Ryan v. Commissioner of Social Security

Second Circuit

Ryan v. Commissioner of Social Security

Court of Appeals for the Second Circuit·Decided December 27, 2022·No. 21-2947-cv·Unpublished

Opinion

21-2947-cv Ryan v. Commissioner of Social Security

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 27th day of December, two thousand twenty-two. 4 5 Present: 6 JOHN M. WALKER, JR., 7 EUNICE C. LEE, 8 ALISON J. NATHAN, 9 Circuit Judges. 10 _____________________________________ 11 12 AMANDA JEANNE RYAN, ON BEHALF OF V.D.C., 13 14 Plaintiff-Appellant, 15 16 v. 21-2947-cv 17 18 COMMISSIONER OF SOCIAL SECURITY, 19 20 Defendant-Appellee. 21 _____________________________________ 22 23 For Plaintiff-Appellant: ALECIA A. ELSTON, Segar & Sciortino, 24 Rochester, NY. 25 26 For Defendant-Appellee: NAHID SOROOSHYARI (Michelle L. Christ & 27 Kelly Z. Toledano, Special Assistant United 28 States Attorneys; Ellen E. Sovern, Regional 29 Chief Counsel – Region II, Social Security

30 Administration; Trini E. Ross, United States 31 Attorney, Western District of New York, on 32 the brief), United States Social Security 33 Administration, Office of the General 34 Counsel, Baltimore, MD. 35 36 Appeal from a judgment of the United States District Court for the Western District of New

37 York (Sinatra, J.). 38 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 39 DECREED that the judgment of the district court is AFFIRMED. 40 Plaintiff Amanda Jeanne Ryan, on behalf of her then-minor child V.D.C., appeals from the 41 October 7, 2021 district court judgment affirming the Commissioner of Social Security’s denial of 42 her Supplemental Security Income (SSI) application. We assume the parties’ familiarity with the 43 underlying facts, the proceedings below, and the arguments on appeal. 44 When reviewing an appeal from a denial of Social Security benefits, we focus on the 45 administrative decision instead of the opinion of the district court. Estrella v. Berryhill, 925 F.3d 46 90, 95 (2d Cir. 2019). This Court reviews the entire administrative record to determine whether 47 the administrative decision is supported by substantial evidence. McIntyre v. Colvin, 758 F.3d 146, 48 149 (2d Cir. 2014). “Substantial evidence” is “more than a mere scintilla.” Richardson v. 49 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “It means such relevant 50 evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal 51 quotation marks omitted). 52 Part of the multi-step process for determining a child’s disability under the Social Security 53 Act requires that their impairments—either alone or in combination—meet, medically equal, or 54 functionally equal the severity of a listed impairment. 20 C.F.R. §§ 416.902(h), 416.906, 416.924,

1 416.926a. If the child’s impairments do not meet or medically equal a listed impairment, the 2 agency will then examine whether their impairments functionally equal any listing. Id. § 3 416.926a(a). Functional equivalence is assessed under six “domains”: (i) acquiring and using 4 information; (ii) attending and completing tasks; (iii) interacting and relating with others; (iv) 5 moving about and manipulating objects; (v) caring for oneself; and (vi) health and physical well- 6 being. Id. § 416.926a(b)(1); SSR 09-3p, Title XVI: Determining Childhood Disability—The 7 Functional Equivalence Domain of “Acquiring and Using Information,” 74 Fed. Reg. 7511 (Feb. 8 17, 2009). 9 A child’s impairments functionally equal the severity of a listed impairment if they result 10 in “marked” limitations in at least two domains or an “extreme” limitation in at least one domain. 11 20 C.F.R. § 416.926a(a). A marked limitation “interferes seriously with [the child’s] ability to 12 independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(2). It is “more than 13 moderate” but “less than extreme.” Id. “It is the equivalent of the functioning we would expect to 14 find on standardized testing with scores that are at least two, but less than three, standard deviations 15 below the mean.” Id. An extreme limitation, on the other hand, “interferes very seriously with [the 16 child’s] ability to independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(3). It is 17 “more than marked” and “is the rating [that the Social Security regulations] give to the worst 18 [functional] limitations.” Id. “It is the equivalent of the functioning we would expect to find on 19 standardized testing with scores that are at least three standard deviations below the mean.” Id. 20 On appeal, Ryan argues that the ALJ erred in concluding that V.D.C. has marked limitation 21 only in the domain of attending and completing tasks and not also in the domain of acquiring and 22 using information. She argues that V.D.C.’s combined impairments—Attention Deficit

1 Hyperactivity Disorder (“ADHD”), anxiety, unspecified mood disorder, learning disorder, and 2 traumatic brain injury (“TBI”)—established marked limitation in acquiring and using information. 3 She also contends that the ALJ failed to adequately explain his conclusion regarding this domain. 4 We address each argument in turn. 5 Substantial evidence supports the ALJ’s finding that V.D.C. had less than marked 6 limitation in acquiring and using information. The ALJ carefully assessed the complete record, 7 which includes school records, hearing testimony, treatment notes, and medical opinion evidence. 8 Following discussion of the evidence, the ALJ reasoned that V.D.C. passed to every grade level 9 without being held back, that he showed improvement with academic grades and intellectual tests, 10 on which he scored at or near the average range, and that no consultative examiner determined that 11 V.D.C. had marked or extreme limitation in acquiring and using information. We therefore believe 12 there is “more than a mere scintilla” of evidence to support the ALJ’s conclusion regarding 13 V.D.C.’s ability to acquire and use information. Richardson, 402 U.S. at 401 (internal quotation 14 marks omitted). 15 We also independently reviewed the record and discern no error. None of the purportedly 16 contrary evidence that Ryan highlights, such as the December 2015 Teacher Questionnaire 17 prepared by Teresa Singh, would require a reasonable factfinder to conclude that V.D.C. had at 18 least a marked limitation in acquiring and using information. Brault v. Soc. Sec. Admin., Comm’r, 19 683 F.3d 443, 448 (2d Cir. 2012) (“[O]nce an ALJ finds facts, we can reject those facts only if a 20 reasonable factfinder would have to conclude otherwise.” (internal quotation marks and emphasis 21 omitted)). We are unable to remand on this basis.

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21-2947-cv Ryan v. Commissioner of Social Security

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 27th day of December, two thousand twenty-two. 4 5 Present: 6 JOHN M. WALKER, JR., 7 EUNICE C. LEE, 8 ALISON J. NATHAN, 9 Circuit Judges. 10 _____________________________________ 11 12 AMANDA JEANNE RYAN, ON BEHALF OF V.D.C., 13 14 Plaintiff-Appellant, 15 16 v. 21-2947-cv 17 18 COMMISSIONER OF SOCIAL SECURITY, 19 20 Defendant-Appellee. 21 _____________________________________ 22 23 For Plaintiff-Appellant: ALECIA A. ELSTON, Segar & Sciortino, 24 Rochester, NY. 25 26 For Defendant-Appellee: NAHID SOROOSHYARI (Michelle L. Christ & 27 Kelly Z. Toledano, Special Assistant United 28 States Attorneys; Ellen E. Sovern, Regional 29 Chief Counsel – Region II, Social Security

30 Administration; Trini E. Ross, United States 31 Attorney, Western District of New York, on 32 the brief), United States Social Security 33 Administration, Office of the General 34 Counsel, Baltimore, MD. 35 36 Appeal from a judgment of the United States District Court for the Western District of New

37 York (Sinatra, J.). 38 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 39 DECREED that the judgment of the district court is AFFIRMED. 40 Plaintiff Amanda Jeanne Ryan, on behalf of her then-minor child V.D.C., appeals from the 41 October 7, 2021 district court judgment affirming the Commissioner of Social Security’s denial of 42 her Supplemental Security Income (SSI) application. We assume the parties’ familiarity with the 43 underlying facts, the proceedings below, and the arguments on appeal. 44 When reviewing an appeal from a denial of Social Security benefits, we focus on the 45 administrative decision instead of the opinion of the district court. Estrella v. Berryhill, 925 F.3d 46 90, 95 (2d Cir. 2019). This Court reviews the entire administrative record to determine whether 47 the administrative decision is supported by substantial evidence. McIntyre v. Colvin, 758 F.3d 146, 48 149 (2d Cir. 2014). “Substantial evidence” is “more than a mere scintilla.” Richardson v. 49 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “It means such relevant 50 evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal 51 quotation marks omitted). 52 Part of the multi-step process for determining a child’s disability under the Social Security 53 Act requires that their impairments—either alone or in combination—meet, medically equal, or 54 functionally equal the severity of a listed impairment. 20 C.F.R. §§ 416.902(h), 416.906, 416.924,

1 416.926a. If the child’s impairments do not meet or medically equal a listed impairment, the 2 agency will then examine whether their impairments functionally equal any listing. Id. § 3 416.926a(a). Functional equivalence is assessed under six “domains”: (i) acquiring and using 4 information; (ii) attending and completing tasks; (iii) interacting and relating with others; (iv) 5 moving about and manipulating objects; (v) caring for oneself; and (vi) health and physical well- 6 being. Id. § 416.926a(b)(1); SSR 09-3p, Title XVI: Determining Childhood Disability—The 7 Functional Equivalence Domain of “Acquiring and Using Information,” 74 Fed. Reg. 7511 (Feb. 8 17, 2009). 9 A child’s impairments functionally equal the severity of a listed impairment if they result 10 in “marked” limitations in at least two domains or an “extreme” limitation in at least one domain. 11 20 C.F.R. § 416.926a(a). A marked limitation “interferes seriously with [the child’s] ability to 12 independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(2). It is “more than 13 moderate” but “less than extreme.” Id. “It is the equivalent of the functioning we would expect to 14 find on standardized testing with scores that are at least two, but less than three, standard deviations 15 below the mean.” Id. An extreme limitation, on the other hand, “interferes very seriously with [the 16 child’s] ability to independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(3). It is 17 “more than marked” and “is the rating [that the Social Security regulations] give to the worst 18 [functional] limitations.” Id. “It is the equivalent of the functioning we would expect to find on 19 standardized testing with scores that are at least three standard deviations below the mean.” Id. 20 On appeal, Ryan argues that the ALJ erred in concluding that V.D.C. has marked limitation 21 only in the domain of attending and completing tasks and not also in the domain of acquiring and 22 using information. She argues that V.D.C.’s combined impairments—Attention Deficit

1 Hyperactivity Disorder (“ADHD”), anxiety, unspecified mood disorder, learning disorder, and 2 traumatic brain injury (“TBI”)—established marked limitation in acquiring and using information. 3 She also contends that the ALJ failed to adequately explain his conclusion regarding this domain. 4 We address each argument in turn. 5 Substantial evidence supports the ALJ’s finding that V.D.C. had less than marked 6 limitation in acquiring and using information. The ALJ carefully assessed the complete record, 7 which includes school records, hearing testimony, treatment notes, and medical opinion evidence. 8 Following discussion of the evidence, the ALJ reasoned that V.D.C. passed to every grade level 9 without being held back, that he showed improvement with academic grades and intellectual tests, 10 on which he scored at or near the average range, and that no consultative examiner determined that 11 V.D.C. had marked or extreme limitation in acquiring and using information. We therefore believe 12 there is “more than a mere scintilla” of evidence to support the ALJ’s conclusion regarding 13 V.D.C.’s ability to acquire and use information. Richardson, 402 U.S. at 401 (internal quotation 14 marks omitted). 15 We also independently reviewed the record and discern no error. None of the purportedly 16 contrary evidence that Ryan highlights, such as the December 2015 Teacher Questionnaire 17 prepared by Teresa Singh, would require a reasonable factfinder to conclude that V.D.C. had at 18 least a marked limitation in acquiring and using information. Brault v. Soc. Sec. Admin., Comm’r, 19 683 F.3d 443, 448 (2d Cir. 2012) (“[O]nce an ALJ finds facts, we can reject those facts only if a 20 reasonable factfinder would have to conclude otherwise.” (internal quotation marks and emphasis 21 omitted)). We are unable to remand on this basis.

1 Ryan also mistakenly contends that the ALJ breached a duty to explain his rationale. “An 2 ALJ does not have to state on the record every reason justifying a decision” and “is not required 3 to discuss every single piece of evidence submitted.” Id. Here, the ALJ thoroughly discussed the 4 pertinent evidence and then explained his rationale, albeit briefly, regarding V.D.C.’s lack of 5 functional limitations in acquiring and using information. Even assuming, arguendo, that the ALJ 6 failed to provide an express rationale for his conclusions, we would not be prevented from 7 upholding them so long as we are “able to look to other portions of the ALJ’s decision and to 8 clearly credible evidence in finding that his determination was supported by substantial evidence.” 9 Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982) (per curiam). We therefore decline to remand 10 for a clearer explanation because, looking at the whole decision, we are not “‘unable to fathom the 11 ALJ’s rationale in relation to evidence in the record.’” Cichocki v. Astrue, 729 F.3d 172, 177 (2d 12 Cir. 2013) (quoting Berry, 675 F.2d at 469). 13 Upon considering Ryan’s other arguments, we find them to be without merit. We affirm 14 the judgment of the district court. 15 16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk of Court

Ryan v. Commissioner of Social Security, (2d Cir. 2022).

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