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Agee v. Astrue

United States District Court, Second Circuit

December 6, 2013

ANTOINETTE AGEE O/B/O M.P.W., Petitioner,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant,

REPORT & RECOMMENDATION

HUGH B. SCOTT, District Judge.

INTRODUCTION

Claimant, Antoinette Agee, on behalf of MPW, [1] brought this action pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner") denying Supplemental Security Income benefits ("SSI") to MPW. On March 12 and 14, 2013, the parties filed cross-motions for judgments on the pleadings. Claimant argues that the Administrative Law Judge ("ALJ") assigned to her case committed a legal error by failing to give her testimony greater weight. In addition, Claimant argues that the ALJ's decision to deny SSI benefits was not supported by substantial evidence, and that substantial evidence supports marked limitations in several functional domains. The Commissioner opposes Claimant's motion, arguing that the ALJ's decision is supported by substantial evidence and should be upheld.

The Court has deemed the pending motions submitted under Rule 78(b) of the Federal Rules of Civil Procedure. For the reasons below, the Court respectfully recommends granting Claimant's motion in part and remanding the case to the Commissioner for further proceedings. (Docket No. 13). The Court also recommends denying the Commissioner's motion. (Docket No. 11).

FACTUAL & PROCEDURAL BACKGROUND

I. Initial Claim and Hearing

Claimant filed for SSI on April 14, 2009 on behalf of her minor son MPW. (Administrative Record, [hereinafter "R."] at 13). The claim was initially denied and a timely request for a hearing was filed. (R. at 13.) Claimant appeared in front of ALJ William R. Pietz on January 26, 2011. (R. at 13). The ALJ received medical records from Dr. Reginald J. Roberts, a school psychologist who evaluated MPW in relation to his Attention Deficit Hyperactivity Disorder ("ADHD") and Oppositional Defiant Disorder ("ODD"); Dr. Jennifer Haak, a physician at Millard Fillmore Hospital who performed an Initial Psychiatric Evaluation of MPW in 2009; Janine Duvernay, a Social Worker, who at Claimant's request, treated MPW for psychiatric problems at Millard Fillmore; Dr. Michael Cummings, a physician who treated MPW along with Janine Duvernay; and Dr. Jane Meyer, a non-examining state-appointed physician who reviewed MPW's medical records for the purposes of the SSI claim. (R. at 166, 231, 238, 284, 305). The claimant also provided information on MPW's prescriptions for Concerta and Risperidone, which he had received from Dr. Lynn Lynch and Dr. Hoffman. (R. at 179-80). In addition to the medical evidence, three of MPW's teachers filled out four "Teacher Questionnaires" under which they analyzed the six domains for disability set forth in 20 C.F.R. § 416.926 (a)(d). Finally, the ALJ received school records from MPW's school district. These records outlined all disciplinary action taken against MPW, reviewed MPW's Individual Education Plan, and provided a current academic performance evaluation. (R. at 171-78, 184-197, 259-66).

At the hearing, on January 26, 2011, the ALJ heard testimony from MPW and Antoinette Agee. (R at 34-50). Given the 20 pages of transcript, the hearing appears to have been brief. (R. at 34-50). The most notable developments from the hearing were MPW's discussion of his friends, and the ALJ's observation that MPW was attentive during the hearing. (R. at 27).

II. The Administrative Law Judge's Decision

On February 10, 2011, ALJ Pietz issued a decision denying MPW any SSI benefits. (R. at 10). The ALJ determined that MPW was a minor and was not engaged in substantial gainful activity. (R. at 13). The ALJ also found that MPW's ADHD and ODD together constituted a severe impairment. R. at 10. Even though MPW's impairments were severe, the ALJ determined that they were not medically equivalent to an impairment listed in the regulations. (R. at 10). The ALJ came to this conclusion by reviewing the six "domains" that guide whether a severe impairment is medically equivalent to a "listed impairment." 20 C.F.R. § 416.926 (a)(d).

1. Acquiring and Using Information

First, the ALJ analyzed MPW's ability to "acquire and use information." (R. at 18). The ALJ concluded that MPW had less than marked limitation in this domain. (R. at 19). In his analysis the ALJ cited the opinion of Dr. Jennifer Haak, a treating physician. Dr. Haak's examination revealed that MPW was not overly defiant and easy to engage. (R. at 19). Dr. Haak did, however, note that MPW was easily distracted and diagnosed him with ADHD, combined with ODD. (R. at 19). The ALJ also looked to teacher questionnaires in his analysis. (R. at 19-20). The teacher questionnaires consistently stated that MPW's reading, writing, and math levels were either at or one grade level below those of his classmates. The ALJ also reviewed MPW's school records. (R. at 19).

The ALJ reviewed MPW's reading, writing, and math levels. (R. at 20). In the third-grade, teacher Kim Kujawa stated that MPW was reading and writing at a second-grade level, while doing math on a third-grade level. In the fourth-grade, Kim Kujawa re-evaluated MPW and stated that he was reading at a third-grade level, writing at a late second- or early third-grade level, and doing math at a fourth-grade level. (R. at 20). In the fifth-grade, teacher Cynthia Yarborough stated that MPW was reading, writing, and doing math at a 3.9 grade level. (R. at 20).

In addition, the ALJ reviewed MPW's treatment records for his ADHD and ODD. These records stated that MPW had significantly improved in controlling his symptoms since beginning therapy. (R. at 20). Finally, the ALJ also reviewed the testimony of Dr. Meyer. Dr. Meyer opined that MPW was less than marked under this domain and that he had an IQ of approximately 94. (R. at 20). Using all of this information, the ALJ determined that MPW was less than marked in this domain.

2. Attending and Completing Tasks

The ALJ also reviewed MPW's symptoms in relation to the "attending and completing tasks" domain. (R. at 21). This domain focuses on the child's ability to concentrate and follow directions when completing work. When analyzing this domain the ALJ relied primarily on the teacher questionnaires. (R. at 21). One teacher stated that MPW had serious problems paying attention when spoken to, focusing long enough to finish activities, and working without distracting self or others. (R. at 21). A second teacher stated that he had "obvious problems" in this domain. (R. at 21). A third teacher noted that he was easily distracted and often impulsive. Finally, a teacher noted that MPW was easily distracted and has a difficult time refocusing once distracted. (R. at 21).

Dr. Meyer, also opined on MPW's condition under this domain. (R. at 21). Dr. Meyer's analysis noted that MPW's condition had improved while taking Concerta. (R. at 21). Dr. Meyer also noted that the teacher questionnaires all seem to say that MPW was easily distracted and having problems in this domain. Despite this, Dr. Meyer concluded that MPW was less than marked in this domain. (R. at 21). The ALJ, relying on Dr. Meyer's opinion, held that MPW was less than marked in this domain. (R. at 21). The ALJ did not provide any reasoning as to why he relied on a non-treating physician's opinion as opposed to the teacher questionnaires.

3. Interacting with Others

When analyzing this domain the ALJ looked to school discipline records, teacher questionnaires, Dr. Meyer's records, and the testimony of MPW at the hearing. In his analysis, the ALJ notes that the majority of MPW's teachers found that he had only slight problems under this domain. (R. at 23-24). In addition, Dr. Meyer reported that while MPW can be overly aggressive, his condition had improved while on Concerta. The ALJ also considered MPW's behavior in the hearing. (R. at 17). The ALJ stated that the boy seemed well-behaved. At the hearing MPW stated that he had approximately eight friends and he would play street hockey and Xbox with them. (R. at 17).

Finally, the ALJ noted that MPW has a history of being disciplined for his classroom behavior. (R. at 17). He had been suspended twice: once for pulling a prank on another student, and once for destroying classroom decor. Ultimately, the ...


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