Opinion
97 Civ. 5925 (MEM).
November 22, 2000
CHRISTOPHER JAMES BOWES, ESQ., Center for Disability Advocacy Rights, Inc., New York, NY, Attorney for Plaintiff.
LINDA RIFFKIN, ESQ., Assistant United States Attorney New York, NY, Attorney for Defendant.
OPINION ORDER
Rosa Lozano sues pursuant to 42 U.S.C. § 405 (g) and 1383 (c)(3), seeking review of the Commissioner of Social Security's decision denying Supplemental Security Income ("SSI") disability benefits for her son, Anthony. Plaintiff claims that Anthony is disabled within the meaning of the Social Security Act, and moves for a judgment on the pleadings, reversing the final decision of the Commissioner and remanding solely for calculation and payment of SSI benefits, or, in the alternative, for further administrative proceedings. Defendant cross-moves for a judgment on the pleadings, affirming the Commissioner's decision and dismissing the complaint. As stated below, there is reason to doubt that the ALJ applied the correct legal standard, and the evidence in the record does not compel a conclusion in favor of either party. Therefore, plaintiff's motion for remand for further administrative proceedings is granted. Defendant's motion for judgment on the pleadings is denied.
I.
Anthony Lozano was born on April 10, 1984. He has asthma. On October 6, 1993, when Anthony was nine years old, his mother filed an application for SSI benefits on his behalf. (Tr. 56-59) The application was denied initially and again on reconsideration. (Tr. 62-64, 69-71, 76-79) Plaintiff requested a hearing before an administrative law judge ("ALJ"). Before Anthony's mother requested SSI benefits, and continuing through the hearing, Anthony had multiple asthma-related hospital admissions and emergency room and clinic visits that are documented in the record. These encounters are detailed as necessary below.
The hearing before the ALJ was held on June 14, 1995. (Tr. 33) The morning of the hearing, Dr. Andrea Brescia, Anthony's treating physician, reported by facsimile that "Anthony Lozano is a chronic severe asthmatic — he has had multiple three to four day admissions to the hospital despite full treatment and benefits of asthma/allergy consultants. He misses a lot of school and in fact has already been left back. There has been no evidence of improvement despite our [treatment]." (Tr. 180) In her report, Dr. Brescia listed the dates of Anthony's hospital admissions and emergency room visits. (Tr. 184)
At the hearing, Anthony was represented by a law student. (Tr. 35) The ALJ questioned Anthony's mother, who testified that Anthony had bad asthma and had to take a taxi to school. (Tr. 38) She also testified that Anthony could not walk far without stopping. (Id.) Anthony testified that he liked school, except for math. (Id.) He confirmed that he took a taxi to school and did not participate in gym class. (Tr. 39-40; see also Tr. 106, 109) Anthony said his recreation consisted of playing video games after finishing his homework. (Tr. 40) Other evidence indicated that Anthony's asthma led to extensive absences from school and contributed to his repetition of the third grade. (Tr. 160, 173)
The Commissioner's medical expert, Dr. Matilda Brust, testified that she had reviewed Anthony's records and heard the testimony at the hearing. (Tr. 42) She testified that, based on the year-old data she had received, Anthony's asthma did not meet the frequent, severe attack standard of § 103.03(B). She testified that Anthony had had only three short hospital admissions, and that his emergency room visits were not for "particularly severe asthma." (Tr. 44-45) She also testified that there were two conflicting tests of pulmonary function. The first showed "obstructive reduction in pulmonary function." The second was within normal limits for his age and weight. (Tr. 45) She concluded by stating that "with the data I have, I don't think he met the criteria." (Id.) She found a moderate limitation in Anthony's motor development and function and a mild limitation in social development and function. However, she found no limitation in cognitive development, personal or behavioral development, and ability to sustain concentration, persistence, and pace. (Tr. 48) The hearing lasted 32 minutes. (Tr. 33-35, 55)
On August 14, 1995, the ALJ found that Anthony was not disabled. (Tr. 18-26) The ALJ's decision began by restating the general framework for determining childhood disability. (Tr. 21-23) Under the heading "evaluation of the evidence," the ALJ concluded that Anthony "never engaged in substantial gainful activity," and that "the claimant has a severe impairment which does not meet or equal any listed in Appendix 1 of Subpart P." (Tr. 23) The ALJ went on to recount selected facts from the record. He stated that Anthony was 11 years old, and his only impairment is bronchial asthma. (Id.) He restated a registered nurse's report that Anthony's last emergency room visit was on May 22, 1994 and his last inpatient stay for respiratory distress was in September 1993. The ALJ summarized Anthony's three consultative examinations in January 1994, June 1994, and October 1994, Dr. Brescia's report, as well as the testimony of Anthony's mother and Dr. Brust. He concluded that "[w]hile the claimant has required inpatient stay and emergency room treatment for respiratory distress, results of pulmonary function studies reveal values above the levels needed to meet any of the listed impairments." (Tr. 24) He found that Anthony "is moderately impaired in the domain of motor function, but not otherwise impaired," and further concluded that his "impairment does not interfere with his age-appropriate activities to a degree of comparable severity to any impairment that would disable an adult." (Tr. 25) The Appeals Counsel denied plaintiff's request for review on July 7, 1997, making the ALJ's decision the final decision of. the Commissioner. (Tr. 4-5) Plaintiff now seeks this court's review of the Commissioner's decision.
II.
District court review of a decision denying benefits under the Social Security Act is a two step process. First, the court must determine whether the ALJ applied the correct legal standard. If so, then the court must determine whether the ALJ's decision was supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). As set forth below, it is not clear that the ALJ applied the correct legal standard.
In 1995, when the ALJ rendered his decision in this case, a child was entitled to benefits if he suffered from a "medically determinable physical or mental impairment of comparable severity" to one that would disable an adult. 42 U.S.C. § 1382c (a)(3)(A) (1994). In 1996, the Personal Responsibility and Work Opportunity Reconciliation Act changed the standard governing childhood disability claims. Congress replaced the "comparable severity" standard with one that focuses on whether a child has "marked and severe limitations." 42 U.S.C. § 1382c (a)(3)(C)(i) (West Supp. 2000); Fuller v. Apfel, 1998 WL 9402, *6 (S.D.N.Y. 1998)
The 1996 standard applies to cases that were pending on August 22, 1996. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. No. 104-134 § 211(d)(1) (A) (ii), 110 Stat. 2105 (noted at 42 U.S.C. § 1382c (West Supp. 2000)). Because Anthony's case was pending on August 22, 1996, the new standard applies here. Nonetheless, many courts in reviewing decisions such as this one — made by administrative law judges prior to the enactment of the new standard, but challenged after its enactment — have examined the ALJ's decision under the old standard, which was more permissive toward claimants. See, e.g., Carballo ex rel Cortes v. APfel 34 F. Supp.2d 208 (S.D.N.Y. 1999); Fuller, at *6. But see Diaz ex rel Pena v. Apfel, 994 F. Supp. 541 (S.D.N.Y. 1998) (applying new standard). Because the new standard is more restrictive, if a disability claim was properly denied by the ALJ under the old standard, it would also properly be denied under the new standard. See Jamerson v. Chater, 112 F.3d 1064, 1068 (9th Cir. 1997). If the ALJ erred under the old standard, then remand for reconsideration under the new standard is appropriate.
Under the previous standard, to determine whether a child's impairment was of "comparable severity" to one that would disable an adult, administrative law judges were to follow a four-step analysis. First, the ALJ would determine whether the child was engaged in "substantial gainful activity." 20 C.F.R. § 416.924 (b)(c) (1994). If the child was so engaged, then he was not disabled. If he was not so engaged, then the ALJ was to determine whether the child's impairment or combination of impairments was "severe." 20 C.F.R. § 416.924 (b)(d) (1994). If the child had a severe impairment, then the ALJ would decide whether the impairment met or equaled an impairment "listed" in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 416.924 (b)(e) (1994). If the child's impairment met or equaled one of the listed impairments, then the child was presumptively disabled. If not, then the ALJ would conduct an individualized functional assessment ("IFA"). 20 C.F.R. § 416.924 (b)(f) (1994); see also Quinones v. Chater, 117 F.3d 29, 31-32 (2d Cir. 1997) (explaining former childhood disability standard)
When deciding Anthony's case, the ALJ followed this four-step analysis. He first determined that Anthony was not engaged in substantial gainful activity. He went on to find that, although Anthony's disability was severe, his impairment did not meet or equal any of the listed impairments. Specifically, the ALJ stated that "[w]hile the claimant has required inpatient stay and emergency room treatment for respiratory distress, results of pulmonary function studies reveal values above the levels needed to met any of the listed impairments." (Tr. 24)
Plaintiff argues that the ALJ applied the wrong legal standard when he found that Anthony's condition did not satisfy any of the listed impairments. Defendant does not answer this argument in its memorandum, instead assuming throughout that the ALJ applied the correct legal standard. (Def. Mem. at 16) There are four listed impairments for asthma, three of which are relevant here. The first, § 103.03(A), sets maximum forced expiratory volume ("FEV") values determined by the claimant's height. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 103.03(A) (2000)
The next listed impairment for asthma is § 103.03(B), which supports a finding of disability when a claimant suffers frequent, severe attacks. The claimant, despite prescribed treatment, must suffer six asthma attacks within a twelve-month period that require physician intervention. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 103.03(B) (2000). An attack is defined as a prolonged symptomatic episode lasting one or more days and requiring intensive treatment in a hospital, emergency room, or equivalent setting. An inpatient hospitalization lasting more than 24 hours counts as two attacks. In addition, there must be evidence of "baseline airflow obstruction" between attacks. 20 C.F.R. Part 404, Subpart P, Appendix 1 §§ 3.00C 103.03(B) (2000)
Finally, § 103.03(C) requires low grade wheezing between acute attacks or an absence of extended symptom-free periods with either (1) evidence of pulmonary hyperinflation or peribronchial disease, or (2) short courses of corticosteroid treatment averaging more than five days per month for at least three months during a twelve-month period. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 103.03(C) (2000)
These three subparagraphs — § 103.03(A), (B) and (C) — list disjunctive requirements for finding disability. A failure to satisfy the FEV requirements of (A) does not preclude meeting the frequent, severe attack requirements of (B) or low-grade wheezing combined with corticosteroid treatment under (C) — In this case, the ALJ found that Anthony did not meet any of these listed impairments. Specifically, the ALJ found that the "results of pulmonary function studies reveal values above the levels needed to meet any of the listed impairments." Plaintiff does not dispute that Anthony's pulmonary function studies revealed FEV values above the levels required by § 103.03 (A). However, plaintiff argues that the above-quoted statement demonstrates that the ALJ considered the FEV levels required by § 103.03(A) a prerequisite to meeting the criteria for disability based on frequent, severe attacks in § 103.03(B) and low grade wheezing between attacks with frequent corticosteroid treatment as set forth in § 103.03(C). (Tr. 84)
The ALJ's language arguably can be construed as properly applying § 103.03(B) and (C). Section 3.00C, which defines the attacks called for in § 103.03(B), requires spirometric results that "document the presence of baseline airflow obstruction between attacks." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 3.00C (2000). Spirometric results are synonymous with the results of pulmonary function studies — the same studies that determine the FEV values required by § 103.03(A). See Merriam-Webster's Medical Dictionary (1995). Section 103.03(C) requires low grade wheezing between attacks. It is conceivable that the ALJ's statement regarding the values of the pulmonary function studies was intended to address not only the values required by § 103.03(A), but also values responsive to both the baseline airflow obstruction standard of § 103.03(B), and the low-grade wheezing standard of § 103.03(C).
Nonetheless, this conclusion is hardly an obvious interpretation of the ALJ's decision. The ALJ's decision makes no mention of baseline airflow obstruction or low-grade wheezing. Rather, its says only that "results of pulmonary function studies reveal values above the levels needed to meet any of the listed impairments." (Tr. 24) Neither "baseline airflow obstruction" nor low-grade wheezing is tied to any particular "values." Moreover, the ALJ stated only that Anthony was admitted to the hospital and made several visits to the emergency room; the ALJ made no attempt to determine whether the attacks described in the hospital, emergency room, and clinic records met the definition of attack set forth in § 3.00C. Nor did the ALJ discuss whether Anthony's allegedly frequent, severe attacks occurred in spite of prescribed treatment. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 103.03(B) (2000). The decision failed as well to mention whether Anthony had short courses of corticosteroid treatment, as referred to in § 103.03(C). The ALJ's failure to discuss these elements of § 103.03(B)'s frequent, severe attack standard and (C)'s low-grade wheezing and corticosteroid treatment standards, and his reliance on the values from pulmonary function studies, when § 103.03(B) and (C) set no specific value requirements, reflect a failure to apply properly the standards of § 103.03(B) and (C). See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (remanding because findings of ALJ were not sufficiently specific); see also Rivera v. Sullivan, 771 F. Supp. 1339, 1354 (S.D.N.Y. 1991) ("It is self-evident that a determination by the Secretary must contain sufficient explanation of his reasoning to permit the reviewing court to judge the adequacy of his conclusions.")
The ALJ's statement that the results of pulmonary function studies prevented Anthony from meeting any of the listed impairments, without further elaboration, creates doubt as to whether the ALJ applied the correct legal principles. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)
III.
When the ALJ applies the wrong legal standard, remand is appropriate. Where application of the correct legal principles to the record could lead to only one conclusion, there is no need to require agency reconsideration. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). However, the record here could support a conclusion favorable to either party, as set forth below.
The 1996 amendments to the child disability standard require not only correct analysis of the requirements for the listed impairments, but also application of the new child disability framework. The regulations promulgated by the Commissioner for determining disability pursuant to the 1996 amendments follow the first three steps of the analysis applied before the amendments and eliminate the fourth step — the individual functional analysis. See 20 C.F.R. § 416.924 (a) — (c) (2000). See also Brown v. Callahan, 120 F.3d 1133, 1135 (10th Cir. 1997) (examining whether the Commissioner's decision regarding only first three steps was supported by substantial evidence). It bears mention that the Commissioner has recently issued final rules for the determination of childhood disability. However, these rules do not take effect until January 2, 2001 and therefore are not applicable to this decision. 65 Fed. Reg. 54747-01 (2000). Because neither party questions the ALJ's finding that Anthony is not engaged in substantial gainful activity and that his impairment is severe, the decisive question remains whether his impairment meets or equals a listed impairment, specifically the frequent, severe attacks standard of § 103.03(B) or the low-grade wheezing and corticosteroid treatment standard of § 103.03(C); as both parties agree that Anthony does not meet the FEV requirements of § 103.03 (A).
The frequent, severe attacks standard of § 103.03(B) contains four essential elements. First, the attacks must occur "in spite of prescribed treatment." Second, each cited incident must require physician intervention and meet the definition of attack, which requires "prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting." 20 C.F.R. Part 404, Subpart P, Appendix 1 §§ 3.00C 103.03(B) (2000). Third, the qualifying attacks must occur with adequate frequency — "at least once every two months or at least six times a year." 20 C.F.R. Part 404, Subpart P. Appendix 1 § 103.03(B) (2000) Finally, there must be documentation of "baseline airflow obstruction" between attacks. 20 C.F.R. Part 404, Subpart P. Appendix 1 § 3.00C (2000)
Anthony's treating physician said that he showed no improvement despite "full treatment and benefits of asthma/allergy consultants." (Tr. 180). Thus, any attacks Anthony suffered occurred "in spite of prescribed treatment," satisfying the first element of § 103.03(B). 20 C.F.R. Part 404, Subpart P, Appendix 1 § 103.03(B) (2000)
To establish that Anthony suffered attacks, as defined by the regulations, requiring physician intervention, with adequate frequency, thereby satisfying the second and third elements, plaintiff focuses on two separate 12-month periods. In the 12-month period from April 1993 until April 1994, Anthony was admitted to the hospital twice for "exacerbation of asthma," once from April 17, 1993 to April 21, 1993, and again from September 15, 1993 to September 18, 1993. (Tr. 116, 127) During both admissions, he was treated with intravenous Solumedrol, a drug useful for controlling severe or incapacitating bronchial asthma attacks that do not respond to conventional treatment. (Id.); see Physician's Desk Reference 2487 (54th ed., 2000). These admissions meet the definition of attack because Anthony's symptoms lasted for more than a day and he required intensive treatment in the form of intravenous administration of Solumedrol. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 3.00C (2000). In addition, both admissions lasted more than 24 hours, qualifying them as two attacks under § 103.03(B). (Tr. 116-18, 127-34); 20 C.F.R. Part 404, Subpart P. Appendix 1 § 103.03(5) (2000). Thus, Anthony suffered at least four attacks from April 1993 to April 1994. It bears mention that the Commissioner's medical expert, as part of her testimony that Anthony's impairment did not meet or equal listing 103.03(B), characterized Anthony's hospital visits as "short." (Tr. 44-45)
Anthony required physician intervention on four additional occasions between April 1993 and April 1994. First, plaintiff argues that Anthony's visit to Beth Israel Medical Center on October 8, 1993 reflects an attack during this period. Anthony's mother complained that he had been wheezing occasionally for three days. He was treated with Proventil, a drug used for relief of acute attacks of bronchospasm, by nebulizer, a machine that produces a fine spray for deep penetration of the lungs, and released. (Tr. 135-36); see Physician's Desk Reference 2829 (54th ed., 2000); Merriam-Webster's Medical Dictionary (1995). Based on Anthony's mother's complaint that Anthony had been wheezing for three days, and the treatment with Proventil by nebulizer, a reasonable person could conclude that Anthony suffered symptoms for one or more days and received intensive treatment in the form of "prolonged inhalational bronchodilator therapy in a hospital, emergency room, or equivalent setting," qualifying it as another attack between April 1993 and April 1994. On the other hand, a reasonable person might find that the treatment by nebulizer was not "prolonged" and that therefore the incident was not an attack as defined by the regulations.
Another visit, which, according to plaintiff, reflects an attack, occurred on February 3, 1994. Anthony's mother complained that Anthony had suffered two days of wheezing when he arrived. The handwritten portion of the record for this visit is illegible. (Tr. 149-50) Based on Anthony's history, and his mother's complaint, a reasonable person could infer that Anthony suffered another attack on February 3, 1994. However, a reasonable person might also conclude, based on the record's indication that Anthony's breathing was clear and unlabored, that Anthony did not suffer an attack. (Tr. 149)
Two additional visits to the emergency room, one on March 10, 1994 and the other on March 17, 1994, are also documented in the record, although the contemporaneous records of these visits are not provided. (Tr. 105) Plaintiff argues on inference, and a reasonable person might agree, that these visits in March 1994 were for asthma attacks. However, a March 25, 1994 visit to Dr. Breschia indicates that it was a follow-up to an emergency room visit for Anthony's throat and ear infection. (Tr. 151) Therefore a reasonable person might also conclude that neither of these visits was for an asthma attack.
Because a reasonable person could conclude that the visits discussed above were attacks as defined by the regulations, a reasonable person could also conclude that Anthony met the frequency requirement of six attacks within a year.
On the other hand, a reasonable person might, for the reasons discussed above and based on Dr. Brust's testimony that Anthony's emergency room visits were "not for particularly severe asthma," (Tr. 44-45) conclude that only one or none of the attacks described above meet the definition. If none or only one of the four incidents of physician intervention meet the definition of attack, then Anthony fails to meet the frequency requirement of six attacks during the 12-month period from April 1993 to April 1994.
Plaintiff also argues that Anthony suffered six attacks between May 1994 and May 1995. Plaintiff cites two hospital admissions, one from November 10, 1994 to November 14, 1994, and the other from March 26, 1995 to March 31, 1995. The November 1994 admission is listed by Dr. Brescia in her summary as an emergency room visit for wheezing and respiratory distress. (Tr. 184) The record of the admission shows that Anthony was wheezing, and the "plan" calls for the intravenous administration of Solumedrol. (Tr. 194, 199, 201, 202) The record of this admission also includes a note informing Anthony's teacher that he had been hospitalized. (Tr. 192)
Dr. Brescia reported that the March 1995 admission concerned asthma. (Tr. 184) The March 30, 1995 discharge instructions are difficult to read, but include the notation that Anthony was discharged on Intal and Proventil as well as Prednisone. (Tr, 191) The record of the March admission also includes a note informing Anthony's teacher that he had been hospitalized and that he should not attend gym class for one week. (Tr. 190) Again, it appears that both admissions were the result of asthma symptoms lasting more than one day and requiring intensive treatment, therefore satisfying the definition of attack. Because both admissions lasted longer than 24 hours, each counts as two attacks, totaling a minimum of four for the 12-month period from May 1994 to May 1995.
Plaintiff cites a May 22, 1994 visit to Beth Israel Medical Center, a September 1994 emergency room visit, and a January 1995 "admission" as additional attacks. During the May 22, 1994 visit, Anthony complained of sneezing, occasional runny nose and cough. He was wheezing and had "creaky" breath. He received two Proventil treatments by nebulizer. (Tr. 158-59). A reasonable person could conclude that he had suffered symptoms for at least a day and required intensive treatment in the form of prolonged inhalational bronchodilator therapy, therefore meeting the definition of attack. However, a reasonable person might also conclude that the nebulizer treatments were not prolonged or that the symptoms were caused by a cold rather than an asthma attack.
There are no contemporaneous notes for the September 1994 emergency room visit, but the notes for the November 1994 admission discussed above refer to it and state that the last emergency room visit was in September and a Prednisone taper was prescribed. (Tr. 200) A page from Anthony's progress notes dictates a schedule for Anthony's September 1994 Prednisone taper. (Tr. 212) Dr. Brescia also lists the September visit in her summary of Anthony's emergency room visits for wheezing and respiratory distress. (Tr. 184) Again, a reasonable person could infer that Anthony suffered an asthma attack with symptoms lasting a day or more and requiring intensive treatment in September 1994. But this requires inferences regarding symptoms and treatment that a reasonable person might decline to draw, particularly in the absence of a contemporaneous record.
The January 1995 admission is noted only in Dr. Brescia's summary of Anthony's hospital admissions and emergency room visits concerning asthma. (Tr. 184) Based on this evidence, a reasonable person could infer either that the January 1995 admission was for asthma, and satisfied the definition of attack, or that it did not meet the requirements. The September 1994, November 1994, and March 1995 records were not presented for the expert's consideration at the hearing, which makes her testimony irrelevant to any determination about the seriousness of the episodes that caused these visits. (Id.; see also Tr. 2A, 45)
As was true for the 12-month period from April 1993 to April 1994, a reasonable person could find that at least two of the three incidents discussed above satisfy the definition of attack, and therefore that Anthony met the frequency requirement of six attacks within a year. On the other hand, although the medical expert received Dr. Brescia's report the day of the hearing, she testified that the report "indicates several clinic visits but only one admission in March." A reasonable person could infer from this statement that the report did not change the expert's opinion that Anthony did not meet the requirements of § 103.03(B), and therefore that Anthony had not satisfied the frequency requirements. (Tr. 45-47)
Not only could reasonable persons differ as to whether Anthony's alleged attacks satisfied the definition of attack and met the frequency standards, but such persons also could reach different conclusions regarding the final element of § 103.03 (B), "baseline airflow obstruction" between attacks. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 3.00C (2000). Evidence regarding the presence of baseline airflow obstruction for Anthony is inconsistent, supporting a finding of disability as well as a finding of no disability. One pulmonary function study showed "obstructive reduction in pulmonary function," while the other showed Anthony to be within normal limits. A third consultative exam found that Anthony's lung fields exhibited "mild prolonged expiratory wheezing and transmitted breath sounds" with "decreased air entry." (Tr. 167)
Because reasonable minds could differ regarding the frequency and severity of Anthony's attacks, as well as the presence of baseline airflow obstruction between attacks, substantial evidence exists to support both a finding of disability and a finding of no disability pursuant to listing 103.03(B). See, e.g., Caceres v. Chater, 1996 WL 432470 (S.D.N.Y. 1996) (reversing ALJ's finding of no disability based on similar evidence); Lintz v. Shalala, 1996 WU 24764 (N.D. Cal. 1996) (finding substantial evidence to support finding of no disability where parties agreed about five attacks but disputed whether three additional dates satisfied the standard set for attacks)
A different outcome might be warranted under an interpretation of the definition of attack that would require the claimant to be in the hospital or equivalent setting for one day to satisfy the definition of attack. See Davis v. Callahan, 1997 WU 438772, *8 (S.D.N.Y. 1997) aff'd 145 F.3d 572 (2d Cir. 1998) ("[I]t is the time the individual is in the hospital that counts toward meeting the definition of attack."). None of Anthony's hospital visits, other than his admissions, kept him in the hospital or an equivalent setting for a full day. However, the regulation states that "attacks are defined as prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator. 20 C.F.R. Part 404, Subpart P. Appendix 1 § 3.00C (2000). The regulation requires that treatment be administered in a hospital, emergency room, or equivalent setting, not that the symptoms persist for 24 hours in such a setting. In addition, because a hospital admission for 24 hours or more counts as two attacks, it is illogical to require that the claimant exhibit the symptoms in a hospital for a day. Such an interpretation would make every attack ultimately count as two attacks. The only distinction between an attack, and a hospital admission counting as two attacks, would be the formality of whether the claimant was "admitted." Although the Second Circuit has affirmed Davis, the interpretation in Davis of what constitutes an attack was not essential to the decision.Davis v. Callahan, 1997 WL 438772, *8 (S.D.N.Y. 1997), aff'd 145 F.3d 572 (2d. Cir. 1998) (affirming for "substantially the reasons" set forth in the district court opinion). The duration of an attack is not measured solely by the claimant's time in the hospital; to the extent that Davis can be read to embody a different view, I respectfully disagree. A reasonable person could find that Anthony's emergency room and clinic visits satisfy the definition of attack.
Plaintiff briefly addresses § 103.03(C), which requires persistent low grade wheezing between acute attacks or absence of extended symptom-free periods requiring use of sympathomimetic bronchodilators with short courses of corticosteroids that average more than five days per month for at least three months during a twelve month period. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 103.03(C) (2000). According to the record, Anthony took a course of Prednisone on at least three occasions: in April 1993, September 1993, and September 1994. In addition, the January 1994 consultative examination record refers to Anthony's use of Prednisone "for five days when advised." (Tr. 141) This evidence also does not lead to only one possible outcome; a reasonable person might find either that Anthony has met requirements of § 103.03(C), or that he has not.
Application of the correct legal standards to the record here "does not compel but one conclusion." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). Under the deferential standard of substantial evidence — evidence that a reasonable mind might find adequate to support a conclusion — findings of either disability or no disability could be sustained in this case. See Richardson v. Perales, 402 U.S. 389, 401 (1971)
When there is reason to doubt whether the ALJ applied the correct legal standard, and examination of the record under the correct legal principles does not lead to only one possible outcome, "it is appropriate to remand the case in order to ensure that the correct legal principles are applied." Johnson, 817 F.2d at 986. Because more than one outcome is possible based on the evidence presented in the record, remand for application of the correct legal principles to Anthony's claim is appropriate.
IV.
Plaintiff argues that the ALJ failed to fulfill his duty to develop the record. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (discussing ALJ's affirmative duty to develop the record). Because remand is appropriate due the to ALJ's failure to apply the correct legal standard, it is unnecessary to decide whether the ALJ failed to develop the record.
* * *
For the reasons set forth above, plaintiff's motion for remand for further administrative proceedings is granted. Defendant's motion for judgment on the pleadings is denied.
SO ORDERED: