UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________

NIVIA D.,

Plaintiff,

v. 5:21-CV-0392 (ML) COMMISSIONER OF SOCIAL SECURITY,

Defendant. ________________________________________

APPEARANCES: OF COUNSEL:

OLINSKY LAW GROUP CAEDEN SEHESTED, ESQ. Counsel for the Plaintiff 250 South Clinton Street-Suite 210 Syracuse, New York 13202

SOCIAL SECURITY ADMINISTRATION MICHAEL L. HENRY, ESQ. Counsel for the Defendant Special Assistant U.S. Attorney J.F.K. Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER Currently pending before the Court in this action, in which Plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security, pursuant to

(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral

1 This matter, which is before me on consent of the parties pursuant to

(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. argument was heard in connection with those motions on September 20, 2022, during a telephone conference conducted on the record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner’s determination was supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by Plaintiff in this appeal. After due deliberation, and based upon the Court’s oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is ORDERED as follows: 1) Plaintiff's motion for judgment on the pleadings (Dkt. No. 18) is DENIED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 21) is GRANTED. 3) The Commissioner’s decision denying Plaintiff Social Security benefits is AFFIRMED. 4) Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. 5) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, DISMISSING Plaintiffs Complaint in its entirety and closing this case. Dated: September 22, 2022 Binghamton, New York | > Miroslav Lovric United States Magistrate Judge Northern District of New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK _____________________________________ D

vs. 5:21-CV-0392

COMMISSIONER OF SOCIAL SECURITY

_____________________________________

DECISION AND ORDER

September 20, 2022

The HONORABLE MIROSLAV LOVRIC, DISTRICT MAGISTRATE JUDGE

A P P E A R A N C E S

For Plaintiff: CAEDEN SEHESTED, ESQ.

For Defendant: MICHAEL HENRY, ESQ.

Ruth I. Lynch, RPR, RMR, NYSRCR Official United States Court Reporter Binghamton, New York 13901 1 THE COURT: All right. The Court’s going to begin 2 its analysis and decision as follows: 3 Plaintiff, on behalf of her minor son, the minor 4 son’s initials are L.A.L.D., and the minor son will be 5 referred to by the Court as the claimant. So the plaintiff, 6 on behalf of her minor son L.A.L.D., who is the claimant, 7 has commenced this proceeding pursuant to Title 42 United 8 States Code Sections 405(g) and 1383(c) to challenge the 9 adverse determination by the Commissioner of Social Security 10 finding that claimant was not disabled at the relevant times 11 and therefore ineligible for the benefits sought. And by 12 way of background the Court notes as follows: 13 The claimant was born in 2006. Claimant is 14 currently approximately 15 years of age. Claimant was 15 approximately 7 years of age at the alleged onset of his 16 disability on August 1st of 2014. Claimant lives with 17 plaintiff, his father, and two older brothers. Plaintiff 18 testified that she did not work and that claimant’s father 19 was on disability. 20 Procedurally, the Court notes as follows: 21 The plaintiff applied for Title XVI benefits for 22 the -- on behalf, I should say, of the claimant on 23 December 4th of 2018 alleging an onset date of August 1, 24 2014. In support of her claim for disability benefits, 25 plaintiff claims claimant’s disability is based on a brain 1 tumor, migraines, asthma, ADHD, a learning disorder, and 2 acid reflux. 3 Administrative Law Judge David Romeo conducted a 4 hearing on June 3rd of 2020 to address plaintiff’s 5 application for benefits on behalf of the claimant minor. 6 ALJ Romeo issued an unfavorable decision on July 9th of 7 2020. That became a final determination of the agency on 8 February 2nd of 2021, when the Social Security 9 Administration Appeals Council denied plaintiff’s 10 application on behalf of the claimant for review. 11 This action was commenced on April 3rd of 2021, 12 and it is timely. 13 In his decision, ALJ Romeo applied the three-step 14 test for determining whether a minor has been under a 15 disability. 16 At step one, the ALJ concluded that claimant had 17 not engaged in substantial gainful activity since 18 November 27 of 2018, that being the application date. 19 At step two, the ALJ concluded that claimant 20 suffers from severe impairments, specifically 21 neurocognitive and neurodevelopment disorders; migraine 22 headaches; asthma; a depressive disorder; attention deficit 23 hyperactivity disorder, also known as ADHD; mild 24 intellectual disorder; and cerebellar tonsillar ectopia. 25 At step three, ALJ Romeo concluded that claimant’s 1 conditions do not meet or medically equal a severity of one 2 of the listed impairments in 20 CFR Sections 416.924, 3 416.925, and 416.926. More specifically, the ALJ focused on 4 the following listings: Listing 103.03 dealing with asthma; 5 11.02 dealing with neurological childhood seizures; 112.02 6 dealing with neurocognitive disorders, childhood; listing 7 112.04 dealing with depressive, bipolar, and related 8 disorders, childhood; listing 112.05 dealing with 9 intellectual disorder, childhood; and listing 112.11 dealing 10 with neurodevelopmental disorders, childhood. 11 For listings 112.02 and 112.04 and 112.05, as well 12 as 112.11, the ALJ considered whether paragraph B or 13 paragraph Y criteria were satisfied for the mental 14 impairments. With respect to the paragraph B criteria, the 15 ALJ found that claimant has, one, a moderate limitation in 16 understanding, remembering, or applying information; two, a 17 moderate limitation in interacting with others; three, a 18 moderate limitation with concentrating, persisting, and 19 maintaining pace; and, four, a moderate limitation adapting 20 or managing oneself. In addition, the ALJ found that 21 claimant does not have an impairment or combination of 22 impairments that functionally equals the severity of 23 listings at 20 CFR sections 416.924(d) and 416.926a. More 24 specifically, the ALJ found that the claimant, one, has less 25 than marked limitation in acquiring and using information; 1 two, has less than marked limitation in attending and 2 completing tasks; three, has less than marked limitation in 3 interacting and relating with others; four, has no 4 limitation in moving about and manipulating objects; five, 5 has less than marked limitation in the ability to care for 6 himself; and, six, has less than marked limitation in health 7 and physical well-being. As a result, the ALJ found that 8 claimant was not disabled as defined in the Social Security 9 Act since November 27 of 2018, the date the application was 10 filed. 11 Now, as the parties know, this Court’s functional 12 role in this case is limited and extremely deferential. I 13 must determine whether correct legal principles were applied 14 and whether the determination is supported by substantial 15 evidence, defined as such relevant evidence as a reasonable 16 mind would find sufficient to support a conclusion. As the 17 Second Circuit noted in the case of Brault V. Social 18 Security Administration Commissioner, that’s found at 19

, a 2012 case, the Circuit noted that this 20 standard is demanding, more so than the clearly erroneous 21 standard. The Court noted in Brault that once there is a 22 finding of fact, that fact can be rejected only if a 23 reasonable fact-finder would have to conclude otherwise. 24 Now, on appeal, plaintiff raises two contentions 25 in this appeal before this Court. First, plaintiff argues 1 that the ALJ erred in evaluating the opinion evidence 2 according to 20 CFR Section 416.920c. Secondly, plaintiff 3 also argues that claimant’s impairment does meet listing 4 112.04 dealing with depressive, bipolar, and related 5 disorders, childhood. 6 The Court begins its analysis by stating as 7 follows: For the reasons set forth in defendant’s brief, I 8 find that substantial evidence supports the ALJ’s evaluation 9 of the opinion evidence. Plaintiff focused her arguments on 10 the opinion of Dr. Quinones-Guzman so the Court focuses its 11 analysis and decision there as well. This Court notes the 12 following: 13 This Court has held that, quote, while a reviewing 14 court may not affirm the Commissioner’s decision based on an 15 impermissible post-hoc rationalization, it may affirm where 16 the ALJ’s consideration of the relevant factors can be 17 gleaned from the ALJ’s decision as a whole. For this 18 proposition the Court cites John L.M. versus Kijakazi, 19 that’s found at 21-CV-368. That’s a 2022 case. It can be 20 found at West Law 3500187 at page 2. And that is a Northern 21 District New York case issued by Chief Judge Sannes on 22 August 18th of 2022. And therein Judge Sannes cites the 23 case of Ricky L. versus Commissioner of Social Security, 24 20-CV-7102, and that’s a 2022 case. That can be found at 25 West Law 2306965 at page 4. And that is a Western District 1 New York June 27th of 2022 case. 2 In this case the ALJ’s evaluation of 3 Dr. Quinones-Guzman’s opinion considered the supportability 4 and consistency factors. Although the ALJ did not elaborate 5 on this point specifically in his decision of 6 Dr. Quinones-Guzman’s opinion, the ALJ’s stated that he -- 7 the ALJ -- excuse me, the ALJ stated that he found the 8 opinion of Dr. Quinones-Guzman not persuasive because the 9 record documented, quote, few positive clinical findings and 10 was not consistent with the objective medical evidence, the 11 school records and reports, and the claimant’s functioning 12 in other reports of treatment, end quote. Indeed, when 13 viewing the ALJ’s decision as a whole, it is clear that the 14 ALJ noted the inconsistency of Dr. Quinones-Guzman’s opined 15 limitations with moving about and manipulating objects. 16 More specifically the Court notes that the ALJ indicated as 17 follows: 18 The ALJ cited claimant’s treatment records with 19 Dr. Quinones-Guzman indicating that he liked to be active at 20 school, playing basketball, but primarily played 21 PlayStation at home. See docket number 11, attachment 2 at 22 29, that’s transcript page 28, citing also docket number 11, 23 attachment 11 at 89, transcript page 1114. And the ALJ also 24 cited claimant’s treatment record with Dr._Quinones-Guzman 25 indicating that claimant had, quote, no restrictions in 1 physical activity, end quote. See docket number 11, 2 attachment 2 at 29, transcript page 28, therein citing 3 docket number 11, attachment 11 at 65, transcript page 1090. 4 As defendant asserts, the ALJ did not need to 5 reproduce his discussion of the normal clinical findings in 6 the paragraph where he discounted Dr. Quinones-Guzman’s 7 opinion. Instead, the ALJ’s opinion included numerous other 8 benign findings including, inter alia, Dr. Noia’s finding 9 that claimant showed no difficulty understanding and 10 following simple directions, despite a mild intellectual 11 disability; also notations in the record that claimant made 12 progress in reading and math and was able to follow simple 13 explicit instructions despite poor class attendance; and 14 claimant’s recent report cards and IEPs reflecting that he 15 was a pleasure to have in class, was friendly with adults 16 and peers, and that his behavior improved. 17 For each of these reasons the Court is able to 18 glean the ALJ’s rationale for not adopting Dr. 19 Quinones-Guzman’s opined limitations. Although plaintiff 20 highlights evidence in the record that supports 21 Dr. Quinones-Guzman’s opinion, it is not the position of 22 this Court, this reviewing Court, I should say, to reweigh 23 the evidence. In addition, for the reasons set forth 24 herein, I reject plaintiff’s argument that claimant meets 25 listing 112.04(B), because the ALJ supportably rejected the 1 opinion of Dr. Quinones-Guzman. 2 The Court notes as follows: Moreover, as set 3 forth in defendant’s brief, even assuming arguendo that the 4 ALJ had adopted Dr. Momot-Baker’s entire assessment, 5 plaintiff still would not have established marked 6 limitations in at least two functional equivalence domains 7 or two paragraph B domains. Further, as set forth in 8 defendant’s brief, plaintiff does not offer any support for 9 her assertion that Dr. Noia’s TONI-4 quotient of 64 equates 10 to a marked limitation in acquiring and using information or 11 that claimant’s delayed speech and language skills equated 12 to a marked limitation in interacting with others. 13 Based on this analysis and for the following -- 14 and for the reasons that I just stated, therefore 15 plaintiff’s motion for judgment on the pleadings is denied. 16 Defendant’s motion for judgment on the pleadings is granted. 17 Plaintiff’s complaint is hereby dismissed. And the 18 Commissioner’s decision denying plaintiff benefits is 19 hereby affirmed. 20 This constitutes the analysis and decision of this 21 Court. 22 - - - - - 23 24 25