The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Candy Hickman on behalf of her daughter M.A.H., brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking review of the Commissioner of Social Security's decision to deny her application for supplemental security income ("SSI") on behalf of her daughter.
On November 10, 2004*fn2 , an application for SSI was protectively filed on behalf of M.A.H. (T. 14).*fn3 M.A.H. was 9 years old at the time of the application. (T. 59). Plaintiff claimed that M.A.H. was disabled due to a learning disorder and speech/language delays. (T. 59-61). On March 31, 2005, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on July 17, 2006. (T. 26, 182). On August 8, 2006, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 11-25). The Appeals Council denied plaintiff's request for review on September 27, 2007, making the ALJ's decision the final determination of the Commissioner. (T. 4). This action followed.
An individual under the age of eighteen is disabled, and thus eligible for SSI benefits, if he 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)(I). That definitional provision goes on to exclude from coverage any "individual under the age of 18 who engages in substantial gainful activity. . . ." 42 U.S.C. § 1382c(a)(3)(C)(ii). The agency has prescribed a three-step evaluative process to be employed in determining whether a child can meet the statutory definition of disability. 20 C.F.R. § 416.924; Kittles ex rel. Lawton v. Barnhart, 245 F.Supp.2d 479, 487-88 (E.D.N.Y. 2003); Ramos v. Barnhart, 2003 WL 21032012, at *7 (S.D.N.Y. 2003). The first step of the test, which bears some similarity to the familiar, five-step analysis employed in adult disability cases, requires a determination of whether the child has engaged in substantial gainful activity. 20 C.F.R. § 416.924(b); Kittles, 245 F. Supp.2d at 488. If so, then both statutorily and by regulation the child is ineligible for SSI benefits. 42 U.S.C. § 1382c(a)(3)(c)(ii); 20 C.F.R. § 416.924(b).
If the child has not engaged in substantial gainful activity, then the second step requires examination of whether the child suffers from one or more medically determinable impairments that, either singly or in combination, are severe -- that is, which causes more than a minimal functional limitation. 20 C.F.R. § 416.924(c); Kittles, 245 F. Supp.2d at 488; Ramos, 2003 WL 21032012, at *7. If the existence of a severe impairment is discerned, the agency must next determine whether it meets or equals a presumptively disabling condition identified in the listing of impairments set forth by regulation, 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listings"). Id.
Equivalence to a Listing can be either medical or functional. 20 C.F.R. § 416.924(d); Kittles, 245 F.Supp.2d at 488; Ramos, 2003 WL 21032012, at *7. If an impairment is found to meet, or qualify as medically or functionally equivalent to, a listed disability, and the twelve month durational requirement is satisfied, the child will be deemed disabled. 20 C.F.R. § 416.924(d)(1); Ramos, 2003 WL 21032012, at *8.
Under the Social Security Regulations (the "Regulations"), analysis of functionality is performed by consideration of how a claimant functions in six areas which are denominated as "domains," and described as "broad areas of functioning intended to capture all of what a child can or cannot do." 20 C.F.R. § 416.926a(b)(1); Ramos, 2003 WL 21032012, at *8. Those prescribed domains include:
(I) [a]cquiring and using information;
(ii) [a]ttending and completing tasks;
(iii) [i]nteracting and relating with others;
(iv) [m]oving about and manipulating objects;
(v) [c]aring for [oneself]; and
(vii) [h]ealth and physical well-being.
20 C.F.R. § 416.926a(b)(1). A finding of disability is warranted if a "marked" limitation, defined as when the impairment "interferes seriously with [the claimant's] ability to independently initiate, sustain, or complete activities," 20 C.F.R. § 416.926a(e)(2)(I), is found in two of the listed domains. 20 C.F.R. § 416.926a(a); Ramos, 2003 WL 21032012, at *8. Functional equivalence also exists in the event of a finding of an "extreme" limitation, meaning "more than marked," representing an impairment which "interferes very seriously with [the claimant's] ability to independently initiate, sustain, or complete activities," and this rating is only "give[n] to the worst limitations". 20 C.F.R. § 416.926a(e)(3)(I); see also Morgan v. Barnhart, 2005 WL 925594, at *11 (S.D.N.Y. 2005).
A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
Using the three-step disability evaluation, the ALJ found at step one that M.A.H. has never engaged in any substantial gainful activity. (T. 17). At step two, the ALJ concluded that M.A.H. has severe impairments consisting of a learning disorder and speech/language delays. (T. 17). At the third step of the analysis, the ALJ found that none of M.A.H.'s severe impairments meet, medically equal, or functionally equal any of the listed, presumptively disabling conditions set forth in Appendix 1 of the Regulations. (T. 18-19). The ALJ evaluated M.A.H.'s functional abilities in the six domains established by 20 C.F.R. § 416.926a(b)(1) and found that M.A.H.'s limitations were "less than marked" with respect to acquiring and using information. (T. 20). The ALJ found that M.A.H. had no limitation with regard to attending and completing tasks, interacting and relating with others, in her ability to move about and manipulate objects, her ability to care for herself, and no limitation in health and physical well-being. (T. 20-25).
Consequently, the ALJ concluded that M.A.H. was not disabled. (T. 25).
This matter was referred to United States Magistrate Judge Victor E. Bianchini for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(d). Magistrate Judge Bianchini reported that: (1) substantial evidence supported the ALJ's decision that M.A.H.'s impairments did not meet or medically equal §§ 112.05A or 112.05E of the Listings; (2) substantial evidence supported the ALJ's decision that M.A.H.'s impairments did not functionally equal a listed impairment; (3) substantial evidence supported the ALJ's decision that plaintiff's testimony was not entirely credible; and (4) new evidence submitted to the Appeals Council provided no basis for disturbing the ALJ's decision. (Dkt. No. 15). Magistrate Judge Bianchini recommended that this Court enter judgment on the pleadings affirming the Commissioner's decision denying disability and dismissing plaintiff's claims. (Dkt. No. 15).
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court engages in a de novo review of any part of a Magistrate's Report and Recommendation to which a party specifically objects. Failure to object timely to any portion of a Magistrate's Report and Recommendation operates as a waiver of further judicial review of those matters. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989). When a party reiterates her original arguments, the Court reviews the Report and Recommendation only for clear error. Barratt v. Joie, 2002 WL 335014, at *1 (S.D.N.Y. 2002).
Plaintiff objects to the Magistrate's Report and Recommendation on four grounds: (1) that the Magistrate Judge erroneously found that the Commissioner's conclusion that M.A.H. did not have an impairment that met the requirements of §§ 112.05A and 112.05E of the Listings was supported by substantial evidence; (2) that the Magistrate Judge erred in finding that the ALJ's conclusion that M.A.H.'s impairments were not functionally equivalent to a listing was supported by substantial evidence; (3) that the Magistrate Judge erred when he found no reversible error in the ALJ's evaluation of plaintiff's credibility; and (4) the Magistrate Judge erred when he found no error in the Appeals Council's decision not to remand the matter to the ALJ based upon new evidence.*fn4 (Dkt. No. 16).
By regulation, the Commissioner has set forth a series of listed impairments describing a variety of physical and mental conditions, indexed according to the body system affected. 20 C.F.R. Pt. 404, Subpt. P, App. 1; Lusher ex rel. Justice v. Comm'r of Soc. Sec., 2008 WL 2242652, at *6 (N.D.N.Y. 2008). For both adults and children, "if an applicant satisfied the Listings, the applicant was presumed to be disabled, and did not have to prove 'whether he [or she] actually can perform his [or her] own prior work or other work.' " Lusher, 2008 WL 2242652, at *6 (quoting Sullivan v. Zebley, 493 U.S. 521, 529-530 (1990)).
Plaintiff argues that M.A.H.'s impairments meet or equal the §§ 112.05A and 112.05E of the Listings. (Dkt. No. 16, p. 2). Accordingly, plaintiff claims that claimant is entitled to a legal presumption of disability. Defendant contends that claimant has never been classified as mentally retarded and there ...