United States District Court, N.D. New York
TAMMY M. WORDAN, o/b/o C.W., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
M. WORDAN, Plaintiff pro se.
W. JEWETT, SPECIAL ASS'T. U.S. ATTORNEY for Defendant.
MEMORANDUM DECISION AND ORDER
T. BAXTER, U.S. Magistrate Judge.
matter was referred to me, for all proceedings and entry of a
final judgment, pursuant to the Social Security Pilot
Program, N.D.N.Y.G.O. # 18, in accordance with the provisions
of 28 U.S.C. § 636 (c), Fed.R.Civ.P. 73, N.D.N.Y. Local
Rule 73.1 and the consent of the parties. (Dkt. Nos. 2, 5).
Tammy M. Wordan protectively filed an application for
Supplemental Security Income (“SSI”) payments on
behalf of her grandson, C.W.,  on August 30, 2013, claiming a
disability onset date of August 1, 1013. (Administrative
Transcript (“T.”) at 106-109). Plaintiff's
application was initially denied on October 28, 2013. (T.
53-58), and she made a timely request for a hearing before an
Administrative Law Judge (“ALJ”). (T. 59-61). The
hearing, at which plaintiff appeared with C.W., was conducted
by video conference before ALJ William M. Manico on October
8, 2014. (T. 33-42). In a decision dated October 22, 2014,
the ALJ found that C.W. was not disabled. (T. 11-27). The
ALJ's decision became the final decision of the
Commissioner when the Appeals Council denied plaintiff's
request for review on May 16, 2016. (T. 1-3).
individual under the age of eighteen is disabled, and thus
eligible for SSI benefits, 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 12
months. 42 U.S.C. § 1382c(a)(3)(C)(i). See Hudson v.
Astrue, 1:06-CV-1342 (LEK/VEB), 2009 WL 1212114, at *3-4
(N.D.N.Y. Apr. 30, 2009) (discussing the standard for
children's disability benefits). However, that
definitional provision excludes from coverage any
“individual under the age of [eighteen] who engages in
substantial gainful activity. . . .” 42 U.S.C. §
agency has developed a three-step process to be employed in
determining whether a child can meet the statutory definition
of disability. 20 C.F.R. § 416.924; Kittles v.
Barnhart, 245 F.Supp.2d 479, 487-88 (E.D.N.Y. 2003);
Ramos v. Barnhart, 02 Civ. 3127, 2003 WL 21032012,
at *7 (S.D.N.Y. May 6, 2003). The first step of the test
requires a determination of whether the child has engaged in
substantial gainful activity. 20 C.F.R. § 416.924(b);
Kittles, 245 F.Supp.2d at 488. If so, then by
statute and by regulation, the child is ineligible for SSI
benefits. 42 U.S.C. § 1382c(a)(3) (C)(ii); 20 C.F.R.
child has not engaged in substantial gainful activity, the
second step of the test requires examination of whether he or
she suffers from one or more medically determinable
impairments that, either alone or in combination, are
properly regarded as “severe, ” in that they
cause more than a minimal functional limitation. 20 C.F.R.
§ 416.924(c); Kittles, 245 F.Supp.2d at 488;
Ramos, 2003 WL 21032012, at *7. If the child is
found to have a severe impairment, the Commissioner must then
determine, at the third step, whether the impairment meets or
equals a presumptively disabling condition identified in the
listing of impairments set forth in 20 C.F.R. Pt. 404, Subpt.
P., App. 1. Id. Equivalence to a listing can be
either medical or functional. 20 C.F.R. § 416.924(d);
Kittles, 245 F.Supp.2d at 488; Ramos, 2003
WL 21032012, at *7. If an impairment is found to meet, or
qualify as medically or functionally equivalent to, a listed
impairment, and the twelve-month durational requirement is
satisfied, the claimant will be found to be disabled. 20
C.F.R. § 416.924(d)(1); Ramos, 2003 WL
21032012, at *8.
equivalence must be examined only if it is determined that
the claimant's impairment does not meet or
medically equal the criteria for a listed
impairment. Analysis of functionality involves considering
how a claimant functions in six main areas referred to as
“domains.” 20 C.F.R. § 416.926a(b)(1);
Ramos, 2003 WL 21032012, at *8. 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). Those domains include: (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. §
equivalence is established by finding an
“extreme” limitation, meaning “more than
marked, ” in a single domain. 20 C.F.R. §
416.926a(a); Ramos, 2003 WL 21032012, at *8. An
“extreme limitation” is an impairment which
“interferes very seriously with [the claimant's]
ability to independently initiate, sustain, or complete
activities.” 20 C.F.R. § 416.926a(e)(3)(i)
a finding of disability is warranted if a
“marked” limitation is found in any two of the
listed domains. 20 C.F.R. § 416.926a(a); Ramos,
2003 WL 21032012, at *8. A “marked limitation”
exists when the impairment “interferes seriously with
[the claimant's] ability to independently initiate,
sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(2)(i). “A marked limitation may arise when
several activities or functions are impaired, or even when
only one is impaired, as long as the degree of limitation is
such as to interfere seriously with the ability to function
(based upon age-appropriate expectations) independently,
appropriately, effectively, and on a sustained basis.”
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(C).
Scope of Review
reviewing a final decision of the Commissioner, a court must
determine whether the correct legal standards were applied
and whether substantial evidence supported the decision.
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d
Cir. 2012)); Brault v. Soc. Sec. Admin, Comm'r,
683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). A
reviewing court may not affirm an ALJ's decision if it
reasonably doubts whether the proper legal standards were
applied, even if the decision appears to be supported by
substantial evidence. Johnson v. Bowen, 817 F.2d
983, 986 (2d Cir. 1987).
evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Talavera, 697 F.3d at 151 (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). It must be
“more than a scintilla” of evidence scattered
throughout the administrative record. Id. However,
this standard is a very deferential standard of review
“ - even more so than the ‘clearly erroneous
standard.'” Brault, 683 F.3d at 448.
must set forth the crucial factors justifying his findings
with sufficient specificity to allow a court to determine
whether substantial evidence supports the decision.
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984). “To determine on appeal whether an 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). However, a
reviewing court may not substitute its interpretation of the
administrative record for that of the Commissioner, if the
record contains substantial support for the ALJ's
decision. Id. See also Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
is not required to explicitly analyze every piece of
conflicting evidence in the record. See, e.g., Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are
unwilling to require an ALJ explicitly to reconcile every
conflicting shred of medical testimony). However, the ALJ
cannot “‘pick and choose' evidence in the
record that supports his conclusions.” Cruz v.
Barnhart, 343 F.Supp.2d 218, 224 (S.D.N.Y. 2004);
Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112,
at *6 (W.D.N.Y. Dec. 6, 2010).
ISSUES IN CONTENTION
plaintiff in this case has filed her federal action pro se on
behalf of her grandson. Ms. Wordan did not file a brief in
support of her position by the deadline set pursuant to G.O.
18, notwithstanding a reminder notice from the court on June
21, 2016. Because the pro se plaintiff failed to file a
brief, the court ordered defense counsel to file his brief
first, and then gave plaintiff an opportunity to file a
responsive brief. (Dkt. No. 11). Defendant's brief was
filed on December 22, 2016, and plaintiff was sent a ...