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Curtis v. Colvin

United States District Court, Second Circuit

July 2, 2013

TONYA CURTIS, o/b/o B.C., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

KAREN S. SOUTHWICK, ESQ., Olinsky Law Group, Syracuse, NY, MICHAEL J. TELFER, ESQ., Legal Aid Society of Northeast New York, Albany, NY, for the Plaintiff.

MICHELLE L. CHRIST, Special Assistant U.S. Attorney, HON. RICHARD S. HARTUNIAN, United States Attorney, Syracuse, NY, Steven P. Conte Regional Chief Counsel Social Security Administration Office of General Counsel, Region II, New York, NY. for the Defendant.

MEMORANDUM-DECISION AND ORDER

GARY L. SHARPE, Chief District Judge.

I. Introduction

Plaintiff Tonya Curtis o/b/o B.C., challenges the Commissioner of Social Security's denial of Supplemental Security Income (SSI), seeking judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3). ( See Compl., Dkt. No. 1.) After reviewing the administrative record and carefully considering the arguments, the court affirms the Commissioner's decision and dismisses the Complaint.

II. Background

On May 26, 2009, Curtis protectively filed an application for SSI under the Social Security Act ("Act") on behalf of her son, a minor, alleging disability since January 29, 2009. ( See Tr.[1] at 70, 151-53.) After her application was denied, Curtis requested a hearing before an Administrative Law Judge (ALJ), which was held on December 1, 2010. ( See id. at 35-69, 71-76, 80-82.) On January 13, 2011, the ALJ issued a decision denying the benefits requested, which became the Commissioner's final decision upon the Social Security Administration Appeals Council's denial of review. ( See id. at 1-4, 17-34.)

Curtis commenced the present action by filing a Complaint on August 22, 2011, seeking review of the Commissioner's determination. ( See Compl.) The Commissioner filed an answer and a certified copy of the administrative transcript. ( See Dkt. Nos. 9, 10.) Both parties, seeking judgment on the pleadings, filed briefs. ( See Dkt. Nos. 16, 19.)

III. Contentions

Curtis contends that the Commissioner's decision is not supported by substantial evidence and was arrived at through the application of incorrect legal standards. ( See Dkt. No. 16 at 10-25.) Specifically, she claims that:

(1) the Appeals Council failed to properly weigh new and material evidence; (2) the ALJ improperly assessed certain opinion evidence; (3) the ALJ's credibility assessment is unsupported by substantial evidence; and (4) the ALJ erred in finding that B.C.'s impairments did not functionally equal a listed impairment. ( See id. ) The Commissioner counters that the appropriate legal standards were applied by the ALJ, and her decision is supported by substantial evidence. ( See Dkt. No. 19 at 6-22.)

IV. Facts

The evidence in this case is undisputed and the court adopts the parties' factual recitations. ( See Dkt. No. 16 at 2-8; Dkt. No. 19 at 2.)

V. Standard of Review

The standard for reviewing the Commissioner's final decision under

42 U.S.C. § 1383(c)(3) is well established and will not be repeated here. For a full discussion of the standard of review, the court refers the parties to its previous opinion in Christiana v. Comm'r of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y. Mar. 19, 2008). Similarly, for a full discussion of the three-step analysis used by the Social Security Administration to determine whether individuals under the age of eighteen are disabled, the court refers the parties to its previous opinion in Shatraw ex rel. K.C.Y., III, v. Astrue, 7:11-cv-13, 2012 WL 589667, at *1 (N.D.N.Y. Feb. 22, 2012).

VI. Discussion

A. New Evidence

Curtis argues first that the Appeals Council erred by failing to remand based on evidence submitted to it after the ALJ's decision. ( See Dkt. No. 16 at 10-12.) Specifically, Curtis submitted the opinion of Carol Fatti-Barrigar, a therapist who saw B.C. twice a week for one hour while he attended pre-school. ( See id.; Tr. at 473-76.) The Commissioner counters, and the court agrees, that the Appeals Council ...


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