requires
multiple reminders to complete his homework because he gets distracted very easily.
Dkt. #7, p.52. He is unable to complete his chores on his own. Dkt. #7, p.53. He gets
along well with his friends although he sometimes encroaches into their personal space.
Dkt. #7, p.55.
The ALJ rendered a decision that plaintiff was not disabled on October 2,
2020. Dkt. #6, pp.24-30. The Appeals Council denied review on January 5, 2022. Dkt.
#7, p.5. Plaintiff commenced this action seeking review of the Commissioner’s final
decision on February 16, 2022. Dkt. #1.
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DISCUSSION AND ANALYSIS
“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.” Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012). Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 496, 501 (2d Cir. 2009). If the evidence is susceptible to more than one
rational interpretation, the Commissioner’s determination must be upheld. McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014). So long as “substantial evidence supports the
ALJ’s decision, a court will not remand simply because the evidence also supports an
alternate conclusion.” Keough o/b/o Jamt v. Comm’r of Soc. Sec., 18-CV-1065, 2020
WL 4504988, at *3 (W.D.N.Y. Aug. 5, 2020), quoting Cartagena v. Comm’r of Soc.
Sec., 18-CV-245, 2019 WL 4750425, at *4 (W.D.N.Y. Sept. 27, 2019).
An individual under the age of 18 will be considered disabled under the
Social Security Act (“Act”), if he or she has a medically determinable physical or mental
impairment that results in marked and severe functional limitations and 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 twelve months. 42 U.S.C. § 1382c(a)(3)(C)(i). The
Commissioner must follow a three-step sequential evaluation to determine whether a
child is disabled within the meaning of the Act. 20 C.F.R. § 416.924. At step one, the
ALJ determines whether the child is engaging in substantial gainful activity. 20 C.F.R.
§ 416.924(a) & (b). If not, the ALJ proceeds to step two and determines whether the
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child has an impairment or combination of impairments that is severe, i.e., causes more
than minimal functional limitations. 20 C.F.R. § 416.924(c). If the ALJ finds a severe
impairment or combination of impairments, the ALJ proceeds to step three and
examines whether the child’s impairment or combination of impairments meets,
medically equals, or functionally equals the criteria of a listed impairment as set forth in
Appendix 1 of Subpart P of Regulation No. 4 (the “Listings”). 20 C.F.R. § 416.924(d).
To evaluate functional equivalence, the ALJ considers how the child
functions in the following 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 self; and (6) health and physical well-being. 20
C.F.R. § 416.926a(b)(1)(i)-(vi). To functionally equal the Listings, the child’s
impairment(s) must cause marked limitations in two domains or an extreme limitation in
one domain. 20 C.F.R. § 416.926a(a). A child has a marked limitation when the
impairment or combination of impairments interferes seriously with the child’s ability to
independently initiate, sustain or complete activities. 20 C.F.R. § 416.926(e)(2)(i). A
child has an extreme limitation when the impairment or combination of impairments
interferes very seriously with the child’s ability to independently initiate, sustain or
complete activities. 20 C.F.R. § 416.926(e)(3)(i).
In the instant case, the ALJ made the following findings with regard to the
three-step sequential evaluation: (1) the child had not engaged in substantial gainful
activity since the application date of February 7, 2019; (2) the child’s ADHD constitutes
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a severe impairment; and (3) the child’s impairment did not meet or medically or
functionally equal any listed impairment, and the child was not, therefore, disabled
within the meaning of the SSA. Dkt. #7, pp.28-39. More specifically, the ALJ determined
that the child exhibited: (1) less than marked limitation in acquiring and using
information; (2) less than marked limitation in attending and completing tasks; (3)
marked limitation in interacting and relating with others; (4) less than marked limitation
in moving about and manipulating objects; (5) no limitation in ability to care for self; and
(6) no limitation in health and physical well-being. Dkt.#7, pp.34-38.
Plaintiff argues that the Appeals Council failed to review a Teacher
Questionnaire dated October 20, 2020. Dkt. #8-1, pp.7-10. As a result of the omission
of this document from the administrative record and absent any other educational
record or persuasive opinion evidence from a consultative examination, plaintiff argues
that the ALJ relied upon an incomplete record and lacked sufficient evidence to assess
the child’s functional capacity. Dkt. #8-1, pp.11-14.
The Commissioner argues that the ALJ discharged his duty to develop the
record by holding the record open and relying upon counsel to obtain outstanding
records. Dkt. #9-1, pp.6-7. The Commissioner also argues that plaintiff has failed to
demonstrate that such records would have supported the child’s claim of disability. Dkt.
#9-1, p.8. The Commissioner argues that the record of evidence was sufficient to
adjudicate plaintiff’s claim and that the the ALJ’s decision is supported by substantial
evidence. Dkt. #9-1, pp.8-12. The Commissioner argues that the Teacher
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Questionnaire does not support a determination that the child exhibited a marked or
extreme limitation in any domain. Dkt. #9-1, pp.13-17.
Sufficiency of the Record
Because “Social Security proceedings are inquisitorial rather than
adversarial,” the ALJ has an affirmative duty to investigate the facts and develop the
record regardless of whether the claimant is represented by counsel. DeGraff v.
Comm’r of Soc. Sec., 850 Fed. App’x 130, 131 (2d Cir. 2021), quoting Sims v. Apfel,
530 U.S. 103, 110-22 (2000). This obligation encompasses not only the duty to obtain
medical records and reports, but also the duty to question the claimant adequately
about any subjective complaints and the impact of the claimant’s impairments on the
claimant’s functional capacity. Shannon H. v. Comm’r of Soc. Sec., 20-CV-1631, 2022
WL 1793198, at *4 (W.D.N.Y. June 2, 2022). However, the ALJ’s duty to develop the
record is triggered only if the evidence before the ALJ is inadequate to determine
whether the claimant is disabled. Id. at *5. The ALJ is not obligated to seek additional
medical records where the administrative record is sufficient for the ALJ to render a
disability determination. Johnson v. Comm’r of Soc. Sec., 16-CV-631, 2018 WL
1428251, at *5 (W.D.N.Y. Mar. 22, 2018).
Where the claimant is represented by counsel, the ALJ may satisfy the
duty to develop the record by relying on counsel to obtain additional documentation.
Ballantyne T. v. Comm’r of Soc. Sec., 23-CV-11182, 2025 WL 551820, at *8 (S.D.N.Y.
Feb. 19, 2025) (collecting cases). Where the ALJ holds the record open for counsel to
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obtain additional records, but the claimant fails to provide supplemental evidence or
seek additional assistance in obtaining such evidence, the ALJ has met his obligations
to develop the administrative record. Joseph B. v. Comm’r of Soc. Sec., 23-CV-652,
2024 WL 4217371, at *6 (N.D.N.Y. Aug. 29, 2024) (collecting cases). “Ultimately, it is
the claimant’s duty and burden to prove that they are disabled in the period for which
benefits are sought.” Ballantyne T. v., 2025 WL 551820, at *8; See also Linda P. v.
Comm’r of Soc. Sec., 21-CV-625, 2024 WL 1257410, at *10 (W.D.N.Y. Mar. 25, 2024)
(recognizing that counsel “has an affirmative duty to provide competent assistance to
the claimant, including acting with reasonable promptness to help obtain information or
evidence that the claimant must submit.”) (citing SSR 17-4p, 2017 WL 4736984).
The Court is satisfied that the ALJ discharged his duty to develop the
record by relying upon counsel to obtain outstanding records. The Court has no doubt
that plaintiff’s experienced and reputable counsel would have requested additional time
or assistance from the ALJ to obtain the child’s school records if such records would
have supported the child’s claim of disability and notes that counsel did, in fact,
eventually submit a Teacher Questionnaire for consideration. Although that evidence
was submitted subsequent to the ALJ’s decision, the Court finds the record of evidence
before the ALJ sufficient to support the ALJ’s determination that the child was not
disabled.
The child’s school noted in its 2018-2019 Section 504 Accommodation
Plan,dated February 5, 2019, that the child fidgets, causing distraction to peers, and
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“often gets explosive by screaming, stomping his feet, or elopement/pacing if he is off-
task[], called out, or feels shamed by his actions that are outside of classroom
expectations.” Dkt. #7, p.198. The Section 504 Accommodation Plan provided the child
with preferential seating, a smile chart, and positive reinforcement, as well as the option
to use a privacy board and fidget device, access a cool down area and to participate in
a weekly boys support group and crisis counseling as needed. Dkt. #7, pp.198-199.
The child was also observed by his pediatrician to be hyperactive, fidgety,
talkative, attention seeking and impulsive. Dkt. #7, pp.295 & 301. However, the child
was reported to be “doing much better” on medication. Dkt. #7, pp.295, 301, 305. The
child’s parent reported that the child was “doing well” and that “the medication is well
tolerated and effective” as of April 10, 2019. Dkt. #7, p.307. In a function report
completed May 7, 2019, the parent reported that the child “[u]sed to have difficulty with
teacher and focusing in school until he got the medication.” Dtk. #7, p.182.
Upon consultative psychiatric examination by Stephen Farmer, Psy.D., on
June 11, 2019, the child’s parent reported that the child was in regular education and
that the child’s academic performance was “pretty good.” Dkt. #7, p.265. The child’s
parent also reported good relationships with parents and other adults and authority
figures, as well as with peers. Dkt. #7, p.265. The child’s parent reported that the child
often fidgets or squirms and has difficulty sustaining attention in tasks or play, but that
the ADHD medication worked very well in mitigating the child’s ADHD symptoms. Dkt.
#7, p.265.
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Dr. Farmer observed the child to be friendly and cooperative with an age
appropriate manner of relating and social skills. Dkt. #7, p.266. The child’s attention and
concentration was observed to be intact and age appropriate; the child was able to
perform simple counting and calculations as well as all serial threes from 20. Dkt. #7,
p.266. The child demonstrated intact and age appropriate recent and remote memory
skills, recalling 3/3 objects immediately and 2/3 after a delay, as well as recall of 6 digits
forward and 3 digits backward. Dkt. #7, p.266. The child’s insight and judgment was
observed to be age appropriate and the child’s activities of daily living were reported to
be age appropriate. Dkt. #7, p.266.
Dr. Farmer recommended that the child continue with ADHD medication
for continued stabilizationof ADHD symptoms but reported
No evidence of limitation for all medical source statements.
Results of the examination do not appear to be consistent
with any psychiatric, substance abuse, or cognitive problems
that would significantly interfere with the claimant’s ability to
function on a daily basis.
Dkt. #7, p.267. The ALJ did not find Dr. Farmer’s opinion persuasive because his
assessment that the child did not have a severe mental impairment was inconsistent
with a diagnosis of ADHD and reports of fidgeting and behavior problems. Dkt. #7, p.34.
Upon State Agency Review, K. Prowda, M.D., opined that the child’s
ADHD is severe, but did not meet, medically equal or functionally equal the listings. Dkt.
#7, p.64. More specifically, Dr. Prowda opined that the child demonstrated a marked
limitation in interacting and relating with others; less than marked limitations in the
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domains of acquiring and using information, attending and completing tasks, and
moving about and manipulating objects and no limitation in the domains of caring for
one self and health and physical well-being. Dkt. #7, pp.63-64. Upon reconsideration,
O. Fassler, Ph.D., concurred with Dr. Prowda’s opinion. Dkt. #7, pp. 76-77. The ALJ
found these opinions persuasive because they were consistent with the evidence of
record. Dkt. #7, p.34.
The child’s parent continued to report to the pediatrician that she had “no
concerns” and that the child was “doing well” and was “more focused on the meds at
school and home” on August 15, 2019. Dkt. #7, p.310. The pediatrician opined that the
child’s symptoms were well controlled and that the child was “in remission” on
medication. Dkt. #7, p.477. On November 13, 2019, the child’s parent reported that the
Committee on Special Education reported that the child was “doing better than last
year.” Dkt. #7, p.491.
The record set forth above is sufficient to support the ALJ’s assessment of
the child’s functioning across the relevant domains and provide substantial evidence for
the ALJ’s determination that the child was not disabled due to learning and/or
behavioral issues.
Teacher Questionnaire
Social Security regulations allow a claimant to submit additional evidence
to the Appeals Council in support of a Request for Review, and the Appeals Council
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must accept the evidence as long as it is new, material, and relates to the period on or
before the date of the ALJ’s decision. Scott v. Comm’r of Soc. Sec., 23-CV-243, 2025
WL 1713260, at *4 (W.D.N.Y. June 18, 2025). To be considered “new,” the proffered
evidence cannot be cumulative of what is already in the record. Id. “Evidence is material
if it is relevant to the claimant’s condition during the time period for which benefits were
denied and there is a reasonable probability that it would have influenced the
Commissioner to decide the claimant’s application differently.” Id. (internal quotation
omitted). Thus, “the question for the Court is whether substantial evidence supports the
ALJ’s decision, even considering the additional evidence.” Elaine C. v. Comm’r of Soc.
Sec., 2023 WL 7280720, at *10 (S.D.N.Y. Nov. 3, 2023). Stated another way, the
relevant question is whether the ALJ’s decision is contrary to the weight of the evidence
when the new evidence is included in the record. Rutkowski v. Astrue, 368 Fed. App’x
226, 229 (2d Cir. 2010).
Paula Incardona, the child’s classroom teacher for the year, completed the
Teacher Questionnaire on October 20, 2020. Dtk. #8-2. The teacher reported that the
child was below current instructional levels for reading, math and written language. Dkt.
#8-2, p.3. When provided with a check box form to assess whether the child
demonstrated no problem, a slight problem, an obvious problem, a serious problem, or
a very serious problem with respect to various tasks as compared to the functioning of a
child of similar age without impairments, the teacher reported no more than an obvious
problem with respect to the child’s ability to:
• understand and participate in class discussions;
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• provide organized oral explanations and adequate
descriptions; and
• express ideas in written form,
with no more than a slight problem:
• comprehending oral instructions;
• understanding school and content vocabulary;
• reading and comprehending written material;
• comprehending and doing math problems;
• learning new material;
• recalling and applying previously learned material; and
• applying problem-solving skills in class discussions.
Dkt. #7, p.4. In the domain of attending and completing tasks, the teacher reported an
obvious, daily problem:
• paying attention when spoken to directly;
• focusing long enough to fininsh assigned activity or task;
• refocusing to task when necessary;
• carrying out multi-step instructions;
• organizing own things or school materials;
• completing class/homework assignments;
• completing work accurately without careless mistakes;
• working without distracting self or others;
• working at reasonable pace/finishing on time,
with no more than a slight problem:
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• carrying out single step instructions; and
• changing from one activity to another without being
disruptive.
Dkt. #8-2, p.5. The teacher reported no problems in the domain of interacting and
relating with others. Dkt. #8-2, p.6. In the domain of moving about and manipulating
objects, the teacher noted that the child needed reminders about his personal space as
well as his peers’ personal space, and reminders to use calming strategies, but
otherwise reported no more than a slight problem for relevant tasks in this domain. Dkt.
#8-2, p.7. In the domain of caring for one self, the teacher noted that the child
does a good job with caring for himself. He remembers to take his
medication. He is attentive to his daily needs. He often needs
reminders when there are several tasks to complete at once.
Dkt. #8-2, p.8. The teacher otherwise reported no more than a slight problem for
relevant tasks in this domain. Dkt. #8-2, p.9. Overall, the teacher noted that the child is
more alert and more able to focus on completing tasks on his medication. Dkt. #8-2,
p.9.
While it is unclear whether the Appeals Council actually even received the
completed Teacher Questionnaire,1 or if it did, why the Teacher Questionnaire was not
considered by the Appeals Council, the Court is confident that consideration of the
Teacher Questionnaire does not alter the outcome of this application because it does
1 The Administrative Record contains a fax cover sheet dated October 20, 2020 from
plaintiff’s counsel referencing a Teacher Questionnaire from Exploration Elementary Charter
School for Science, and the Administrative Record catalogs the Teacher Questionnaire as
Medical Evidence of Record, but the Teacher Questionnaire within the Administrative Record is
blank. Dkt. #7, pp.16-24.
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not suggest that the child had greater limitations than determined by the ALJ. See
Taneisha R. v. Comm’r of Soc. Sec., 23-CV-98, 2024 WL 1151764, at *5 (W.D.N.Y.
March 18, 2024) (collecting cases rejecting argument that assessment of “a serious
problem” is inconsistent with a “less than marked” determination by the ALJ). To the
contrary, the Teacher Questionnaire undermines the ALJ’s determination that the child
had a marked limitation in the domain of interacting and relating to others by opining
that the child had no problems in this domain. Dkt. #8-2, p.6. Because the Teacher
Questionnaire does not support greater limitations than were assessed by the ALJ in
any of the functional equivalence domains, any error that could be attributed to the
Commissioner with respect to its failure to consider this evidence is harmless.
CONCLUSION
Based on the foregoing, plaintiff’s motion for judgment on the pleadings (Dkt.
#8), is denied and the Commissioner’s motion for judgment on the pleadings (Dkt. #9),
is granted.
The Clerk of the Court is directed to close this case.
SO ORDERED.
DATED: Buffalo, New York
September 30, 2025
S/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge