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finding that, because the “Plaintiff [did] not challenge the ALJ's determination that her impairments did not meet or medically equal the requirements of any Listing” she was “not disabled . . . unless she has an ‘extreme' limitation in one of the six domains of functioning set forth in 20 C.F.R. § 416.926a . . . or ‘marked' limitations in at least two of those domains.”
Summary of this case from Morris v. Comm'r of Soc. Sec.Opinion
19-cv-9253 (AT) (BCM)
08-25-2021
OBDULIA CRUZ, o/b/o M.M.W., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION TO THE HON. ANALISA TORRES
BARBARA MOSES, United States Magistrate Judge.
Obdulia Cruz filed this action on behalf of her minor daughter, plaintiff M.M.W., pursuant to § 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), challenging a decision by the Commissioner of Social Security (Commissioner) denying her application for Supplemental Security Income (SSI). Now before me for report and recommendation are the parties' cross-motions for judgment on the pleadings. For the reasons that follow, I respectfully recommend that plaintiff's motion (Dkt. No. 20) be denied, that the Commissioner's motion (Dkt. No. 24) be granted, and that the case be dismissed.
I. BACKGROUND
A. Procedural Background
Plaintiff's application for SSI was filed on April 27, 2016, asserting disability since February 1, 2016 due to liver disease, lupus nephritis, asthma, and a learning disability. See Social Security Administration (SSA) Administrative Record (Dkt. No. 12), at 37, 932-33, 997-1004, 1030 (hereinafter "R. ___."). On June 15, 2016, the SSA denied the application. (R. 942-46.) On July 18, 2016, plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 37, 948-49.) On May 17, 2018, plaintiff and her mother appeared and testified, without counsel, at a video hearing before ALJ Scott Johnson. (R. 903-31.) In a written decision dated August 20, 2018 (Decision), ALJ Johnson determined that M.M.W. was not disabled within the meaning of the Act. (R. 37-53.) On January 31, 2019, plaintiff requested Appeals Council review (R. 1102-06) and in connection with that request submitted additional medical records, most (but not all) pre-dating the Decision. (R. 59-902.) The Appeals Council denied plaintiff's request on August 8, 2019 (R. 1-7), rendering the ALJ's determination final.
B. Personal Background
M.M.W. was born on December 25, 2001. (R. 1020.) On the date of her application, she was 14 years old and in the eighth grade. (R. 1032.) By the time she testified at the hearing, she was 16 years old and in the tenth grade. (R. 926.) She lived in a New York City apartment with her mother and an older sister. (R. 911.)
In a function report completed on April 27, 2016 and submitted with M.M.W.'s initial application (R. 1020-28), Ms. Cruz reported that plaintiff's daily activities were "not limited" (R. 1023), but that she was limited in "understanding and using what . . . she has learned," in that she was unable to "[r]ead and understand stories in books, magazines, or newspapers," "[m]ultiply and divide numbers over 10," or "[u]nderstand[] money." (R. 1024.) On the other hand, M.M.W. was capable of reading and understanding sentences in comics and cartoons, spelling words with more than four letters, telling time, adding and subtracting numbers over 10, and understanding, carrying out, and remembering simple instructions. (Id.) Ms. Cruz reported that M.M.W. was able to walk, run, dance, swim, ride a bike, throw a ball, jump rope, and play sports. (Id.) She wrote that her daughter's impairments did not affect her social activities or behavior with other people, nor limit her ability to take care of her personal needs and safety. (R. 1025-26.) Asked about M.M.W's ability to pay attention and stick with a task, Ms. Cruz said that her daughter could work on arts and crafts projects, keep busy on her own, finish things she started, complete her homework, and complete chores, most of the time. However, according to her mother, M.M.W. did not complete her homework on time. (R. 1027.)
In a second function report completed on May 17, 2016 (R. 1048), Ms. Cruz said that her daughter had an Individualized Education Program (IEP) in school (id.); that she "misse[d] a lot of days [of] school for being sick and being in the [hospital] and going to lots of appointments" (id.); and that she had some issues in her ability to move or walk, but "only when she [is] feeling fatigue or having some [joint] pains." (Id.)
In the summer of 2017, M.M.W. earned $1,320 while working for the NYC Department of Youth and Community Development. (R. 1015-17.) She has not otherwise been employed.
II. M.M.W.'S MEDICAL HISTORY
A. Pre-Decision Medical History
In this portion of my Report and Recommendation, I reference both the records submitted to and considered by the ALJ (dated January 2016 through March 2018) (R. 1118-34, 1154-1549) and the additional records submitted only to the Appeals Council (dated February 2016 through November 2018) (R. 59-902).
1. February 2016 Hospitalization
In February 2016, after "10 days of several spontaneous bruise formation[s]," M.M.W. was hospitalized at Montefiore Medical Center (Montefiore) for several days. (R. 60; see also R. 1118, 1515.) Following a liver biopsy and consultations by physicians from the hematology, rheumatology, and gastroenterology departments, she was principally diagnosed with acute liver failure, cholestasis, autoimmune hepatitis, anemia, and coagulopathy. (R. 61, 76, 266, 1522.) The doctors treating M.M.W. also expressed concern that she would develop systemic lupus erythematosus (SLE). (R. 266.) She was secondarily diagnosed with obesity and asthma (moderate persistent) and was prescribed prednisone, hydroxychloroquine, lansoprazole, and MiraLax. (R. 76-77.) A March 17, 2016 kidney biopsy revealed no evidence of hematoma. (R. 232.)
Lupus is an autoimmune disease in which the immune system attacks healthy cells and tissues. Symptoms are varied, and may include pain or swelling in joints, muscle pain, red rashes, hair lupus and ranges in severity from mild to severe. See https://medlineplus.gov/lupus.html (all internet sites were last visited August 25, 2021, unless otherwise indicated).
Prednisone, a steroid, is used alone or with other medications to treat a variety of conditions, including lupus. See https://medlineplus.gov/druginfo/meds/a601102.html. Hydroxychloroquine is used to treat SLE by decreasing the activity of the immune system. See https://medlineplus.gov/druginfo/meds/a601240.html. Lansoprazole is a non-prescription medication (sold under the brand name Prevacid) used to treat the symptoms of gastroesophageal reflux disease (GERD). See https://medlineplus.gov/druginfo/meds/a695020.html. MiraLax (a brand name for polyethylene glycol 3350) is a non-prescription medication used to treat occasional constipation. See https://medlineplus.gov/druginfo/meds/a603032.html.
After her release from the hospital, M.M.W. received ongoing medical services from practitioners in several different departments within the Montefiore system, including gastroenterology/hepatology, nephrology, rheumatology, pediatrics, and neurology. The subsections below, which describe M.M.W.'s medical progress from 2016 through 2018, are organized by department.
2. Gastroenterology and Hepatology
On March 14, 2016, M.M.W. was seen by Nadia Ovchinsky, M.D., the Director of Pediatric Hepatology at the Montefiore Children's Hospital. Dr. Ovchinsky wrote that M.M.W. was "getting headaches about twice a week," but had "no associated photophobia or phonophobia." (R. 309.) At the same visit, Dr. Ovchinsky noted that M.M.W. "was recently seen to have hematuria and proteinuria, which is concerning for lupus nephritis." (Id.)
See https://www.montefiore.org/body.cfm?id=1735&action=detail&ref=5631.
Hematuria is blood in the urine, see https://kidshealth.org/en/parents/hematuria.html, while proteinuria is protein in the urine. See https://familydoctor.org/proteinuria-inchildren/?adfree=true. Lupus nephritis is a type of kidney disease, caused by SLE, which can get worse over time and lead to kidney failure. See https://www.niddk.nih.gov/health
At her next visit on April 4, 2016 (R. 325), Dr. Ovchinsky noted that M.M.W. was experiencing "headaches on average one to two times per week" which "improve[] with motrin," and had no "associated dizziness, nausea, photophobia, [or] phonophobia." (Id.) Dr. Ovchinsky concluded that the headaches were "likely related to steroids" and that with "continued gradual wean[ing] of steroids," she expected that the "frequency of headaches should continue to improve." (R. 328.) Plaintiff also told Dr. Ovchinsky that she was having trouble falling asleep and frequently woke up during the night. (R. 325.) At a visit on May 2, 2016, Dr. Ovchinsky reported that M.M.W.'s "liver histology" was "consistent with findings of autoimmune hepatitis," but that that her condition was "[c]urrently being managed on Imuran 75mg daily and prednisone 20mg daily which has gradually been weaned." (R. 337, 1121.)
Imuran (a brand name for azathioprine), frequently prescribed to patients after kidney transplants, decreases the activity of the body's immune system so it will not attack the transplanted organ or the joints. See https://medlineplus.gov/druginfo/meds/a682167.html. Where, as here, I provide parallel record citations to a page submitted to the ALJ (R. 1118-34, 1154-1549) and a page submitted to the Appeals Council after the Decision was issued (R. 59-902), it is because the two records are identical or nearly identical to one another.
At a follow-up appointment on August 8, 2016, Dr. Ovchinsky noted that M.M.W. "continues to have increased appetite . . . and has gained additional weight." (R. 351.) She experienced "headaches on average one to two times per week," which responded to Motrin. (Id.) M.M.W. still had "a difficult time falling asleep and then has frequent awakening during the night." (Id.) Dr. Ovchinsky wrote that M.M.W.'s recent lab work showed hematuria and proteinuria, and a renal biopsy in March 2016 revealed that she had class 2 lupus nephritis. (Id.) On November 15, 2016, Dr. Ovchinsky noted that plaintiff "was last seen in liver clinic on 10/5/16," at which point she was on 5 mg of Prednisone, but that as a result of related lab work, which showed that "her aminotransferases increased, it was discussed with mother that she increase [M.M.W.'s] Prednisone to 10 mg and come back in two weeks." (R. 389.)
On January 9, 2017, M.M.W. complained to Dr. Ovchinsky of "fatigue," which "sometimes restricts her activity" but which was "improving." (R. 420.) Plaintiff also reported headaches approximately twice a week. (Id.) On March 13, 2017, Dr. Ovchinsky noted again that M.M.W. "complain[ed] of fatigue but improved from prior months." (R. 478.) By June 12, 2017, M.M.W. was "doing well," had "no complaints," and was "staying on current therapy." (R. 537, 1193.) On September 18, 2017, Dr. Ovchinsky noted again that M.M.W. reported "no complaints." (R. 558, 1456.) Her condition was "[c]urrently being managed on Imuran 150mg daily which was increased in December and prednisone 2.5 mg daily which was decreased at last visit in March 2017." (R. 561, 1459.) Similarly, on November 13, 2017, Dr. Ovchinsky wrote that M.M.W. "is doing well and has no complaints." (R. 573, 1218.) She also noted that M.M.W.'s condition was "[c]urrently being managed on Imuran" and that she "has been off of prednisone since this summer." (R. 1221.) Plaintiff's ultrasound demonstrated "[h]eterogenous liver echotexture, which may reflect underlying hepatic parenchymal disease." (Id.)
On February 5, 2018, Dr. Ovchinsky wrote that Imuran was discontinued in December 2017, when plaintiff "started on Cellcept for low complements." (R. 1328.) M.M.W. (now 16 years old) told Dr. Ovchinsky that she was "doing well" and had "no complaints." (Id.) She reported being "more active," had started dance and flag football, and was eating smaller portions. (Id.) On August 6, 2018, Dr. Ovchinsky again wrote that M.M.W. was "doing well and has no complaints" (R. 670), adding that she was "doing well in school and keeping herself busy with extracurricular activities," and that there were "no social concerns at this time." (R. 670-71.)
Cellcept, a brand name for mycophenolate, is used with other medications to help prevent transplant organ rejection by weakening the body's immune system so it will not attack and reject the transplanted organ. See https://medlineplus.gov/druginfo/meds/a601081.html.
3. Nephrology
On March 23, 2016, plaintiff visited nephrologist Rebecca Hjorten, M.D., who noted that she had autoimmune hepatitis and class II lupus nephritis, for which she took Imuran and prednisone. (R. 319, 323, 1132.) Dr. Horton wrote that there was "[n]o need" for "additional medications," because her disease was "so mild," adding that plaintiff "has been doing well overall and has no new complaints." (R. 323, 1132.)
On August 31, 2016, M.M.W. saw nephrologist Denver Danecia Brown, M.D., reporting "she feels well overall." (R. 364.) Dr. Brown noted that her "proteinuria is unchanged (minimal) and her [blood pressure] remains normal." (Id.) Although she was "complaining of new-onset recurrent headaches," they improved with "rest and ibuprofen." (Id.) Because her condition did not "appear to be completely quiescent at the moment," Dr. Brown said that M.M.W. should be seen for follow-up appointments every three months. (Id.)
M.M.W.'s next nephrology appointment was on November 30, 2016, with Sonia Solomon, M.D. (R. 398.) Dr. Solomon wrote that plaintiff was "doing well" from a "renal perspective, in terms of her SLE." (Id.) She did, however, complain of "frequent headaches" and was "taking high doses of NSAIDs several times a month." (Id.) Her March 16 biopsy, as noted above, showed that plaintiff had Class II lupus nephritis. (R. 403.)
On March 1, 2017, M.M.W. visited nephrologist Wendy Si, M.D., for "continued assistance in the management of her class II lupus nephritis." (R. 474.) Dr. Si wrote that the patient's "nephritis has been stable/quiescent" but that she was "taking a lot of NSAIDs for the management of her migraine headaches and dysmenorrhea," since "[T]ylenol doesn't resolve the pain." (Id.) "In terms of her SLE, she reports no symptoms of flare." (Id.) On May 31, 2017, Dr. Solomon wrote that M.M.W. had "[n]o complaints related to her lupus." (R. 524, 1181.)
4. Rheumatology
On May 2, 2016, M.M.W. saw rheumatologist Janet E. Orrock, M.D., presenting with intermittent joint pain, more frequent headaches, menstrual irregularity, and intermittent hives. (R. 339.) Dr. Orrock wrote that "[a]lthough she has intermittent joint pains and headaches, her overall clinical picture is reassuring, and I suspect that medications as well as adjustment disorder [to her new diagnosis] may play a role in her aches and pains." (R. 343.)
On August 8, 2016, plaintiff visited Jennifer Velez, N.P., complaining of fatigue. (R. 357.) She had been feeling increasingly tired since her lupus diagnosis, though Ms. Velez noted that her lupus was "not getting worse." (Id.) M.M.W. had "[d]ifficulty falling asleep since starting prednisone . . . and wakes up intermittently." (Id.) Noting that she was previously "very active," playing kickball and baseball, Ms. Velez recommended that she try to "get daily aerobic exercise." (Id.)
At a follow-up appointment on December 12, 2016, Dr. Orrock observed "[w]orsening symptoms" of SLE "over the past 4 months," with plaintiff's most "bothersome symptoms" including fatigue, headaches, arthralgias (joint stiffness), and "scabs" on her ears. (R. 405.) However, one month later, on January 12, 2017, M.M.W. visited rheumatologist Norman T. Ilowite, M.D., who saw some improvement in her symptoms and labs on a higher dose of Imuran. (R. 432.) Dr. Ilowite also noted that M.M.W. needed "better adherence" to avoiding UV light. (Id.) On February 6, 2017, Dr. Orrock observed "[c]ontinued improvement" with her headaches, which were "less frequent" and "less disabling." (R. 460.) M.M.W.'s fatigue and scalp lesions were "stable," and there was "[m]ild improvement in lesions to ears." (Id.) On March 13, 2017, Dr. Orrock explained that, among other things, she had "[i]ntermittent knee arthralgias," but "[s]table/mildly improving symptoms on optimal dose Imuran." (R. 490, 496.)
On April 24, 2017, rheumatologist Natalia Vasquez-Canizares, M.D. wrote that plaintiff should "[c]ontinue [her] current regimen for now, since clinically she has shown improvement and no other signs of disease activity besides hypocomplementemia." (R. 502.) At that visit, M.M.W. reported "intermittent knee and finger pain 2 days of the week [without] morning preponderance or swelling." (R. 503.)
Hypocomplementemia means low levels of serum or plasma C3, C4, or CH50. Measurement of these components of the complement system "is used commonly to assess for the presence of an IC [immune complex]-mediated disease or, in patients with a known IC disorder, to assess for disease activity." "Diagnostic Significance of Hypocomplementemia," 39 Kidney International 811 (1991), available at https://pubmed.ncbi.nlm.nih.gov/1829775/. "[T]here is evidence that the greater the decrease in C3 or C4 levels below normal, the more likely it is that the patient's SLE is active." Id. at 813. However, there are also "numerous nonimmune causes of hypocomplementemia." Id. at 815.
On June 12, 2017, Dr. Orrock noted that M.M.W. was "doing well" clinically, that she has "mildly improving symptoms on optimal dose Imuran," and that it was "reassuring that [M.M.W.] has experienced continued improvement in headaches and mild improvement in discoid lupus lesions." (R. 543, 549.)
On November 13, 2017, M.M.W. met with rheumatologist Tamara Tanner, M.D, who reported that M.M.W. "generally continues to do well but with some persistently low complements." (R. 1244.) They discussed the "possibility of switching to cellcept in hopes of improved disease control" or "watching closely for a little longer on current Imuran therapy." (Id.) Dr. Tanner wrote that plaintiff "reports intermittent joint pains in knees, feet and ankles," which she has been experiencing "for a while" but "did not mention at earlier visits." (Id.) Those pains, which occurred two or three times a week, were "[a]lleviated by rest or motrin." (Id.)
On December 11, 2017, Dr. Tanner wrote that M.M.W. had "persistent hypocomplementemia on Imuran, despite good control of her liver disease." (R. 587, 1273.) "In addition, over the past 2 months we have been observing her, we've noticed very faint malar erythema." (R. 587, 1273.) Plaintiff otherwise reported "doing well," though she was still experiencing hours-long pain in her knees about two or three times a week. (R. 587, 1273.) To help alleviate that pain, "she usually takes a bath/shower and relaxes." (R. 587, 1273.) M.M.W. also suffered from headaches two or three times a week, and took Motrin if they were "really bad," which was "rare" and "usually around her period." (R. 587, 1273.) There was another discussion about "switching to cellcept" since her "labs show persistently low complements" after having been "normal in the past." (R. 587, 1273, 1280.)
Malar erythema (a reddish "butterfly" rash on the face) can be a symptom of SLE. See https://medlineplus.gov/ency/imagepages/2507.htm.
On January 22, 2018, M.M.W. saw rheumatologist Melanie Dubois, M.D., who noted that, aside from a "recent mild flare of facial rash," she was "doing well in the past month since starting cellcept." (R. 602, 1317.) On February 26, 2018, Dr. Tanner said that plaintiff had "persistent hypocomplementemia, but low overall disease activity on Cellcept now for about 2.5 months, on goal dose for 1 month." (R. 1371.) They discussed potentially using both Benlysta and Cellcept "if she continues to have some disease activity on goal dose of Cellcept for 3 months or more." (Id.) On May 30, 2018, rheumatologist Shelby Davies, M.D. reported that M.M.W. was "doing very well at this visit without any complaints or evidence on exam of active disease." (R. 650.) However, she continued to have "intermittent joint pain limited to her knees bilaterally, [a] few times per week." (Id.) On August 6, 2018, rheumatologist Tamar Rubenstein, M.D. noted "persistent hypocomplementemia, but low overall disease activity on Cellcept now for about 5 months." (R. 677.) M.M.W. reported increased weekly joint pain and headaches several times a week, which lasted "a little more than an hour." (Id.) However, "sleeping and NSAIDs usually help." (Id.) Dr. Rubenstein noted that a neurologist had prescribed amitriptyline, but plaintiff was not interested, because "she doesn't feel her migraines bother her enough to be motivated to take a medication other than NSAIDs." (Id.)
Benlysta is the brand name for belimumab, given by intravenous injection, typically once every four weeks. See https://medlineplus.gov/druginfo/meds/a611027.html. Benlysta is used with other medications to treat certain types of SLE and lupus nephritis. Id.
Amitriptyline is a tricyclic antidepressant which is also used to prevent migraine headaches. See https://medlineplus.gov/druginfo/meds/a682388.html.
5. Pediatrics
On March 7, 2016, plaintiff saw pediatrician Hildred Machuca, D.O. (R. 1515), who noted her history of autoimmune hepatitis, including her recent hospitalization. On April 28, 2016, Dr. Machuca again recited M.M.W.'s history (including her recent lupus nephritis diagnosis) and noted that she had been taking prednisone and having sleeping problems. (R. 1124.)
On August 3, 2016, Dr. Machuca wrote that M.M.W. had been "feeling down," did not "go out much," and was not "sleeping well at night." (R. 345.) Her asthma and allergies had been "okay," and she was not currently taking any medication for either. (Id.) Dr. Machuca explained that M.M.W. wanted to see a nutritionist after experiencing "a lot of weight gain secondary to prednisone," and "this has also affected her mood negatively." (Id.) On September 8, 2016, Dr. Machuca noted that M.M.W. was experiencing headaches three to four times a week over the past month, but that Motrin helped. (R. 368, 1527.)
On June 4, 2017, Dr. Machuca wrote that M.M.W.'s headaches had improved with Migrelief, and that she had a normal brain MRI. (R. 528.) Dr. Machuca further noted that her asthma had been "well controlled" with "no symptoms in over 1 year" and "no school days missed." (Id.) However, on January 9, 2018, M.M.W. visited pediatrician Beth Wittenberg, M.D., after an exacerbation of her asthma symptoms. (R. 596, 1539.) Dr. Wittenberg believed the exacerbation was caused by the patient's "non-complian[ce] with asthma medications." (Id.)
Migrelief is a non-prescription dietary supplement, marketed to relieve migraines. See https://store.migrelief.com/products/migrelief-original-formula-60-ct-30-day-supply.
6. Neurology
On October 18, 2016, M.M.W. visited neurologist Koshi Alummoottil Cherian, M.D., complaining of frequent headaches. (R. 383.) She confirmed that the pain was relieved with Motrin (as well as with sleep). (Id.) Other than the headaches, she was "well," and she had not "missed school nor has there been any change in her school performance as a result of [her] headache[s]." (Id.)
During her next appointment, on December 19, 2016, plaintiff complained of "more frequent headaches," approximately once or twice every week, which could "occur anytime of the day" and "hurt[] more now." (R. 414.) She told Dr. Cherian that her nephrologists advised her not to take Motrin for her headaches, but that she had "tried Tylenol in the past without relief." (Id.)
A few months later, M.M.W.'s headaches had improved. On March 13, 2017, Dr. Cherian wrote that since "her last visit she reports very infrequent headaches," which "[h]ave improved significantly with [the] addition of Migrelief." (R. 484, 488.) On June 20, 2017, Dr. Cherian reiterated that M.M.W. reported headaches "twice a week, but not every week" and that the headaches had "improved significantly with addition of Migrelief." (R. 551, 1444.) As for her other conditions, Dr. Cherian wrote that her "lupus nephritis is improved," her "MRI brain was normal," and her "neurologic examination was normal." (R. 555, 1448.)
On March 9, 2018, plaintiff visited neurologist Vaidehi Patel, M.D., who noted that she has "discontinued taking Migrelief but continues to have migraines twice a week," with about three to six headaches in a month. (R. 638, 1496.) She gets the "most relief" from Motrin and then "sleeping it off." (Id.)
B. Post-Decision Medical History
On October 3, 2018, M.M.W. saw Dr. Tanner for a follow-up of her SLE and to receive her first dose of Benlysta, which her doctors decided to add to her medication regimen after she had "persistent hypocomplementemia on goal dose cellcept." (R. 14.)
On November 29, 2018, Gabriel Tarshish, M.D., a pediatric rheumatology fellow at Montefiore, wrote a letter explaining that plaintiff had been diagnosed with SLE and was "currently requiring multiple oral medications as well as monthly intravenous infusions of Benlysta to manage her disease." (R. 8.) Dr. Tarshish added that she "[n]eeds to follow [up] with doctors regularly, and there will likely be times when she has to miss school or her caregivers have to miss work to attend these appointments. (Id.)
C. School Records
All of the school records submitted to the SSA date from the first half of 2016. On March 31, 2016, school psychologist Ellen Altman completed a psychoeducational evaluation report on plaintiff. (R. 1113-15.) Ms. Altman wrote that M.M.W. "presented as [an] articulate student who readily shared information in an appropriate manner." (R. 1113.) She demonstrated "interest in the tasks that were presented to her," but "performed in an inconsistent manner which could be indicative of greater potential than what is evidenced at this point in time." (Id.) In her composite IQ testing, she scored "borderline" in verbal comprehension, visual spatial, fluid reasoning, working memory, and full scale; and "average" for processing speed. (R. 1113-14.) On the Woodcock-Johnson III test of achievement (WJ-III), she scored "low" in broad reading, academic skills, letter/word identification, reading fluency, calculation, spelling, and passage comprehension. She scored "low average" in applied problems. (R. 1114-15.)
In a student progress report completed in April 2016, Awilda Marte (identified only as a "related service provider") wrote that M.M.W. "continues improving her ability to answer comprehension questions about various modified text" but that she has "difficulties comprehending higher order thinking questions that require her to . . . analyze a text." (R. 1111-12.) According to the CELF 5 (Clinical Evaluation of Language Fundamentals Fifth Edition), M.M.W. demonstrated "significant delays in several fundamental areas of Speech and Language." (R. 1111.)
In a classroom observation on May 4, 2016, Gloria Mitola, a licensed social worker at the NYC Department of Education, observed that M.M.W. "appeared engaged in the math lesson by raising her hand, answering questions, looking at the teacher during instruction and then focusing on her work." (R. 1110.) She also "socialized appropriately with peers and appeared comfortable in this setting." (Id.) Moreover, plaintiff "persevered to figure out answers and asked questions when she needed help by raising her hand," and "engaged well with her teachers and accepted feedback." (Id.)
Finally, on May 12, 2016, Caitlin Cooksey completed a "teacher questionnaire." (R. 1040-45.) In the questionnaire, Ms. Cooksey wrote that she had known M.M.W. since the start of the 2015-2016 school year and saw her each day, for approximately 90 minutes, for math. (R. 1040.) She wrote that although M.M.W. was in the eighth grade, she read at a fourth or fifth grade level; her math skills were at a third or fourth grade level; and her written language skills were at a fourth or fifth grade level. (Id.) Ms. Cooksey also noted that M.M.W. was often absent for health reasons, approximately "once a week." (R. 1044.) She opined that M.M.W. had trouble with acquiring and using information and had "serious problems" in the following areas: reading and comprehending written material; comprehending and doing math problems; expressing ideas in written form; learning new material; and recalling and applying previously learned material. (R. 1041.) She also observed that plaintiff had trouble attending to and completing tasks. (R. 1042.) In particular, she had an "obvious problem" with focusing long enough to finish an assigned activity or task, and carrying out multi-step instructions. (Id.) She also had a "serious problem" with completing work accurately without careless mistakes, working at a reasonable pace, and finishing on time. (Id.) She had "no problem," however, with completing class and homework assignments. (Id.) Finally, as to interacting and relating with others, Ms. Cooksey said that M.M.W. only had a "slight problem" - specifically, with relating experiences and telling stories; using language appropriate to the situation and listener; and using adequate vocabulary and grammar to express thoughts and ideas in general and in every day conversation. (R. 1043.)
D. Opinion Evidence
1. Consultative Examiner Dr. Archbald
On June 1, 2016, Cheryl Archbald, M.D., conducted a consultative pediatric examination of M.M.W. (R. 1135-39.) Dr. Archbald noted plaintiff's diagnoses of learning disability, autoimmune hepatitis, and lupus nephritis. (R. 1138.) She explained that plaintiff was "receiving special education services in a collaborative regular and special education program." (R. 1139.) She opined that M.M.W. is "limited in contact sports due to her medical condition and concern of easy bruisability." (Id.) However, she can "participate in other educational, social and recreational activities," including non-contact sports. (Id.) Dr. Archbald noted that M.M.W. "requires ongoing follow up by her liver specialist and her rheumatologist." (Id.)
2. Consultative Examiner Dr. Rupp-Goolnick
Also on June 1, 2016, Arlene Rupp-Goolnick, Ph.D., conducted a consultative child intelligence examination and child psychiatric evaluation of M.M.W. (R. 1140-47.) Dr. Rupp-Goolnick administered the Wechsler Intelligence Scale for Children (WISC-V), on which plaintiff scored a 76 on the full-scale IQ test. (R. 1141-42.) Her area of greatest strength was a tie between Visual Puzzles, Digit Span, and Symbol Search. (Id.) Her area of greatest weakness was a tie between Figure Weights and Vocabulary. (Id.)
Dr. Rupp-Goolnick concluded that plaintiff's overall level of cognitive functioning was "in the upper borderline range." (R. 1142.) However, she opined, that was "no evidence of limitation" as to M.M.W.'s ability to attend to, follow, and understand age-appropriate directions; complete age-appropriate tasks; maintain appropriate social behavior; respond appropriately to changes in the environment; learn "in accordance to cognitive functioning"; ask questions and request assistance in an age-appropriate manner; be aware of danger and take needed precautions; and interact adequately with peers and adults. (R. 1142.) Dr. Rupp-Goolnick's examination results did not "appear to be consistent with any psychiatric or cognitive problems that would significantly interfere with the claimant's ability to function on a daily basis," and M.M.W. "did not meet criteria for any DSM-5 diagnosis." (R. 1143.)
3. State Agency Examiners D. Brown, Psy.D. and I. Seok, M.D.
On June 15, 2016, state agency examiners I. Seok, M.D., and D. Brown, Psy.D., performed a joint assessment of plaintiff's functioning based on a paper review of her school and medical records. (R. 932-41.) They opined that she had "less than marked" limitations in her ability to acquire and use information, noting, among other things, that she was enrolled in eighth grade, with special education speech and counseling services, and that according to Dr. Rupp- Goolnick she had no psychiatric or cognitive limitations. (R. 937.) The examiners assessed that M.M.W. had "no limitation" in her ability to attend and complete tasks; interact and relate with others; move about and manipulate objects; and care for herself. (R. 937.) As to her health and well-being, the examiners opined that M.M.W. had "less than marked" limitations, explaining that she had been diagnosed with asthma but had no recent emergency room visits or inpatient hospitalizations; she had recently been diagnosed with autoimmune hepatitis and lupus and had been hospitalized in February 2016 for ten days; she complained of occasional joint pains due to her condition; and she required ongoing follow-up with her liver specialist and rheumatologist. (R. 938.) In sum, the state agency examiners concluded that M.M.W. was "not disabled." (R. 939.)
III. HEARING
On May 17, 2018, plaintiff and her mother appeared before ALJ Johnson via video. (R. 903-31.) At the outset of the hearing, the ALJ reminded Ms. Cruz of her right to a representative, whereupon she chose to proceed without counsel. (R. 906-08.)
Ms. Cruz, testifying first, said that M.M.W. was in the tenth grade, where she was in a classroom with two teachers and had an IEP which allowed her to have "extra timing on testing." (R 912.) According to Ms. Cruz, plaintiff's academic issue "was always comprehension [and] understanding," but M.M.W. had "come a long way with it," and when studying "she . . . gets it after a while." (Id.). Ms. Cruz stated that M.M.W.'s grades were "very good," that she was getting "A's and B's," and that she was performing at around an eighth-grade level. (R. 913-14.) M.M.W. was receiving "tutoring" and "one on one" assistance with her comprehension issues. (R. 914.) She did her homework, and was a "hard worker." (Id.) According to her mother, plaintiff did not have any problems with maintaining attention or focus, nor with interacting or getting along with others. (R. 914-15.) Ms. Cruz also testified that M.M.W.'s absences had improved "a little" because she had begun requesting later appointments with some of her doctors so that her daughter would not have to miss much school. (R. 913.)
ALJ Johnson then asked how M.M.W.'s physical diagnoses - including her asthma, autoimmune hepatitis, and lupus - "affect her functioning." (R. 915.) Her mother explained that plaintiff "has her moments" and is "extremely fatigued half the time." (Id.) Although she is able to "dress and bathe herself," there are times when "she feels a little sore" and "feels pain," at which point her mother helps her if necessary. (R. 922.) The pain is generally worse when it's cold outside. (Id.) Ms. Cruz stated that M.M.W. suffered from headaches "about three times a week," which could last "about an hour." (R. 915-16.) For her headaches, she took Motrin. (R. 916.) On at least two occasions during the 2017-2018 school year she was either sent home from school or stayed in the health clinic at school due to her headaches. (Id.) Ms. Cruz also recalled one incident in June 2017 when M.M.W. "almost fainted" in the street after a "really bad headache." (R. 917.) That prompted doctors to take an MRI of her brain, which was normal. (Id.)
Other than the fatigue and headaches, Ms. Cruz noted that her daughter suffered "pains in her bones at times," that her "knees hurt her," and that her "legs swell up." (R. 917.) The swelling was "part of the lupus" and happened about "four times a week" for about "two or three hours." (Id.) Additionally, plaintiff could not be in the sun because of her lupus. (R. 918.) Aside from Motrin, she did not take anything for pain. (Id.)
Ms. Cruz testified that her daughter had a job the previous summer, which involved sitting in a classroom "seven hours a day" and "learn[ing]." (R. 918.) During the school year, her extracurricular activities included flag football and dance. (R. 918-19.) She had no problems with running or jumping but was supposed to avoid contact sports because they "might cause bruising." (R. 919.) Ms. Cruz further explained that the bruising was under control with medication. (R. 920.) For her asthma, M.M.W. took albuterol (a bronchodilator) either through a "rescue inhaler" (but "[o]nly when needed") or a nebulizer. (R. 920-21.) M.M.W. had never gone to the emergency room for asthma treatment because Ms. Cruz "know[s] what to do." (R. 921-22.)
Asked about M.M.W.'s social functioning, her mother said that she socialized with her older sister and friends. (R. 924.) At the time of the hearing, M.M.W. was 5'6" and weighed 184 pounds. (R. 924.) Ms. Cruz explained that her daughter "lost a lot of the steroid weight" once she was taken off that medication. (R. 925.)
At that weight, according to the online calculator offered by the Centers for Disease Control and Prevention, see https://www.nhlbi.nih.gov/health/educational/losewt/BMI/bmicalc.htm, .
Finally, asked whether anything had occurred "in the last month and a half to two months that would require [the ALJ] to update the records even further," Ms. Cruz said no. (R. 924.)
The ALJ next briefly examined M.M.W., who said that school was "going good" and that she was getting good grades. (R. 927.) Plaintiff said her favorite subject was global history and her least favorite subject was Spanish, because "the teacher talks fast." (R. 927-28.) M.M.W. further testified that she participated in dance, theatre, and flag football. (R. 928.) On her girls' indoor flag football team, she was the quarterback. (R. 928-29.) After playing, her knees sometimes hurt for "two to three hours." (R. 929.) Although she had issues with the sun, she went outside during the summer and wore "a lot of sunscreen." (Id.)
IV. THE ALJ'S DECISION
A. Standards
Under the Act, an individual under the age of 18 is disabled if she has a medically determinable physical or mental impairment which results in marked or 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). However, any "individual under the age of 18 who engages in substantial gainful activity" is not disabled. 42 U.S.C. § 1382c(a)(3)(C)(ii).
The ALJ must follow a prescribed three-step process to determine whether a child is disabled. At step one, the ALJ considers whether the child is engaging in substantial gainful activity. 20 C.F.R. § 416.972(a). If so, the child is not disabled. Id. At step two, the ALJ considers whether the child has a medically determinable impairment or combination of impairments that is "severe." 20 C.F.R. § 416.924(a). If not, the child is not disabled. Id. At step three, the ALJ determines whether the child's impairment or combination of impairments meets or medically or functionally equals the severity of an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the Listings). In making this determination, the ALJ must consider the combined effect of all medically determinable impairments, even those that are not severe. 20 C.F.R. §§ 416.923, 416.924a(b)(4), 416.926a(a), (c). If the child's impairments meet or medically or functionally equal the severity of one of the listed impairments, and have lasted or are expected to last for a continuous period of at least 12 months, she is presumed to be disabled. Otherwise, the claimant is not disabled. 20 C.F.R. § 416.924(d).
To determine whether an impairment or combination of impairments meets or medically equals the Listings, the ALJ must apply the detailed criteria set forth in each potentially relevant Listing. See 20 C.F.R. § 416.926. To determine whether an impairment or combination of impairments functionally equals the Listings, the ALJ must assess the child's functioning in the following six domains: (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. See 20 C.F.R. § 416.926a(b)(1). In each domain, the ALJ must compare how appropriately, effectively, and independently the child performs activities compared to the performance of other children of the same age who do not have impairments. See 20 C.F.R. §§ 416.926a(b)(1)(i)-(vi). In any affected domain, the ALJ must consider the interactive and cumulative effects of the child's impairments. 20 C.F.R. § 416.926a(c). To functionally equal the Listings, the child's impairment or combination of impairments must result in "marked" limitations in two or more domains, or an "extreme" limitation in one or more domain. 20 C.F.R. § 416.926a(d).
A child has a "marked" limitation in a domain when his impairment "interferes seriously" with his ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2)(i). In the domain of health and physical well-being, a limitation is considered "marked" when it results in episodes of frequent illness or exacerbations resulting in frequent significant documented symptoms or signs. 20 C.F.R. § 416.926a(e)(2)(iv).
A child has an "extreme" limitation in a domain when her impairment interferes "very seriously" with her ability to independently initiate, sustain, or complete activities. 20 C.F.R § 416.926a(e)(3)(i). In the domain of health and physical well-being, a limitation is considered extreme if it results in episodes of illness or exacerbations resulting in significant, documented symptoms or signs substantially in excess of the requirements for showing a "marked" limitation. 20 C.F.R § 416.926a(e)(3)(iv).
B. Application
At step one, the ALJ found that M.M.W. had "not engaged in substantial gainful activity since April 27, 2016, the application date." (R. 40.)
Although M.M.W. "worked after the application date," during the summer of 2017, she only earned $1,320.00, and her work "did not rise to the level of substantial gainful activity." (R. 40.)
At step two, the ALJ found that plaintiff had the severe impairments of acute liver disease with autoimmune hepatitis, lupus nephritis, asthma, a learning disorder, and obesity, but that her headaches were non-severe. (R. 41.) The ALJ noted that M.M.W. "reported significant improvement with the over-the-counter medication Migrelief" and otherwise indicated that "her headaches were not so bad." (Id.) Moreover, the brain MRI was normal, and M.M.W.'s mother testified that her daughter "had only left school twice for headaches in the past year." (Id.)
At step three, the ALJ found that plaintiff's impairments did not meet or medically equal the severity of any of the Listings, including Listing 105.00 (chronic liver disease), Listing 114.02 (immune system listing for systemic lupus erythematous), Listing 113.03 (respiratory system listing for asthma), and Listing 112.05 (mental listing for intellectual disabilities). (R. 41.) With regard to Listing 112.05, the ALJ specifically considered whether M.M.W. satisfied the "paragraph B" criteria, see 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.05(B), and concluded that she did not. The ALJ explained that the requirements of paragraph B(1) were not met because M.M.W.'s IQ scores were above the levels set forth therein. (R. 42.) The requirements of paragraph B(2) were not met because, although M.M.W. had a "moderate" limitation in "understanding, remembering, or applying information," she had "no limitation" in the other three areas of mental functioning relevant to that Listing: interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 43.)
Although there is no specific Listing for obesity, the ALJ considered its effects "in accordance with Social Security Ruling 02-01p and the musculoskeletal, respiratory, and cardiovascular listings as addressed in Sections 1.00Q, 3.00I, [and] 4.00F." (R. 41.)
The ALJ then analyzed whether M.M.W.'s impairments were functionally equivalent to the Listings. He concluded that M.M.W. did not have any "marked" or "extreme" limitations (R. 47-53), and thus was not disabled.
First, the ALJ found that M.M.W. had a "less than marked" limitation in the domain of acquiring and using information. (R. 47-48.) Relying primarily on her school reports, the ALJ reasoned that although she "demonstrate[d] significant difficulties in language skills," M.M.W. "continued to improve in her ability to answer comprehension questions about various text." (R. 48.) When formally tested, plaintiff's full-scale IQ was "measured at 72, in the borderline range of intellectual functioning." (Id.) However, she scored in "the low average range in applied problems" on the WJ-III, which the ALJ found to be "consistent with less than marked limitations in acquiring or using information." (Id.) The ALJ also noted that, according to her mother, M.M.W. was "currently functioning only slightly below grade average," her absenteeism was improving, and while she continued to have IEP support, "the services are not extensive," which the ALJ also found to be "consistent with a less than marked limitation[]" in this area. (Id.)
Second, the ALJ found that plaintiff had no limitation with respect to attending and completing tasks. (R. 48-49.) The ALJ noted that M.M.W. "was found to be in the average range on processing speed." (R. 49.) Moreover, her mother wrote in a function report that M.M.W. was "able to understand, carry out, and remember simple instructions." (Id.) Likewise, during the hearing, Ms. Cruz testified that her daughter "completed her homework and did not need encouragement or reminders," and that she was "able to focus and concentrate during her summer job." (Id.)
Third, the ALJ concluded that plaintiff had no limitation in interacting and relating to others. (R. 49-50.) The ALJ noted Ms. Cruz's testimony that M.M.W. "went out to eat or to the movies with her sister" and "spent time with friends interacting socially." (R. 50.) Similarly, in her function report, Ms. Cruz stated that her daughter's impairments "do not affect her social behavior." (Id.) The ALJ also cited M.M.W.'s medical and education records as demonstrating that she "interacted appropriately with treating providers and teachers." (Id.)
Fourth, the ALJ found that plaintiff had a "less than marked" limitation in the domain of moving about and manipulating objects. (R. 50-51.) He noted that although M.M.W. was restricted from sun exposure and contact sports, "she participate[d] in dance, theater, and flag football." (R. 51.) Moreover, as her mother stated in a function report, M.M.W. "only has problems when [she] is feeling fatigued or experiencing joint pain." (Id.)
Fifth, the ALJ concluded that plaintiff had no limitation in her ability to care for herself. (R. 51-52.) The ALJ relied upon Ms. Cruz's function report, in which she stated that M.M.W. had no such limitations (R. 52), and her testimony, that M.M.W. was mostly "independent in activities of daily living and could dress, bathe, and prepare simple meals for herself." (Id.)
Finally, the ALJ determined that plaintiff had a "less than marked" limitation in the domain of health and physical well-being. (R. 52.) The ALJ explained that although M.M.W. was diagnosed with asthma, autoimmune hepatitis, and systemic lupus, had been hospitalized at least once, had missed some school, and required regular doctor visits, her "lupus nephritis has been characterized as so mild that it does not require any additional medications," and "[p]hysical exam findings were grossly normal including clear lungs, no deformity, full range of motion, and she was neurologically intact." (R. 52-53.) Moreover, M.M.W.'s asthma was generally under control. (Id.)
Having found that M.M.W. did not have an impairment or a combination of impairments resulting in marked limitations in two domains of functioning, or an extreme limitation in any one of the six domains, the ALJ concluded that M.M.W. was not disabled within the meaning of the Act. (R. 53.)
V. ANALYSIS
A. Standards of Review
Both parties have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). To prevail on such a motion, a party must establish that no material facts are in dispute and that judgment must be granted to that party as a matter of law. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Claudio v. Comm'r of Soc. Sec., 2017 WL 111741, at *1 (S.D.N.Y. Jan. 11, 2017). The Act provides that the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Thus, the reviewing court may set aside a decision of the Commissioner only "if it is based on legal error or if it is not supported by substantial evidence." Geertgens v. Colvin, 2014 WL 4809944, at *1 (S.D.N.Y. Sept. 24, 2014) (quoting Hahn v. Astrue, 2009 WL 1490775, at *6 (S.D.N.Y. May 27, 2009)); see also Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).
"Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1970)). "In determining whether substantial evidence exists, a reviewing 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." Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009) (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999), and Williams v. Bowen, 859 F.2d 255, 256 (2d Cir. 1988)). However, the reviewing court's task is limited to determining whether substantial evidence exists to support the ALJ's fact-finding; it may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than one interpretation. "[O]nce an ALJ finds facts, [the court] can reject those facts only if 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) (quotation marks and citation omitted). Thus, the substantial evidence standard is "a very deferential standard of review - even more so than the 'clearly erroneous' standard." Id.; see also Brown v. Colvin, 73 F.Supp.3d 193, 198 (S.D.N.Y. 2014).
"[T]he crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Thus, where the ALJ fails to provide an adequate "roadmap" for his reasoning, remand may be appropriate. Where the ALJ adequately explains his reasoning, however, and where his conclusion is supported by substantial evidence, the district court may not reverse or remand simply because it would have come to a different decision on a de novo review. "Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citation and internal quotation marks omitted); see also Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) ("the court should not substitute its judgment for that of the Commissioner"); Ryan v. Astrue, 5 F.Supp.3d 493, 502 (S.D.N.Y. 2014) ("[T]his Court may not substitute its own judgment as to the facts, even if a different result could have been justifiably reached upon de novo review.") (quoting Beres v. Chater, 1996 WL 1088924, at *5 (E.D.N.Y. May 22, 1996)).
B. Plaintiff's Contentions
Plaintiff challenges the Decision on two grounds. First, she argues, the ALJ's conclusion that she was not "markedly limited in at least two domains" is not supported by substantial evidence. Pl. Mem. (Dkt. No. 21) at 13. In plaintiff's view, the evidence before the ALJ, together with the evidence submitted to the Appeals Council, compelled a finding of "marked" limitations in four of the six domains: acquiring and using information (as to which the ALJ found a "less than marked" limitation); attending and completing tasks (as to which the ALJ found no limitation); moving about and manipulating objects (as to which the ALJ found a "less than marked" limitation); and health and physical well-being (as to which the ALJ found a "less than marked" limitation).
Second, according to plaintiff, the Appeals Council erred when it failed to exhibit 844 pages of Montefiore medical records dated January 13, 2016 to August 6, 2018, which plaintiff submitted after the Decision was issued, as well as Dr. Tarshish's letter, dated November 29, 2018, on the ground that "this evidence does not show a reasonable probability that it would change the outcome of the decision" (R. 2), and erred again when it held that another 20 pages of medical records, dated August 31, 2018 to October 3, 2018, "did not relate to the period at issue because the ALJ decided this case through August 20, 2018." (Id.) See Pl. Mem. at 23-25. Plaintiff argues that "several of those records supported and strengthened plaintiff's claim that she has marked limitations" in certain domains, and that the records reflecting that M.M.W. was started on Benlysta a few months after ALJ Johnson's decision demonstrated that her "condition had been deteriorating over time." Id. at 24.
C. The ALJ's Determination Is Supported by Substantial Evidence
Plaintiff does not challenge the ALJ's determination that her impairments did not meet or medically equal the requirements of any Listing. Thus M.M.W. is not disabled, as that term is used in the Act, unless she has an "extreme" limitation in one of the six domains of functioning set forth in 20 C.F.R. § 416.926a (a contention plaintiff does not advance) or "marked" limitations in at least two of those domains. As noted above, the ALJ determined that M.M.W. had three "less than marked" limitations but no "marked" or "extreme" limitations. After carefully reviewing the evidence both for and against the ALJ's determinations, I conclude that they were supported by substantial evidence and should not be overturned by this Court.
1. Acquiring and Using Information
The first challenged domain, "acquiring and using information," considers how well a child is able to acquire or learn information, and how well she uses the information she has learned. 20 C.F.R. § 416.926a(g). A normally functioning adolescent should be able to demonstrate what she has learned in academic assignments; use what she has learned in daily living situations without assistance; and comprehend and express both simple and complex ideas, using increasingly complex language in learning and daily living situations. 20 C.F.R. § 416.926a(g)(2)(v). Examples of limitations include when a child has difficulty remembering important things that were learned in school the day before, difficulty rhyming words or sounds, difficulty solving math questions or computing arithmetic answers, and talks in short, simple sentences and has difficulty explaining himself. 20 C.F.R. § 416.926a(g)(3)(i)-(v).
Plaintiff contends that the ALJ erred in finding that she had "less than marked" limitations in this area because, among other things, the teacher evaluation submitted to the SSA by Ms. Cooksey in 2016 (when M.M.W. was in eighth grade) showed that she had "serious" comprehension problems; that she was performing at a fourth or fifth grade level, which was more than "slightly" below grade level; and that she was often absent for health reasons, which "implied" that she missed school not only because of medical appointments but also because "she was not feeling well." Pl. Mem. at 15. According to plaintiff, it was error for the ALJ to "downplay" Ms. Cooksey's evaluation or to rely on plaintiff's mother's hearing testimony to "minimize" its "significance" without obtaining further school records to confirm that - as Ms. Cruz testified - plaintiff's academic progress had improved. Id.
Plaintiff appears to misunderstand the nature of the substantial evidence inquiry. To be sure, the record contains evidence, from Ms. Marte and Ms. Cooksey, that in 2016 M.M.W. demonstrated difficulties in her language skills (R. 1111-12) and was working three to four years below her grade level in reading and math (R. 1040) - which the ALJ acknowledged. (R. 48.) The record also contains evidence, including Ms. Cruz's testimony, that by 2018 plaintiff, who still had an IEP, was working only two years below her grade level; that she was getting "A's and B's" at school; that she had "come a long way" with her issues with comprehension and understanding; and that she had fewer absences (because she was able to schedule some of her doctors' appointments after school hours). (R. 912-14.) Plaintiff herself confirmed that school was "going good" and she was getting good grades. (R. 927.) In addition, consultative examiner Dr. Rupp-Goolnick, who saw M.M.W. in 2016, observed "age appropriate" speech and language skills and noted that plaintiff "recalled and understood instructions" and worked with "reflection and deliberation," as well as good "[a]ttention and concentration." (R. 1141.) Dr. Rupp-Goolnick found that M.M.W.'s overall level of cognitive functioning was in the "upper borderline range," with "no evidence of limitation" in her ability to function mentally in an age-appropriate manner. (R. 1141-42.) Further, Dr. Rupp-Goolnick did not find evidence of "any psychiatric or cognitive problems that would significantly interfere with the claimant's ability to function on a daily basis." (R. 1143.)
In short, while there is some evidence in the record supporting plaintiff's contention that she had more significant limitations in this domain, there is also substantial evidence supporting the ALJ's "less than marked" conclusion. As the Commissioner pointed out in his brief, "the existence of contrary evidence does not negate substantial evidence supporting the ALJ's decision." Def. Mem. (Dkt. No. 5) at 11 (quoting Blalock v. Berryhill, 2018 WL 6332896, at *14 (S.D.N.Y. Nov. 8, 2018)); see also Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) ("Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings 'must be given conclusive effect' so long as they are supported by substantial evidence"). Consequently, the ALJ did not err in finding that plaintiff has "less than marked" limitations in the domain of acquiring and using information.
2. Attending and Completing Tasks
The second challenged domain, "attending and completing tasks," considers how well a child is able to focus and maintain attention, and how well the child begins, carries through, and finishes activities. 20 C.F.R. § 416.926a(h). A normally functioning adolescent should be able to "pay attention to increasingly longer presentations and discussions, maintain . . . concentration while reading textbooks, and independently plan and complete long-range academic projects." 20 C.F.R. § 416.926a(h)(2)(v). Adolescents should also be capable of organizing materials and planning time in order to complete school assignments. Id. Evidence of limited functioning in this domain includes being "slow to focus on, or fail to complete activities of interest," getting "easily frustrated and giv[ing] up on tasks," and "requir[ing] extra supervision to keep . . . engaged in an activity." 20 C.F.R. § 416.926a(h)(3)(i)-(v).
Plaintiff contends that the ALJ erred in finding that M.M.W. had no limitations in this domain. Pl. Mem. at 16-18. According to plaintiff, the ALJ failed to properly weigh Ms. Cruz's statement in 2016 that M.M.W. did not complete her homework on time; her hearing testimony that plaintiff was extremely fatigued half the time; Ms. Cooksey's opinion that plaintiff had a serious problem attending and completing tasks; and Dr. Rupp-Goolnick's report that she was "easily distracted, fails to follow through, and had difficulty sustaining attention." Id. at 16-17. In plaintiff's view, she should have been found "markedly" limited because her frequent absences, fatigue, sleep problems, and headaches "prevented her from attending and completing tasks." Id. at 17. Plaintiff adds that the November 29, 2018 letter from Dr. Tarshish, which the Appeals Council reviewed but did not exhibit, further compelled a "marked" finding because Dr. Tarshish stated, among other things, that there would likely be times when plaintiff has to miss school. Id.
I conclude, again, that the ALJ's determination was supported by substantial evidence, including Ms. Cruz's statements in a 2016 function report that plaintiff was capable of understanding, carrying out, and remembering simple instructions (R. 1024); her testimony at the hearing that plaintiff completed her homework without any encouragement or reminders, and was able to focus and concentrate during her summer job (R. 913-914); test results showing that M.M.W. had average processing speed (R. 49); and Dr. Rupp-Goolnick's observation that plaintiff "recalled and understood instructions" and that her attention and concentration were "good." (R. 1141.) I further note that it would not be enough for plaintiff to show that the evidence supported a finding of some limitation in attending and completing tasks; she must establish that no reasonable factfinder could fail to find a "marked" limitation as to this domain (and at least one other domain). Brault, 683 F.3d at 448. While the evidence of record is not wholly one-sided, I cannot conclude that it compels the result urged by plaintiff.
3. Moving About and Manipulating Objects
The next challenged domain, the ability to "move about and manipulate objects," considers how well a child is able to move her body from one place to another and move and manipulate objects. 20 C.F.R. § 416.926a(j). The regulations note that an adolescent without an impairment should be able to use her motor skills freely and easily to move about, and should be able to participate in a full range of physical fitness activities. 20 C.F.R. § 416.926a(j)(2)(v). Examples of limitations in this domain include muscle weakness, joint stiffness, or sensory loss that interferes with motor activities; difficulty with climbing up and down stairs; difficulty with gross motor movements (e.g., bending, kneeling, crawling, running, jumping rope, or riding a bike); difficulty with sequencing hand or finger movements; difficulty with fine motor movements (e.g., gripping or grasping objects); and poor eye-hand coordination with using a pencil or scissors. 20 C.F.R. § 416.926a(j)(3)(i)-(v).
Plaintiff's principal argument, with respect to this domain, is that in determining that she had "less than marked limitations," the ALJ failed adequately to consider M.M.W.'s obesity. Pl. Mem. at 19 (arguing that SSR 02-1p "specifically states that obesity should be considered in the domain of Moving and Manipulating Objects").
In fact, the language of SSR 02-1p (rescinded and replaced by SSR 19-2p effective May 20, 2019) is permissive, not mandatory: "For a child applying for benefits under title XVI, we may evaluate the functional consequences of obesity (either alone or in combination with other impairments) to decide if the child's impairment(s) functionally equals the listings. For example, the functional limitations imposed by obesity, by itself or in combination with another impairment(s), may establish an extreme limitation in one domain of functioning (e.g., Moving about and manipulating objects) or marked limitations in two domains (e.g., Moving about and manipulating objects and Caring for yourself)." SSR 02-1p (emphasis added).
Moreover, the ALJ did consider the "functional consequences" of M.M.W.'s obesity (R. 41), as well as the functional consequences of her weight loss in 2017 and 2018, which by the time of the hearing, had brought her BMI below the obese range. (See R. 650, 1244, 1332, 1482, 1544.) In this regard, the record provides ample evidence that plaintiff was not markedly limited. Although she experienced occasional joint stiffness and fatigue (which her physicians attributed to lupus, not obesity), her activities were limited only in that she could not play contact sports or be exposed to the sun without protection. (R. 51.) She was otherwise quite physically active, participating in dance and theater and serving as the quarterback of the girl's flag football team. I therefore conclude, once again, that the ALJ's determination was supported by substantial evidence.
4. Health and Physical Well-Being
I similarly conclude that the ALJ was justified in finding that M.M.W. had "less than marked" limitations in the domain of health and physical well-being. (R. 52-53.) This domain considers the cumulative physical effects of physical and mental impairments, as well as any associated treatments or therapies on a child's health and functioning that were not considered in the evaluation of the domain of "moving about and manipulating objects." 20 C.F.R. § 416.926a(1). Examples of limitations include symptoms of weakness, dizziness, agitation, lethargy, or psychomotor retardation; somatic complaints related to an impairment such as seizures, headaches or incontinence; limitations in physical functioning because of the need for frequent treatment of a condition; exacerbations from one or more impairments that interfere with physical functioning; and the need for intensive medical care to maintain the child's level of health and physical well-being. 20 C.F.R. § 416.926a(1)(4)(i)-(v).
As to this domain, plaintiff contends that there is "overwhelming" evidence in the record of at least a "marked" limitation, due in large part to the number of diagnoses plaintiff carried and the variety of symptoms she experienced over time. Pl. Mem. at 21-22. She further argues that her lupus "deteriorated over time," relying on Dr. Tarshish's post-hearing letter stating that she had begun monthly infusions of Benlysta. Id. at 22.
It is true - and the ALJ certainly acknowledged - that M.M.W. was diagnosed with a number of serious or potentially serious medical conditions, including asthma, lupus, and autoimmune hepatitis. (R. 52.) However, her symptoms were considered mild by her treating physicians (see R. 323, 398); she frequently reported to those physicians that she was "doing well" with no (or few) complaints or concerns (R. 14, 323, 364, 383, 400, 475-76, 524, 537, 543, 558, 573, 580, 615, 629, 650, 670, 1181, 1194, 1218, 1244, 1328, 1371, 1456); her physical exam findings were grossly normal (see, e.g., R. 555, 1448); her asthma was generally controlled with the use of a nebulizer, such that no emergency treatment was required during the relevant period (R. 53); and she was able to participate in a full range of school activities, including athletics. (R. 918-19, 928, 1328.) Moreover, most of plaintiff's complaints, over the relevant period, related to her headaches, which never required medication stronger than Motrin and generally improved over time. (See, e.g., 325, 351, 368, 383, 587, 1244, 1273, 1496, 1527.) I note as well that the ALJ found the headaches to be a "non-severe" impairment (R. 41), and plaintiff has not directly challenged that finding.
As for Dr. Tarshish's November 29, 2018 letter: The fact that plaintiff was started on Benlysta (a different lupus medication) on October 3, 2018 - six weeks after the Decision was issued - does not in fact demonstrate that her condition was "deteriorating" prior to the Decision, or at all. Plaintiff's medications were changed several times during the roughly two and a half year period considered by the ALJ. For example, her prednisone dose was increased, then decreased, then discontinued. (R. 337, 389, 561, 1121, 1221, 1459.) Imuran was prescribed, then increased, then discontinued in favor of Cellcept. (R. 337, 432, 561, 587, 1121, 1273, 1328, 1459.) While on Cellcept, plaintiff did well clinically but her lab work showed "persistent hypocomplementemia" (R. 502, 602, 677, 1244, 1317, 1371), leading her doctors to consider adding (or switching to) Benlysta, which was under discussion at least since February of 2018. (R. 1371.) Nothing in the record before the ALJ - and nothing in Dr. Tarshish's letter, or the other records that plaintiff presented only to the Appeals Council - supports the assertion (made only by plaintiff's counsel, and only in her brief) that the addition of Benlysta in late 2018 "demonstrates that plaintiff's lupus has indeed deteriorated over time," Pl. Mem. at 23, much less the conclusion that the ALJ was compelled to find, "based on this deterioration," that plaintiff's health and well-being was "markedly" limited at the time of the Decision.
D. The Appeals Council Properly Denied Plaintiff's Request for Review
Disputes concerning the relevancy of diagnoses made (or medications added) after benefits have been denied "are driven by the tension between the need for finality and the search for truth." Drysdale v. Colvin, 2015 WL 3776382, at *9 (S.D.N.Y. June 16, 2015) (quoting Tirado v. Bowen, 705 F.Supp. 179, 181-82 (S.D.N.Y. 1989)). While claimants "ordinarily should have but one opportunity to prove entitlement to benefits," there nonetheless must be room "allowed in the process for the fact that a claimant's medical condition may not be fully diagnosed or comprehended at the time of her hearing." Id. (quoting Tirado v. Bowen, 842 F.2d 595, 596 (2d Cir. 1988)).
Pursuant to 42 U.S.C. 405(g), courts may remand a case "upon a showing that there is new evidence which is material" to the claim. "Evidence is new if it did not exist before the ALJ decision and it is not merely cumulative of evidence already in the record." Drysdale, 2015 WL 3776382, at *9. "Evidence is material where it 'relates to the period on or before the date of the [ALJ] hearing decision,' is probative, and there is 'a reasonable possibility' that it would have influenced the ALJ's decision." Id. (quoting Tirado, 842 F.2d at 597). Thus, "[d]ocuments generated after the ALJ rendered a decision are not categorically barred so long as the documents are relevant to the time period, before the ALJ's decision, for which benefits were denied." Id. Such documents may be considered by the Appeals Council if - for example - they "disclose the severity and continuity of impairments existing" before the ALJ's decision, or if they "identify additional impairments which could reasonably be presumed to have been present and to have imposed limitations" before the ALJ's decision. Id. (quoting Lisa v. Sec'y of Dep't of Health and Human Servs., 940 F.2d 40, 44 (2d Cir. 1991)). Importantly, however, even "[n]ew and material evidence will not warrant remand if it 'does not add so much as to make the ALJ's decision contrary to the weight of the evidence.'" Id. (quoting Rutkowski v. Astrue, 368 Fed.Appx. 226, 229 (2d Cir. 2010)).
Here, the evidence submitted by plaintiff after the Decision was issued does not warrant remand. First, much of the newly-proffered evidence is not new at all, but "merely cumulative." Lisa, 940 F.2d at 43. Most of the approximately 800 additional pages submitted for the first time to the Appeals Council are either identical to the records reviewed by the ALJ or so similar that they do not provide any new information concerning M.M.W.'s impairments. See supra note 6.
Second, while Dr. Tanner's progress notes dated October 3, 2018, and Dr. Tarshish's letter dated November 29, 2018, may qualify as "new" evidence, these records are not "material" because they do not bear on the "severity and continuity" of M.M.W.'s pre-Decision impairments and do not "identify additional impairments" which likely existed in the relevant time period. See Drysdale, 2015 WL 3776382, at *9. Those records show that on October 3, 2018 (six weeks after the date of the Decision) M.M.W. was prescribed a new medication, Benlysta, which requires "monthly intravenous infusions." (See R. 8.) The reason for the change - which was discussed repeatedly in the medical records reviewed by the ALJ - was that despite plaintiff's generally satisfactory clinical presentation, her lab tests showed "persistent hypocomplementemia" while on her target dose of Cellcept. (See, e.g., R. 1244, 1273, 1328, 1371.) On this record, the fact that plaintiff's doctors recommended a change in medication (as they had done several times in the past) adds no new information concerning the severity of her impairments during the period considered by the ALJ, and does not imply, much less "demonstrate," Pl. Mem. at 23, that her condition was "deteriorating" during that period. Similarly, Dr. Tarshish's notation that "there will likely be times when she has to miss school or her caregivers have to miss work to attend these appointments" (R. 8), reflects the logistical demands of the Benlysta treatment, but does not bear on the severity of plaintiff's impairments during any prior period.
"This is not a case where, for example, a treating physician diagnosed for the first time the root cause of a claimant's symptoms." Hernandez v. Colvin, 2014 WL 3883415, at *13 (S.D.N.Y. Aug. 7, 2014) (citing Tolany v. Heckler, 756 F.2d 268, 272 (2d Cir. 1985)). Nor is it a case where post-decision records "reveal[] the depth of an illness recognized, but not fully appreciated at the time of the hearing," Patterson v. Colvin, 24 F.Supp.3d 356, 373 (S.D.N.Y. 2014) (remanding where, among other things, post-decision examination showed a right knee injury that existed several months before the decision was issued required surgery), or where the records contain objective findings suggesting that the ALJ unfairly discounted the claimant's credibility at the time of the decision. See, e.g., Rolon v. Commissioner of Social Security, 994 F.Supp.2d 496, 509-10 (S.D.N.Y. 2014) (finding post-decision CT scans "material" because they supported plaintiffs complaints of a herniated disc and chronic pain during the benefits period, complaints which were discounted by the ALJ at step four because they were "not supported by the medical evidence"); Lopez v. Astrue, 2011 WL 6000550, at *11 (E.D.N.Y. Nov. 28, 2011) (finding post-decision MRI results "material" where medical experts discredited plaintiffs complaints of serious back pain because there had been no recent MRI results).
Here, the post-Decision records perform none of these functions. Consequently, the Appeals Council did not err in failing to exhibit them, and they do not require remand.
VI. CONCLUSION
Because there is substantial evidence in the record to support the ALJ's determination that M.M.W.'s impairments did not meet, medically equal, or functionally equal the severity of any listed impairment, and because the evidence that plaintiff submitted to the Appeals Council is either not new or not material, I respectfully recommend that the Commissioner's motion be GRANTED, that plaintiffs motion be DENIED, and that the case be DISMISSED.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Analisa Torres at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Torres. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).