Sepulveda ex rel. A.S. v. Colvin

964 F.Supp.2d 228

Linda SEPULVEDA, on behalf of A.S., Plaintiff,

v.Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant.

No. 5:11–CV–822.

United States District Court, N.D. New York.

Aug. 29, 2013.

Howard D. Olinsky, Esq., Syracuse, NY, for Plaintiff.

Katrina M. Lederer, Esq., Office of Regional General Counsel Social Security Administration Region II, New York, NY, for Defendant.

MEMORANDUM–DECISION and ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

This matter is brought pursuant to §§ 205(g) & 1631(b)(3) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g) & 1383(c)(3), to review a final determination of the Commissioner of Social Security denying the claim for Supplemental Security Income benefits brought by Linda Sepulveda on behalf of A.S.¹ The parties have filed their briefs, including the Administrative Record on Appeal, and the matter has been submitted for decision without oral argument.

II. BACKGROUND

A.S. filed an application for social security disability benefits on November 3, 2006. Her claim was denied on October 29, 2008, after a hearing before an Administrative Law Judge (“ALJ”). Plaintiff appealed the ALJ's decision to the Appeals Council. On May 24, 2011, the Appeals Council declined further review of the ALJ's decision. Thus, the ALJ's decision became the final decision of the Commissioner.

III. STANDARDSA. Standard of Review

The scope of a court's review of the Commissioner's final decision is limited to determinating whether the decision is supported by substantial evidence and the correct legal standards were applied. Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir.2009) (per curiam) (citing Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002)); Martone v. Apfel, 70 F.Supp.2d 145, 148 (N.D.N.Y.1999) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987)). “Substantial evidence means ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Poupore, 566 F.3d at 305 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). “To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers 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.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). If the Commissioner's disability determination is supported by substantial evidence, that determination is conclusive. Id.

However, “where there is a reasonable basis for doubting whether the Commissioner applied the appropriate legal standards,” the decision should not be affirmed even though the ultimate conclusion reached is arguably supported by substantial evidence. Martone, 70 F.Supp.2d at 148 (citing Johnson, 817 F.2d at 986).

A reviewing court may enter “a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Martone, 70 F.Supp.2d at 148. “Remand is appropriate where there are gaps in the record or further development of the evidence is needed,” such as where new, material evidence has become available. 42 U.S.C. § 405(g); Martone, 70 F.Supp.2d at 148 (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980)). A remand for rehearing directing the taking of additional evidence is warranted only if it is shown that there is new, material evidence “ ‘and that there is good cause for the failure to incorporate such evidence into the record’ ” at the administrative hearing. Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 643–44 (2d Cir.1983) (quoting 42 U.S.C. § 405(g), as amended in 1980). Remand may also be appropriate if the Commissioner “misapplies the law or failed to provide a fair hearing.” Id. at 644. However, where the underlying administrative decision is not supported by substantial evidence, reversal is appropriate because there would be no useful purpose in remanding the matter for further proceedings. Id. (reversing and remanding solely for calculation of benefits, subject to determination by the district court of any motion by the agency to remand to consider new evidence); Parker, 626 F.2d at 235 (reversing and remanding solely for calculation and payment of benefits); Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir.1992) (same); Williams, 859 F.2d at 261 (same).

B. Child Disability Determination—Three Step Evaluation Process

The ALJ must follow a three step evaluative process in determining whether an individual under the age of 18 (“child”) is disabled. See20 C.F.R. § 416.924(a). First the ALJ must determine whether the child is engaging in substantial gainful activity. Id. If the child is engaging in substantial gainful activity she is not disabled and she is not entitled to benefits. Id.

If the claimant is not engaged in substantial gainful employment, then step two requires the ALJ to determine whether the child has a medically determinable impairment or combination of impairments (“impairment(s)”) that is severe. Id. If the impairment(s) is not severe, the child is not disabled and is not entitled to benefits. Id. If the child's impairment or combination of impairments is severe, then step three requires that the ALJ determine whether the impairment(s) meets, medically equals, or functionally equals the listings in Appendix 1 of the regulations. Id.; see also id. Part 404, Subpt. P, App. 1; 20 C.F.R. § 416.926 (determining medical equivalence for adults and children); 20 C.F.R. § 416.926a (determining functional equivalence for children).

A claimant may seek review of an adverse decision by the ALJ from the Appeals Council. Perez v. Chater, 77 F.3d 41, 44 (2d Cir.1996). If review is granted, the decision of the Appeals Council is the final decision of the Commissioner. Id. If review is denied, then the final decision is that of the ALJ. Id. The final decision is judicially reviewable pursuant to 42 U.S.C. § 405(g).

IV. DISCUSSION

A.S. asserts that the ALJ erred in two ways. First, she contends that the ALJ erred in not finding her impairment(s) functionally equivalent to the listings. Second, she argues that the ALJ followed an improper legal standard in evaluating the credibility of her mother's testimony, and consequently his determination is not supported by substantial evidence.

A. Functional Equivalence

In order to be functionally equivalent to a listing, a claimant's “impairment(s) must be of listing-level severity.” 20 C.F.R. § 416.926a(a). An impairment(s) is of listing-level severity where it results in marked limitations in two functional domains or extreme limitations in one functional domain. Id. The limiting effects of a claimant's impairment(s) are evaluated by considering the interactive and cumulative effects of all impairments, even those not found to be severe. Id. This is accomplished by evaluating the limiting effects of the claimant's impairment(s) relative to six domains of functioning. Id. § 416.926a(b)(1). The six domains are: (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. Id. Answers to the following questions are assessed to determine the effect the claimant's impairment(s) have on each of the six domains: what activities the child is able and not able to perform; which activities are limited compared to unimpaired children of the same age; whether difficulty with activities occurs “at home, in childcare, at school, or in the community”; whether claimant has “difficulty independently initiating, sustaining, or completing activities; and the type, amount, and frequency of help required to perform activities. Id. § 416.926a(b)(2).

A limitation is marked if the “impairment(s) interferes seriously with [claimant's] ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(2)(I). There may be a serious limitation to functioning whether a single activity is limited “or when the interactive and cumulative effects of [claimant's] impairment(s) limit several activities. ‘Marked’ limitation also means a limitation that is ‘more than moderate’ but ‘less than extreme.’ ” Id. Where standardized test scores are at least two but less than three standard deviations below the mean, it is expected that there would be a marked limitation of functioning. Id. A marked limitation will be found where a standardized test score is two but less than three standard deviations below the mean “ and your day-to-day functioning in domain-related activities is consistent with that score.” Id. § 416.926a(e)(2)(iii) (emphasis added). Frequent illness or exacerbations may result in a marked limitation in the health and physical well-being domain in the circumstances described in the regulations. Id. § 416.926a(e)(2)(iv).

A limitation is severe if the “impairment(s) interferes very seriously with [claimant's] ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(3)(I) (emphasis added). As with a marked limitation, a limitation may be severe when a single or several activities are limited. Id. A limitation is marked if the “impairment(s) interferes seriously with [claimant's] ability to independently initiate, sustain, or complete activities. Id. Further, a limitation is extreme when it is “ ‘more than marked.’ ” Id. An extreme limitation is expected when a standardized test score is three or more standard deviations below the mean. Id. If a test score is three or more standard deviations below the mean, “ and [claimant's] day-to-day functioning in domain-related activities is consistent with...