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Colvin v. Colvin

United States District Court, N.D. New York

March 28, 2017

COREY R. COLVIN, on behalf of G.R.K., a minor, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1]Defendant.

         APPEARANCES:

          OLINSKY LAW GROUP Counsel for Plaintiff

          U.S. SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN. COUNSEL - REGION II Counsel for Defendant

         OF COUNSEL:

          HOWARD D. OLINSKY, ESQ.

          JOANNE PENGELLY, ESQ.

          DECISION AND ORDER

          GLENN T. SUDDABY, Chief United States District Judge

         Currently before the Court, in this Social Security action filed by Corey R. Colvin, on behalf of his son, G.R.K. ("Plaintiff"), against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties' cross-motions for judgment on the pleadings. (Dkt. Nos. 12, 13.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is denied and Defendant's motion for judgment on the pleadings is granted.

         I. RELEVANT BACKGROUND

         A. Factual Background

         At the time Plaintiff filed his application, he was a school-age child. At the time of his most-recent hearing, Plaintiff was an adolescent. Generally, Plaintiff's alleged impairments are epilepsy, extreme prematurity at birth, hearing loss, and attention deficit hyperactivity disorder ("ADHD").

         B. Procedural History

         On June 24, 2010, Plaintiff's father filed an application for Supplemental Security Income on behalf of Plaintiff, a minor. Plaintiff's application was initially denied on October 7, 2010, after which he timely requested a hearing before an Administrative Law Judge ("ALJ"). On September 12, 2011, Plaintiff and his father appeared in a hearing (by video) before the ALJ, Susan Wakshul. (T. 39-73.) On September 23, 2011, the ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 23-34.) On March 15, 2013, the Appeals Council denied Plaintiff's request for review, after which Plaintiff filed an action in the United States District Court for the Northern District of New York. (T. 1-5, 663-65.) On May 15, 2014, pursuant to a consent order entered by United States District Judge Norman A. Mordue on January 8, 2014, the Appeals Council remanded the case for further administrative proceedings. (Tr. 660-61, 664-65.)

         On January 9, 2015, another hearing was held, this time before ALJ Connor O'Brien. (Tr. 603-57.) On September 18, 2015, the ALJ-considering Plaintiff's case de novo-issued a written decision finding Plaintiff not disabled under the Social Security Act. (Tr. 575-97.) Plaintiff did not file exceptions to the ALJ's decision with the Appeals Council, and the Appeals Council did not assume jurisdiction over the decision; thus, the ALJ's decision constitutes the Commissioner's final decision after remand.

         C. The ALJ's Decision After Remand

         Generally, in his decision, the ALJ made the following six findings of fact and conclusions of law. (T. 578-97.) First, the ALJ found that Plaintiff was a "school-age child" on June 24, 2010, the date that his application for benefits was filed. (T. 578.) Second, the ALJ found that Plaintiff had not engaged in gainful activity since the application date. (Id.) Third, the ALJ found that Plaintiff's "history of premature birth and meningitis, epilepsy seizure disorder, hearing loss in his left ear, and ADHD" constituted severe impairments. (Id.) Fourth, the ALJ found that Plaintiff does not have an impairment, or combination of impairments, that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listings"). (T. 578-80.) In doing so, the ALJ considered Listings 102.01, 102.10, 111.02, 111.03, and 112.11. (Tr. 578.) Fifth, the ALJ found that Plaintiff does not have an impairment, or combination of impairments, that functionally equals the severity of the Listings. (T. 580-90.) Sixth, and finally, the ALJ found that Plaintiff has not been disabled, as defined by the Social Security Act, since June 24, 2010, the date on which his application was filed. (T. 597.)

         D. The Parties' Briefings on Their Cross-Motions for Judgment on the Pleadings

         1. Plaintiff's Memorandum of Law

         Generally, in support of his motion for judgment on the pleadings, Plaintiff asserts six arguments. (Dkt. No. 12 [Plf.'s Memo. of Law].)

         First, Plaintiff argues that the ALJ failed to comply with the Appeals Council's remand order because he did not obtain consultative examinations or medical expert evidence to assist in determining whether Plaintiff had an impairment, or combination of impairments, that meets, or functionally equals, a Listing; and thus the ALJ was "bound to [improperly] offer his own analysis and explanation" with respect to this issue. (Id. at 10.)

         Second, Plaintiff argues that the ALJ erred in not according controlling weight to the opinion of Dr. Kathleen Shefner, M.D., one of Plaintiff's treating physicians, for four reasons: (a) he did not cite any record medical evidence in support of his conclusion that Dr. Shefner's opinion was at odds with significant record evidence; (b) he failed to consider the factors set forth in 20 C.F.R. § 416.927(c) in determining how much weight to accord Dr. Shefner's opinion (including Dr. Shefner's "longitudinal treating relationship" with Plaintiff); (c) although he found Dr. Shefner's opinion "at odds" with Plaintiff's positive response to treatment, he "failed to note that having an improved condition does not" preclude a finding of disability; and (d) to the extent that he was "unsure as to the basis of Dr. Shefner's opinion, he had a duty to" re-contact Dr. Shefner for clarification of her opinion. (Id. at 10-13.)

         Third, Plaintiff argues that, because the ALJ erred in failing to accord Dr. Shefner's opinion controlling weight, the ALJ also erred in concluding that Plaintiff's ADHD did not meet Listing 112.11. (Id. at 14-15.)

         Fourth, Plaintiff argues that the ALJ erred in not obtaining an updated medical opinion with respect to the issue of medical equivalency, given that the case was last reviewed by State agency medical staff in October 2010 and prior to the addition of other pertinent evidence to the record (specifically, exhibits 10F, 13F, 14F, 15F, and 16F). (Id. at 15-16.)

         Fifth, Plaintiff argues that the ALJ erred in determining that Plaintiff's impairments do not functionally equal the Listings because substantial evidence supports the conclusion that Plaintiff has marked limitations in the domains of (i) acquiring and using information and (ii) interacting and relating to others. (Id. at 16-19.)

         Sixth, Plaintiff argues that the ALJ erred in evaluating his credibility because (a) Plaintiff's activities of daily living (which the ALJ cited in evaluating his credibility) do not preclude a finding that he is disabled and (b) the fact that Plaintiff's treatment has been routine and/or conservative in nature does not preclude a finding that he is disabled. (Id. at 19-20.)

         2. Defendant's Memorandum of Law

         Generally, in support of its motion for judgment on the pleadings, Defendant asserts seven arguments. (Dkt. No. 13 [Def.'s Memo. of Law].)

         First, in response to Plaintiff's fifth argument, Defendant argues that substantial evidence supports the ALJ's determination that Plaintiff's impairment did not functionally equal a Listing. (Id. at 5-6.) Specifically, Defendant argues as follows: (a) the ALJ's determination that Plaintiff had less than marked limitations in the domain of acquiring and using information was supported by (i) a child function report, in which Plaintiff's father indicated that Plaintiff had no problems talking, communicating, and processing in learning, (ii) the fact that Plaintiff was "passing overall in school, " (iii) the fact that Plaintiff spent time using his computer and playing video games, (iv) the fact that Plaintiff had an IQ score of 92, which is in the average range, (v) the fact that Plaintiff's treating physician (Dr. Shefner) found that Plaintiff had no problems in acquiring and using information, and (vi) the fact that state agency medical consultants, Dr. Randall and Dr. Prowda, opined that Plaintiff had limitations in these domains but that his limitations were less than marked; and (b) the ALJ's determination that Plaintiff had less than marked limitations in the domain of interacting and relating to others was supported by (i) reports from Plaintiff and his teachers that he was "very social and enjoyed interacting with others, " and (ii) Dr. Shefner's opinion that Plaintiff "generally [had] no problem in interacting and relating to others." (Id. at 5-6.)

         Second, in response to Plaintiff's third argument, Defendant argues that substantial evidence supports the ALJ's determination that Plaintiff's impairments did not meet or medically equal the requirements of Listing 112.11 because (a) Dr. Randall and Prowda opined that Plaintiff had less than marked limitations in the functional domains of acquiring and using information and interacting and relating to others, and no limitation in the functional domain of caring for yourself, and (b) Dr. Shefner's opinion that Plaintiff's ADHD caused marked impairment in cognitive/communicative functioning, social functioning, and personal functioning is inconsistent with her own finding that Plaintiff did not exhibit a marked loss in performing any activity that fell within the functional domains of acquiring and using information, interacting and relating with others, or caring for yourself.[2] (Id. at 8-10.)

         Third, in response to Plaintiff's second argument, Defendant argues that the ALJ properly declined to afford controlling weight to Dr. Shefner's opinion for the same reasons cited in support of its second argument (i.e., because her opinion was inconsistent with other substantial evidence in the record). (Id. at 8-10.) Moreover (and relatedly), Defendant argues that the ALJ properly considered the relevant factors in evaluating the appropriate weight to afford Dr. Shefner's opinion, including the length of Dr. Shefner's treatment relationship with Plaintiff. (Id. at 10.)

         Fourth, in response to Plaintiff's fourth argument, Defendant argues that the ALJ did not err in declining to obtain a medical expert's opinion regarding whether Plaintiff's impairments medically equaled the requirements of a Listing because (a) the record does not support the conclusion that the medical evidence submitted after Dr. Randall and Dr. Prowda issued their opinions that Plaintiff's impairments did not ...


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