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Grey v. Colvin

United States District Court, W.D. New York

March 31, 2015

DISRAELI A. GREY o/b/o D.I.G., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


WILLIAM M. SKRETNY, District Judge.

1. Plaintiff challenges an Administrative Law Judge's ("ALJ") decision that his 12-year-old child, D.I.G., is not disabled within the meaning of the Social Security Act ("the Act"). Plaintiff alleges that D.I.G. has been disabled since August 1, 2010, due to attention deficit/hyperactivity disorder ("ADHD") and oppositional defiant disorder ("ODD"), and is therefore entitled to payment of Supplemental Security Income ("SSI") under the Act.

2. Plaintiff filed the instant application for SSI benefits on D.I.G.'s behalf on January 24, 2011. His application was denied. A hearing was then held before Administrative Law Judge ("ALJ") David S. Lewandowski on August 20, 2012, at which Plaintiff and D.I.G. appeared with counsel and testified. The ALJ considered the case de novo, and on August 30, 2012, issued a decision denying Plaintiff's application for SSI benefits. The Appeals Council denied Plaintiff's request for review on December 31, 2013. Plaintiff filed the current civil action on February 24, 2014, challenging Defendant's final decision.[1]

3. On August 25, 2014, Plaintiff filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket No. 10.) On November 24, 2014, Defendant filed a cross-motion for the same relief. (Docket No. 14.) For the reasons set forth below, Defendant's motion is granted and Plaintiff's cross motion is denied.

4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to "more than a mere scintilla, " and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and will not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

6. On August 22, 1996, Congress enacted the Personal Responsibility and Work Opportunity and Reconciliation Act of 1996 ("the 1996 Act"), which amended the statutory standard for children seeking SSI benefits. See 42 U.S.C. § 1382c. In relevant part, the 1996 Act provides that an "individual under the age of 18 shall be considered disabled... if [he or she] 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 twelve months." 42 U.S.C. § 1382c(a)(3)(C)(i).

7. Regulations promulgated by the Social Security Administration ("SSA") define "marked and severe functional limitations" in terms of "listing-level severity, " i.e., an impairment that meets, medically equals, or functionally equals the severity of an impairment in the listings. 20 C.F.R. § 416.926a(a). In accordance with the regulations, a child's functional limitations are evaluated in six broad areas or domains of functioning:

(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. See 20 C.F.R. § 416.926a(b).

8. The Commissioner has established a three-step sequential evaluation process to determine whether a child is disabled as defined under the Act. See 20 C.F.R. § 416.924. Specifically, the child must demonstrate that: (1) he or she is not working; (2) he or she has a "severe" impairment or combination of impairments; and (3) his or her impairment or combination of impairments is of listing-level severity, in that it meets, medically equals, or functionally equals the severity of a listed impairment. See id. A child's medically determinable impairment or combination of impairments "functionally equals" a listed impairment if it results in "marked" limitations in two domains of functioning or an "extreme" limitation in one domain. See 20 C.F.R. § 416.926a.

9. Applying the sequential evaluation in the instant case, the ALJ found: (1) D.I.G. had not engaged in any substantial gainful activity (R. at 18);[2] (2) D.I.G. had ADHD, ODD, and borderline intellectual functioning, which constitute severe impairments under the Act (R. at 18); and (3) D.I.G.'s impairments did not meet or medically equal any listed impairments (R. at 18, 26). In addition, the ALJ evaluated D.I.G.'s mental impairments to determine if they were "functionally equivalent" to a listed impairment. (R. at 14-23). The ALJ concluded that D.I.G. did not have an impairment or combination of impairments that meets, medically equals, or functionally equals the severity of the listed impairments. (R. at 18-26). Based on the record, the ALJ ultimately determined that D.I.G. was not under a disability, as defined by the Act, at any time from the filing date through the date of the decision, August 30, 2012. (R. at 26).

10. Plaintiff argues that the ALJ erred by failing to: (1) consider D.I.G.'s 2005 performance IQ score; (2) properly develop the record; and (3) properly evaluate the opinion of D.I.G.'s treating psychiatrist. Having reviewed the ALJ's decision in light of Plaintiff's arguments, this Court finds no error. Plaintiff's three aforementioned contentions are unavailing.

11. First, Plaintiff contends that the ALJ failed to consider D.I.G.'s 2005 intelligence testing. According to a June 28, 2005 report, D.I.G.'s IQ testing yielded a full scale IQ of 72, performance IQ of 70, and verbal IQ of 79 (R. at 195). But six years later, in an April 26, 2011 report, D.I.G.'s IQ testing yielded a full scale IQ of 72, verbal comprehension index of 75, perceptual reasoning index of 73, working memory index of 80, and processing speed of 88 (R. at 225). Plaintiff argues that the ALJ provided no rationale for rejecting the 2005 IQ scores.

In considering IQ scores, 20 C.F.R. 404, Subpt. P, App. 1 § 112.00(D)(10) provides that "IQ test results obtained before age 7 are current for 2 years if the tested IQ is less than 40 and 1 year if at 40 or above." In this case, at the time of D.I.G.'s 2005 intelligence testing, D.I.G. was three years old (R. at 194). Accordingly, at the time of the decision in 2012, ...

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