United States District Court, W.D. New York
TERESA C. SMITH, O/B/O G.J.S.,  Plaintiff,
CAROLYN W. COLVIN,  ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
HUGH B. SCOTT, Magistrate Judge.
The Hon. Richard J. Arcara referred this case to this Court under 28 U.S.C. § 636(b) (Dkt. No. 10). Pending before the Court is a motion for judgment on the pleadings by plaintiff Teresa C. Smith ("Smith") (Dkt. No. 8).
Smith argues that the Acting Commissioner of Social Security ("Commissioner") erred in determining that Smith's minor child, G.J.S., is not eligible for Supplemental Security Income ("SSI") benefits under the Social Security Act ("Act"). Smith contends that the Administrative Law Judge ("ALJ") ignored one of the two teacher assessments in the record, and that the ignored assessment should have received substantial weight. Smith also argues that the ALJ subjectively gave different weight to different portions of G.J.S.'s child psychologist's record without justification. Following from the preceding arguments, Smith concludes that the ALJ elevated his own judgment over that of G.J.S.'s teachers and psychologist.
The Commissioner urges the Court to uphold the denial of SSI benefits. The Commissioner argues that the ALJ did, in fact, review all teacher records and assign them appropriate weight. The Commissioner further argues that the ALJ properly gave more weight to the psychologist's signed treatment notes than to an unsigned report prepared by the psychologist's office.
The Court has deemed the motions submitted on papers under Rule 78(b) of the Federal Rules of Civil Procedure. For the reasons below, the Court respectfully recommends denying Smith's motion. Although the Commissioner did not file a cross-motion for judgment on the pleadings and shall be required to explain why to the District Judge, the Court finds that the same facts warranting a denial of Smith's motion warrant judgment on the pleadings for the Commissioner. Every issue that would support judgment for the Commissioner has been briefed by the parties. See Gjeci v. Comm'r of Social Security, No. 13-cv-WL XXXXXXXXXXX (KBF), 2014 WL 3408263 (S.D.N.Y. July 7, 2014); Salter v. Astrue, No. 4:12CV888, 2013 WL 8171789 (N.D. Ohio June 27, 2013.). Accordingly, the Court recommends granting judgment to the Commissioner and closing the case.
Smith filed an application for SSI benefits on behalf of G.J.S., a child under the age of 18, on August 27, 2010. (Certified Administrative Record at 147 033650, hereinafter designated as [147 033650.]). The application was initially denied on July 9, 2010. [104 033606.] Smith filed a written request for a hearing on December 3, 2010. [48 033696.] ALJ William Weir held a hearing on February 17, 2012. [48 033696.] In a decision dated May 24, 2012, the ALJ found that G.J.S. was not disabled. [26 033647.] Specifically, the ALJ found that:
1. The claimant was born on July 28, 2004. Therefore she was a school-age child on August 27, 2010, the date the application was filed, and is currently a school-aged child (20 CFR 416.926a(g)(2)).
2. The claimant has not engaged in substantial gainful activity since August 27, 2010, the application date (20 CFR 416.924(b) and 416.971 et seq. ).
3. The claimant has attention deficit hyperactivity disorder, Type I diabetes mellitus, asthma, obesity, and anxiety, and major depressive disorders, each of which constitutes severe impairment (20 CFR 416.924, 416.935 and 416.926).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).
5. The claimant does not have an impairment or combination of impairments that functionally equals the severity of the listings (20 CFR 416.924(d) and 416.92(a)).
On September 25, 2013, the Appeals Council denied Smith's request to review the ALJ's decision. [1 03366.] ALJ Weir's decision became the final decision of the Commissioner. See 20 C.F.R § 416.1481. Smith commenced this action on G.J.S.'s behalf by filing a Complaint on November 15, 2013. (Dkt. No. 1.)
When Smith applied for SSI, she reported that G.J.S., born July 2004, had the following disabilities: (1) asthma; and (2) type-one diabetes. [167.] According to Smith, G.J.S. took insulin shots four times a day. [159.]
With the exceptions of Math and Character, G.J.S. earned either "satisfactory" or "outstanding" grades in all subjects during the first semester of the 2011 03362012 academic year. [213.] Teachers commented that G.J.S. performed "excellent work" in English Language Arts ("ELA") and a "good job" in Science, Expedition, Music, and Art. [213.]
In Math, G.J.S. earned an "unsatisfactory" grade of 58. [213.] In Character, G.J.S. earned a "needs improvement." [213.] It was noted by G.J.S.'s teachers that G.J.S. "is missing math assignments, " has "[p]oor quiz/test scores [that] have lowered [her math] grade, " and is "often talkative during [gym] classroom instruction." [213.]
Mrs. Camacho, G.J.S.'s first grade teacher, completed a questionnaire dated September 15, 2010. [175 033683.] Ms. Stevener, G.J.S's second grade teacher, submitted a more recently completed teacher questionnaire on January 11, 2012. [216 033624.] Through these teacher assessments, Mrs. Camacho and Ms. Stevener evaluated G.J.S.'s functioning.
Format and Content of Teacher Assessment
The teacher questionnaire is a form distributed to G.J.S.'s teachers by the New York Office of Temporary and Disability Assistance, Division of Disability Determinations. [175.] The form asks teachers to "compare this child's functioning to that of same-age children who do not have impairments." [176.] The form asks about a child's functioning in the following 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 Himself or Herself; and (6) Medical Conditions and Medications/Health and Physical Well-Being. [175 033683; 216 033624.]
To complete the form, the teachers were required to either check a block indicating "NO problems observed in this domain, functioning appears age-appropriate, "or (2) indicate that "the child has problems functioning in [a given] domain" by using a ranking scale in various areas within a given domain. [175 033683; 216 033624.]
Mrs. Camacho, G.J.S.'s first grade teacher, completed a questionnaire dated September 15, 2010. [175 033683.] Mrs. Camacho indicated that she had known G.J.S. for one month, taught G.J.S. in all subjects, and that there was no unusual degree of absenteeism. [176.]
Mrs. Camacho indicated G.J.S. did not have a problem acquiring and using information. [177.]
Mrs. Camacho indicated that G.J.S. had problems in attending and completing tasks. [178.] Specifically, G.J.S. had obvious problems in terms of her ability to change from one activity to another without being disruptive, and her ability to complete work accurately without distracting herself or others. [178.] G.J.S. had a serious problem, which manifested daily, in regards to her ability to work without distracting herself or others. [178.] G.J.S. had slight problems, occurring monthly, in all other areas of attending and completing tasks. [178.]
Mrs. Camacho also indicated that G.J.S. had problems in interacting and relating with others. [179.] G.J.S. had an obvious problem, manifested daily, playing with other children. [179.] G.J.S. had obvious problems, manifested monthly, seeking attention appropriately, expressing anger appropriately, and interpreting meaning of facial expression, body language, hints, and sarcasm. [179.] G.J.S. had an obvious problem, manifested on a weekly basis, in regards to asking permission appropriately. [179.] G.J.S. had a serious problem, manifested on a weekly basis, following classroom rules. [179.] Mrs. Camacho noted that G.J.S. was on an individually color coded behavior plan, does best with positive reinforcement, and is able to do activities independently, but sometimes refuses to do them. [179.]
Mrs. Camacho also indicated that G.J.S. had problems moving about and manipulating objects. [180.] G.J.S. had a serious problem in regards to her ability to move her body from one place to another (e.g., standing, balancing, shifting weight, bending, kneeling, crouching, walking, running, jumping, climbing), as well as with her ability to manage the pace of her physical activities. [180.] G.J.S is overweight, which caused her some difficulties in doing activities with her peers on the floor, as well as any physical activities outdoors or as part of physical education. [180.] G.J.S. is accommodated with chairs or special seating postures during gym calls or when her regular class is doing activities on the floor. [180.]
Lastly, Mrs. Camacho indicated that G.J.S. had problems caring for herself. [181.] G.J.S. had obvious and daily problems in five of ten areas within this domain. [181.] G.J.S. must take insulin daily with the nurse, and she gives the nurse a hard time. [181.] Mrs. Camacho, at times, held G.J.S.'s hand to ensure that the nurse could administer the insulin. [181.]
Mrs. Camacho noted that G.J.S. was a wonderful student who needed some extra assistance to be healthier and get back on track with her health and academics. [183.]
Ms. Stevener, G.J.S's second grade teacher, submitted a teacher questionnaire on January 11, 2012. [216 033617.] Ms. Stevener indicated that she had known G.J.S. for four years and saw G.J.S. every day (8:55 a.m. to 3:05 p.m.) for every subject. [217.]
Ms. Stevener indicated that G.J.S. had obvious problems with comprehending and doing math problems, and applying problem solving skills in class discussions. [218.] According to Ms. Stevener, G.J.S. was very independent in reading and writing and could write a paragraph without help at a second grade level. [218.] However, G.J.S. needed to memorize addition and subtraction problems, and rarely completed her homework, which when completed, appeared rushed. [218.]
Ms. Stevener also indicated G.J.S. had very serious and daily problems in regards to attending and completing tasks in the context of homework assignments. [219.] G.J.S. had serious and daily problems in the ability to focus long enough to finish assigned activities or tasks, as well as her ability to change activities without being disruptive. [219.] G.J.S. had obvious problems in regards to her ability to pay attention when spoken to directly, to refocus, or to carry out multi-step instructions, and to work at a reasonable pace to finish on time. [219.] G.J.S. works better independently, as she struggled with groups due to her constant talking and lack of focus. [219.] G.J.S. rarely completed her homework. [219.]
Ms. Stevener indicated that G.J.S. had slight problems in her ability to interact and relate with others,  her ability to move about and manipulate objects,  and her ability to care for herself. [222.]
Ms. Stevener also noted the following. G.J.S. took her medication on a regular basis. [223.] When G.J.S.'s sugar was off G.J.S. had trouble paying attention. [223.] G.J.S.'s sugar was not taken care of at home and G.J.S. indicated that her mother gave her whatever she wanted to eat. [223.] G.J.S.'s mother, according to Ms. Stevener, sent G.J.S. to school with candy and chips that G.J.S. cannot have. ...