United States District Court, S.D. New York
THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX, Magistrate Judge.
On May 7, 2013, Yolanda Perez ("Perez"), on behalf of her minor granddaughter K.J.O., commenced this action against the Commissioner of Social Security ("Commissioner"), seeking review of an administrative law judge's ("ALJ") decision, dated April 26, 2012, finding K.J.O. ineligible for Supplemental Security Income ("SSI") benefits, pursuant to Title XVI of the Social Security Act ("SSA"), 42 U.S.C. § 1382c(a)(3)(c). The complaint was accompanied by the March 5, 2013 Notice of Appeals Council Action, denying review of the ALJ's April 26, 2012 decision. On June 18, 2013, Perez filed an amended complaint, accompanied by exhibits post-dating the ALJ's April 26, 2012 decision. Before the Court is the Commissioner's motion for judgment on the pleadings, made pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The motion is unopposed.
Administrative Procedural History
Perez filed an SSI application alleging K.J.O.'s disability, with an onset date of September 9, 2009. Following a hearing, the application was denied, on February 23, 2011. On July 8, 2011, the Appeals Council vacated the February 23, 2011 decision and remanded the matter, stating:
At the hearing, the medical expert testified that there was not enough information to assess the severity of the claimant's academic problems, which would require a full psycho-educational evaluation. No such evaluation was obtained. Further, the evidence indicated that the claimant was more likely than not to fail the first grade for the second time due to her academic deficiencies.... Further evaluation is warranted in this case.
The Appeals Council directed that, upon remand, the ALJ obtain: (a) updated medical records from the claimant's treating sources; (b) a psychological or psychiatric consultative evaluation; and (c) if necessary, evidence from a medical expert to clarify the nature and severity of K.J.O.'s impairments.
On remand, the record was augmented with K.J.O.'s educational records, a psychological consultative examination and the testimony of: Dr. Louis Lauro ("Dr. Lauro"), the impartial psychological expert; Perez; and K.J.O. On April 26, 2012, the ALJ determined that K.J.O. has not been disabled since September 9, 2009. On March 5, 2013, the Appeals Council denied review of the ALJ's April 26, 2012 decision, rendering it the final decision of the Commissioner. This action followed.
The ALJ's Decision
The issue before the ALJ was whether K.J.O. was disabled since September 9, 2009. The ALJ found that K.J.O.: (1) was born on November 2, 2003; (2) was a preschooler on September 9, 2009, and a school-age child when he rendered his determination; (3) has not engaged in substantial gainful activity since September 9, 2009; (4) has a severe impairment, learning disorder; (5) does not have an impairment or combination of impairments that meets or medically equals the severity of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (6) does not have an impairment or combination of impairments that meets or medically equals the severity of the listed impairments in 20 C.F.R. §§ 416.924(d) and 416.926a; and (7) has not been disabled since September 9, 2009.
In determining whether K.J.O. has severe impairments, the ALJ determined that, notwithstanding Dr. Lauro's testimony that K.J.O. did not have any severe impairment, K.J.O. had a severe learning disability because the school records dating back to November 2010 indicate that K.J.O. repeated the first grade, was classified as having low average intelligence and placed in a special education program for a learning disability. According to the ALJ, this condition has caused more than minimal functional limitation and is expected to persist for a continuous period of at least 12 months.
However, the ALJ found that K.J.O.'s asthma was not a severe impairment. The treating source records from Dr. Lufta Kanam ("Dr. Kanam"), K.J.O.'s pediatrician, indicate that K.J.O.'s asthma was mild when it was first diagnosed, with no acute wheezing since November 2007. Progress reports generated between June 2009 and July 2010 showed no complaints or acute attacks, except for a single episode of mild wheezing in July 2010, that improved with the use of Albuterol. As Perez did not mention K.J.O.'s asthma during the hearing, the ALJ determined that K.J.O.'s asthma did not cause more than minimal functional limitations to K.J.O. that persisted for a continuous period of at least 12 months. The ALJ also noted that Perez testified about some of K.J.O.'s symptoms, such as constant daily crying over "everything, " which suggested to him that a psychological or psychiatric impairment might exist, but no medical evidence demonstrated the existence of a medically determinable mental impairment. The ALJ determined that, with respect to satisfying the requirements of organic mental disorders, K.J.O. did not have a marked impairment in at least two of the following areas: age-appropriate cognitive or communicative functions; age-appropriate social functioning; age-appropriate personal functioning and maintaining concentration, persistence or pace.
The ALJ considered all relevant evidence in the record in determining the degree of limitation in each of the six functional equivalence domains: (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 yourself; and (6) health and physical well-being. He considered Perez's testimony that K.J.O. was frustrated with reading or her progress in school and that K.J.O. was in a special education program in school, since September 2011, having repeated the first grade, and that she benefitted from a 12-student class size with two teachers. No reports or complaints existed from K.J.O.'s teachers, since K.J.O. started attending the special education program, and Perez denied that K.J.O. had any problems with attending school, getting along with teachers, classmates or siblings, completing her homework, reading and writing. K.J.O. was able to follow one instruction at a time, she could dress, bathe and groom herself, and she could follow basic safety rules concerning the street and played with other children in the park. The ALJ noted that K.J.O. testified that she knew the days of the week and months of the year and had friends at school and home. She liked to play with her sister and watch television. K.J.O. also helped Perez with the household chores. However, while the ALJ found that K.J.O.'s medically determinable impairments could reasonably be expected to produce the alleged symptoms, he found the statements concerning the intensity, persistence and limiting effects of these symptoms incredible to the extent they are inconsistent with finding that K.J.O. does not have an impairment or combination of impairments that functionally equals the listings in 20 C.F.R. §§ 416.924(d) and 416.92a.
The ALJ explained that, concerning K.J.O.'s learning disability, Dr. Kanam noted, on January 21, 2010, that K.J.O. was not doing as well as before at school and had a short attention span. By March 1, 2010, K.J.O. showed behavioral problems and her academics were deteriorating.
K.J.O.'s first-grade teacher, in K.J.O.'s second year as a first-grade student, Sara Aurich ("Aurich"), completed a questionnaire on November 3, 2010, denying that K.J.O. had poor frustration tolerance behavior, inappropriate social interaction behavior or problems in performing age appropriate self-care activities. However, based on her observations, Aurich concluded that K.J.O. was functioning at an academic level below the first grade, did not complete tasks timely and had difficulty retaining large amounts of information. K.J.O. completed the first grade in 2011 and had not been left behind since that time.
K.J.O. underwent a psychoeducational evaluation through the New York City Department of Education, between March 21, 2011, and March 23, 2011. Her full-scale intelligence quotient was reported to be low average, except that her quantitative reasoning was average, visual spatial processing was borderline impaired or delayed and working memory was mildly impaired or delayed. K.J.O. was assessed as particularly weak in retention, especially in the auditory channel.
On April 7, 2011, Aurich completed a questionnaire, noting that K.J.O. performed below first grade expectations in all areas and had retention problems. In a Final Notice of Recommendation, dated May 23, 2011, the school's principal recommended that K.J.O. be ...