Opinions and documents
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JENNIFER M.M., o.b.o. G.A.F.,1
Plaintiff, DECISION AND ORDER
1:25-cv-03390-GRJ
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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GARY R. JONES, United States Magistrate Judge:
In November of 2019, Plaintiff Jennifer M.M.2 applied for Child
Supplemental Security Income benefits under the Social Security Act on
behalf of her son, G.A.F. (“Claimant”). The Commissioner of Social Security
denied the application. Plaintiff, represented by Severance, Burko &
Spalter, P.C., Louis Ronald Burko, Esq., of counsel, commenced this action
seeking judicial review of the Commissioner’s denial of benefits under 42
U.S.C. §§ 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction
of a United States Magistrate Judge. (Docket No. 7).
1 The Clerk of Court is directed to amend the caption of this case to conform with the
caption above.
2 The names of Plaintiff and Claimant have been partially redacted in compliance with
Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee
on Court Administration and Case Management of the Judicial Conference of the United
States.
This case was referred to the undersigned on April 21, 2026.
Presently pending is Plaintiff’s Motion for Judgment on the Pleadings
pursuant to Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket
No. 11). For the following reasons, Plaintiff’s motion is due to be denied,
and this case is dismissed.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on behalf of Claimant on November 15,
2019, alleging disability beginning on that date. (T at 108, 118, 354-63).3
Plaintiff’s application was denied initially and on reconsideration. She
requested a hearing before an Administrative Law Judge (“ALJ”). A
hearing was held on April 21, 2021, before ALJ Kieran McCormack. (T at
46-75). In a decision dated December 30, 2022, the ALJ denied the
application for benefits. (T at 119-32).
Plaintiff sought review by the Social Security Appeals Council. On
November 22, 2023, the Appeals Council granted review and remanded
the case for further proceedings. (T at 133-38).
3 Citations to “T” refer to the administrative record transcript at Docket No. 10.
A second hearing was held before ALJ McCormack on April 9, 2024.
(T at 76-98). Plaintiff appeared with Claimant and an attorney and testified.
(T at 83-96).
B. ALJ’s Decision
On May 16, 2024, the ALJ issued a second decision denying the
application for benefits. (T at 8-26). The ALJ noted that Claimant was a
“school-age child” on November 15, 2019, when the application was filed,
and remained a school-age child at the time of the decision. (T at 12). The
ALJ found that Claimant had not engaged in substantial gainful activity
since the application date. (T at 12).
The ALJ found that Claimant’s attention deficit hyperactivity disorder
was a severe impairment as defined under the Social Security Act. (T at
12). However, the ALJ found that Claimant did not have an impairment or
combination of impairments that met or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the “Listings”). (T
at 13). The ALJ also concluded that Claimant did not have an impairment
or combination of impairments that functionally equals the severity of the
Listings. (T at 13).
As such, the ALJ found that Claimant had not been under a disability,
as defined under the Social Security Act, since the application date and
was therefore not entitled to benefits. (T at 20). On March 6, 2025, the
Appeals Council denied Plaintiff’s request for review, making the ALJ’s
second decision the Commissioner’s final decision. (T at 1-7).
C. Procedural History
Plaintiff commenced this action, by and through her counsel, by filing
a Complaint on April 24, 2025. (Docket No. 1). On August 24, 2025,
Plaintiff filed a motion for judgment on the pleadings, supported by a brief.
(Docket No. 11). The Commissioner interposed a brief in opposition to the
motion and in support of a competing request for judgment on the
pleadings on December 4, 2025. (Docket No. 15).
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a
claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999).
The court’s review is limited to “determin[ing] whether there is substantial
evidence supporting the Commissioner's decision and whether the
Commissioner applied the correct legal standard.” Poupore v. Astrue, 566
F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings,
which are considered conclusive if supported by substantial evidence. See
42 U.S.C. § 405(g). “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.” Lamay v. Commissioner of Soc. Sec.,
562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by
substantial evidence, the reviewing court is required to examine the entire
record, including contradictory evidence and evidence from which
conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145,
151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has
applied an improper legal standard,” or when the ALJ’s rationale is unclear,
remand “for further development of the evidence” or for an explanation of
the ALJ’s reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.
1996).
B. Standard for Disability Claims for Children
To qualify for SSI benefits, a child under the age of eighteen must
have “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 Social Security Regulations provide a three-step sequential
analysis to determine whether a child is disabled and eligible for benefits.
20 C.F.R. § 416.924(a)-(d); see Pollard v. Halter, 377 F.3d 183, 189 (2d
Cir. 2004). First, the ALJ considers whether the child is engaged in
“substantial gainful activity.” 20 C.F.R. § 416.924(b). Second, the ALJ
determines whether the child has a “medically determinable impairment(s)
that is severe,” which is defined as an impairment that causes “more than
minimal functional limitations.” Id. § 416.924(c). Third, if the child has a
severe impairment(s), the ALJ must then decide whether the impairment
meets or “medically” or “functionally” equals a disability listed in the
regulatory “Listing of Impairments.” Id. § 416.924(c), (d); see also id. at Part
404, Subpart P, App. 1.
To demonstrate functional equivalence, the child must exhibit a
“marked” limitation in two of six functional domains described in the
regulations, or an “extreme” limitation in one of the domains. 20 C.F.R. §
416.926a(a) (2017); see Pollard, 377 F.3d at 190.
The first five domains consider the child’s ability to acquire and use
information, attend and complete tasks, interact and relate with others,
move about and manipulate objects, and care for himself. 20C.F.R. §
416.926a(b)(1)(i)-(v) (2017). The sixth domain considers the child’s health
and physical well-being. Id. § 416.926a(b)(1)(vi).
A child has a “marked” limitation when the impairment “interferes
seriously with [the child’s] ability to independently initiate, sustain, or
complete activities.” 20 C.F.R.§ 416.926a(e)(2)(i) (2017). “‘Marked’
limitation . . . means a limitation that is ‘more than moderate’ but ‘less than
extreme.’” Id. An “‘extreme’” limitation is present when the impairment
“interferes very seriously with [the child’s] ability to independently initiate,
sustain, or complete activities.” Id. § 416.926a(e)(3)(i).
III. DISCUSSION
The ALJ determined that Claimant had a marked limitation with
respect to attending to and completing tasks, no limitation in health and
physical well-being, and less than marked limitation in the other domains.
(T at 14).
Plaintiff argues that the ALJ should have found Claimant markedly
limited with respect to his ability to: (a) acquire and use information and/or
(b) interact with others. Plaintiff also contends that the ALJ erred by failing
to adequately develop the record. The Court will address each argument in
turn.
1. Acquiring and Using Information
In this domain, we consider how well the child acquires or learns
information and how well they use the information they have learned.
20 C.F.R. § 416.926a (g)(1).
A school-age child “should be able to learn to read, write, and do
math, and discuss history and science.” The child demonstrates what they
have learned in academic situations by “reading about various subjects and
producing oral and written projects, solving mathematical problems, taking
achievement tests, doing group work, and entering into class discussions.”
The child uses the skills in daily living and the community by, for example,
“reading street signs, telling time, and making change.”
A school-age child should also be able “to use increasingly complex
language (vocabulary and grammar) to share information and ideas with
individuals or groups, by asking questions and expressing [their] own ideas,
and by understanding and responding to the opinions of others.” 20 C.F.R.
§ 416.926a (g)(2)(iv).
The ALJ found less than marked limitation with respect to Claimant’s
functioning in this domain. (T at 14).
In reaching this conclusion, the ALJ relied on academic records,
which showed educational progress and evidenced that Claimant made the
school honor roll. (T at 17-18, 1592, 1595, 1600, 1603, 1609, 1683, 1696,
1702, 1709, 1717, 1720, 1723, 1790, 1837, 1845, 1856, 1859, 1864, 1873,
1887, 1907).
The ALJ’s determination is also supported by the medical opinion
evidence. (T at 19-20).
Dr. John Laurence Miller performed a consultative psychiatric
evaluation in January of 2020. Dr. Miller diagnosed (a) unspecified
schizophrenia spectrum and other psychotic disorder and (b) ADHD,
predominately hyperactive/impulsive type. (T at 727). Dr. Miller found no
evidence of limitation in Claimant’s ability to ask questions; mild impairment
with respect to attending to, following, and understanding age-appropriate
directions; and moderate limitation as to learning in accordance with his
cognitive function. (T at 726-27). During the examination, Claimant
displayed appropriate thought processes, intact and age-appropriate
memory skills, average cognitive functioning, and age-appropriate insight
and judgment. (T at 725-26).
Dr. C. Anderson, a non-examining State Agency review consultant,
reviewed the record in February of 2020 and opined that Plaintiff had less
than marked impairment in this domain. (T at 103). Dr. A. Chapman,
another review consultant, reached the same conclusion in July of 2020. (T
at 113).
Plaintiff points to evidence of limitation in Claimant’s academic
abilities, particularly regarding his language skills (which are weaker than
his math abilities). Plaintiff also argues that the conclusion that Claimant
had less than marked limitation in acquiring and using information is
inconsistent with the finding that he had marked impairment with respect to
attending to and completing tasks.
A “marked” limitation exists when the claimant’s “impairment(s)
interferes seriously with [their] ability to independently initiate, sustain, or
complete activities.” 20 C.F.R. § 416.926a(e)(2)(i).
As outlined above, the ALJ’s decision to find that Claimant had less
than marked limitation in the domain of acquiring and using information is
supported by a reasonable reading of the record and consistent with the
medical opinion evidence. This is sufficient to sustain the decision under
the deferential standard of review applicable here. See Jolene H. o/b/o
V.E.W. v. Comm'r of Soc. Sec., No. 1:20-CV-01498-MJR, 2022 WL
884155, at *4 (W.D.N.Y. Mar. 25, 2022)(finding that consultative examiner’s
assessment of moderate limitation supported ALJ’s conclusion that
claimant had less than marked limitation in domains of functioning); Kelinne
O. o/b/o K.P.Q. v. Comm'r of Soc. Sec., No. 523CV00812BKSML, 2024 WL
2027907, at *4 (N.D.N.Y. Apr. 16, 2024)(same).
Moreover, Plaintiff offers no support for the conclusion that a finding
of marked impairment with respect to attending and completing tasks
mandates a similar finding as to acquiring and using information. Indeed,
Claimant’s academic records support the conclusion that he is able to
make educational progress (and, indeed, achieve honor roll success)
notwithstanding the impact of his ADHD on his ability to attend to, and
complete, tasks. Further, Dr. Chapman assessed marked limitation in
attending and completing tasks, along with less than marked impairment
acquiring and using information. (T at 113-14).
B. Interacting With Others
In this domain, we consider how well the child can “initiate and
sustain emotional connections with others, develop and use the language
of [her[ community, cooperate with others, comply with rules, respond to
criticism, and respect and take care of the possessions of others.” 20
C.F.R. § 416.926a(i).
A school-age child is expected to “develop more lasting friendships
with children who are [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 … 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).
The ALJ determined that Claimant had less than a marked limitation
in this domain. (T at 14).
This conclusion is supported by a reasonable reading of the record,
which evidences that Claimant had friends, could cooperate with others,
and was generally well-behaved. (T at 18, 604, 966, 1281, 1309, 1526,
1535, 1544, 1552-53, 1556, 1565, 1572, 1586, 1613, 1619, 1632, 1644,
1648, 1666, 1686, 1696, 1720, 1729, 1766, 1837, 1842). Claimant was
consistently described as cooperative and appropriate during visits with his
medical providers. (T at 18, 946-48, 1342, 1350, 1366, 1402, 1418, 1437,
1446, 1455, 1461, 1478, 1491, 1507, 1528, 1546, 1562, 1597, 1615, 1625,
1638, 1654, 1668, 1714, 1761, 1781, 1797, 1823, 1839, 1870).
In addition, once again, the ALJ’s assessment is supported by the
medical opinion evidence. Dr. Miller found no limitation in Claimant’s ability
to interact adequately with peers and only moderate impairment as to
interacting adequately with adults. (T at 726-27). Dr. Anderson and Dr.
Chapman both assessed less than marked limitation in this domain. (T at
103, 114).
As noted above, “marked” limitation exists when the claimant’s
“impairment(s) interferes seriously with [their] ability to independently
initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i). The
Court finds the above-referenced evidence more than sufficient to support
the ALJ’s decision to find less than a marked limitation as to Claimant’s
functioning in this domain.
C. Duty to Develop the Record
Plaintiff also argues that the ALJ should have further developed the
record by ordering an updated consultative examination. Dr. Miller
conducted his examination in January of 2020, more than four years before
the ALJ’s decision.
While “the mere passage of time” does not cause a medical opinion
to “expire,” a “medical opinion may be stale if subsequent treatment notes
indicate a claimant's condition has deteriorated.” Gina D. v. Comm'r of Soc.
Sec., No. 1:19-CV-01241 (JJM), 2021 WL 1117023, at *4 (W.D.N.Y. Mar.
24, 2021)(citations omitted)(collecting cases).
Notably, here, the record after Dr. Miller’s examination generally
showed improvement in Plaintiff’s functioning, rather than deterioration.
Moreover, Plaintiff’s counsel told the ALJ that the record was complete at
the conclusion of the April 2024 administrative hearing. (T at 81). See
Curley v. Comm'r of Soc. Sec. Admin., 808 F. App'x 41, 44 (2d Cir.
2020)(“Although Curley argues that the ALJ should have obtained a
medical opinion … from one of Curley’s providers, Curley does not explain
why neither he nor his counsel requested such an opinion.”); see also
Jordan v. Comm’r, 142 F. App’x 542, 543 (2d Cir. 2005); Frye v. Astrue,
485 Fed. App’x 484, 488 n.2 (2d Cir. 2012). For these reasons, the ALJ did
not breach his duty to develop the record.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Judgment on the
Pleadings (Docket No. 11) is DENIED and this case is DISMISSED. The
Clerk is directed to enter final judgment in favor of the Commissioner and
then close the file.
s/ Gary R. Jones
Dated: May 15, 2026
GARY R. JONES
United States Magistrate Judge
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