Opinion
No. 4:99CV173-P-B
May 26, 2000
OPINION
This matter is before the court on an application by the plaintiff Kelsey Smith, by her mother Carolyn Smith, seeking judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security denying her claims for supplemental security income disability benefits under Title XVI.
The parties in the above entitled action have consented to trial and entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit. On May 24, 2000 oral argument was heard by the magistrate judge in the above entitled action at Greenville pursuant to 28 U.S.C. § 636(b)(4) and Local Rule M-5(c), at which plaintiff and defendant Commissioner were represented by their respective counsel.
The record shows that the plaintiff was born on June 9, 1994 and was three years old on the date of the hearing decision. Plaintiff claims she is disabled because she has Klippel-Trenaunay-Weber Syndrome, a congenital genetic disorder affecting the feet and skin (UTL in Mercks).
Applying the sequential evaluation process, 20 C.F.R. § 404. 1520 (1996), the Administrative Law Judge (ALJ) found that plaintiff has never engaged in substantial gainful activity, and that the medical evidence establishes that plaintiff was born with clubfeet, has been diagnosed with Klippel-Trenaunay-Weber Syndrome, and has some birthmarks (pinkish discolorations) on her arms and legs which are severe impairments in that they interfere with her ability to perform age-appropriate functions, but that these impairments do not meet the listings. The ALJ found no limitations in plaintiff's social development, cognitive/ communicative functioning, personal/behavioral development or in concentration, persistence or pace. The ALJ found some moderate degree of limitation in motor development, but casting and orthopedic shoes had corrected the club feet, and the plaintiff was reported to be walking without difficulty. Thus, the ALJ found no marked or severe limitation in any area of functioning and the plaintiff was not disabled.
Plaintiff claims as error by the ALJ that his decision is not based upon substantial evidence; that he failed to perform an adequate individualized functional assessment (IFA); and that the ALJ did not fully develop the record.
The Commissioner has responded that the ALJ is no longer required to perform an IFA in child disability cases following the passage of certain amendments to Title XVI on August 22, 1996 ("The Welfare Reform Act"). The Commissioner also argues that the medical evidence did not support any marked or severe limitations, and the diagnosis of a condition, even a severe genetic disorder, does not warrant a finding of disability unless it results in an extreme limitation in one area of functioning or marked limitations in two areas. The Commissioner further contends that the record is fully developed in that the plaintiff's entire medical history is contained therein, and there was nothing in the record to indicate the need for a consultative examination.
At the hearing before the ALJ, plaintiff's mother described her child's syndrome in terms of the birthmarks on her body (TR 28-29); her clubfeet, which she admitted only occasionally caused her right leg to "give out," (TR 30); and that one toe is larger than others on the same foot which may require surgery, but no surgery had been performed yet and the child was no longer in braces or wearing special shoes at night (TR 30). The mother could relate no difficulties at home, but worried that if the birthmarks spread to the child's face she would have mental problems (TR 33).
The medical evidence reveals a diagnosis of metatarsus adductus (club feet) at age 2 months which was treated with casting and reverse lasted shoes with good results (TR 89). At 10 months she was "standing and getting around quite nicely." (TR 98). Dr. McCluskey found some "giantism to both her feet," and suggested that she be examined for a genetic problem (TR (98). The report of Dr. Pivnick at LeBonheur Medical Center indicates a diagnosis of Klippel-Trenaunay-Weber syndrome and describes the condition as:
This is a condition in which the affected individual would have large, vascular birthmarks on the surface of the skin or deep in the body cavities. It can cause overgrowth of certain bones, most likely the long bones. These patients might have hyperpigmented birth marks as well. In reviewing the literature, it is possible that these children might develop, in a small percentage of the cases, seizures and mental retardation. (TR 106-107)
The doctor goes on to suggest that she be given disability for her disabling congenital condition. Later examinations by Dr. McCluskey indicate that she is walking well with good balance and speed, although she had developed more pinkish pigmentation areas (TR 09).
The scope of review in this case is narrow, and the court is limited to determining whether there is substantial evidence to support the findings and conclusions of the ALJ. Richardson v. Perales, 402 U.S. 389 (1971).
The Welfare Reform Act changed the standard under which child disability cases are determined. The new definition is"
An individual under the age of eighteen (19) shall be considered disabled for the purposes of this title if that individual has 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. § 1382(c)(a)(3)(C)(i).
Because disability determinations are no longer based on a "comparable severity" standard, i.e. whether or not the impairment would be disabling to an adult, it is no longer necessary for the ALJ to make determinations as to whether the child is functioning in age appropriate ways in certain domains of behavior. See 20 C.F.R. § 416.924(f). Thus, plaintiff's argument that the IFA is inadequate is not well taken since the ALJ is not required to perform such an assessment.
Further, the court finds that there is clearly substantial evidence to support the ALJ's finding that the condition of which plaintiff complains imposes no marked or severe limitation in any areas of functioning. While Dr. Pivnick recites the worst-case scenario for children diagnosed with this syndrome (TR 106-107), it appears that plaintiff does not suffer from the syndrome to such a degree. She is able to walk correctly without surgery, and the pink discolorations, although noticeable, do not cause any limitation of movement or function. The child has never had seizures and appears to be normal mentally. Dr. Pivnick's suggestion that she draw disability benefits is not based on any functional assessment nor is his opinion accompanied by any clinical notes or findings. This is not to say that the record is incomplete, as plaintiff's condition is fully documented by regular visits to her treating physician, Dr. McCluskey, and it appears that a consultative examination would not add to the record.
At oral argument before this court, plaintiff's counsel argued strongly that plaintiff met Listing 110.00 and the current definition of childhood disability. However, when asked what functional limitations the syndrome caused the plaintiff, counsel could only articulate that occasionally plaintiff's leg got weak and she fell. This does not, in the court's opinion, constitute a marked impairment nor does plaintiff meet the Listing for Multiple Body Systems because, although she does have a documented congenital disorder, she does not suffer from any persistent motor dysfunction, mental impairment, growth impairment, or significant interference with her communication due to speech, hearing, or visual impairments. Listing 110.07.
Counsel for the plaintiff insists that plaintiff's condition has worsened such that it is affecting her heart and kidneys. Counsel for the Commissioner did not argue this point, except to note that this evidence was not before the ALJ and the proper course of action if such is the case is to reapply for benefits. The court agrees.
It is therefore the opinion of the court that the final decision of the Commissioner in the above entitled action be affirmed.
A Final Judgment consistent with this opinion shall issue this same date.
FINAL JUDGMENT
In accordance with an Opinion entered this day, the parties in the above entitled action having consented to trial and entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit, it is hereby ordered and adjudged:
That the final decision of the Commissioner in the above entitled action be, and is hereby, affirmed, and that the action be dismissed with prejudice.
SO ORDERED, this, the 25th day of May, 2000.