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Reid v. Astrue

June 23, 2010




On August 2, 2005, Plaintiff Sharon Reid ("Plaintiff"), filed an application on behalf of her then-minor son, M.H. ("Claimant"), for Supplemental Security Income Benefits ("SSI") under the Social Security Act ("the Act"), as amended by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.104-193. In that application, Plaintiff asserts that her son has been disabled since July 30, 1996. The Commissioner of Social Security denied Claimant benefits for lack of disability.

Plaintiff commenced this action on May 31, 2007. Dkt. No. 1. Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff seeks judicial review of the Commissioner's denial of her application for SSI benefits. For the reasons that follow, this case is remanded to the Commissioner for further proceedings.


Claimant was born October 13, 1988.His past history indicates that he was neglected and possibly sexually abused; witnessed domestic violence including the abuse of his mother and the stabbing of his father; he may have been sexually abused himself. R. 121; 194-99, 209-11.*fn1 His mother has struggled with substance abuse, and his father was incarcerated when Claimant was three. R. 94. Claimant has lived for periods with his grandmother and legal guardian, Christine Reid, with his aunt; and in group homes. R. 28-29, 52, 72. He has attended Governor Clinton Elementary School, PS 26 and Albany High School in the Albany City School District, Middletown Senior High School, and Poughkeepsie High School special education programs, and he goes weekly to the Astor Child Clinic for counseling and therapy. R. 48, 65, 142-143.

In addition to the counseling he received at the Astor Clinic and prior to his latest SSI benefit application, Claimant was evaluated by numerous school psychologists and psychiatrist, underwent multiple rounds of IQ testing, and received Individualized Education Program ("IEP") reviews. R. 216-18; 212-15; 150-53; 263-64; 219-20;142-47; 170-86; 239-45. In the course of his application, Claimant was further evaluated by a State agency psychiatrist and consultative psychologist. R. 84-93; 228-36.

The relevant procedural history may be summarized as follows: Plaintiff filed an application on behalf of Claimant for SSI on August 2, 2005,*fn2 alleging a disability beginning July 30, 1996 and September 1, 1995. Administrative Transcript (Dkt. No. 7) ("R.") at 41, 50-53, 64. The application describes Claimant as speech impaired and learning disabled. R. 64. On September 26, 2005, the Social Security Administration denied Claimant's claim for SSI benefits after finding that he was not disabled under the rules. R. at 32-35. On November 9, 2005, Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ") on Claimant's behalf; that hearing occurred August 22, 2006, before ALJ Michael Friedman. See R. 11; 30-32; 265-89. Claimant appeared along with his mother and attorney, Christopher Dempf, Esq. Both Claimant and his mother testified at the hearing.

R. at 265-89. On September 28, 2006, ALJ Friedman issued a decision denying Plaintiff's application.

R. at 8-10. Plaintiff filed a timely request for review by the Appeals Council. R. at 7. The ALJ's decision became the Commissioner's final decision on April 5, 2007, when the Appeals Council denied Plaintiff's request for review. R. at 4-6.

Plaintiff, through counsel, commenced this action on May 31, 2007. Compl. (Dkt. No. 1). The Commissioner filed an Answer on October 9, 2007. Dkt. No. 9. Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). See Pl.'s Brief (Dkt. No. 15); Def.'s Brief (Dkt. No. 16).


A. Review of Commissioner's Final Determination

District courts have jurisdiction to review claims contesting a final decision by the Commission of Social Security denying disability benefits. 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). In reviewing any such claim, a district court may not determine de novo whether an individual is disabled.

42 U.S.C. § 405(g); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, it must defer to the Commissioner's determination unless the correct legal standards were not applied or that determination is not supported by substantial evidence in the record. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

"Substantial evidence" requires more than a mere scintilla of evidence, yet less than a preponderance. Sanchez v. NLRB, 785 F.2d 409 (2d Cir. 1986). It has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Where evidence is susceptible to more than one rational interpretation, a court may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984) (citation omitted); Barnett v. Apfel, 12 F. Supp. 2d 312, 314 (N.D.N.Y. 1998).

A district court has the authority to affirm, reverse, or modify a final decision of the Commissioner with or without remand. 42 U.S.C. § 405(g). Granting judgment on the pleadings is appropriate where the material facts are undisputed and where a court may make a judgment on the merits with reference only to the contents of the pleadings. Fed. R. Civ. P. 12(c); Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir. 1988). Remand is warranted where there are gaps in the record and further development of the evidence is needed, or where the ALJ has applied an improper legal standard. See Butts, 388 F.3d at 385; Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). Remand is most appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (citation omitted). By contrast, reversal and remand solely for calculation of benefits is appropriate when there is "persuasive proof of disability" and further development of the record would not serve any purpose. Rosa, 168 F.3d at 83; Parker, 626 F.2d at 235; Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 644 (2d Cir. 1983).

C. Review of Disabled Child's Supplemental Security Income Benefit Determination

To qualify for SSI benefits, an individual must demonstrate that he or she is "disabled" as defined under the Act. "An individual under the age of 18 shall be considered disabled . . . if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. §§ 405(a), 1383(d)(1)), the Social Security Administration promulgated regulations establishing a three-step sequential analysis to determine whether an individual under the age of eighteen is eligible for SSI benefits on the basis of a disability. 20 C.F.R. § 416.924(a). First, the ALJ considers whether the child is engaged in "substantial gainful activity." Id. at § 416.924(b). Second, the ALJ considers whether the child has a "medically determinable impairment that is severe," which is defined as an impairment that causes "more than minimal functional limitations." Id. at § 416.924(c). Finally, if the ALJ finds a severe impairment, he or she must then consider whether the impairment meets, medically equals, or functionally equals a disability listed in the regulatory "Listing of Impairments" ("Listings"). Id. at § 416.924(d). If an impairment is found to meet, or qualify as the medical or functional equivalent to a listed disability and the twelve-month durational requirement is satisfied, the claimant will be deemed disabled. 20 C.F.R. § 416.924(d)(1).


In reaching his ultimate conclusion that Claimant was not disabled, ALJ Friedman made the following findings: 1) Claimant had not engaged in substantial gainful activity during the relevant period; 2) Claimant suffers from affective disorder and a learning disorder and that these constitute severe impairments; 3) Claimant does not have an impairment or combination of impairments that meets or medically equals one of the listings including the listings for mental disorders; and 4) Claimant does not have an impairment or combination of impairments that functionally equals the listings. R. 13-21. Plaintiff objects to the third and fourth findings above, contending that the ALJ did not properly consider and evaluate Claimant's mental and emotional limitations, nor adequately set forth in the record the bases of his conclusions. Pl.'s Brief at 12-16. Plaintiff further claims that the ALJ failed to give proper weight to Claimant's treating sources. 17-20.

A. Gainful Activity

Step one of the three-step analysis for determining a child's eligibility for SSI benefits requires an ALJ to consider whether the claimant is engaged in substantial gainful activity, i.e. physical or mental work activity done for pay or profit. 20 C.F.R. § 416.924(b); 20 C.F.R. § 416.972. The ALJ found that Claimant is not engaged in substantial gainful activity, see R. 14, a conclusion not in dispute.

B. Severe Impairment

At the second stage, the ALJ must determine whether a claimant has a medically determinable "severe" impairment or combination of impairments that is "severe." 20 C.F.R. § 416.924(c). The ALJ found that Claimant's affective disorder and learning disorder were severe. R. 14. These findings, also undisputed, are supported by substantial evidence. See, e.g., R. 84; 230.

C. The ALJ's Evaluation of the Medical Opinions of Record are not Supported by Substantial Evidence

In reaching his conclusions regarding whether Claimant's impairment or combination of impairments meet, medically equal, and particularly, functionally equal the Listings, the ALJ did not give any source controlling weight, but he gave great weight to the opinion of Dr. Dambrocia, the examining psychiatrist in the record. R. 16. He did not afford the same weight to the opinion of the consultative psychologist, Dr. Thibodeau. R. 16. The ALJ explained that the latter opinion did not deserve great weight because the intelligence testing Dr. Thibodeau's conducted showed an IQ significantly lower than that found in prior testing. Additionally, Dr. Thibodeau's opinions were deemed inconsistent with those of other medical sources which were based on more fully developed records of Claimant's functioning. R. 16.

I. The ALJ was warranted in not affording controlling weight to any source Plaintiff objects to the ALJ's failure to give great or controlling weight to Claimant's treating sources, including his Special Education Teacher, Psychologists, Psychiatrists, and Dr. Thibodeau. Pl.'s Brief at 17-20. Plaintiff's argument misconstrues the scope of the "treating physician's rule."*fn3

An ALJ must give controlling weight to a treating physician's opinion when it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). Where a treating physician's opinion is deemed undeserving of controlling weight, an ALJ may nonetheless give it "extra weight" under certain circumstances. 20 C.F.R. § 404.1527(d). When determining the proper weight to afford the treating physician's opinion if it is not entitled to controlling weigh,t an ALJ should consider the: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency of opinion with the record as whole, (5) specialization of the treating physician, and (6) other factors brought to the attention of the court. C.F.R. § 404.1527(d)(1)-(6); see also de Roman v. Barnhart, No.03-Civ.0075, 2003 WL 21511160, at *9 (S.D.N.Y. July 2, 2003); Shaw, 221 F.3d at 134; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998).

To the extent that Plaintiff seeks to apply the treating physician's rule to the opinions of Claimant's Teacher, that rule is inapplicable.*fn4 See 20 C.F.R. § 404.1527(a)(2); SSR 06-03p, 2006 WL 2329939, at *2 (Educational personnel, such as school teachers are not "acceptable medical sources," and only "acceptable medical sources" can give medical opinions and be considered treating sources entitled to controlling weight.). Similarly, Plaintiff appears to assert through a title-heading of her brief, not otherwise elaborated upon, that the opinions of Claimant's psychologists and psychiatrists should be given controlling weight. Pl.'s Brief at 17. The Court assumes that Plaintiff is here referring primarily to the opinions of Doctors DeLisle, Donohue, and Jolley, as well as older opinions provided by Dr. Lanzafame of the Astor Child Clinic (R. 194-99), Dr. Capozzolla, a school psychologist at the Albany City School District (R. 216-18), and Dr. Giannascoli, a school psychologist at the Poughkeepsie School District (R. 212-15). Given the limited and relatively brief evaluations conducted by the current sources and the non-current nature of the remaining sources, the ALJ's decision not to afford their opinions controlling weight is appropriate. See 20 C.F.R. § 404.1527(d).

Dr. Thibodeau's opinion is also undeserving of controlling weight under the treating physician's rule. First, Dr. Thibodeau is not the treating physician, but rather, a consulting examiner and program psychologist. His opinion is thus not entitled to any special consideration; it should, of course, be considered as opinion evidence except insofar as it proposes an ultimate determination as to whether Claimant is disabled. 20 C.F.R. §§ 416.927(e), (f)(2); 416.912(b)(6).

Finally, to the extent that Plaintiff seeks, through asserting the treating physician's rule, to preclude the ALJ's consideration of Dr. Dambrocia's opinion, her argument is flawed. As noted, the ALJ properly denied affording controlling weight to any source. It is well settled that an ALJ is entitled to rely upon the opinions of State agency medical consultants such as Dr. Dambrocia, as these consultants are deemed qualified experts in the field of social security disability. See 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c), 404.1527(f)(2), 416.912(b)(6), 416.913(c), and 416.927(f)(2); see also Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995) (citing Shisler v. Sullivan, 3 F.3d 563, 567-68 (2d Cir. 1993).

ii. The ALJ's Decision to Reject Plaintiff's Lowest IQ Score was Reasonable

Plaintiff argues that, even if not given controlling weight, the ALJ accorded Dr. Thibodeau's opinion too little weight. Pl.'s Brief at 17-20. The Commissioner defends the ALJ's weighting, contending that Dr. Thibodeau's opinions are not supported by the record. Def.'s Br. at 17-20; see also 20 C.F.R. § 404.1527(f)(2)(ii).

Dr. Thibodeau's evaluation of Claimant included an IQ test in which Claimant achieved a full scale of 70, placing him in the range of borderline intellectual functioning and borderline mental retardation. R. 235. Plaintiff asserts that this scoring should form the basis of the ALJ's assessment. However, Dr. Thibodeau himself qualifies this scoring noting that "[i]t might be a slight underestimate due to [Claimant's] lack of cooperation." Moreover, in prior testing, Claimant achieved a full score of 80 on the WISC-IV and 81 on the TONI-III. R. 241; 153. Earlier testing revealed Claimant to have a full scale of 90 on the WISC-III (December 1998) and 86 on the WISC-III (January 1995). R. 150; 217-18. Psychologists evaluating these lower scores generally placed Claimant in the low average range. R. 153.

This Court has previously noted that IQ scores themselves should not be deemed opinion evidence as defined in 20 C.F.R. 404.1527(a)(2), but rather constitute laboratory findings pursuant to 20 C.F.R. § 404.1528. Miller v. Astrue, 3:07-CV-1093, 2009 WL 2568571, at *6 (N.D.N.Y. Aug. 19, 2009). Additionally, courts generally accept that an ALJ may reject an IQ score as invalid when it is inconsistent with the record. See, e.g., Miller, 2009 WL 2568571, at *7 (citing cases); Vasquez-Ortiz v. Apfel, 48 F. Supp. 2d 250, 257 (W.D.N.Y. 1999). As the above discrepancies indicate, the IQ test conducted by Dr. Thibodeau, as well as the conclusions he drew therefrom, are inconsistent with other evidence in the record. Hence, the ALJ's basis for rejecting the lower score has substantial support.

iii. Dr. Thibodeau's Opinion is not Inconsistent with Other Medical Evidence in the Record

The ALJ found that Dr. Thibodeau's opinion was inconsistent with those of other psychiatrists, which were based on more information as to Claimant's functioning; he, accordingly, did not give Thibodeau's opinion great weight. R. 16.

As an initial matter, the Court notes that an ALJ "must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant." 20 CFR 404.1527(f)(2)(ii).

Here, the ALJ failed to do so. While explicitly affording Dr. Dambrocia's opinion "great weight," the ALJ leaves uncertain the weight given to Dr. Thibodeau's opinion, stating only that it "has not been given great weight." R. 16. Thus, it is unclear ...

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