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Leon v. Colvin

United States District Court, W.D. New York

February 28, 2018

APRIL LEON, o/b/o J.E.V., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA JUDGE

         INTRODUCTION

         Represented 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”)[1] 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).

         PROCEDURAL STATUS

         On 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.

         A 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).[2] A postponement was apparently granted and a new hearing was noticed for April 8, 2014. (T.146).

         On 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. (T.332).

         On May 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.

         The 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 this action.

         THE ALJ'S DECISION

         The ALJ 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).

         At step 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 application date.

         At step 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.

         At step 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 ...


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