United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA JUDGE
by counsel, April Leon (“Plaintiff”) has brought
this action on behalf of her infant son (“J.E.V.”
or “Claimant”) pursuant to Title XVI of the
Social Security Act (“the Act”), seeking review
of the final decision of the Acting Commissioner of Social
Security (“the Commissioner”) denying
J.E.V.'s application for Supplemental Security Income
(“SSI”). The Court has jurisdiction over the
matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
April 11, 2012, Plaintiff filed an application for SSI on
J.E.V.'s behalf, asserting a disability onset date of
January 10, 2010. The claim was denied initially on August
28, 2012. Plaintiff thereafter filed a written request for
hearing on September 10, 2012.
hearing was scheduled for December 10, 2013, in Rochester,
New York before Administrative Law Judge Michael W. Devlin
(“the ALJ”). On the hearing date, Plaintiff
called and requested a postponement due to transportation
issues. (T.330). A postponement was apparently granted and
a new hearing was noticed for April 8, 2014. (T.146).
February 26, 2014, Plaintiff wrote a letter to the ALJ asking
that she and her son be permitted to testify by telephone
because they did not have transportation to get to the
hearing. (T.331). J.E.V.'s attorney sent a follow-up
letter, requesting that Plaintiff and her son allowed to
appear by telephone. In the alternative, J.E.V.'s
attorney stated that if their request were denied, Plaintiff,
on behalf of J.E.V., waived the right to present testimony
and requested a decision based on the evidence in the file.
28, 2014, the ALJ issued a decision finding J.E.V. not
disabled. (T.78-90). It does not appear that the ever ruled
on Plaintiff's request to appear by telephone.
Appeals Council denied Plaintiff's request for review on
August 26, 2015, making the ALJ's decision the final
decision of the Commissioner. Plaintiff then timely commenced
applied the three-step sequential evaluation process for
deterimining whether an individual under the age of 18 is
disabled. See 20 C.F.R. § 416.924(a).
one, the ALJ noted that J.E.V. was born on January 10, 2009,
making him an older infant on April 11, 2012, the date
application was filed. At the time of the ALJ's decision,
J.E.V. was a preschooler. J.E.V. had not engaged in
substantial gainful activity since April 11, 2012, the
two, J.E.V. was found to have the following severe
impairments: attention deficit hyperactivity disorder
(“ADHD”); impulse control disorder; communication
disorder; adjustment disorder with anxiety and depressed
mood; and enuresis.
three, the ALJ determined that J.E.V. does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1,
including Listings 1122.04, 112.08, and 112.l1. The ALJ also
determined that J.E.V. does not have an impairment or
combination of impairments that functionally equals the
severity of any of the listed impairments because he does not
have “marked” limitations in two domains ...