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Barbara Frye, On Behalf of A.O. v. Michael J. Astrue

March 31, 2011

BARBARA FRYE, ON BEHALF OF A.O. 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

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this action filed by Barbara Frye on behalf of A.O. ("Plaintiff") 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 remand (Dkt. No. 11); (2) Defendant's motion for judgment on the pleadings (Dkt. No. 15); (3) the Report-Recommendation of United States Magistrate Judge Andrew T. Baxter, 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 Defendant's decision denying Social Security benefits to Plaintiff be affirmed and that Plaintiff's Complaint be dismissed (Dkt. No. 17); and (4) Plaintiff's Objections to the Report-Recommendation (Dkt. No. 18). For the reasons set forth below, Plaintiff's Objections are rejected; Magistrate Judge Baxter's Report-Recommendation is accepted and adopted in its entirety; Plaintiff's motion for remand is denied; Defendant's motion for judgment on the pleadings is granted; and Plaintiff's Complaint is dismissed.

I. RELEVANT BACKGROUND

A. Procedural History

Because neither party has objected to the to Part I of Magistrate Judge Baxter'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. 17, at 1-2 [Report-Rec].)

On January 8, 2007, Plaintiff applied for supplemental security income ("SSI") based on A.O.'s social interaction, learning, and behavioral difficulties. (See Administrative Transcript ["T."] at 100-102.)*fn1 On May 9, 2007, her application was denied by the Social Security Administration. (T. at 71-74.) Plaintiff timely appealed the denial, and, on June 30, 2009, a hearing was held before an Administrative Law Judge ("ALJ") of the Social Security Administration. (T. at 9-52.)

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. Comm'r of Soc. 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 A.O. was not disabled. (Dkt. No. 17.) More specifically, in reaching this conclusion, the ALJ made the following findings: (1) A.O. was a school-age child from the date of the SSI application on January 8, 2007 through the date of the administrative decision on September 2, 2009; (2) A.O. had not engaged in substantial gainful activity at any time relevant to the administrative decision; (3) A.O. suffered from a number of "severe" impairments, including attention deficit hyperactivity disorder, oppositional defiant disorder, parent-child relational problem, learning disability, and motor tics; (4) A.O. did not have any impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; and (5) A.O. did not have any impairment that functionally equaled the listings because he had no limitation in moving about and manipulating objects and less than marked limitations in the other five relevant childhood "domains."

Plaintiff appealed from the ALJ's decision to the Social Security Administration's Appeals Council. (T. at 1-4.) On December 22, 2009, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of Defendant. (Id.) On January 27, 2009, Plaintiff commenced this action in this Court. (Dkt. No. 1.)

Generally, in her brief in support of her motion for remand, Plaintiff asserts the following arguments: (1) the ALJ's determination that A.O. did not meet any listing requirement was not supported by substantial evidence, and the ALJ failed to develop the record by not making reasonable attempts to obtain formal opinions from two treating physicians regarding the listings and functional equivalence analysis; (2) the ALJ did not apply the appropriate legal standards in evaluating Plaintiff's credibility with respect to her statements about the intensity, persistence, and limiting effects of A.O.'s symptoms; and (3) the ALJ erred when he found that A.O.'s impairments were not functionally equivalent to a listed impairment. (Dkt. No. 11.)

Generally, in his brief in opposition to Plaintiff's motion, and in support of his own motion, Defendant disagrees with each of these three arguments, and argues that the decision finding Plaintiff not disabled should be affirmed. (Dkt. No. 15.)

B. Magistrate Judge Baxter's Report-Recommendation

On June 30, 2010, Magistrate Judge Baxter issued a Report-Recommendation recommending that Defendant's decision denying Social Security benefits be affirmed and the Complaint be dismissed. (Dkt. No. 17.) Generally, in support of his recommendation, Magistrate Judge Baxter found as follows: (1) the ALJ's finding that A.O. did not meet the listing for 112.11 (ADHD) or 112.07 (Somatoform, Eating and Tic Disorders) was supported by substantial evidence; (2) the ALJ's finding that A.O. did not have an impairment or combination of impairments that functionally equals a listing was supported by ...


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