Opinion
04 Civ. 6024 (LTS) (AJP).
April 21, 2005
REPORT AND RECOMMENDATION
To the Honorable Laura Taylor Swain, United States District Judge:
Pro se plaintiff Darcel Morgan brings this action on behalf of her minor child, Zanique Morgan, pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny Zanique Morgan SSI benefits. (Dkt. No. 2: Compl.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 9: Motion; see also Dkt. No. 10: Gov't Br.) For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be GRANTED.
PROCEDURAL BACKGROUND
On April 24, 2001, Darcel Morgan, on behalf of her then six year old daughter Zanique, filed an application for Social Security Supplemental Security Income ("SSI") benefits based upon a claim of attention deficit hyperactivity disorder ("ADHD"). (See Dkt. No. 8: Administrative Record filed by the Commissioner ["R."] 52-74.) The application was denied on December 4, 2001. (R. 26-30.) At Darcel's request (see R. 31), a hearing was held before an administrative law judge ("ALJ") on March 13, 2003. (R. 235-53.) On April 23, 2003, the ALJ issued his decision finding that Zanique was not disabled. (R. 17-25.) Darcel sought Appeals Council review on October 28, 2003. (R. 13-16.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied the request for review on April 16, 2004. (R. 5-7.) This action, brought by Darcel pro se, followed. (Dkt. No. 2: Compl.)The issue before the Court is whether the Commissioner's decision that Zanique was not disabled is supported by substantial evidence.
FACTS
The Hearing Before the ALJOn March 13, 2003, the ALJ held a hearing on the Morgans' SSI application. (R. 235-53.) Present at the hearing were Darcel and her daughter Zanique. (R. 235.) Although notified of their right to representation, the Morgans proceeded without counsel at the ALJ hearing. (R. 237.) At the time of the hearing, Zanique was eight years old and in the second grade. (R. 239.) She was never left back. (R. 239.)
Darcel Morgan's Testimony
Darcel Morgan testified that Zanique had been placed in special education "[b]ecause of her emotional, disruptive, bad behavior, hitting on the children, [and] disrespecting the teachers." (R. 239.) Just prior to the hearing, Zanique began attending weekly psychiatric counseling sessions. (R. 239-40, 242-43.) Zanique also was receiving treatment with a counselor at her school, since she started at the school in September 2002. (R. 243.)
Darcel stated that her daughter has trouble with reading comprehension, and that Zanique sometimes has to read something two or three times before she understands it. (R. 244.) With regard to Zanique's in-school performance, Darcel testified that "she has her good days, she has her bad [days]." (R. 245.) When it comes to doing homework, "[y]ou have to stay on her because she [is] easily distracted." (Id.) Darcel said that Zanique is able to focus on tasks if she wants to, but if she is not willing, "she'll just shut down." (Id.)
Darcel testified that Zanique has trouble with social interaction with children and adults. (R. 245.) From her observations of Zanique interacting with children, Darcel described Zanique as "very controlling" and "bossy." (R. 246.) Darcel also reported that Zanique hit other children. (Id.) Darcel and Zanique mostly "get along" but Zanique "has her moments." (Id.) Zanique is an only child and her father is not part of the household. (Id.)
The ALJ inquired about Zanique's physical condition, and her mother noted that there was no condition requiring present attention. (R. 246-47.) Darcel testified that Zanique had complained of double vision, so they went to a pediatric ophthalmologist, who observed that Zanique had an enlarged pupil, "but it [is] okay now." (R. 247.) Zanique is able to do all the things that eight year olds can normally do. (R. 247.)
Zanique Morgan's Testimony
The ALJ next questioned Zanique. (R. 248-52.) Zanique testified to her problems at school. (R. 248.) She explained that "the kids be hitting me," and that "they like to get me in trouble." (Id.) When she told her teacher, sometimes her teacher would not believe her. (Id.) When her mother told the ALJ that she was concerned by Zanique's violent behavior, Zanique admitted to the ALJ that she sometimes hit kids because they "bother" her, and then she gets in trouble when she hits them. (R. 251-52.)
Zanique tesitifed that she has friends at school, and she named three children that she particularly liked. (R. 249.) The ALJ and Zanique also had effective discourse when discussing her recent ice skating trip. (R. 250-251.)
Zanique answered correctly to simple academic assessment questions presented by the ALJ. (R. 249.) She knew how to add two plus two and three plus four. (Id.) Zanique spelled her name. (Id.) Zanique submitted a letter to the ALJ, in which she said that she wished she could be at home and not be around other children at school. (R. 233.) Besides wishing that she could have no more homework, play her Game Boy and her CD-player, she wished that she had her own "government." (Id.)
The Educational Evidence, Medical and Professional Evaluations and Other Evidence Prior to the Claimed Disability (April 24, 2001)
On March 22, 2000, Zanique was temporarily suspended from her childcare program at Graham-Windham Services to Families and Children ("Graham-Windham") due to "disciplinary problems." (R. 85.) The next day, Zanique was seen by Nancy Glimm, a social worker at Bronx Mental Health Service. (R. 136-40.) Glimm reported Zanique's developmental history to be within normal limits. (R. 137.) Glimm's mental status exam of Zanique described her as cooperative with increased and hyperactive motor activity. (R. 138.) Her speech was normal, she was soft in volume, but her rate was average and her articulation was clear. (Id.) Glimm reported that Zanique's mood was "anxious," and her affect was "constricted." (Id.) Zanique's thought processes were "goal-directed" and "logical." (Id.) Her thought content demonstrated no hallucinations, delusions, suicidal or homicidal ideation. (Id.) Glimm reported that Zanique had a loss of impulse control. (Id.) Regarding Zanique's cognitive function, her memory was intact, and she was oriented to person, place, and time. (Id.) Glimm found Zanique's insight to be limited and her judgment to be poor. (Id.) Her diagnosis was to rule out ADHD and ODD. (R. 139.)
On March 28, 2000, Glimm wrote a letter noting that Zanique has "poor socialization skills and needs help with peer relationships." (R. 140.) This letter also explained that Zanique had been seen for an initial evaluation, and that other counseling and psychiatric evaluation sessions were scheduled. (Id.) Only after Zanique's mother retained these "special needs services" for Zanique, was she allowed to return to the center on March 29, 2000. (R. 85.)
On July 26, 2000, a physical examination at Graham-Windham found Zanique to be "physically healthy." (R. 84.)
Maikel S. Belfor, a clinical social worker at Graham-Windham, noted that on November 17, 2000, Zanique started receiving weekly individual therapy and monthly collateral therapy with her mother and psychiatrist present. (R. 86.)
Ten days later, in a November 27, 2000 letter, her psychiatrist, Dr. John L. Bolling, noted that after psychiatric evaluation and starting psychotherapy, Zanique "was diagnosed as having ADHD and Disruptive Behavior Disorder." (R. 87.) Noting that Zanique had been expelled from school, Dr. Bolling suggested that she be placed in a "specialized learning environment," which would "provide the milieu that will help her to advance her cognitive and emotional growth." (Id.)
On December 5, 2000, in a "discharge summary" report, Glimm noted that Zanique had greatly improved her socialization skills since her initial evaluation at Bronx Mental Health Service. (R. 135.) Glimm reported that efforts to use medication were unsuccessful. (Id.) Glimm's final diagnosis was adjustment disorder. (Id.) She noted that Zanique's mother had "transferred her care to another service." (Id.)
On January 3, 2001, Alice Falkenstein, Zanique's kindergarten teacher, wrote a letter reporting that Zanique had continuing difficulty in "adjusting to classroom rules and regulations." (R. 134.) She described Zanique's attention and active listening skills as poor. (Id.) Falkenstein observed that Zanique had very little self-control, had trouble following directions from adults and difficulty working with other children, and had cried and thrown things. (Id.)
Starting December 20, 2000 through March, 2001, Zanique was evaluated by the Kennedy Child Study Center. (R. 88.) A January 18, 2001 physical examination by Dr. Mary Z. Gasparik, a medical director at the Kennedy Child Study Center, revealed no abnormalities besides enlarged tonsils and moderate nasal congestion. (R. 91.) Dr. Gasparik's neurological examination sought follow up to "rule out" ADHD and learning disorder. (R. 93.)
On February 21, 2001, Dr. Yusuf Salim, a child and adolescent psychiatrist at the Kennedy Child Study Center, performed a psychiatric evaluation of Zanique. (R. 94-96.) Dr. Salim reported that Zanique was "a charming and attractive girl," who was "shy but pleasant . . . and was cooperative." (R. 94.) She made satisfactory eye contact. (Id.) Zanique was very fidgety and restless, but otherwise, her motor activity was within normal limits. (R. 96.) Dr. Salim found Zanique's concentration and attention span were poor, but her impulse control was adequate for her age. (Id.) Dr. Salim noted that her speech was soft, clear, and well modulated, and overall he found Zanique's language development was "within normal range." (Id.) Despite her shyness, Dr. Salim reported that Zanique's "affect was full and appropriate." (Id.) He found that her self-esteem was low and that her "[m]ood was tense, generally dysphoric and somewhat angry and irritable." (Id.) Dr. Salim noted that Zanique was quite guarded at first, but he observed that her thought processes were "relevant and logical, with no evidence of a thought disorder." (Id.) Dr. Salim noted that when discussing her behavioral problems, Zanique was somewhat manipulative and minimized her problems by blaming her teacher and fellow students. (Id.) Dr. Salim observed that Zanique "displayed right-left confusion and reversed several letters." (Id.) He also reported that she was unable to read simple words and was unable to write her name neatly and with the appropriate upper and lower case letters. (Id.) Her "[f]igure drawings were immature for [her] age." (Id.) Zanique was "approximately oriented for time but well oriented for place and person." (R. 95.) Dr. Salim observed that Zanique's memory was intact for both recent and remote events, but that her immediate recall was poor. (Id.) He also found Zanique to be functioning "within the average range of intelligence" and her judgment "was age-appropriate." (Id.) Dr. Salim's diagnosis for Zanique was ADHD, although he could not rule out a learning disorder. (Id.)
On March 8, 2001, Dr. David Usdan, a psychologist at the Kennedy Child Study Center, performed a psychological evaluation of Zanique. (R. 103-07.) Dr. Usdan found that despite Zanique's clear cognitive ability to perform many of the tasks he presented, she was easily distractible. (R. 103.) On the Stanford-Binet Intelligence Scale, Zanique achieved a verbal reasoning score of 98, which was average (45th percentile), an abstract/visual reasoning score of 85, which was low average (17th percentile), a quantitative reasoning score of 106, which was average (65th percentile), and a short-term memory score of 99, which also was average (48th percentile). (R. 104.) Zanique's composite score was 96, which was overall average (40th percentile). (Id.) Dr. Usdan also reported that, due to Zanique's high level of distractibility and inattention, he was unable to administer a behavior test, House-Tree-Person drawings, which he found to be consistent with a high degree of attention-deficit and hyperactivity. (R. 105.) Dr. Usdan recommended an "Educational Evaluation to rule out Learning Disorder," individual psychotherapy, parent counseling, and placement in a smaller educational setting. (R. 106.)
On March 13, 2001, Virginia Marshall, a board certified pediatric occupational therapist at the Kennedy Child Study Center, performed an occupation therapy evaluation of Zanique. (R. 101-102.) Marshall found Zanique to be "an alert, friendly child who exhibited an appropriate attention span and cooperation." (R. 101.) Marshall found Zanique's activity level to be somewhat high, but she was "very verbal; asking and answering questions appropriately." (Id.) Marshall reported that Zanique's daily living skills "appear age appropriate." (R. 102.) She also reported that Zanique's range of motion, muscle strength and sensory processing skills were within normal limits. (R. 101.) Marshall found that some fine motor skills were slightly delayed, but appeared to be emerging. (R. 102.) Marshall's report ultimately did not recommend occupational therapy for Zanique, but it did find that due to her high activity levels, increased gross motor activities after school would be beneficial. (Id.)
On March 22, 2001, Dr. Usdan performed an educational evaluation. (R. 97-100.) Zanique was administered the Woodcock-Johnson Psycho-Educational Battery Revised, which tests various aspects of scholastic achievement, and the Developmental Test of Visual-Motor Integration. (R. 97-98.) Scaling her score to other children her age, Dr. Usdan reported Zanique's written language skills performance as high average, her basic and broad reading skills performance as average, her broad mathematics performance as low, her visual-motor skills performance as low, and her visual perception skills as average. (R. 99.) Dr. Usdan noted that "[d]ifficulties with attention and concentration may interfere with performance on visual-motor and mathematics tasks. A [m]athematics learning disorder cannot be ruled out." (Id.) Dr. Usdan recommended placing Zanique in a "special education setting for children with average intelligence and emotional problems." (Id.)
On March 19, 2001, three days prior to Dr. Usdan's evaluation, the New York City Board of Education administered to Zanique the Wechsler Primary Preschool Scale of Intelligence-Revised test and the Conners Adaptive Behavior Questionnaire. (R. 114-21, 197-201.) Zanique scored a verbal IQ of 94, a performance IQ of 81, and a full scale IQ of 87. (R. 117-18.) These scores indicated that Zanique was functioning within the low average range of intelligence; however, the test administrator, due to subtest scatter, believed that this was a "minimal estimate of [Zanique's] true learning potential." (R. 118.) On the teacher form of the Conners Adaptive Behavior Questionnaire, Zanique's performance indicated hyperactivity, conduct disorder, emotional overindulgence, and asocial behavior. (R. 119-20.)
On the next day, March 20, 2001, the Board of Education performed an education evaluation including the Wechsler Individual Achievement Test. (R. 192-96.) The associated report indicated that Zanique was a six year old kindergarten student, who possessed the readiness skills in the "beginning to mid-kindergarten level." (R. 192, 194.)
On March 22, 2001, the New York City Board of Education presented an Individualized Education Program ("IEP") for Zanique. (R. 122-33.) The IEP report indicated that Zanique had no special medical requirements, but it recommended placement in a Specialized Instruction Environment until August 2001, and then placement in a Specialized School starting September 2001. (R. 122.) These programs were chosen because of Zanique's "severe behavior issues[,] aggressiveness towards peers, impulsivity[, and] poor adult interactions." (R. 131.) The report also recommended that Zanique attend weekly outside counseling, as well as in school small group counseling. (R. 132-33.)
The Educational Evidence, Medical and Professional Evaluations and Other Evidence During the Claimed Disability (After April 24, 2001)
Dr. Bernardo Scheimberg of the New York State Disability Assistance Department examined Zanique on August 29, 2001. (R. 142-145.) Upon examination, Zanique separated from her mother without difficulty, and was able to state her name, age, and birthdate correctly. (R. 143.) Dr. Scheimberg observed that Zanique "appear[ed] to have above average language skills and [could] express herself like a much older child." (Id.) Zanique admitted that she had fought with children at school, but denied that she ever had heard voices urging her to hit them. (Id.) Upon mental status examination, Zanique was able to maintain adequate eye contact, and demonstrated "above average expectation language skills." (R. 144.) Dr. Scheimberg noted her language as "relevant, coherent and goal directed." (Id.) She did not demonstrate delusions, hallucinations, compulsions, obsessions or phobias. (Id.) Her mood was not dysphoric, and her affect was euthymic. (Id.) Her attention span and ability to concentrate on a subject were adequate. (Id.) Dr. Scheimberg reported that Zanique appeared to "function in the high average level of intelligence." (Id.) Dr. Scheimberg did not observe any hyperactive or serious behavioral difficulties. (Id.) Dr. Scheimberg's diagnoses were conduct disorder, and "[r]ule out adjustment disorder, with mixed disturbance of emotions and conduct." (Id.) Dr. Scheimberg suggested that Zanique "go back to the clinic where she ha[d] been treated apparently successfully and if necessary, she should be prescribed medications that according to the mother help[ed] her in the past when her mother terminated her treatment." (R. 145.)
An IEP review dated October 23, 2001 classified Zanique as emotionally disturbed, and continued with its previous recommendation for placement in specialized school. (R. 170;see also, R. 171-80.)
On December 3, 2001, Dr. Erlinda Gagan reviewed the medical evidence and evaluated Zanique on behalf of the Social Security Administration. (R. 146-51.) Dr. Gagan reported Zanique as physically healthy, and found no limitation to her health and physical well-being. (R. 150.) Dr. Gagan found no limitation in the domains of acquiring and using information, moving about and manipulating objects, and caring for self. (R. 148, 150.) Dr. Gagan reported "less than marked" limitation in the domains of attending and completing tasks and interacting with others. (R. 148.) Dr. Gagan found that Zanique's "combination of impairments[, including ADHD and disruptive disorder,] is severe, but does not meet, medically equal, or functionally equal the listings" required for receiving SSI benefits. (R. 146.)
In an undated letter, a detective with the New York Police Department noted that his false report investigation of May 27, 2002 found that Zanique admitted to making a prank 911 phone call with her friends. (R. 209.)
Zanique attended the second grade at The Child School, which issued a mid-year report in January 2003. (R. 221-32.) The Child School "is a school for Learning Disabled, Speech Impaired and Emotionally Disturbed children." (R. 234.) Dana Turkel, Zanique's reading and language arts teacher, stated that Zanique was able to sequence a story with minimal help. (R. 224.) Turkel reported that Zanique's writing was on topic and that she knew the writing process, but needed work on her writing mechanics, such as proper capitalization and appropriate punctuation. (Id.) Regarding Zanique's reading skills, Turkel assessed that although Zanique was decoding on a second grade level, she was having difficulty in grasping the main ideas of stories. (Id.) Turkel judged Zanique's comprehension to be between first and second grade level. (Id.) Regarding social development and behavior, The Child School reported that while Zanique enjoys interactions with classmates and adults, she causes conflicts with her classmates, which at times have been physical. (R. 223.) The Child School noted that Zanique has trouble when being corrected and has a tendency to lie when confronted about doing something wrong. (Id.)
Although this page is dated January 2002, it is contained in a report dated January 2003, where all of the other dated documents are from January 2003 (R. 221-32), one of which is also authored by Turkel (see R. 222).
Randi Meyer, Zanique's teacher for math, social studies and science, noted that Zanique's homework and classroom participation were excellent. (R. 226.) In math class her respect for peers was rated satisfactory, but her respect for adults was rated unsatisfactory. (Id.) Meyer reported that Zanique could add and subtract, grasp new concepts quickly, and retain them. (Id.) Meyer also noted that Zanique was motivated to learn new things and was eager to practice. (Id.) Zanique had areas where she could improve academically, namely clock reading and word problems. (Id.) Meyer reported that when corrected, Zanique would become disrespectful. (Id.)
In her social studies and science classes, Meyer rated Zanique as having excellent classroom participation and respect for peers. (R. 228.) Zanique's respect for adults was rated as satisfactory. (Id.) Meyer reported that Zanique was capable of reading her social studies and science texts with assistance, but had trouble comprehending when reading independently. (Id.) Meyer further reported that Zanique was able to recall facts and details from repetition and from studying her notes. (Id.)
Also part of the January 2003 The Child School mid-year report, a therapist, Renee Saw, completed a counseling progress report. (R. 232.) Saw noted that "Zanique is motivated to learn," but "[s]he has difficulty in engaging in give [and] take with peers [and] becomes overly aggressive." (Id.) Also, both Zanique's physical education teacher and music teacher reported that she needed to "be reminded to stay on task." (R. 230, 231.)
An IEP dated January 30, 2003 recommended Zanique to be placed in a special class at The Child School with a staffing ratio of 8:1:1. (R. 210-20.) Other educational programs considered were rejected because of Zanique's "severe behavior issues; aggressiveness towards peers, impulsivity [, and] poor adult interactions." (R. 218.)
In October 2003, Zanique was in the fourth grade at The Child School. (R. 234.)
The ALJ's Decision
On April 23, 2003, the ALJ issued his written opinion. (R. 18-25.) He reviewed the applicable legal standard pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (R. 22), and the education evaluations, medical reports and other evidence in the record (R. 21-25). The ALJ found that Zanique was not engaged in "substantial gainful activity" during any part of the period under review. (R. 22-25.) The ALJ also found that Zanique had ADHD and a defiant behavior disorder, both severe impairments that had more than a minimal impact on her functioning. (R. 22, 25.)
Despite having had these impairments for more than twelve months, the impairments did not "meet the criteria of any impairment in the Listing of Impairments" (R. 22), nor were they "medically equal to a listed impairment, either" (R. 23). The ALJ noted that he paid particular attention to Section 112.00 (Mental Disorders) of Appendix 1 of 20 C.F.R., Pt. 404, Subpt. P before reaching this conclusion. (R. 22.)
Finally, the ALJ found that Zanique's impairments were not functionally equal to a listed impairment. (R. 23-24.) Since the ALJ found that Zanique's "impairments [did] not result in an 'extreme' limitation in at least one broad domain of function or 'marked' limitations in at least two broad domains, [Zanique's] impairments do not functionally equal" a listed impairment. (R. 24.) The ALJ determined that Zanique had "less than marked limitation in the areas of attending and completing tasks, interacting and relating with others, and general health and physical well-being, and no limitations in acquiring and using information, moving about and manipulating objects, and self-care." (R. 23; see also R. 24.)
The ALJ concluded: "The child's impairments, although 'severe,' do not meet or medically equal the criteria of any impairment listed in Appendix 1 of 20 C.F.R., Pt. 404, Subpt. P, and does not functionally equal a listing. Therefore, the child does not have an impairment that results in 'marked and severe' functional limitations, and the child is not 'disabled,' as defined in the Social Security Act." (R. 25.)
ANALYSIS
I. STANDARD OF REVIEWA court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); Veino v.Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Vapne v. Apfel, No. 01-6247, 36 Fed. Appx. 670, 672, 2002 WL 1275339 at *2 (2d Cir. June 10, 2002), cert. denied, 537 U.S. 961, 123 S. Ct. 394 (2002); Horowitz v. Barnhart, No. 01-6092, 29 Fed. Appx. 749, 752, 2002 WL 337951 at *2 (2d Cir. Mar. 4, 2002); Machadio v.Apfel, 276 F.3d 103, 108 (2d Cir. 2002); 42 U.S.C. § 405(g). "'Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y. July 26, 2002).
See also, e.g., Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999);Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Rosa v.Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983); Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); Rodriguez v. Barnhart, 03 Civ. 7272, 2004 WL 1970141 at *8 (S.D.N.Y. Aug. 23, 2004); Martinez v. Massanari, 242 F. Supp. 2d 372, 375 (S.D.N.Y. 2003); Duran v. Barnhart, 01 Civ. 8307, 2003 WL 103003 at *7 (S.D.N.Y. Jan. 13, 2003); Garcia v.Barnhart, 01 Civ. 8300, 2003 WL 68040 at *3 (S.D.N.Y. Jan. 7, 2003); Rebull v. Massanari, 240 F. Supp. 2d 265, 268-69 (S.D.N.Y. 2002); Worthy v. Barnhart, 01 Civ. 7907, 2002 WL 31873463 at *3 (S.D.N.Y. Dec. 23, 2002); Norris v. Barnhart, 01 Civ. 0902, 2002 WL 31778794 at *3 (S.D.N.Y. Dec. 12, 2002);Morales v. Barnhart, 01 Civ. 4057, 2002 WL 31729526 at *6 (S.D.N.Y. Dec. 5, 2002).
See also, e.g., Duran v. Barnhart, 01 Civ. 8307, 2003 WL 103003 at *9; Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N.Y. Dec. 9, 1999) ("The Commissioner's decision is to be afforded considerable deference; the reviewing court should not substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.") (internal quotations alterations omitted).
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971); accord, e.g., Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Curry v.Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61;Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74; Perez v. Chater, 77 F.3d at 46. "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207 (1983). The Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991);see also, e.g., Veino v. Barnhart, 312 F.3d at 586;Toles v. Chater, No. 96-6065, 104 F.3d 351 (table), 1996 WL 545591 at *1 (2d Cir. Sept. 26, 1996); Rodriguez v. Barnhart, 2004 WL 1970141 at *9; Garcia v. Barnhart, 2003 WL 68040 at *3; Morales v. Barnhart, 2002 WL 31729526 at *6. However, the Court will not defer to the Commissioner's determination if it is "'the product of legal error.'" E.g., Duvergel v. Apfel, 2000 WL 328593 at *7; see also, e.g., Tejada v. Apfel, 167 F.3d at 773 (citing cases); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). II. THE APPLICABLE LEGAL STANDARD FOR DETERMINING DISABILITY OF A CHILD
See also, e.g., Green-Younger v. Barnhart, 335 F.3d at 106; Batitsta v. Commissioner of Soc. Sec., 03 Civ. 10121, 2004 WL 2700104 at *5 (S.D.N.Y. Nov. 23, 2004); Rodriguez v.Barnhart, 2004 WL 1970141 at *9; Martinez v. Massanari, 242 F. Supp. 2d at 375; Duran v. Barnhart, 2003 WL 103003 at *9;Garcia v. Barnhart, 2003 WL 68040 at *3; Worthy v.Barnhart, 2002 WL 31873463 at *3; Norris v. Barnhart, 2002 WL 31778794 at *3; Morales v. Barnhart, 2002 WL 31729526 at *6; Soto v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at *4 (S.D.N.Y. Dec. 4, 2002).
For additional decisions by this Judge discussing the applicable legal standards for determining disability of a child in Social Security cases in language substantially similar to that in this entire section of this Report and Recommendation,see, e.g., Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4-5 n. 6 (S.D.N.Y. July 26, 2002) (Peck, M.J.);Tucker v. Massanari, 99 Civ. 12037, 2001 WL 869031 at *6-7 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at *6-7 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.); Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *9-11 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.).
Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the "PRWORA"), Pub.L. No. 104-193, 1996 U.S. Code Cong. Admin. News (110 Stat.) 2105, a disability exists for purposes of SSI benefits if a child under the age of eighteen:
[1] has a medically determinable physical or mental impairment, [2] which results in marked and severe functional limitations, and [3] 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 . . . [however,] no individual under the age of 18 who engages in substantial gainful activity . . . may be considered to be disabled.42 U.S.C. § 1382c(a)(3)(C)(i)-(ii); see, e.g., Pollard v.Halter, 377 F.3d 183, 189 (2d Cir. 2004); Encarnacion v.Barnhart, 331 F.3d 78, 84 (2d Cir. 2003); Marchado v.Apfel, 276 F.3d 103, 108 (2d Cir. 2002); Quinones v.Chater, 117 F.3d 29, 33 n. 1 (2d Cir. 1997); Cotis v.Massanari, 00 Civ. 4693, 2001 WL 527471 at *3 (S.D.N.Y. May 17, 2001); Straw v. Apfel, 98 Civ. 5089, 2001 WL 406184 at *4 (S.D.N.Y. Apr. 20, 2001); Colon v. Apfel, 133 F. Supp. 2d 330, 338 (S.D.N.Y. 2001)
See also, e.g., Carballo v. Apfel, 34 F. Supp. 2d 208, 216 (S.D.N.Y. 1999); Almonte v. Apfel, 96 Civ. 1119, 1998 WL 150996 at *1 n. 2 (S.D.N.Y. March 31, 1998); Evans v.Apfel, 96 Civ. 7741, 1998 WL 91127 at *4 (S.D.N.Y. Mar. 2, 1998); Diaz v. Apfel, 994 F. Supp. 541, 545-46 (S.D.N.Y. 1998); Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at *6 (S.D.N.Y. Jan. 13, 1998).
The implementing regulations provide a three-step process for determining eligibility. 20 C.F.R. § 416.924(a). In the first step, the ALJ must determine whether the child is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). If so, there can be no finding of disability. 20 C.F.R. § 416.924(a)-(b). If not, the analysis proceeds to step two, which requires the ALJ to determine whether the child has a severe impairment or combination of impairments. 20 C.F.R. § 416.924(c). If the impairment(s) constitutes a "slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations," the child will not be found to have a severe impairment. 20 C.F.R. § 416.924(c). If there is a finding of severe impairment, however, the analysis proceeds to step three, which requires the ALJ to determine whether the impairment(s)
See, e.g., Pollard v. Halter, 377 F.3d at 189;Encarnacion v. Barnhart, 331 F.3d at 84; Cotis v.Massanari, 2001 WL 527471 at *3; Straw v. Apfel, 2001 WL 406184 at *4-5; Colon v. Apfel, 133 F. Supp. 2d at 337-40;De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at *4 (S.D.N.Y. July 12, 2000); Salomon v. Apfel, 99 Civ. 4250, 2000 WL 776924 at *3 (S.D.N.Y. June 15, 2000); Duvergel v.Apfel, 97 Civ. 7131, 1999 WL 178780 at *5 (S.D.N.Y. Mar. 31, 1999) (Peck, M.J.); Carballo v. Apfel, 34 F. Supp. 2d 208, 216 (S.D.N.Y. 1999); Scullark v. Apfel, 97 Civ. 7138, 1998 WL 472059 at *6 (S.D.N.Y. Aug. 6, 1998); Diaz v. Apfel, 994 F. Supp. at 545.
See also, e.g., Pollard v. Halter, 377 F.3d at 189; Encarnacion v. Barnhart, 331 F.3d at 84; Cotis v.Massanari, 2001 WL 527471 at *3; Straw v. Apfel, 2001 WL 406184 at *4.
See, e.g., Pollard v. Halter, 377 F.3d at 189;Encarnacion v. Barnhart, 331 F.3d at 84; Cotis v.Massanari, 2001 WL 527471 at *3; Straw v. Apfel, 2001 WL 406184 at *4-5; Colon v. Apfel, 133 F. Supp. 2d at 341-42.
See also, e.g., Cotis v. Massanari, 2001 WL 527471 at *3; Straw v. Apfel, 2001 WL 406184 at *5; Colon v.Apfel, 133 F. Supp. 2d at 341-42.
meet, medically equal, or functionally equal the listings. An impairment(s) causes marked and severe functional limitations if it meets or medically equals the severity of a set of criteria for an impairment listed in the listing [of Impairments in appendix 1 of subpart P of part 404 of this chapter], or if it functionally equals the listings.20 C.F.R. § 416.924(d). If this equivalency test is satisfied, and the statute's durational requirement is satisfied as well, then the child will be found to be disabled. 20 C.F.R. § 416.924(d)(1). Otherwise, he will not. 20 C.F.R. § 416.924(d)(2).
See also, e.g., Pollard v. Halter, 377 F.3d at 189; Encarnacion v. Barnhart, 331 F.3d at 84; Cotis v.Massanari, 2001 WL 527471 at *3; Straw v. Apfel, 2001 WL 406184 at *4; Colon v. Apfel, 133 F. Supp. 2d at 340-41 n. 9. "SSA amended its regulations again, effective January 2, 2001, to essentially eliminate medical equivalence proceedings and to analyze all children under a functional equivalence rubric."Encarnacion v. Barnhart, 331 F.3d at 84 n. 3.
See also, e.g., Cotis v. Massanari, 2001 WL 527471 at *3; Straw v. Apfel, 2001 WL 406184 at *4; Colon v.Apfel, 133 F. Supp. 2d at 340-41 n. 9; Diaz v. Apfel, 1998 WL 78247 at *4.
To "functionally equal the listings," an impairment "must result in 'marked' limitations in two domains of functioning or an 'extreme' limitation in one domain." 20 C.F.R. § 416.926a(a);see also Pollard v. Halter, 377 F.3d at 190; Encarnacion v. Barnhart, 331 F.3d at 84-85. A "marked limitation" is one where the "impairment(s) interferes seriously with your ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i); see also, e.g., Pollard v.Halter, 377 F.3d at 190. An "extreme" limitation is one where the "impairment(s) interferes very seriously with your ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(3)(i); see also, e.g., Pollard v.Halter, 377 F.3d at 190.
The six functional domains are: "(i) Acquiring and using information; (ii) Attending and completing tasks; (iii) Interacting and relating with others; (iv) Moving about and manipulating objects; (v) Caring for yourself; and, (vi) Health and physical well being." 20 C.F.R. § 416.926a(b)(1); see also id. § 416.926a(g)-(l); Pollard v. Halter, 377 F.3d at 190; Encarnacion v. Barnhart, 331 F.3d at 84 n. 4.
III. THE GOVERNMENT'S MOTION SHOULD BE GRANTED, WITHOUT THE NEED TO APPLY THE LEGAL STANDARD TO MORGAN'S CLAIM, BECAUSE MORGAN'S COMPLAINT IS CONCLUSORY AND SHE DID NOT FILE PAPERS OPPOSING THE GOVERNMENT'S MOTION
For additional decisions by this Judge discussing the grant of judgment on the pleadings to the Government where the plaintiff has filed no opposing papers (or only conclusory papers) in language substantially similar to that in this entire section of this Report and Recommendation, see Rodriguez v.Barnhart, 04 Civ. 4514, 2005 WL 643190 at *8-9 (S.D.N.Y. Mar. 21, 2005) (Peck, M.J.); Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *9 (S.D.N.Y. July 8, 2003) (Peck, M.J.); De Roman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *10 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *6-8 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *7 (S.D.N.Y. July 11, 2001) (Peck, M.J.);Casiano v. Apfel, 39 F. Supp. 2d 326, 327-28 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.), aff'd mem., No. 99-6058, 205 F.3d 1322 (table), 2000 WL 225436 (2d Cir. Jan. 14, 2000).
In a proceeding to judicially review a final decision of the Commissioner, the plaintiff bears the burden of establishing the existence of a disability. See, e.g., Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999) ("The claimant generally bears the burden of proving that she is disabled under the statute . . ."); Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir. 1981) ("It is well established that the burden of proving disability is on the claimant."); Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir. 1981); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980);Adams v. Flemming, 276 F.2d 901, 903 (2d Cir. 1960) ("The controlling principles of law upon [judicial] review [of a Social Security denial] are well established . . ., namely, 'the burden of sustaining the claim for benefits is on the claimant' and 'The findings of the Social Security Agency are final and binding if there is a substantial basis for them.'").
See also, e.g., Pena v. Barnhart, 01 Civ 502, 2002 WL 31487903 at *8 (S.D.N.Y. Oct. 29, 2002); Reyes v.Barnhart, 01 Civ 1724, 2002 WL 31385825 at *5 (S.D.N.Y. Oct. 21, 2002); Ortiz v. Shalala, 93 Civ. 3561, 1994 WL 673630 at *1 (S.D.N.Y. Dec. 1, 1994); Morton v. Heckler, 586 F. Supp. 110, 111 (W.D.N.Y. 1984); Harvey L. McCormick, Social Sec. Claims Proc. § 14:16 (5th ed. 1998) ("In a proceeding to review judicially a final decision of the Commissioner, the plaintiff has the burden of establishing the correctness of his or her contention. The procedure is akin to that in a regular civil appeal under the Federal Rules of Civil Procedure. . . .").
Here, Darcel Morgan's pro se complaint on behalf of her daughter states only that Zanique should receive Social Security SSI benefits because of her attention deficit disorder. (Dkt. No. 2: Compl. ¶ 4.) Darcel has not filed any brief or affidavit opposing the Commissioner's motion for judgment on the pleadings, and the filing deadline for doing so has passed. (See Dkt. No. 7: 10/6/04 Stip. Order: Darcel's opposition papers were due 2/28/05.) Thus, Darcel does not point to any specific testimony or evidence which she believes the ALJ overlooked, unjustly weighed, or otherwise should have considered. Darcel's complaint is conclusory, and without more, insufficient to defeat the Commissioner's motion for judgment on the pleadings. See cases cited in n. 17; see also Reyes v. Barnhart, 01 Civ. 4059, 2004 WL 439495 at *3 (S.D.N.Y. Mar. 9, 2004) (following my decisions in Jiang, Alvarez and Morel); Counterman v.Chater, 923 F. Supp. 408, 414 (W.D.N.Y. 1996) (Court rejects plaintiff's allegations that the ALJ "failed to consider [minor claimant's] parent's testimony as medical evidence, failed to consider all the medical evidence, failed to consider [child's] mother's testimony with respect to the IFA analysis, and failed to render his decision based upon the record as a whole," on the ground that they are "broad and conclusory. She offers no specific testimony or evidence which she believes that the ALJ overlooked and should have considered."); Steiner v. Dowling, 914 F. Supp. 25, 28 n. 1 (N.D.N.Y. 1995) (rejecting plaintiffs' argument that the State's social security regulations are too restrictive as "neither sufficiently explained nor seriously advanced by plaintiffs — providing only a single conclusory paragraph in their Statement of Undisputed Facts . . ., and in their Attorney's Affirmation. . . ."), aff'd, 76 F.3d 498 (2d Cir. 1996); see generally Southern District of New York Local Civil Rule 7.1 ("all motions and all oppositions thereto shall be supported by a memorandum of law, setting forth the points and authorities relied upon in support of or in opposition to the motion. . . . Willful failure to comply with this rule may be deemed sufficient cause for the denial of a motion or for the granting of a motion by default.").
IV. APPLICATION OF THE LEGAL STANDARD TO PLAINTIFF'S CLAIM
Because the ALJ found that Zanique never engaged in a substantial gainful activity and that Zanique had severe medically determinable impairments of ADHD and defiant behavior disorder (see page 14 above), Zanique satisfied the first and second requirements of the three-part test. The Court therefore must determine whether substantial evidence supports the ALJ's conclusions that Zanique's impairments are not functionally equivalent to an impairment listed at 20 C.F.R., part 404, subpart P, appendix 1. Mental disorders, the category of impairments closest to Zanique's impairments, are dealt with in Sections 12.00-12.10 of the listings of impairments.
This Courts's review of the medical impairment listing at 20 C.F.R. Pt. 404, Subpt. P, App. 1, including Sections 12.00-12.10, finds no impairment medically equivalent to Zanique's impairments. Therefore, the ALJ was correct to conclude that Zanique did not have a medically equivalent impairment. The next issue is whether Zanique's impairments were functionally equivalent to an impairment listed at 20 C.F.R., part 404, subpart P, appendix 1.
As noted above, to support a finding of functional equivalence, Zanique's impairments "must result in 'marked' limitations in two domains of functioning or an 'extreme' limitation in one domain." 20 C.F.R. § 416.926a(a).
See also, e.g., Pollard v. Halter, 377 F.3d 183, 190 (2d Cir. 2004); Encarnacion v. Barnhart, 331 F.3d 78, 84-85 (2d Cir. 2003); Santos v. Barnhart, No. 04 CV 2050, 2005 WL 119359 at *7 (E.D.N.Y. Jan. 7, 2005); Barreto v.Barnhart, 02 Civ. 4462, 2004 WL 1672789 at *1 (S.D.N.Y. July 27, 2004) (Swain, D.J.); Ramos v. Barnhart, 02 Civ. 3127, 2003 WL 21032012 at *8 (S.D.N.Y. May 6, 2003); Panos v.Barnhart, 00 Civ. 2252, 2002 WL 54609 at *5 (S.D.N.Y. Jan. 15, 2002).
A marked limitation is one that is "more than moderate" and "less than extreme" and "interfere[s] seriously with [the child's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). Although "[n]o single piece of information taken in isolation can establish whether [a child] has a 'marked' . . . limitation in a domain," 20 C.F.R. § 416.926a(e)(4)(i), a marked limitation will be found when a child scores "two standard deviations or more below the mean, but less than three standard deviations, on a comprehensive standardized test designed to measure ability or functioning in that domain, and [the child's] day-to-day functioning domain-related activities is consistent with that score." 20 C.F.R. § 416.926a(e)(2)(iii).
An extreme limitation exists if the "impairment interferes very seriously with [the child's] ability to independently initiate, sustain, or complete activities," and this rating is only "give[n] to the worst limitations." 20 C.F.R. § 416.926a(e)(3)(i). Although, as with marked limitations, "[n]o single piece of information taken in isolation can establish whether [a child] has an . . . 'extreme' limitation in a domain," 20 C.F.R. § 416.926a(e)(4)(i), an extreme limitation will be found when a child scores "three standard deviations or more below the mean on a comprehensive standardized test designed to measure ability or functioning in that domain, and [the child's] day-today functioning in domain-related activities is consistent with that score." 20 C.F.R. § 416.926a(e)(3)(iii).
The record indicates that Zanique does not suffer from any extreme limitations of function, nor is there a claim that she suffers an extreme limitation. Thus, this inquiry focuses on whether Zanique suffers from functional limitations resulting from conditions which are "marked" in at least two broad areas of functioning. Under this requirement, six broad areas of functioning must be assessed: "(i) Acquiring and using information; (ii) Attending and completing tasks; (iii) Interacting and relating with others; (iv) Moving about and manipulating objects; (v) Caring for yourself; and (vi) Health and physical well-being." 20 C.F.R. § 416.926a(b)(1);see also cases cited in n. 19.
For the health and physical well-being functional domain, in addition to the standards discussed above, a child may be considered to have a "'marked' limitation if [the child is] frequently ill because of [the child's] impairment(s) or have frequent exacerbation of [the child's] impairments that result in significant, documented symptoms or signs." 20 C.F.R. § 416.926a(e)(2)(iv). Because Zanique had no physical illnesses (see pages 4, 6, 7 above), the Court need not further consider this additional definition.
The ALJ reviewed the evidence as to all six broad areas and found that Zanique "has less than marked limitations in the areas of attending and completing tasks, interacting and relating with others, and general health and physical well-being, and no limitations in acquiring and using information, moving about and manipulating objects, and self-care." (R. 23; see page 15 above.) In making this determination, the ALJ was required to consider "all of the relevant evidence in the record, including: (1) the objective medical facts; (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant's symptoms submitted by the claimant, [her] family, and others; and (4) the claimant's educational background, age, and . . . experience." DeLeon v. Apfel, 2000 WL 1873851 at *8 (internal quotations omitted); see also, e.g., Williams v.Bowen, 859 F.2d 255, 259 (2d Cir. 1988); Morel v.Massanari, 01 Civ. 0186, 2001 WL 776950 at *5 (S.D.N.Y. July 11, 2001) (Peck, M.J.) ( cases cited therein); De Medina v.Apfel, 2000 WL 964937 at *4 (quoting Marrero v. Apfel, 87 F. Supp. 2d 340, 346 (S.D.N.Y. 2000), aff'd mem., Darila-Marrero v. Apfel, No. 00-6117, 4 Fed. Appx. 45, 2001 WL 138340 (2d Cir. Feb. 15, 2001), cert. denied, 534 U.S. 1071, 122 S. Ct. 677 (2001)).
Furthermore, because the Morgans appeared pro se before the ALJ, the ALJ was under a heightened duty "'to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" DeLeon v. Apfel, 2000 WL 1873851 at *8 n. 6; Carballo v. Apfel, 34 F. Supp. 2d 208, 214 (S.D.N.Y. Feb. 5, 1999) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)); see also, e.g., Cotis v. Massanari, 2001 WL 527471 at *4; Salomon v. Apfel, 2000 WL 776924 at *5. The Morgans received notices informing her of her right to retain counsel for the hearing or find free legal representation, and the ALJ asked at the hearing whether Darcel understood this right, to which she responded, "Yes" (R. 3). See, e.g., Infante v. Apfel, 97 Civ. 7689, 2001 WL 536930 at *9-10 (S.D.N.Y. May 21, 2001) ("[T]he record demonstrates that Plaintiff was notified . . . of her right to be represented by a lawyer, or any other person, and to contact her Social Security Office for assistance. Plaintiff was also sent a letter in English and Spanish explaining her right to representation as well as a list of possible legal representatives. The notice of hearing identified the functions that a representative could perform at the hearing. . . . [Therefore,] [t]he Court rejects Plaintiff's arguments that the notification of her right to counsel, and her waiver of that right were invalid.") (record citations omitted); Rivera v. Apfel, 98 Civ. 3393, 2000 WL 1201545 at *2-3 (S.D.N.Y. Aug. 22, 2000) (The ALJ "satisfied his burden of making [plaintiff] aware of her right to representation" where plaintiff "received several documents explaining how to obtain free legal services, such as the initial notice of denial of SSI benefits, the denial of her request for a reconsideration, and the notice from the ALJ regarding a hearing date," the ALJ "clearly made [plaintiff] aware of this right . . . [and] [t]he hearing transcript reveals that [the ALJ] asked [plaintiff] if she wanted to proceed without representation.");Salomon v. Apfel, 99 Civ. 4250, 2000 WL 776924 at *6 (S.D.N.Y. June 15, 2000) ('[P]laintiff was not deprived of her right to counsel . . . [where] the Social Security Administration sent plaintiff a Notice prior to the hearing explaining her rights . . . [and] [a]t the hearing, the ALJ made clear that plaintiff's mother had a right to an attorney.").
The ALJ met these standards in evaluating Zanique's claim. The Court turns to the four relevant of the six areas of functioning: acquiring and using in formation, attending and completing tasks, interacting and relating with others, and health and physical well-being. A. Acquiring and Using Information
As to the two remaining functions, the ALJ found:
The claimant has no limitations in the area of moving and manipulating objects. There is no limitation alleged or shown in this area.
The claimant has no limitation in the area of self-care. There is no limitation alleged or shown in this area. Her self-care skills were reported to be age appropriate. (Exhibit 2F.) [R. 88-107.]
(R. 24.) The ALJ's decision as to these two areas is supported by substantial evidence. Dr. Salim found Zanique's motor activity was within normal limits. (R. 94.) Marshall found that some of Zanique's motor skills were delayed but emerging, and she did not recommend any "occupational therapy" for Zanique. (R. 102.) While Dr. Usdan found Zanique's visual-motor skills to be low, he felt that it was a result of her difficulties in concentration and attention. (R. 99.) In December 2001, Dr. Gagan found no limitation in moving about and manipulating objects. (R. 148-50.) As to self care, Marshall reported that Zanique's daily living skills "appeared age appropriate." (R. 102.) Dr. Gagan found no limitation in Zanique's caring for self. (R. 148-50.)
The regulations describe acquiring and using information specific to age groups, including "school-age children" (ages six to twelve), which is the age group for Zanique at claimed onset of her disability. 20 C.F.R. § 416.926a(g)(2)(iv). Children in this age group "should be able to learn to read, write, and do math, and discuss history and science." 20 C.F.R. § 416.926a(g)(2)(iv). Examples of limited function include: (1) inability to "demonstrate understanding of words about space, size, or time"; (2) inability to demonstrate rhyming skills; (3) "difficulty recalling important things you learned in school yesterday"; (4) "difficulty solving mathematics questions or computing arithmetic answers"; and (5) ability to "talk only in short, simple sentences." 20 C.F.R. § 416.926a(g)(3)(i)-(v).
The ALJ found that Zanique had no limitation with regard to acquiring and using information, despite Darcel's claim that Zanique had "difficulties comprehending." (R. 23.) Substantial evidence supports the ALJ's determination.
In March 2000, social worker Glimm found Zanique's speech normal, her thought processes goal directed and logical, her memory intact and found her oriented to person, place and time. (R. 138; see page 5 above.) In February 2001, psychiatrist Dr. Salim found Zanique's language development within normal range, and her thought processes "relevant and logical." (R. 96.) He also found her memory intact for recent and remote events but her immediate recall was poor. (R. 95.) Despite some limitations, Dr. Salim concluded that Zanique's intelligence level was average. (Id.; see page 8 above.) Dr. Usdan's testing in March 2001 found Zanique's Stanford-Binet Intelligence Scale test results to be low average to average, with an average composite score. (R. 99, 103-04; see pages 8-9 above.) The Board of Education's intelligence testing in March 2001 also revealed a low average score, but due to subtest scatter, the result was merely a minimal estimate of Zanique's learning potential. (R. 117-18;see page 10 above.) Dr. Scheimberg's consultative examination of Zanique in August 2001 found her to have above average language skills and high average level of intelligence. (R. 143-44; see page 11 above.) Dr. Gagan's December 2001 consultative examination found no limitation in the area of acquiring and using information. (R. 148, 150; see page 12 above.) Finally, The Child School reported in January 2003 that Zanique's reading skills were adequate (with some difficulty grasping main ideas), and that in math, she could add and subtract, and grasp and retain new concepts. (R. 224, 226, 228;see pages 12-13 above.) Moreover, at the ALJ hearing, Zanique solved simple arithmetic problems, spelled her name and was able to converse with the ALJ. (R. 249-51; see page 4 above.)
The evidence was sufficient to support the ALJ's conclusion that Zanique does not suffer from a "marked limitation" in acquiring and using information, because her limitations do not "interfere seriously with [her] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). Accordingly, the Court will not disturb the ALJ's finding that Zanique is not markedly impaired in the acquiring and using information domain. See, e.g., Leach v.Barnhart, 02 Civ. 3561, 2004 WL 99935 at *9 (S.D.N.Y. Jan. 22, 2004) (less than marked limitation in acquiring and using information despite scoring in the "low average range of intellectual functioning" on an I.Q. test). B. Attending and Completing Tasks
Cf., e.g., Tucker v. Masanari, 99 Civ. 12037, 2001 WL 868031 at *8 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.) (no marked limitation in cognitive and communication development domain despite "low average" intelligence test scores); DeLeon v.Apfel, 2000 WL 1873851 at *9; Fernandez v. Apfel, 97 Civ. 6939, 1998 WL 603151 at *12 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.) (affirming ALJ's finding of less than marked impairment in communicative domain despite two reports stating that plaintiff exhibits moderate limitation in this area); Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at *10-11 (S.D.N.Y. Jan. 13, 1998) (affirming ALJ's finding of less than moderate impairment in communicative domain based on the sum total of the evidence even though reports described plaintiff as exhibiting a "moderate" impairment in articulation and exhibiting other speech and language difficulties).
The regulations define the domain of "attending and completing tasks" as a child's "ability to filter out distractions and to remain focused on an activity or task at a consistent level of performance." 20 C.F.R. § 416.926a(h)(1)(i). Children Zanique's age "should be able to focus [their] attention in a variety of situations in order to follow directions, remember and organize [their] school materials, and complete classroom and homework assignments." 20 C.F.R. § 416.926a(h)(2)(iv). Some examples of limited functioning include: (1) being "easily startled, distracted, or overreactive to sounds, sights, movements, or touch"; (2) "being slow to focus on, or fail to complete activities of interest"; (3) becoming repeatedly sidetracked from activities or frequently interrupting others; and (4) being easily frustrated and giving up on tasks. See 20 C.F.R. § 416.926a(h)(3)(i)-(v).
The ALJ found Zanique has less than marked limitations in this area, based upon evidence that her school records indicate that Zanique will at times becomes "'unfocused,' but eventually completes the work required of her." (R. 24.)
There is no doubt that Zanique had some limitation in this area. Doctors had consistently diagnosed her with ADHD. (R. 87, 95, 105, 139, 144; see pages 5, 7, 8, 9, 11, 12 above.) Darcel testified that Zanique is easily distracted. (R. 245.) Some of Zanique's teachers noted that Zanique needs to "be reminded to stay on task." (R. 230, 231; see also R. 134.)
The Court's inquiry, however, is not whether Zanique had some limitation, but rather whether there is evidence to support the ALJ's finding that the degree of this limitation was less than marked.
School records for the relevant period indicate that Zanique for the most part was on grade level. (R. 224, 226, 228.) One of the teachers who reported that Zanique needed to be reminded to stay on task also noted that "[m]ost of the time Zanique behaves well." (R. 231.) There were no reports that Zanique was not able to complete assignments or to participate effectively in class. To the contrary, teachers reported that she was willing to participate in class and that her homework and classroom participation were "satisfactory" or "excellent." (R. 224, 226, 228.) Dr. Gagan, evaluating for the SSA, found Zanique to be have a "less than marked" limitation in this area, despite knowing her history of hyperactivity and disruptive behavior. (R. 148.)
In sum, although Zanique's mother testified that Zanique was easily distracted, and doctors diagnosed ADHD, there is substantial evidence to support the ALJ's finding that Zanique has only a "less than marked" limitation in attending and completing tasks that does not "interfere seriously with [her] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). (R. 24.) Accordingly, the Court will not disturb the ALJ's finding that Zanique suffers a less than marked limitation in this area. See, e.g., Richardson v. Barnhart, 338 F. Supp. 2d 749, 756, 757-58 (S.D. Tex. 2004) (less than marked limitation in attending and completing tasks despite diagnosis of ADHD and special education in select classes); Duran v. Barnhart, 01 Civ. 8307, 2003 WL 103003 at *11 (S.D.N.Y. Jan. 13, 2003) (less than marked limitation in attending and completing task despite special education and need for "'constant reminders to stay focused' and . . . 'needing to keep [child] on task'"). C. Interacting and Relating with Others
Cf., e.g., Tucker v. Massanari, 99 Civ. 12037, 2001 WL 868031 at *10 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.) (no marked limitation as to concentration despite child's distractability); Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *13 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.) (affirming ALJ's finding that plaintiff was less than moderately impaired in the area of concentration, persistence and pace where ALJ's decision based on "substantial evidence" despite two teachers reports stating that plaintiff was markedly impaired in this domain); Counterman v. Chater, 923 F. Supp. 408, 413-14 (W.D.N.Y. 1996) (affirming ALJ's finding that plaintiff not impaired in the area of concentration, persistence and pace, because "while there was some evidence that [plaintiff] has a short attention span, becomes easily distracted, and needs additional time to complete certain tests, other evidence suggests that her attention and concentration are normal . . . and that [plaintiff] has no trouble being by herself and doing things requiring attention and concentration"); Baker v.Secretary, Dep't of Health Human Servs., 874 F. Supp. 41, 47 (N.D.N.Y. 1995) (affirming ALJ's finding that plaintiff was not impaired in the area of concentration, persistence and pace where plaintiff engaged in recreational activities and was able to focus on tasks in the classroom and complete some classroom tasks on his own, despite other evidence of concentration weaknesses and need for individualized monitoring in the classroom).
The regulations define the area of interacting and relating with others as the child's ability to "initiate and sustain emotional connections with others, develop and use the language of your community, cooperate with others, comply with rules, respond to criticisms, and respect and take care of the possessions of others." 20 C.F.R. § 416.926a(i). For children of Zanique's age, they "should be able to develop more lasting friendships with children [their] age"; "begin to understand how to work in groups to create projects and solve problems"; "have an increasing ability to understand another's point of view and to tolerate differences"; and "be well able to talk to people of all ages, to share ideas, tell stories, and to speak in a manner that both familiar and unfamiliar listeners readily understand." 20 C.F.R. § 416.926a(i)(2)(iv). Some examples of limited functioning would include the child: (i) not having close friends; (ii) avoiding or withdrawing from people the child knows or being overly anxious or fearful of meeting new people or trying new experiences; (iii) having difficulty playing games or sports with rules; (iv) having difficulty communicating with others; or (v) having difficulty speaking intelligibly or with adequate fluency. See 20 C.F.R. § 416.926a(i)(3)(ii)-(v).
The ALJ found that Zanique had "less than marked limitations in interacting and relating with others," based upon his observations of Zanique at the hearing along with school reports and her mother's testimony. (R. 24.) The ALJ noted that although at school Zanique appears to "get along reasonably well with peers, . . . her respect for adults ranged from satisfactory to unsatisfactory." (Id.)
There is evidence to support that Zanique had some limitation in this area, but the Court's inquiry is to determine whether there is substantial evidence to support the ALJ's finding that the degree of this limitation was less than marked. Darcel Morgan had testified to her child's difficulty in relating with others. (See pages 3-4 above.)
The transcript from the ALJ hearing indicates that Zanique communicated effectively with the judge. (R. 248-51.) Zanique was able to answer his questions appropriately and he was able to understand her. (See pages 4-5 above.) Zanique testified that she has friends. (R. 249.) Zanique's limitations in interacting and relating with others does not affect her ability to participate in activities. She reported that she travels regularly on the school bus and took the subway on a trip to Central Park. (R. 250.)
Medical reports consistently demonstrate that Zanique does not have communication or speech problems. Social worker Glimm found that Zanique's speech was normal, and although soft in volume her articulation was clear. (See page 5 above.) Dr. Salim found her language skills to be normal for her age. (See page 7 above.) Dr. Usdan found her verbal intelligence to be normal. (See page 8 above.) Marshall reported that Zanique was "very verbal; asking and answering questions appropriately." (R. 101.)
Zanique's school records document her problems interacting with others. The IEP reports document her behavioral problems and her need for special education, which she receives at The Child School. (See pages 10-11, 12, 14 above.) The Child School report shows mixed performance regarding Zanique's behavior. (R. 221-32.) Teachers rate Zanique's respect for peers from excellent to unsatisfactory, while her respect for adults ranged from satisfactory to unsatisfactory. (R. 224, 226, 228.) Zanique's school therapist reported that Zanique needs improvement in interacting with peers, making friends, and her social skills; however, Saw also noted that Zanique is motivated to learn, attends school willingly, and participates regularly. (R. 232.) Dr. Gagan found Zanique to have a "less than marked limitation" in interacting and relating with others, despite knowing of Zanique's history of violent behavior. (R. 148.)
There is substantial evidence in the record to support the ALJ's conclusion that Zanique has less than marked limitations in interacting and relating with others. Accordingly, the Court will not disturb the ALJ's finding that Zanique has less than marked limitations in this area.
D. Health and Physical Well-Being
For the domain of health and physical well being, the regulations require consideration of the cumulative physical effects of physical or mental impairments and the associated treatments or therapies upon one's function not considered in the area of moving about and manipulating objects. 20 C.F.R. § 416.926a(1).
The ALJ found that Zanique was less than markedly impaired in this area based upon Zanique's history of behavioral problems. (R. 24.) He recognized that she was "treated with less than total success," as evidenced by her prank call to 911. (Id.)
Medical and IEP reports find Zanique to be physically normal. The focus, therefore, is upon Zanique's behavioral problems.
Evidence regarding behavioral problems from alleged onset of disability comes from the prank 911 call and from her most recent school report. The Child School reports that Zanique can be disrespectful at times and overly aggressive toward peers (R. 226, 232), but it does report that Zanique participates regularly and attends willingly at school (R. 232). Although Zanique is disruptive and mildly destructive in her inappropriate acts, they do not prevent Zanique from attending and participating in her school activities.
Darcel Morgan testified that at the time of the ALJ hearing Zanique was just starting a psychiatric therapy program beyond her school setting. (R. 242.) Her initial IEP suggested that she receive outside-school therapy weekly (R. 132), and this was confirmed in August 2001, when Dr. Scheimberg suggested that Zanique resume therapy in a clinical setting (R. 145). While doctors diagnosed Zanique with ADHD (see above), there is substantial evidence in the record to support the ALJ's conclusion that Zanique was less than markedly impaired in this area. Even if Zanique were markedly limited in one domain because of her ADHD, that is not sufficient to find her disabled — she does not have an extreme limitation in one domain or a marked limitation in two domains. E. Conclusion
The record supports the ALJ's conclusion that Zanique does not suffer from a marked limitation in two of the six broad domains of functioning. Accordingly, the Commissioner's decision should be upheld. See, e.g., Leach v. Barnhart, 02 Civ. 3561, 2004 WL 99935 at *9-11 (S.D.N.Y. Jan. 22, 2004) (no disability when substantial evidence supported ALJ's finding that child is only "less than marked" in functional domains and therefore "did not have an impairment that functionally equaled the requirements of a listed impairment"); cf. Robles v. Commissioner, 99 Civ. 4248, 2001 WL 194888 at *3 (S.D.N.Y. Feb. 27, 2001) (no disability where child's substantial "delay in language development was the only 'severe' impairment under 20 C.F.R. § 416.924(c)"); Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at *5, 11-12 (S.D.N.Y. Jan. 13, 1998) (severe impairments based on attention deficit disorder, speech and language difficulties and impaired motor skills not sufficient to establish disability under the Act).
CONCLUSION
For the reasons set forth above, because there is substantial evidence to support the Commissioner's decision that Zanique Morgan is not disabled, despite her ADHD and her destructive behavior, the Commissioner's motion for judgment on the pleadings should be granted.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 1205, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Swain. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).