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Bailey. v. Colvin

United States District Court, N.D. New York

June 6, 2014

Pauline M. Bailey on behalf of M.R., Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, in place of Michael Astrue, Defendant.

Howard D. Olinsky, Esq., of counsel Olinsky Law Group, Syracuse, New York, Attorney for Plaintiff.

Hon. Richard S. Hartunian, United States Attorney, Amanda J. Lockshin, Esq., Special Assistant United States Attorney, Andreea L. Lechleitner, Esq., Special Assistant United States Attorney Social Security Administration, Office of Regional General Counsel, Region II, New York, New York.

MEMORANDUM-DECISION AND ORDER

NORMAN A. MORDUE, Senior District Judge.

INTRODUCTION

On October 2, 2007, plaintiff filed an application for Supplemental Security Income ("SSI") on behalf of M.R., her son, born September 1, 1994. Plaintiff alleges that M.R. was disabled due to Attention Deficit Hyperactive Disorder ("ADHD"), Bipolar Disorder, and high blood pressure. After the initial denial of the claim, plaintiff requested a hearing, which was held on March 16, 2009 before Administrative Law Judge ("ALJ") Dennis O'Leary. Plaintiff and M.R., who were not represented by counsel, both testified at the hearing. On April 24, 2009, the ALJ issued a decision holding that M.R. had the severe medical impairments of ADHD and asthma, but that the impairments did not meet or medically equal one of the listed impairments, nor did they functionally equal a listed impairment. Thus, the ALJ held that M.R. was not disabled and not eligible for SSI for the period October 2, 2007 through April 24, 2009. On May 19, 2011, the Appeals Council denied the request to review, and the ALJ's decision became the final decision of the Commissioner of Social Security ("Commissioner").

Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of the subject determination that M.R. was not disabled and therefore not eligible for SSI for the subject period. She asks the Court to reverse the Commissioner's decision denying benefits and to remand the matter for payment of benefits, or, in the alternative, to remand the matter to the ALJ for additional proceedings. As set forth below, the Court finds that the ALJ's determination was not supported by substantial evidence and that the ALJ erred in failing to develop the record. The Court grants plaintiff's motion for judgment on the pleadings (Dkt. No. 15) to the extent of reversing the Commissioner's determination and remanding for determination after further development of the record; denies defendant's motion for judgment on the pleadings (Dkt. No. 20); and remands to the Commissioner for further proceedings in accordance herewith.

APPLICABLE LAW - GENERALLY

Under 42 U.S.C. § 1382c(a)(3)(C)(i), an individual under the age of 18 will be considered disabled "if that individual 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." The regulations establish a three-step evaluative process for determining whether a child meets the statutory definition of disability. See 20 C.F.R. § 416.924, "How we determine disability for children." First, a child who is doing substantial gainful activity is not disabled. 20 C.F.R. § 416.924(b). Second, a child who does not have an impairment or combination of impairments that is severe is not disabled. 20 C.F.R. § 416.924(c). Third, where, as here, the child was not doing substantial gainful activity and had one or more severe impairments during the time period in issue, the question is whether the impairment meets or equals a presumptively disabling condition identified in the listing of impairments set forth under 20 C.F.R. Pt. 404, Subpt. P., App. 1 ("listed impairment"). 20 C.F.R. § 416.924(a). If an impairment is found to meet, medically equal, or functionally equal a listed disability, and the twelve-month durational requirement is satisfied, the child will be deemed disabled. 20 C.F.R. § 416.924(a), (d)(1).

Analysis of functionality is informed by consideration of how a child functions in six main areas, or "domains." 20 C.F.R. § 416.926a(b)(1). The domains are 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). The domains are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1).

A finding of functional equivalence to a listed impairment may be based on a finding of a "marked" limitation in any two of the six domains, or an "extreme" limitation, meaning "more than marked, " in a single domain. 20 C.F.R. § 416.926a(a). A marked limitation means an impairment that "interferes seriously with [the claimant's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). An extreme limitation is one that interferes "very seriously" with a child's ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(3)(i).

The existence of a medically determinable impairment must be established by an acceptable medical source, in this case a physician or psychologist. See 20 C.F.R. § 416.913(a). Evidence from other sources, including nurses, educational personnel, and family members, may be used to show the severity of an impairment and how the child typically functions compared to children of the same age who do not have impairments. See 20 C.F.R. § 416.913(d).

The Court "may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by substantial evidence' or if the decision is based on legal error." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)). The Commissioner's findings as to any fact, "if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Shaw, 221 F.3d at 131 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

ALJ'S DECISION

The ALJ held that M.R. was an adolescent during the time period in issue, October 2, 2007 to April 24, 2009; that he had not engaged in substantial gainful activity; and that he had the severe impairments of ADHD and asthma.[1] The ALJ further found that M.R. did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments. Plaintiff does not challenge the foregoing conclusions. Rather, plaintiff challenges the ALJ's final conclusion that M.R. did not have an impairment or combination of impairments that functionally equaled the listed impairments. In reaching this determination, the ALJ summarized the evidence and analyzed the six functional domains.

The ALJ summarized the evidence as follows:

The claimant is a 14 year old child (13 years old at his application date) who enrolled in regular education. It is alleged that he has been disabled since August 30, 1997 due to attention deficit hyperactivity disorder, bipolar disorder and high blood pressure. DDS found no marked or extreme limitation in any domain, which is consistent with this decision.
The evidence contains a general medical report of Dr. Rao, covering the period of September 29, 2004 through October 23, 2007, who diagnosed the claimant with attention deficit hyperactivity disorder. Dr. Rao stated that the claimant was currently taking Concerta and Clonidine; that his attention, concentration, memory and ...

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