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Shavonne Lowry, On Behalf of v. Michael J. Astrue

March 30, 2011

SHAVONNE LOWRY, ON BEHALF OF J.B., SOC. SEC.
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

#XXX-XX-0475

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this action filed by Shavonne Lowry on behalf of J.B. ("Plaintiff" or "Claimant") against Social Security Commissioner Michael J. Astrue ("Defendant") pursuant to 42 U.S.C. § 405(g) seeking Social Security benefits, are the following: (1) Plaintiff's motion for judgment on the pleadings (Dkt. No. 13); (2) Defendant's motion for judgment on the pleadings (Dkt. No. 14); (3) the Report-Recommendation of United States Magistrate Judge Victor E. Bianchini, issued pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) of the Local Rules of Practice for this Court, recommending that (a) Plaintiff's motion for judgment on the pleadings be denied, (b) Defendant's motion for judgment on the pleadings be granted, (c) Defendant's decision denying Social Security benefits to Plaintiff be affirmed, and (d) Plaintiff's Complaint be dismissed (Dkt. No. 16); and (4) Plaintiff's Objections to the Report-Recommendation. (Dkt. No. 17.) For the reasons set forth below, Plaintiff's Objections are rejected; Magistrate Judge Bianchini's Report-Recommendation is accepted and adopted in its entirety; Plaintiff's motion for judgment on the pleadings is denied; Defendant's motion for judgment on the pleadings is granted; Defendant's decision denying Social Security benefits to Plaintiff is affirmed; and Plaintiff's Complaint is dismissed.

I. RELEVANT BACKGROUND

A. Procedural History

Because neither party has objected to the to Part II of Magistrate Judge Bianchini's Report-Recommendation, setting forth the procedural background of this action, the Court adopts that description of this action's procedural background. (See generally Dkt. No. 16, Part II [Report-Rec].)

On June 30, 2006, Plaintiff applied for supplemental security income ("SSI") on J.B.'s behalf based on J.B.'s asthma condition. (See Administrative Transcript ["T."] at 25, 34.)*fn1 On October 17, 2006, her application was denied by the Social Security Administration. (T. at 32.) On October 7, 2008, a hearing was held before an Administrative Law Judge ("ALJ") of the Social Security Administration. (T. at 267.)

In his decision, the ALJ applied the three-step evaluation process for determining whether a child can meet the statutory definition of disability. "The first step of the test requires a determination of whether the child has engaged in substantial gainful activity." Rossi v. Commissioner of Social Sec., 10-CV-0097, 2010 WL 5313771, at *3 (N.D.N.Y. Dec. 2, 2010) (Baxter, M.J.) (citing 20 C .F.R. § 416.924[b]; Kittles ex rel. Lawton v. Barnhart, 245 F. Supp.2d 479, 487-88 [E.D.N.Y. 2003]). "If so, then by statute and by regulation, the child is ineligible for SSI benefits." Rossi, 2010 WL 5313771, at *3 (citing 42 U.S.C. § 1382c[a][3][C][ii]; 20 C.F.R. § 416.924[b]). "If the claimant has not engaged in substantial gainful activity, the second step of the test requires examination of whether the child suffers from one or more medically determinable impairments that, either alone or in combination, are properly regarded as 'severe,' in that they cause more than a minimal functional limitation." Id. "If the child if found to have a severe impairment, the Commissioner must then determine, at the third step, whether the impairment meets or equals a presumptively disabling condition identified in the listing of impairments set forth in 20 C.F.R. Pt. 404, Subpt. P., App. 1." Id.*fn2

After applying the above-described three-step evaluation process, the ALJ concluded that J.B. was not disabled. (T. at 16.) More specifically, in reaching this conclusion, the ALJ made the following findings: (1) J.B. was an "older infant" pursuant to 20 C.F.R. § 416.926a(g)(2) on June 30, 2006 (the date the application for benefits was filed), and January 12, 2009 (the date of the ALJ's decision); (2) J.B. had not engaged in substantial gainful activity at any time; (3) J.B. suffers from asthma, a severe impairment pursuant to 20 C.F.R. § 416.924 (c); (4) J.B. did not have an impairment or combination of impairments which met the listed impairment for asthma set forth in 20 C.F.R. Part 404, Subpart P, Appendix I (the "Listings"); (5) J.B. did not have an impairment or combination of impairments that functionally equaled an impairment set forth in the Listings; (6) while J.B.'s medically determinable impairment could reasonably be expected to produce the alleged symptoms, the statements by Plaintiff, J.B.'s grandmother, and a child care worker concerning the intensity, persistence, and limiting effects of the symptoms, were not credible to the extent alleged; and (7) J.B. had no limitations in five of the six domains of function,*fn3 and a less than marked limitation in the sixth domain (health and physical well-being). (Id. at 16-24.)

Plaintiff appealed from the ALJ's decision to the Social Security Administration's Appeals Council. (T. at 6-9.) On March 20, 2009, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of Defendant. (Id.) On April 17, 2009, Plaintiff commenced this action in this Court. (Dkt. No. 1.)

Generally, in her brief in support of her motion for judgment on the pladings, Plaintiff asserts the following three arguments: (1) the ALJ erred by determining that J.B.'s asthma did not meet the listing requirement for asthma (Dkt. No. 13 at 1); (2) the ALJ failed to follow the treating physician rule and meet his duty to develop the record (id. at 2); and (3) the ALJ did not properly evaluate the credibility of the hearing testimony and evidence provided by other sources because he failed to comply with SSR 96-7p and 20 C.F.R. Sec. 404.1529 in determining credibility (id. at 3).

Generally, in his brief in opposition to Plaintiff's motion, and in support of his own motion for judgment on the pleadings, Defendant disagrees with each of these three arguments, and argues that the decision finding Plaintiff not disabled should be affirmed. (Dkt. No. 14.)

B. Magistrate Judge Bianchini's Report-Recommendation

On June 30, 2010, Magistrate Judge Bianchini issued a Report-Recommendation recommending that Defendant's decision denying Social Security benefits be affirmed and that the Complaint be dismissed. (Dkt. No. 16.) Generally, in support of his recommendation, Magistrate Judge Bianchini found as follows: (1) the ALJ's analysis of the ยง103.03(B) listing for asthma was supported by substantial evidence in the record; (2) the ALJ adequately developed the record and the analysis of Plaintiff's treating physician was supported by substantial evidence and followed the treating physician's rule; and (3) the ALJ properly exercised his discretion to evaluate the credibility of the ...


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