Opinion
NO. 3:22 CV 119(RMS)
2022-12-14
CHERYL C., Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of the Social Security Admin., Defendant.
Jennifer Hack Collins, Cramer & Anderson, LLP, Danbury, CT, for Plaintiff. Nicol Fitzhugh, SSA-Ogc, Baltimore, MD, Sophie Doroba, Social Security Administration, Office of Program Litigation, Baltimore, MD, Erin Jurrens, Office of the General Counsel, Baltimore, MD, for Defendant.
Jennifer Hack Collins, Cramer & Anderson, LLP, Danbury, CT, for Plaintiff. Nicol Fitzhugh, SSA-Ogc, Baltimore, MD, Sophie Doroba, Social Security Administration, Office of Program Litigation, Baltimore, MD, Erin Jurrens, Office of the General Counsel, Baltimore, MD, for Defendant.
RULING ON THE PLAINTIFF'S MOTION FOR AN ORDER REVERSING AND THE COMMISSIONER'S MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
Robert M. Spector, United States Magistrate Judge
Before the Court is an administrative appeal filed by Cheryl C. ("the plaintiff") pursuant to 42 U.S.C. § 405(g) following the denial of her application for child's insurance benefits ("CIB") under her late father's earnings record for the period between the alleged onset date of October 28, 1954 and October 27, 1976, the day before her 22nd birthday. The plaintiff moves for an order reversing the decision of the Commissioner of the Social Security Administration ("Commissioner") and remanding the case on the grounds that Administrative Law Judge ("ALJ") Ryan A. Alger erred by 1) improperly finding that the plaintiff did not have a medically determinable impairment, and 2) failing to develop the record. (Doc. No. 13 at 3). The plaintiff asks the Court to reverse the Commissioner's decision to deny benefits, or, in the alternative, to remand the case to afford her a full and fair hearing. (Id. at 4). The Commissioner moves to affirm the decision below, arguing that it is supported by substantial evidence. (Doc. No. 16 at 1).
Under the Social Security Act, the "Commissioner of Social Security is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under [the Act]." 42 U.S.C. §§ 405(b)(1), 1883(c)(1)(A). The Commissioner's authority to make such findings and decisions is delegated to an administrative law judge ("ALJ"). See 20 C.F.R. §§ 404.929, 416.1429. The plaintiffs can appeal an ALJ's decision to the Social Security Appeals Council. See 20 C.F.R. §§ 404.967, 416.1467. If the Appeals Council declines review or affirms the ALJ's decision, then the claimant may appeal to the United States district court. Section 205(g) of the Social Security Act provides that "[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c)(3).
The plaintiff is ineligible for supplemental Social Security benefits because the distributions she receives from a retirement account established by her mother exceed the eligibility threshold. (Doc. No. 14 at 8). The plaintiff is also ineligible for Social Security disability insurance because she does not have sufficient work credits to apply for benefits under her own earnings record. (Id.).
For the reasons set forth below, the plaintiff's Motion for Order Reversing the Decision of the Commissioner (Doc. No. 13) is DENIED, and the Commissioner's Motion for an Order Affirming the Commissioner's Decision (Doc. No. 16) is GRANTED.
I. PROCEDURAL HISTORY
The plaintiff alleges that her disability began on October 28, 1954. (Doc. No. 14 at 1; Certified Transcript of Administrative Proceedings, dated May 11, 2021 ["Tr."] at 30). On December 27, 2019, the plaintiff filed an application for CIB, alleging that she suffers from a learning disability. (Tr. 30, 33, 238). The Commissioner denied the plaintiff's application initially on March 17, 2020, and upon reconsideration on June 24, 2020. (Tr. 30).
A claimant is eligible for child's insurance benefits on the earnings record of an insured person who is entitled to old-age or disability benefits if: (1) the claimant is the insured's child; (2) the claimant is a dependent of the insured; (3) the claimant is unmarried and over the age of 18, and (4) the claimant suffered from a disability before attaining age 22. See 20 C.F.R. § 404.350(a).
The Commissioner received the plaintiff's request for a hearing on July 21, 2020, and on April 8, 2021, the plaintiff and her attorney appeared for a telephonic hearing before ALJ Alger. (Id., citing 20 CFR §§ 404.929, et seq.). Although vocational expert Robert Baker appeared by video, only the plaintiff testified at the hearing. (Id.). On May 11, 2021, the ALJ issued an unfavorable decision, denying the plaintiff's request for benefits. (Tr. 30-34). On November 24, 2021, the Appeals Council denied the plaintiff's request for review, thereby rendering the ALJ's decision final. (Doc. No. 14 at 2-3).
The hearing was conducted telephonically due to the extraordinary circumstance presented by the COVID-19 pandemic. (Tr. 30).
On January 21, 2022, the plaintiff filed this action seeking judicial review of the Commissioner's decision. (Doc. No. 1). On March 16, 2022, the Commissioner filed the certified administrative record. (Doc. No. 6). The plaintiff consented to a magistrate judge on March 21, 2022, (Doc. No. 9), and on March 23, 2022, this case was transferred to the undersigned for all purposes. (Doc. No. 10). On June 13, 2022, the plaintiff timely filed her Motion for Order Reversing the Decision of the Commissioner, together with a supporting memorandum and Statement of Material Facts. (Doc. Nos. 13, 13-1, 14). On July 12, 2022, the Commissioner filed its Motion for an Order Affirming the Commissioner's Decision, together with a supporting memorandum and a Statement of Facts. (Doc. Nos. 16, 16-1, 16-2).
II. FACTUAL BACKGROUND
A. The Plaintiff's Hearing Testimony
At the time of the hearing in April 2021, the plaintiff was 56 years old. (Tr. 44). The plaintiff has a high school diploma. (Tr. 45). While the plaintiff was in high school, she could read and write, and she sometimes required the assistance of a math tutor. (Id.)
Although the plaintiff was living with her sister at the time of the hearing, she lived with her parents for most of her adult life prior to their deaths. (Id.). The plaintiff does not drive and has never had a driver's license. (Tr. 45-6). The plaintiff relies on family members to get around. (Tr. 46). The plaintiff's brother handles her finances. (Id.)
B. Relevant Medical History
The plaintiff alleges that she suffers from a learning disability. (Tr. 33, 238). The only relevant historical records relevant to the plaintiff's alleged disability are from 1980, 1996, 2019, and 2021. (Tr. 33, 222, 293-94, 304-461).
In support of her application for CIB, the plaintiff provided an "Individualized Written Rehabilitation Program" form from the State of Connecticut Department of Education, Division of Vocational Rehabilitation, Bureau of Rehabilitation Services, from January 1980. (Tr. 222).
In the plaintiff's Hearing Memorandum, she referenced a document dated 1996 from Blue Cross Blue Shield of Connecticut, Inc. ("BCBS"), including an "Application for Continuation of Coverage for Mentally or Physically Handicapped Dependent Child Beyond Maximum Age," which described the plaintiff as "very slow mentally and physically since birth" and indicated that the plaintiff participated in vocational workshops offered by the State of Connecticut but was unable to secure a job placement. (Tr. 288, 293). The application further noted that the plaintiff "is slow doing her activities of daily living and needs help with her own affairs." (Id.). The application, which is dated February 2, 1996, also indicated that the plaintiff's only job was at a Christian nursery school, where she served as a part-time helper starting in 1988. (Id.). The application included a certificate signed by Dr. Stephen Zebrowski on February 2, 1996, which stated that the plaintiff's congenital history included a learning disability secondary to her mother's toxemia. (Tr. 289, 293). The application further indicated that a physical examination of the plaintiff revealed that she was slow to respond and unable to perform complicated tasks. (Id.). Dr. Zebrowski diagnosed the plaintiff with a learning disability and recommended a treatment plan of supportive care for life. (Id.). The prognosis for the plaintiff's disabling condition was "permanent and partial." (Id.). Dr. Zebrowski checked a box indicating that the plaintiff could not engage in any substantial gainful employment to fully support herself. (Id.). The application was signed by the plaintiff's father, who is now deceased. (Id.).
In her Hearing Memorandum, the plaintiff stated that her only job was at a nursery school and that she last worked in 2011. (Tr. 292-93). In the plaintiff's Work History Report dated February 14, 2020, however, she stated that she had six jobs in the 15 years before she became unable to work because of her disability. (Tr. 255). According to the plaintiff, she worked as a kitchen helper at a steakhouse in June and July 1974; a teacher's aide at a daycare center from January 1975 until October 1975; a finisher at Wasley Products in January 1979; a job trainee at Easter Seals job shop from March 1977 until October 1979; a teacher's aide at a nursery school for an unknown amount of time starting in June 1980; and a teacher's aide at a Christian nursery school from 1990 until 2011. (Id.). In her Work Activity Report dated January 24, 2020, the plaintiff indicated that she worked as a daycare helper at a Christian nursery school for an average of four and a half hours per week from September 1, 1987 until June 3, 2011. (Tr. 227).
The plaintiff's Hearing Memorandum also referenced a February 21, 1996 letter from the Dedicated Service Unit at BCBS notifying the plaintiff's father that the plaintiff had been permanently identified as a "Disabled Dependent." (Tr. 290, 293).
Finally, the memorandum referenced a psychological examination report dated March 18, 2021, which was authored by Karen Fischer-Perkins, MS, LPC, a school psychologist and licensed professional counselor. (Tr. 293-94). The plaintiff supplied a copy of the report in support of her application for benefits. (Tr. 453-61). The report was based entirely on a medical and developmental history provided by the plaintiff's brother and "available records." (Id.)
The report indicated that the plaintiff's gestational development was impacted by toxemia during her mother's pregnancy. (Tr. 453). Ms. Fischer-Perkins noted that the plaintiff had slow development and educational progress throughout her early childhood and formative school-aged years, and that she was diagnosed with learning disabilities as a school-aged child. (Id.). The plaintiff's medical vulnerabilities at the time of the evaluation included asthma, diabetes, occasional insomnia, and a severe peanut allergy. (Id.). The plaintiff graduated high school in 1973 and got a job at a steakhouse, which she was unable to manage. (Id.). Later, the plaintiff was employed part-time through a government-funded program, but she left once the work became overwhelming due to her anxiety. (Id.). The plaintiff worked as a teacher's helper at a church daycare center, where she played with young children under supervision of her mother who typically drove and accompanied her. (Id.). The plaintiff never obtained a driver's license. (Id.). The plaintiff's father died in 1999, and her mother died in 2013. (Tr. 454). The physical manifestations of the plaintiff's "social and mental health deficiencies" included picking at, wringing, and sometimes flapping her hands. (Id.). When the plaintiff was upset, she regressed into "peculiar and repetitive mannerisms." (Id.). Dr. Fischer-Perkins noted episodes of anxiety, tearfulness, frustration, and sensitivities during her evaluation of the plaintiff. (Id.). The plaintiff presented as shy and limited in her ability to engage in spontaneous conversation. (Id.). The plaintiff's speech articulation was slightly garbled. (Id.). The plaintiff's anxiety was induced by stressful events, such as witnessing her grandfather die from a heart attack and living with her sister who engaged in bullying behavior. (Id.).
According to the report, the plaintiff's "intellectual deficiencies" indicated a significant handicap that was disabling and created "significant and severe challenges for any level of independent functioning." (Tr. 457). The plaintiff's communication, daily living, socialization, and motor skills scored in the .1 percentile (low). (Tr. 457-58). The plaintiff's score on the Vineland adaptive living skills test was low and limited, which indicated severely limited independent functioning and adaptive living skills. (Tr. 458). The plaintiff's low score in the areas of socialization and interpersonal relationships were notable since they represented patterns often associated with autism spectrum disorders. (Id.). The results of the plaintiff's RCMAS-2 anxiety scale test revealed that the plaintiff suffered from significant anxiety. The plaintiff's elevated scores in areas associated with defensiveness, worry, and social anxiety/socialization indicated "severe and significant anxiety." (Tr. 459). The pervasive developmental disorder behavior inventory ("PDDBI") indicated a likelihood that the plaintiff suffered from mild autism, autistic tendencies, or mild Asperger's Syndrome in childhood. (Id.). This was further indicated by the plaintiff's high scores in the areas of social withdrawal and social inhibition. (Id.). The plaintiff's current adaptive living skills, as measured by the Vineland test, ranked within significantly deficient ranges and levels associated with severe intellectual impairment. (Tr. 460). Dr. Fischer-Perkins wrote that the plaintiff required significant support to function, cope, live, and navigate daily living. (Id.). Historical, developmental, and objective findings demonstrated that the plaintiff had significant and severe needs. (Id.). The plaintiff's capabilities and ability to work were extremely limited or non-existent since she had difficulties with the demands of employment, even at a much younger age. (Id.). Finally, the report stated that the plaintiff's cognitive and adaptive living skill limitations and deficits, along with her severe anxiety, tearfulness, and panic reactions, limited or precluded her ability to obtain gainful employment. (Tr. 461).
Based on her psychological evaluation of the plaintiff, Ms. Fischer-Perkins diagnosed the plaintiff with sub-average intellectual functioning/borderline intellectual functioning, unspecified intellectual disability, anxiety disorder unspecified, generalized anxiety disorder, and mild autistic spectrum disorder. (Tr. 460).
Finally, the plaintiff supplied the ALJ with progress notes from the plaintiff's treatment at ProHealth Physicians between September 18, 2013, and November 30, 2019. (Tr. 304-452). These records demonstrate that the plaintiff has suffered from anxiety since 2013. (See id.). Furthermore, these records show that the plaintiff received a diagnosis of panic disorder with agoraphobia in 2018. (See, e.g., Tr. 336, 340).
C. The ALJ's Decision
On May 11, 2021, the ALJ made several findings in his decision that are subject to review by this Court. (See Tr. 32-34).
As an initial matter, the ALJ stated that the plaintiff needed to establish disability before she attained age 22. (Tr. 31). In making his findings, the ALJ considered the relevant period between the plaintiff's alleged onset date of October 28, 1954, through October 27, 1976, the day before the plaintiff's 22nd birthday. (Tr. 32-33). Following the five-step evaluation process, the ALJ found that the plaintiff had not attained age 22 as of October 28, 1954, the alleged onset date, and that she had not engaged in substantial gainful activity since that date. (Tr. 32-33, citing 20 C.F.R. §§ 404.1571, et seq.).
An ALJ determines a claimant's disability using the same five-step analysis that applies to adult claims under Title II. See 20 C.F.R. § 404.1520(a)(2). First, an ALJ must determine whether a claimant is currently working. See 20 C.F.R. § 404.1520(a)(4)(i). If a claimant is currently employed, then the claim is denied. Id. If a claimant is not working, however, then an ALJ must make a finding as to the existence of a severe mental or physical impairment. If none exists, then the claim is denied. See 20 C.F.R. § 404.1520(a)(4)(ii). If a claimant is found to suffer from a severe impairment, however, then an ALJ must compare the claimant's impairment with those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Regulations ("the Listings"). See 20 C.F.R. § 404.1520(a)(4)(iii); Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Balsamo v. Chater, 142 F.3d 75, 79-80 (2d Cir. 1998). If a claimant's impairment meets or equals one of the impairments in the Listings, then the claimant is disabled. See 20 C.F.R. § 404.1520(a)(4)(iii); see also Balsamo, 142 F.3d at 80. If a claimant's impairment does not meet or equal one of the = impairments in the Listings, however, then the claimant must show that she cannot perform her former work. See 20 C.F.R. § 404.1520(a)(4)(iv). If a claimant demonstrates that she cannot perform her former work, then the burden shifts to the Commissioner to show that the claimant can perform other gainful work. See Balsamo, 142 F.3d at 80 (citations omitted). A claimant is entitled to receive disability benefits only if she shows that she cannot perform her former work and the Commissioner fails to show that the claimant can perform alternative gainful employment. See 20 C.F.R. § 404.1520(a)(4)(v); see also Balsamo, 142 F.3d at 80 (citations omitted).
At step two, the ALJ found that because there were no records dating back prior to the plaintiff's 22nd birthday, there were no medical signs or laboratory findings indicating that she suffered from a medically determinable impairment during the relevant period. (Tr. 33). Moreover, the ALJ found that there was no evidence to establish that the plaintiff suffered from a disabling intellectual disability at the time of his decision since her Full Scale IQ score was above 80, which is in the low average range. (Id., citing Tr. 456).
Accordingly, the ALJ concluded that the plaintiff had not been under a disability at any time prior to October 27, 1976. (Tr. 34, citing 20 C.F.R. §§ 404.350(a)(5), 404.1520(c)). III. STANDARD OF REVIEW
To be considered disabled and therefore entitled to CIB, a claimant must demonstrate that she is at least 18 years old and that she suffered from a medically determinable disability before she attained age 22. See 20 C.F.R. § 404.350(a)(5).
When an ALJ determines that a claimant is not disabled and the Commissioner upholds the ALJ's decision, the claimant may seek judicial review by a district court. See 42 U.S.C. § 405(g). In this capacity, the district court performs "an appellate function." Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). When reviewing a denial of CIB, a district court may not make a de novo disability determination. Wagner v. Sec'y of Health & Human Serv's, 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to ascertain whether the ALJ applied the correct legal principles in reaching his conclusion, and whether his decision is supported by substantial evidence. Biestek v. Berryhill, — U.S. —, 139 S. Ct. 1148, 1153, 203 L.Ed.2d 504 (2019). ("On judicial review, an ALJ's factual findings . . . 'shall be conclusive' if supported by 'substantial evidence.' ") (quoting 42 U.S.C. § 405(g)). Absent legal error, the district court many not set aside an ALJ's decision if it is supported by substantial evidence. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Stated differently, if an ALJ's decision is supported by substantial evidence, then that decision will be sustained, even though there may also be substantial evidence to support the claimant's contrary position. Id.
"Substantial evidence" is evidence that a reasonable mind would accept as adequate to support a conclusion; it is more than a "mere scintilla." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation omitted); Biestek, 139 S. Ct. at 1154 ("[W]hatever the meaning of 'substantial' in other contexts, the threshold for such evidentiary sufficiency is not high."). The substantial evidence standard is "a very deferential standard of review—even more so than the 'clearly erroneous' standard," and the Commissioner's findings of fact must be upheld unless "a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin. Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (citations omitted). "[A district court] must 'consider 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.' " Petrie v. Astrue, 412 F. App'x 401, 403-04 (2d Cir. 2011) (quoting Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)).
IV. DISCUSSION
The plaintiff claims that the ALJ erred in two respects. First, the plaintiff contends that substantial evidence does not support the ALJ's finding that the plaintiff had no medically determinable impairments during the relevant period. (See Doc. No. 13-1 at 5-10). Next, the plaintiff argues that the ALJ failed to adequately develop the record. (See id. at 11-14).
The Commissioner disputes the plaintiff's arguments, asserting instead that 1) the ALJ properly determined that the plaintiff had no medically determinable impairments prior to her 22nd birthday since there were no medical records dating back to the period between the alleged onset date of October 28, 1954 and October 27, 1976, the day before the plaintiff's 22nd birthday, and 2) the ALJ was not required to order a consultative examination or otherwise develop the record further. (Doc. No. 16-1 at 4-9).
For the reasons that follow, the Court finds that (1) substantial evidence supports the ALJ's finding that the plaintiff had no medically determinable impairments between the alleged onset date and the plaintiff's 22nd birthday, and (2) no further development of the record was necessary.
A. The ALJ's Finding That the Plaintiff Had No Medically Determinable Impairment
The plaintiff contends that "the record does not support the ALJ's finding that 'there were no medical signs or laboratory findings to substantiate the existence of a medically determinable impairment' and in so finding the ALJ improperly ignored and/or summarily dismissed the 03/18/21 medical report of Karen Fischer-Perkins, MS, LPC." (Doc. No. 13-1 at 5, quoting Tr. 33).
To satisfy the "severity" threshold at step two, a plaintiff must demonstrate that she had a "medically determinable" impairment or combination of impairments on a continuous basis for 12 consecutive months that significantly limited her physical or mental ability to perform basic work activities, without regard to age, education, or work experience. See 20 C.F.R. §§ 404.1520(c), 404.1522. For an impairment to qualify as "medically determinable," there must be medical signs or laboratory findings that demonstrate the existence of a medical impairment that could reasonably be expected to produce pain or other symptoms. See 20 C.F.R. § 404.1521. An ALJ cannot rely upon a plaintiff's statement of symptoms, diagnosis, or medical opinion to establish the existence of an impairment. Id. The plaintiff bears the burden of showing that an impairment is severe. Woodmancy v. Colvin, 577 F. App'x 72, 74 (2d Cir. 2014) (summary order).
The ALJ found that, because there were no medical records relating to the plaintiff's medical condition prior to October 27, 1976, the plaintiff failed to demonstrate that she suffered from a medically determinable impairment prior to her 22nd birthday. (Tr. 33). Moreover, although the earliest treatment note in the record is from September 2013, nearly 60 years after the alleged onset date and 37 years after the plaintiff turned 22, the ALJ still reviewed, considered, and discussed Ms. Fischer-Perkins' March 2021 psychological report because the plaintiff alleged that she suffered from a learning disability. (Tr. 33, 453-61). As the ALJ noted, even in 2021, the plaintiff's Full Scale IQ score over 80 placed her in the low average range and could not, on its own, be considered a severe impairment. (Tr. 33, 456).
Moreover, Ms. Fischer-Perkins concluded that the plaintiff's ability to work was "extremely limited," particularly at her "current age." (Tr. 460) (emphasis added). Although Ms. Fischer-Perkins stated that the plaintiff's disabilities were documented and established before she attained age 22, as evidenced by her difficulty progressing through school, there is no medical evidence in the record to support such a finding. (Tr. 460). The plaintiff cites to a 1996 health insurance coverage letter designating the plaintiff as a permanently disabled dependent in support of Ms. Fischer-Perkins' opinion, but this does not qualify as objective medical evidence from the relevant period. The ALJ found that Ms. Fischer-Perkins' evaluation, which she conducted more than 44 years after the plaintiff's 22nd birthday, did not provide a functional assessment of the plaintiff's abilities during the relevant period. (Tr. 33).
In the absence of sufficient medical signs or laboratory findings dated prior to October 28, 1976, the record evidence does not establish a medically determinable impairment during the relevant period. See 20 C.F.R. § 404.1521.
B. The ALJ's Duty to Develop the Record
The plaintiff also argues that the ALJ failed to adequately develop the record before finding that there was insufficient evidence to establish a medically determinable impairment between October 28, 1954, the alleged onset set, and the plaintiff's 22nd birthday, October 27, 1976. (Doc. No. 13-1 at 11-14). The plaintiff asserts that "because the age of any documentation just prior to [her] twenty-second birthday (10/27/1976) was so old and presumably with the paper recording keeping system which long since has been purged," the ALJ should have ordered a consultative examination of the plaintiff before rendering his disability decision. (Id. at 11).
A "hearing on disability benefits is a non-adversarial proceeding," and as such, "the ALJ generally has an affirmative obligation to develop the administrative record." Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citation omitted). This duty exists even when, as in this case, the claimant is represented by counsel. Id. (citation omitted); see also Burgess, 537 F. 3d at 128. The ALJ's obligation to develop the record exists "when additional information is needed due to the vagueness, incompleteness, or inconsistency of the treating source's opinion." Moreau v. Berryhill, No. 3:17 CV 396 (JCH), 2018 WL 1316197, at *11 n.6 (D. Conn. Mar. 14, 2018) (multiple citations omitted); see 20 C.F.R. § 404.1520b(b)(2)(i). However, "an ALJ is not required to order a consultative examination if the facts do not warrant or suggest the need for it." Tankisi v. Comm'r of Soc. Sec., 521 F. App'x 29, 32 (2d Cir. 2013) (citation omitted); see 20 C.F.R. §§ 404.1520b(b)(2), 416.920b(b)(2) (noting that an ALJ may, but is not required to, contact a medical source before reaching a disability determination).
In this case, a consultative examination conducted nearly 45 years after the plaintiff's 22nd birthday would not have been probative of the plaintiff's conditions during the relevant period, especially since the record already contained cognitive testing from March 2021 establishing the plaintiff's Full Scale IQ score in the low average range. (Tr. 33, 456).
Furthermore, an ALJ cannot rely upon a plaintiff's statements of symptoms, a diagnosis, or a medical opinion, no matter how compelling, to establish the existence of a medically determinable impairment. See 20 C.F.R. § 404.1521. Where, as here, the record contains no medical evidence from the period prior to the plaintiff's 22nd birthday and a consultative examination would not address the relevant period, the ALJ properly found that there was no need for the ALJ to further develop the record before finding that the plaintiff did not suffer from a medically determinable impairment prior to October 27, 1976 and concluding his sequential evaluation of the plaintiff's claim at step two. (Tr. 33, citing 20 C.F.R. § 404.350(a)(5) and 404.1520(c)). Said another way, it was not error for the ALJ to conclude that any consultative examination reflecting the plaintiff's present abilities would have no probative value in determining whether the plaintiff suffered from a medically determinable impairment in 1976.
V. CONCLUSION
For the reasons stated above, the plaintiff's Motion for Order Reversing the Decision of the Commissioner (Doc. No. 13) is DENIED, and the Commissioner's Motion for an Order Affirming the Commissioner's Decision (Doc. No. 16) is GRANTED.
This is not a Recommended Ruling. The consent of the parties permits this Magistrate Judge to direct the entry of a judgment of the District Court in accordance with the Federal Rules of Civil Procedure. Appeals from this judgment may be made directly to the appropriate United States Court of Appeals. See 28 U.S.C. § 636(c)(3); FED. R. CIV. P. 73(c).