Apr. P. v. Comm'r of Soc. Sec.

1

APRIL P.^[1] o/b/o T.M., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 1:21-CV-145 (JLS)

United States District Court, W.D. New York

August 23, 2023

DECISION AND ORDER

JOHN L. SINATRA, JR., UNITED STATES DISTRICT JUDGE

Plaintiff April P. brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act, seeking review of the decision made by the Commissioner of the Social Security Administration finding that Claimant, a minor child was not disabled. Dkt. 1. Plaintiff moved for judgment on the pleadings. Dkt. 7. The Commissioner responded and cross-moved for judgment on the pleadings, to which Plaintiff replied. Dkts. 8, 9. For the reasons below, the Court denies Plaintiffs motion and grants the Commissioner's cross motion.

PROCEDURAL HISTORY

On September 17, 2013, an application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act was filed on Claimant's behalf.

Tr. 75.^[2] Claimant's application was initially denied, after which Plaintiff timely requested a hearing before an Administrative Law Judge (“the ALJ”). On January 4, 2014, Plaintiff and Claimant appeared before the ALJ, Susan Smith. Tr. 46-74. On January 28, 2016, ALJ Smith issued a written decision finding Claimant not disabled under the Social Security Act. Tr. 16-35. On May 8, 2017, the Appeals Council (“AC”) denied Plaintiffs request for review, rendering the ALJ's decision the final decision of the Commissioner. Tr. 1-6. Thereafter, Plaintiff timely sought judicial review in this Court. On May 17, 2019 the United States District Court for the Western District of New York entered a decision and order remanding Claimant's case for further proceedings. Tr. 447-453; McCloud o/b/o T.N.M. v. Corner of Soc. Sec., No 17-CV-611, 2019 WL 2135480 (W.D.N.Y. May 16, 2019). On July 9, 2019, the AC entered a Notice of Order of Appeals Council Remanding Case to Administrative Law Judge. Tr. 454-456.

On September 14, 2020, Plaintiff and Claimant appeared before the ALJ, Stephan Bell. Tr. 400-420. On October 8, 2020, ALJ Bell issued a written decision finding Claimant not disabled under the Social Security Act. Tr. 381-393. Plaintiff timely sought judicial review in this Court.

LEGAL STANDARDS

I. District Court Review

Judicial review of disability claims under the Act is limited to whether the Commissioner's decision is supported by substantial evidence and whether the correct legal standards were applied. See 42 U.S.C. § 405(g); Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013). The Commissioner's factual findings are conclusive when supported by substantial evidence. See Biestek v. Berryhill, 139 S.Ct. 1148, 1152 (2019). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted).

While the Court does not determine de novo whether the claimant is disabled, the Commissioner's conclusions of law are not given the same deferential standard of review. See Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003). If there is a reasonable doubt as to whether the ALJ applied the correct legal standards, then upholding the determination “creates an unacceptable risk that a claimant will be deprived of the right to have his disability determination made according to correct legal principles.” Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987); see Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)) (holding that the Court's review for legal error ensures “that the claimant has had a full hearing under the . . . regulations and in accordance with the beneficent purposes of the . . . Act.”).

II. Disability Determination

An individual under the age of eighteen is considered disabled within the meaning of the Act “if that individual has a medically determinable physical or mental impairment, which results in marked and 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). The Commissioner has set forth a three-step process to determine whether a child is disabled as defined under the Act. See 20 C.F.R. § 416.924.

At step one, the ALJ determines whether the child is engaged in substantial gainful work activity. 20 C.F.R. § 416.924(b). If so, the child is not disabled. Id. If not, the ALJ proceeds to step two and determines whether the child has a medically determinable impairment(s) that is “severe.” Id. § 416.924(c). If the child does not have a severe impairment(s), he or she is not disabled. Id. If the child does have a severe impairment(s), the ALJ continues to step three and examines whether the child's impairment(s) meets, medically equals, or functionally equals the listed impairments in Appendix 1 to Subpart P of Part 404 of the Commissioner's regulations (the “Listings”). Id. § 416.924(d).

In determining whether an impairment(s) functionally equals the Listings, the ALJ must assess the child's functioning in 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 himself or herself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). To functionally equal the Listings, the child's impairment(s) must result in “marked” limitations in two domains or an “extreme” limitation in one domain. Id. § 416.926a(a). A child has a “marked” limitation when his or her impairment(s) “interferes seriously” with his or her ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(2). A child has an “extreme” limitation when his or her impairment(s) “interferes very seriously” with his or her ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(3).

If the child has an impairment(s) that meets, medically equals, or functionally equals the Listings, and the impairment(s) meets the Act's duration requirement, the ALJ will find the child disabled. 20 C.F.R. § 416.924(d).

DISCUSSION

I. The AL J's Decision

The ALJ made the following findings of fact and conclusions of law. Tr. 385393. First, the ALJ found that Claimant was a school-age child on the date of application and an adolescent at the time of the hearing. Tr. 385. Second, the ALJ found that Claimant had not engaged in substantial gainful activity since September 17, 2013. Id. Third, the ALJ found that Claimant had the severe impairments of mental impairments variously diagnosed as attention deficithyperactivity disorder, adjustment disorder, disruptive mood dysregulation disorder, other specified trauma and stressor related disorder, and major depressive disorder. Id. Fourth, the ALJ found that Claimant did not have an impairment that meets or medically equals one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. Id. Fifth, the ALJ found that Claimant did not have an impairment or combination of impairments that functionally equaled the severity of the listings. Tr. 386. Lastly, the ALJ concluded that Claimant had not been disabled since September 17, 2013. Tr. 392.

II. Plaintiffs Arguments

Plaintiff argues that the ALJ “flouted” the remand orders by the District Court and AC to develop the record. Dkt. No. 7 at 17-20. Plaintiff also argues that the ALJ impermissibly cherry-picked and mischaracterized the evidence. Id. at 2026.

III. Analysis

A. Compliance with Remand Order

Plaintiff argues that the ALJ failed to follow the remand order issued by the AC and this Court. Dkt. 7 at 17-20. Plaintiff asserts that the ALJ failed to obtain Claimant's school records and “legal system” records. Id. at 20.

The regulations state that the ALJ “shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand order.” 20 C.F.R. § 404.977(b). Accordingly, an ALJ's failure to comply with the AC's order constitutes legal error, and necessitates a remand. Angela M. v. Comm'r of Soc. Sec., 551 F.Supp.3d 95, 99 (W.D.N.Y. 2021) (citing Tracy v. Colvin, No. 1:15-CV-980, 2017 WL 279556, at *2 (W.D.N.Y. Jan. 23, 2017)).

The AC remanded for “further proceedings consistent with the order of the court.” Tr. 456. The District Court concluded remand was necessary because “primary-source educational and probation records appear to be missing or deficient.” McCloud o/b/o T.N.M. v. Comm'r of Soc. Sec., No. 17-CV-611, 2019 WL 2135480, at *2 (W.D.N.Y. May 16, 2019). The District Court reasoned that the lack of primary source records “could affect the analysis in this case” and “primarysource records might provide additional information.” McCloud o/b/o T.N.M., 2019 WL 2135480, at *2.

In general, the ALJ's duty to develop the administrative record applies even where, as here, Plaintiff is represented by counsel. Rosa v. Callahan, 168 F.3d 72, 79n.5 (2d Cir. 1999). But the agency is required affirmatively to seek out additional evidence only where there are “obvious gaps” in the administrative record. Rosa, 168 F.3d at 79 n.5 (2d Cir. 1999).

On remand, Claimant's record was updated, there were no obvious gaps, and the record was adequate for the ALJ to make a determination as to disability. Perez v. Chater, 77 F.3d 41, 48 (2d Cir.1996); see Janes v Berryhill, 710 Fed.Appx. 33, 34 (2d Cir. 2018) (the ALJ was “not required to develop the record any further [because] the evidence already presented [was] adequate for [the ALJ] to make a...