Opinion
00 Civ. 7276 (GEL)
June 17, 2002
Christopher James Bowes, Center for Disability Advocacy Rights, New York, N.Y. for Plaintiff Ariel Cespedes.
Susan D. Baird, Assistant United States Attorney, (James B. Comey, United States Attorney, Southern District of New York, on the brief), New York, NY, for Defendant Jo Anne B. Barnhart.
OPINION AND ORDER
Plaintiff Ariel Cespedes, now eleven years old, brings this action seeking to reverse the Commissioner of Social Security's (the "Commissioner") final decision that he was not eligible for child's disability benefits as provided for in Title XVI of the Social Security Act ("the Act"), as amended in 1996 by Public Law 104-193, 110 Stat. 2105 (codified as amended in scattered sections of Title 42 and other titles of the U.S.C.). Ariel claims that he is disabled due to asthma, chronic ear infections, speech and language delays and borderline intellectual functioning. (Pl. Mem. at 9.) Having exhausted all administrative appeals, plaintiff makes a final appeal to this Court, moving on November 30, 2001, for an order granting judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), and asks that this Court issue an order remanding this action pursuant to 42 U.S.C. § 405 (g) for further administrative proceedings. The Commissioner filed a cross motion for judgment on the pleadings on January 29, 2002, requesting that plaintiffs complaint be dismissed. For the reasons set forth below, the plaintiffs motion is granted, the Commissioner's motion is denied, and the case is remanded to the Commissioner for further proceedings.
Plaintiff names as defendant Larry G. Massanari, who was the acting Commission of Social Security when the complaint was filed. Jo Anne B. Barnhart, the current Commissioner, is automatically substituted as the defendant pursuant to Fed.R.Civ.P. 25(d)(1).
BACKGROUND
Ariel was two years old when he first applied for disability benefits on March 12, 1993. (Tr. 44-56.) Based on that application, the SSA agreed that he was disabled and entitled to benefits, although the basis for this finding is not set forth in the record currently before this Court. The finding of disability was approved by an Administrative Law Judge ("ALJ") in 1995. (Tr. 12.) Following a change in the definition of disability pursuant to a 1996 amendment in the Social Security Act ("the Act"), the Social Security Administration ("SSA") reconsidered Ariel's claim as required by the amended law. (Tr. 60-63.) Upon revisiting the case the SSA determined that Ariel was no longer disabled and informed him by notice dated July 15, 1997, that he no longer met the disability requirements as of July 9, 1997. (Tr. 57-63.) Ariel's Supplemental Security Income ("SSI") benefits were accordingly revoked following payment of his September 1997 benefits. (Tr. 60.)
"Tr." refers to pages of the administrative record filed by the Commissioner as part of his answer. See 42 U.S.C. § 405 (g) (2001).
Public Law 104-193 § 211(d)(2)(A) provides
the Commissioner of Social Security shall redetermine the eligibility of any individual under age 18 who is eligible for supplemental security income benefits by reason of disability under title XVI of the Social Security Act as of the date of the enactment of this Act [August 22, 1996] and whose eligibility for such benefits may terminate by reason of the provisions of, or amendments made by, subsections (a) and (b) of this section [referring to modifications of the definition of childhood disability].
Public Law 104-193 § 211(d)(2)(A), 110 Stat. 2105 (1996).
Ariel's mother, Marilyn Cespedes, filed pro se on Ariel's behalf for reconsideration of the decision, which was denied by notice dated February 24, 1998. (Tr. 94-95.) She then requested an administrative hearing before an Administrative Law Judge ("ALJ"), which was held on March 16, 1999. (Tr. 21-43.) The ALJ considered the case de novo and affirmed by decision dated March 24, 1999, that under the new law, Ariel's status was "not disabled" as of July 9, 1997. (Tr. 8-20.) Ms. Cespedes next filed for Appeals Council Review of the ALJ's decision on April 6, 1999 (Tr. 6.), which was also denied, making the ALJ's decision the final decision of the Commissioner on March 15, 2000. (Tr. 3-5.) Finally, Ms. Cespedes filed a pro se complaint in this Court on September 27, 2000, and moved on November 30, 2001, having by then procured counsel for Ariel, for an order granting judgment on the pleadings. With the November 30, 2002, motion, plaintiff submitted additional documents not previously reviewed by the ALJ or the Appeals Council, which, plaintiff claims, support a conclusion that plaintiff is disabled. The Commissioner responded by filing a cross-motion for judgment on the pleadings on January 29, 2002.
A non-attorney parent may bring a pro se action on behalf of her child appealing an administrative denial of disability benefits. See Machadio v. Apfel, 276 F.3d 103, 105 (2d Cir. 2002).
DISCUSSION
I. The Applicable Law
A. Determining Disability
The 1996 amendments to the Social Security Act required the Commissioner to reconsider the eligibility of children under eighteen who were receiving SSI benefits when the amendments took effect to determine if those individuals continued to be eligible under the tightened eligibility standards. See Pub.L. No. 104-193, § 211(d)(2)(A), 110 Stat. at 2190 (1996). In order for a child to be deemed "disabled" under the new 1996 definition, the ALJ engages in a three-step analysis, 20 C.F.R. § 416.924(a), in which the following criteria must be met: (1) the child cannot be engaged in substantial gainful activity, 20 C.F.R. § 416.924(b), (2) the child must suffer from a "severe" impairment, 20 C.F.R. § 416.924(c), defined as an impairment that is more than a slight abnormality, id. and (3) the child's severe impairment medically or functionally equals an impairment listed in Appendix 1 of the regulations, 20 C.F.R. Pt. 404, Subpt. P (hereinafter "Appendix 1"), 20 C.F.R. § 416.924(d).
Although the Commissioner has published revised final rules for determining a child's disability effective January 2, 2001, 65 FR 54547 (Sept. 11, 2000), the Court applies the rules in effect at the time of the Commissioner's final decision, which in this case was March 24, 1999. Id. at 54751; Tr. 8-20.
To determine whether an impairment is functionally equivalent, the Commissioner considers four inquiries, 20 C.F.R. § 416.926a(b): (1) whether the child has an extreme limitation of one specific function; 20 C.F.R. § 416.926(b)(1); (2) whether the impairment effects "broad areas of development or functioning," which can result either from an extreme limitation in one area or a marked limitation in two areas of functioning, 20 C.F.R. § 416.926a(c)(4) and a(b)(2); (3) whether the impairments are episodic. i.e. characterized by frequent illnesses or attacks, 20 C.F.R. § 416.926a(b)(3); and (4) whether treatment or medication for the impairment contributes to functional limitations that are the same as the disabling functional limitations of a listed impairment, 20 C.F.R. § 416.926a(b)(4). When considering whether an impairment is functionally equal to a disability included in Appendix 1, the ALJ must assess the child's developmental capacity in five specified areas: (1) cognitive/communicative development, (2) motor development, (3) social development, (4) personal development, and (5) concentration, persistence or pace. 20 C.F.R. § 416.926a(c)(4).
An extreme limitation exists when there is no meaningful functioning in one of the five categories discussed below. 20 C.F.R. § 416.926a(c)(3)(ii)(C).
A marked limitation is an impairment that is "more than moderate" and "less than extreme[,]" 20 C.F.R. § 416.926a(c)(3)(I)(C). A marked limitation can arise when several activities or functions are limited, or when only one is limited in a manner that seriously interferes with the child's functioning. Id.
B. Standard of Review
Under the Act, the findings of the Commissioner as to any fact are conclusive if supported by "substantial evidence." 42 U.S.C. § 405 (g) (2001). Thus, a district court may remand, modify, or reverse an ALJ's decision only if the ALJ has misapplied the appropriate legal standard, or if the finding is not supported by substantial evidence.Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
The statutory standard of substantial evidence in the Social Security benefits context has been defined as, "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The substantial evidence standard applies not only to the Commissioner's findings of fact, but also to her inferences and conclusions. See Figueroa v. Apfel, 99 Civ. 3185, 2000 U.S. Dist. LEXIS 5759 at *16-*17 (S.D.N.Y. Apr. 28, 2000). Moreover, such inferences and conclusions must be affirmed even where the Court's own analysis may differ. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) ("`[T]he court may not substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review'") (quoting Valente v. Sec'y of Health Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)).
C. Procedural Requirements
Despite this apparently deferential standard of review, administrative decisions regarding claimants' eligibility for disability benefits have proven surprisingly vulnerable to judicial reversal. This vulnerability results primarily from the creation by the Commissioner, and the enforcement by the courts, of a variety of procedural obligations to which ALJs must scrupulously adhere. Failure to do so is treated as "legal error" permitting reversal of the ALJ's decision. See generally Santiago v. Massanari, 00 Civ. 3847, 2001 U.S. Dist. LEXIS 9881 at *24-*25 (S.D.N.Y. July 16, 2001).
Nor may an ALJ rely, as faultfinders in adversarial proceedings customarily do, on the absence of probative evidence supporting the opinions of a claimant's expert, without making an affirmative effort to fill any gaps in the record before her. See Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sua sponte.") (citations omitted). "In fact, where there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history "even when the claimant is represented by counsel.'" Rosa 168 F.3d at 79 (quoting Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)).
Where the claimant is proceeding pro se, the ALJ has an enhanced duty to assist the claimant in affirmatively developing the record by scrupulously and conscientiously probing into, inquiring of, and exploring for all the relevant facts to insure that a pro se claimant's rights are protected. Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (citing Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980));Echevarria v. Sec'y of Health and Human Services, 685 F.2d 751, 755-56 (2d Cir. 1982); Grubb v. Chater, 992 F. Supp. 634, 638 (S.D.N.Y. 1998) (citations omitted). In Echevarria, the Second Circuit found the hearing before an ALJ inadequate because of significant gaps" in the record. 685 F.2d at 755-56. At the very least, before denying a pro se claimant's application, the ALJ should advise the claimant that she considers the claimant's case unpersuasive and suggest that he produce additional evidence or call his treating physician as a witness. Grubb, 992 F. Supp. at 638 (citing Flanders v. Chater, 93 Civ. 5671, 1995 WL 608287 (S.D.N.Y. Oct. 17, 1995)).
Finally, the ALJ may turn out to be wrong even when she was right at the time the decision was rendered. Reports sent to the Appeals Council, so long as they concern the time period in question, become part of the record for judicial review, even when the Council has denied review.Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996).
In light of rules such as these, a district court reviewing a benefits denial may not simply accept the administrative determination because a cursory review of the record reveals plausible testimony or documentary evidence or expert opinion that supports the administrative determination. Rather, the record must be carefully developed and evaluated to determine whether the Commissioner fully complied with all the relevant regulations.
II. Application to this Case
A. The ALJ's Decision
Applying the above analysis, the ALJ concluded that "although the claimant may still have a `severe' impairment, he does not have an impairment or combination of impairments which imposes marked and severe functional limitations on him within the meaning of the Act, as amended by Public Law 104-193," and thus affirmed the reconsideration decision that plaintiffs disability ceased as of July 9, 1997. (Tr. 14.) In reaching this determination, the ALJ evaluated the record and applied the three-step evaluation described above. First, the ALJ found that Ariel had never engaged in substantial gainful activity. (Tr. 19.) The ALJ next found that Ariel suffered from speech and language deficits, a learning disorder, and a history of asthma, but that these conditions did not constitute an impairment or combination of impairments that medically or functionally equals the severity of any impairment listed in Appendix 1, Subpart P, Regulations No. 4. Id. In reaching these conclusions, the ALJ also considered the subjective complaints of disabling symptoms and limitations. (Tr. 20.) The ALJ thus concluded that Ariel was no longer disabled and accordingly revoked his benefits after September 1997. (Tr. 60.)
B. Claimant's Position
Ariel contends that the ALJ's revocation of his SSI benefits was incorrect. He maintains that he continues to be disabled, even as defined in the amended law, although the record does not reflect the true extent of his disability because the ALJ failed to fully develop the record. In addition, plaintiff claims there is new and material evidence documenting the extent of his communication and social function impairments which demonstrates that plaintiff is disabled and which should be considered part of the record for review by this Court. As the Court finds that the ALJ did not adequately develop plaintiffs record, the question of new evidence need not be addressed.
C. Failure to Develop the Record
Plaintiff claims that the ALJ did not provide him with a full and fair hearing as the ALJ failed to assist Ms. Cespedes in incorporating the up-to-date school records, in developing testimony on an alleged knife attack by claimant on his brother, and in probing the severity of claimant's asthma. Defendant maintains that the Commissioner adequately developed the record in all respects. (Def. Mem. 21.)
1. School records
The Social Security Administration obtained various school records for Ariel for the period of May 16, 1994, to November 24, 1997. Plaintiff contends, as discussed above, that the SSA and the ALJ created an evidentiary gap in Ariel's record which resulted in an insufficient record because they failed to secure any standardized tests reasonably close to the time when the ALJ reviewed Ariel's case. (Pl. Reply at 2.) When the SSA reviewed Ariel's case in July 1997, plaintiff claims, it did not obtain updated tests on cognition, speech, language, or social functioning despite the fact that the 1994 and 1995 IEP reports revealed delays in these areas of functioning that continued to be important factors in determining disability under the Welfare Reform Act's new definition of child disability. (Pl. Reply at 4.) Moreover, plaintiff argues, the ALJ did, in fact, attempt to obtain further school records in December 1998, but mailed the request for the records to the incorrect address and thus never received the requested records. (Pl. Mem. at 17; Tr. 276.) Finally, plaintiff asserts that the ALJ had been informed by Ms. Cespedes of the upcoming IEP triennial evaluation to assess Ariel's continued need for special education services and led Ms. Cespedes to believe that she would wait for this report before deciding Ariel's case, but then denied benefits five days before the reports at issue were received by plaintiff. (Pl. Mem. at 17.) The Commissioner maintains that these additional 1999 school and psychological reports should not be considered as they post-date the relevant time period by almost two years. (Def. Br. at 23.)
There appears to be confusion on the part of both parties as to what the relevant time period is. Defendant maintains that when reviewing a cessation of benefits, the Commissioner should consider what the claimant's condition was at the time of the cessation determination and not the condition at the time of the disability hearing, citing a Seventh Circuit opinion, Johnson v. Apfel, 191 F.3d 770 (7th Cir. 1999), and a Sixth Circuit acquiescence ruling, AR 92-2(6), 1992 WL 425419 (Mar. 17, 1992). Plaintiff does not dispute this assertion, arguing in reply only that, as the SSA failed to procure records in 1997, the 1999 records should be considered in place of the non-existent 1997 records to fill the "evidentiary gap" created by the SSA's lack of diligence in collecting relevant information when the reconsideration occurred. (Pl. Reply at 2, 5.)
Defendant's position does not appear to represent the law in this circuit. While there is a circuit split on whether new evidence submitted to the Appeals Council forms part of the administrative record for judicial review, See Perez v. Chater, 77 F.3d 41, 44-45 (2d Cir. 1996), the Second Circuit has clearly stated, as discussed above, that new and material evidence submitted to the Appeals Council must relate to the period "on or before the ALJ's decision." Id. at 45; See also 20 C.F.R. § 416.330; Grubb, 992 F. Supp. at 637 (additional evidence must relate back to period prior to ALJ's decision). The proper question thus appears to be whether plaintiff remained disabled at the time of the ALJ's decision.
As the additional records at issue in this case are dated March 29, 1999, a mere five days after the ALJ's decision, they undoubtedly speak to plaintiff's condition during the relevant time period in which his application was under consideration by the Social Security Administration.
As stated earlier, when adjudicating a pro se claimant's case, the ALJ's duty is to assist the claimant in affirmatively developing the record by scrupulously probing into and exploring for all the relevant facts to insure that a pro se claimant's rights are protected. Cruz, 912 F.2d 8, 11. This duty is particularly important where, as in this case, the pro se plaintiff was having obvious difficulties following and understanding the proceedings. (Tr. 25, 27-29, 32.) Given the fact that the ALJ herself attempted, but failed, to obtain Ariel's 1998 school records and, in addition, later represented to plaintiff that she would postpone decision pending receipt of Ariel's 1999 school records, it cannot be said that the ALJ met her duty to diligently develop the record. This conclusion is further supported by the importance the SSA places upon school records as a source of documentary evidence of mental disorders in children, which includes pervasive developmental disorders of the type at issue in this case. 20 C.F.R. Part 404, Subpart P, Appendix 1, Part B, § 112(A) and (D)(4).
b. Knife attack
Plaintiff also alleges that the ALJ improperly restricted Ms. Cespedes' testimony on an alleged knife attack by Ariel on his brother by inquiring as to only those actions which the witness herself had observed. Plaintiff correctly contends that hearsay evidence may be accepted to develop the administrative record. Although it is far from clear that further investigation of this incident would support a finding of a marked limitation in social functioning (Pl. Br. at 24), and even less clear that the ALJ's directive to Ms. Cespedes to report only those actions that she personally witnessed has deprived the Court of additional relevant information that should be considered (Pl. Br. 18), the better course for the ALJ to follow, in light of the enhanced duty she held to develop the pro se claimant's record, would have been to inquire further into the incident.
The regulation which defines generally the admissibility of evidence at Social Security Administrative Hearings provides: "Evidence may be received at the hearing even though inadmissible under rules of evidence applicable to court procedure." 20 C.F.R. § 404.928.
Defendant also contends that the knife attack, which occurred according to Ms. Cespedes, "not too long" before the March 16, 1999, hearing date, is outside the relevant time period. (Def. Br. at 21.) This again misstates the relevant time period, which runs until the ALJ's decision on March 24, 1999, placing the alleged attack within the relevant time period under consideration here.
c. Asthma
Finally, claimant alleges that the ALJ's development of the record was insufficient as it failed to probe the severity of Ariel's asthma. Defendant's papers do not specifically respond to this contention, although they do outline various medical records reporting diagnosis and treatment of Ariel's asthma. (Def. Br. at 3-6.) Indeed, the ALJ elicited a response to only one question on this topic: whether or not Ariel's asthma was controlled by medication. (Pl. Mem. at 18-19; Tr. 35, 240.) When Ms. Cespedes answered affirmatively, no further inquires were made by the ALJ despite evidence in the record that showed at least one visit to the emergency room. Id.
Plaintiff alleges in his motion papers that Ariel made five visits to the emergency room for his asthma and also claims that he was seen at Bronx Lebanon Hospital, "on July 4 and July 9, 1998 due to asthma, presumably in the emergency room." (Pl. Mem. at 19; Tr. 298.) The record does not show that these latter visits did, in fact, occur, but only that Ms. Cespedes told an emergency doctor on May 5, 1997, that Ariel has been "seen 5 times in North Central ER last year." (Tr. 240.)
To determine whether Ariel meets or medically equals the listing for asthma to show that he is disabled under the regulations, the ALJ looks to the text of the regulations for asthma. § 103.03 of the regulations. The new asthma listing specifically includes a requirement for continuing signs and symptoms despite a regimen of prescribed treatment and requires that a claimant have suffered either (1) at least six asthma attacks requiring physician intervention within a 12 month period, 20 C.F.R. Part 404, Subpart P, Appendix 1, Part B, § 103.03B, or (2) a persistent low-grade wheezing requiring treatment with steroids for more than 5 days 3 times a year, 20 C.F.R. Part 404, Subpart P, Appendix 1, Part B, § 103.03C(2).
As to the first listing, even assuming that the assertions of the claimant are true — that Ariel was seen in the emergency room for his asthma five times between 1996 and 1997 and twice on July 4 and July 9, 1998 (Pl. Mem. at 18-19) — this error would be harmless as Ariel would still fall short of the required six visits within a year to meet the listing for asthma.
It is unclear, however, whether Ariel could have fallen within the definition of listing level asthma that has as its symptoms "persistent low-grade wheezing between acute attacks . . . requiring . . . daytime and nocturnal use of sympathomimetic broncodilators with . . . (2) short courses of corticosteroids that average more than 5 days per month for at least 3 months during a 12-month period." 20 C.F.R. Part 404, Subpart P, Appendix 1, Part B, § 103.03(c)(2). As the record several times references use of the corticosteroid drug Prelone but does not indicate the number of days that claimant is to take this medication, in order for the ALJ to make an informed decision as to whether the second listing was met, she should have inquired further as to the extent of Ariel's use of this drug. While additional information on Ariel's use of the corticosteroid drug might or might not make out all the elements of a disability under § 103.03(c)(2) or some other provision, the information is certainly relevant to a potential argument for disability that was never argued to or adequately considered by the ALJ.
Taken together, it is clear that the ALJ did not adequately develop plaintiffs record in several relevant areas. At the very least, before denying the application, the ALJ should have advised Ms. Cespedes that she considered Ariel's case unpersuasive without further evidence of disability and suggested that Ms. Cespedes produce any such additional evidence. Grubb, 992 F. Supp. at 638. Here, the ALJ gave no indication to Ms. Cespedes that she considered Ariel's case to be unavailing, and appeared receptive when Ms. Cespedes offered to provide the ALJ with additional reports. Nevertheless, the ALJ denied the application without waiting for the reports to be received and without further probing the extent of Ariel's medication needs and continued need for emergency treatment, and without a full inquiry into the episode of assaultive behavior. The ALJ, accordingly, fell short of her duty to develop plaintiffs record. Although it is possible that a remand will not change the ultimate denial of Ariel's SSI benefits given the now heightened requirements for proving a child's disability as well as the not clearly compelling additional evidence provided by plaintiff, the law requires that the ALJ properly develop claimant's record before making that determination.
CONCLUSION
For the reasons stated above, the Commissioner's cross-motion is denied, the plaintiffs motion is granted and the case is remanded to the Commissioner for further proceedings.