Wilson v. Commissioner of Social Security, No. 1:2019cv00737 - Document 17 (W.D.N.Y. 2020)
Court Description: MEMORANDUM-DECISION AND ORDER denying 10 Motion for Judgment on the Pleadings; granting 14 Motion for Judgment on the Pleadings and Dismissing the Complaint with prejudice. Signed by Hon. Donald Bush on 6/24/20. (SG)
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/24/20 Page 7 of 12 problems; and “a slight problem” in the remaining eight activities: (1) comprehending oral instructions; (2) understanding school and content vocabulary; (3) reading and comprehending written material; (4) understanding and participating in class discussions; (5) expressing ideas in written form; (6) learning new material; (7) recalling and applying previously learned material; and (8) applying problem-solving skills in class discussions. Tr. 196. In February 2016, state agency consultant J. Ochoa, Ph.D. (“Dr. Ochoa”), reviewed the record and made the following findings: J.J.W. had less than marked limitation in acquiring and using information and attending and completing tasks, and she had no limitation in interacting and relating with others, moving about and manipulating objects, caring for herself, and health and physical well-being. Tr. 58, 62-63. Dr. Ochoa opined that J.J.W. was able to comprehend, understand, read, and express ideas in writing, that she showed a mild expressive language delay on testing, and that she was able to maintain focus and complete tasks at school with minimal reminders. Tr. 62. a) Acquiring and using information domain. Acquiring and using information concerns how well a child is able to acquire or learn information, and how well a child uses the information she has learned. This domain involves how well children perceive, think about, remember, and use information in all settings, which include daily activities at home, at school, and in the community. 20 CFR 416.926a(g) and SSR 09-3p. Pursuant to the regulations, a preschool child should begin to learn and use the skills that will help her to read, write, and do arithmetic when she gets older. 20 C.F.R. § 416.926a(g)(2)(iii). A school-age child should be able to read, write, do math, and discuss history and science. 20 C.F.R. § 416.926a(g)(2)(iv). Contrary to Plaintiff’s argument (see ECF No. 10-1 at 8), the ALJ properly found that J.J.W. has no limitation in acquiring and using information. Tr. 23-24. The ALJ noted that although 7 Case 1:19-cv-00737-DB Document 17 Filed 06/24/20 Page 8 of 12 J.J.W. showed ADHD behaviors and developmental delays in 2015, her symptoms improved with treatment. Tr. 20, 289, 292, 294. Improvement with treatment is a proper factor for the ALJ to consider in determining disability. Reices-Colon v. Astrue, 523 F. App’x 796, 799 (2d Cir. 2013) (unpublished). The ALJ noted that while J.J.W. occasionally demonstrated behavioral abnormalities and some difficulties in school, she performed well academically and had not been held back at any grade level. Tr. 20-21, 24, 292, 294, 296-98. Specifically, the ALJ found that J.J.W. had an average performance in first grade, and she did well at school without behavior or attention issues. Tr. 21, 299. Although Plaintiff cites Ms. Pfizinger’s opinion as support for her argument that the ALJ erred in finding that J.J.W. has no limitation in acquiring and using information (see ECF No. 101 at 8), the reflects that the ALJ considered Ms. Pfizinger’s opinion, characterized it as providing only none to slight limitations in the relevant functional domains, and properly gave the opinion some weight. Tr. 22. Even though the ALJ noted that Ms. Pfitzinger is not an acceptable medical source, she nevertheless found her opinions relevant with respect to Plaintiff’s functional abilities and limitations. Id. As the ALJ explained, Ms. Pfitzinger’s opinions were generally consistent with examinations and records from 2015 and prior, documenting Plaintiff’s behavioral and ADHDrelated symptoms that were affecting her ability to remain on task and appropriately interact with others, as well as delayed speech and language. Id. However, the ALJ explained that she gave more weight to later records documenting J.J.W.’s history of functional and behavioral delays, along with her overall good response to medications and treatment. Tr. 22. The ALJ also considered the findings and opinion of speech language pathologist Amy Atwater, M.S., C.C.C.-S.L.P. (“Ms. Atwater”). Ms. Atwater saw J.J.W. in January 2016, J.J.W. for a consultative speech and language evaluation. Tr. 278-81. After evaluating J.J.W., Ms. Atwater concluded that her speech was 100% intelligible and that she had a mild expressive 8 Case 1:19-cv-00737-DB Document 17 Filed 06/24/20 Page 9 of 12 language delay. Tr. 281.The ALJ also gave Ms. Atwater’s opinion some weight, noting that her opinion is mostly internally consistent with her examination finding that although J.J.W. had a mild expressive language delay, she was within functional limitations receptive language skills and articulation skills. Tr. 22 (citing Tr. 279). However, the ALJ found that J.J.W. had additional limitations beyond those assessed by Ms. Atwater based on the evidence of record as a whole, including treatment and school records documenting a history of some age-appropriate functional and speech/language delays. Tr. 22. The ALJ also noted there was no evidence of ongoing academic delays, recent grade level retention, or severe behavioral abnormalities resulting in frequent suspensions, expulsions, or detentions. Tr. 21. Moreover, the ALJ noted that J.J.W. reported daily activities inconsistent with disabling limitations, including participating in cheerleading, having multiple friends, and being able to care for her personal needs. Tr. 22. The ALJ also noted that J.J.W. rides a bike, knows how to use a tablet, and watches television programs. Even Plaintiff acknowledged that J.J.W.’s ability to maintain focus had greatly increased and that her condition improved with speech therapy. See ECF No. 10-1 at 8. Based on the foregoing, the ALJ’s findings regarding acquiring and using information are supported by substantial evidence. While Plaintiff may disagree with the ALJ’s conclusions in this domain, her mere disagreement with the ALJ’s findings does not warrant remand. Even if the evidence demonstrated some limitation in this domain, that would not be enough, as Plaintiff must produce evidence showing marked, i.e., more than moderate, limitation in at least two functional domains. See 20 C.F.R. §§ 416.926a(d). The question is not whether there is evidence to support disability; it is whether there is “more than a scintilla” of evidence supporting the ALJ’s decision. Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). As discussed above, there is such evidence. 9 Case 1:19-cv-00737-DB Document 17 Filed 06/24/20 Page 10 of 12 b) Attending and completing tasks domain. Attending and completing tasks considers how well a child is able to focus and maintain attention, and how well she is able to begin, carry through, and finish activities, including the mental pace at which she performs activities and the ease of changing activities. Attending and completing tasks also refers to a child’s ability to avoid impulsive thinking and her ability to prioritize competing tasks and manage her time. 20 CFR 416.926a(h) and SSR 09-4p. Pursuant to the regulations, a preschool child should be able to pay attention when spoken to directly, sustain attention to play and learning activities, and concentrate on activities like putting puzzles together or completing art projects. 20 C.F.R. § 416.926a(h)(2)(iii). A school-age child should be able to focus her attention in a variety of situations in order to follow directions, remember and organize school materials, and complete classroom and homework assignments. 20 C.F.R. § 416.926a(h)(2)(iv). In this domain, the ALJ found that J.J.W. had a “less than marked” limitation. Tr. 24-25. In so finding, the ALJ considered that state agency consultant Dr. Ochoa assessed less than marked limitations in this area. Tr. 25, 63. As noted above, Dr. Ochoa reviewed the record and found that, although J.J.W. showed occasional difficulty attending to tasks during a consultative examination, she also showed improved focus during the school year to the point that she could complete tasks with only minimal reminders. Tr. 62. Thus, Dr. Ochoa’s opinion supported the ALJ’s determination that J.J.W had less than a marked limitation in this domain. The ALJ found similarly that, while J.J.W. had a history of aggressive behaviors and not following directions, those behaviors had improved with treatment to the point that she could finish tests in school and was noted not to have attention issues. Tr. 25. As the ALJ found, J.J.W. exhibited decreased talking and distractions after beginning ADHD medication in 2015 and reported a good ability to concentrate a year later. Tr. 20-21, 292, 299. As discussed above, by 10 Case 1:19-cv-00737-DB Document 17 Filed 06/24/20 Page 11 of 12 March 2017, J.J.W. was taking medication only on school days, during which she was able to stay still, keep up with other children academically, and finish homework and tests. Tr. 21, 301. At the end of 2017, Plaintiff reported that J.J.W. had improved remarkably with no behavioral or performance issues at school. Tr. 21, 306. Plaintiff disagrees with the ALJ’s decision but has not identified any probative evidence the ALJ should have considered and failed to do so. Even Plaintiff’s own recitation of the evidence supports the ALJ’s conclusions. As Plaintiff notes, following the second quarter of the secondgrade school year, J.J.W. received mostly satisfactory grades in art and technology, was progressing in math and English, adjusted well and “love[d] to learn,” and was able to do “great work” when reminded to stay on task (Tr. 249-51). See ECF No. 10-1 at 9. Again, as Plaintiff herself reported to J.J.W.’s doctor in December 2017, J.J.W. was “doing well” with average performance at school and no complaints other than “some fidgeting” at home after school. Tr. 306. Thus, the ALJ’s finding of “less than marked” limitations aligned with the evidence in the record. As discussed above, Plaintiff’s mere disagreement with the ALJ’s findings does not warrant remand. The Court must “defer to the Commissioner’s resolution of conflicting evidence” and reject the ALJ’s findings “only if a reasonable factfinder would have to conclude otherwise.” Morris v. Berryhill, No. 16-02672, 2018 WL 459678, at *3 (2d Cir. Jan. 18, 2018) (internal citations and quotations omitted). That is not the case here. The ALJ reasonably determined that J.J.W. did not have two marked limitations or one extreme limitation in functioning. The Court accordingly finds no error in the ALJ’s determination that J.J.W. is not disabled. CONCLUSION Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 10) is DENIED, and the Commissioner’s Motion for Judgment on the Pleadings (ECF No. 14) is GRANTED. Plaintiff’s 11 Case 1:19-cv-00737-DB Document 17 Filed 06/24/20 Page 12 of 12 Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter judgment and close this case. IT IS SO ORDERED. _______________________ DON D. BUSH UNITED STATES MAGISTRATE JUDGE 12
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