Opinion
No. 06 Civ. 0908 (SAS).
February 14, 2007.
Michael D. Hampden, Esq., LEGAL SERVICES FOR CHILDREN, INC., New York, Counsel for Plaintiff.
John E. Gura, Jr., ASSISTANT UNITED STATES ATTORNEY, New York, Counsel for Defendant.
OPINION AND ORDER
I. INTRODUCTION
Keola McDonald ("plaintiff" or "McDonald") brings this action on behalf of her minor child Tariq McDonald ("Tariq") pursuant to 42 U.S.C. § 405(g). Plaintiff seeks judicial review of a final decision by the Commissioner of the Social Security Administration (the "Commissioner") denying her son's claim for supplemental security income ("SSI") benefits based on disability under Title XVI of the Social Security Act (the "Act"). Plaintiff has moved for judgment on the pleadings reversing the Commissioner's decision and remanding Tariq's claim solely for the calculation of benefits. In the alternative, plaintiff asks that Tariq's claim be remanded for further administrative proceedings. The Commissioner opposes plaintiff's motion for judgment on the pleadings but supports the motion for remand for further administrative proceedings. For the reasons set forth below, the case is remanded for further administrative proceedings.
See 42 U.S.C. §§ 1381-85.
II. BACKGROUND
A. Procedural Background
McDonald filed an application for SSI benefits for Tariq on September 16, 2002, when Tariq was twelve years old. McDonald claimed that Tariq had been disabled since August 29, 2001, because of asthma and a learning disorder. The Social Security Administration ("SSA") denied her application on December 3, 2002. McDonald then requested review of the denial by an administrative law judge ("ALJ"). ALJ John W. Noonan held a hearing on January 26, 2005, in which McDonald appeared without counsel. The ALJ heard testimony from McDonald and asked a few preliminary questions of Tariq. In addition, the ALJ also received into evidence various written records compiled by SSA. The ALJ stated, however, that the hearing would have to be adjourned for several reasons. First, the ALJ suggested that McDonald obtain counsel. Second, the ALJ found that Tariq's medical and intellectual evaluations were out-of-date and incomplete. The ALJ stated that he would order new intelligence evaluations and subpoena additional evidence. Third, the ALJ stated that he would have either Dr. Burke or Dr. Sandra Shocker, both pediatricians, review the file and sit in on the rescheduled hearing date. Thereafter, ALJ Noonan subpoenaed additional evidence, ordered medical and intelligence evaluations of Tariq, and added the evidence to the record. On July 27, 2005, McDonald signed an SSA form waiving her right to appear at a second hearing and authorizing a decision based on the written evidence. The ALJ denied McDonald's claim on August 22, 2005, concluding that while Tariq's asthma and his learning disorder were severe impairments, the evidence failed to show that Tariq's impairments "meet or medically equal" a listed impairment and that he suffered a "marked limitation" in only one area of functioning. Based on intelligence scores "indicative of borderline intelligence" "repeated grades" and attendance in "special education classes," the ALJ concluded that Tariq has a marked limitation in the area of acquiring and using information. Additionally, he found that "[i]n view of the child's three emergency room visits for asthma exacerbations, [Tariq has] less than `marked' limitations" in the domain of health and physical well-being. Plaintiff requested Appeals Council review of the ALJ's decision, and on November 19, 2005, the Appeals Council issued a ruling refusing plaintiff's request.
"Tr." refers to pages of the administrative record filed as part of the Commissioner's answer pursuant to 42 U.S.C. § 405(g). See Tr. at 47.
See id. at 47, 61.
See id. at 23-26.
See id. at 27.
See id. at 242-270.
See id.
See id. at 247-248, 251-256, 262.
See id. at 244, 268.
See id. at 249, 252, 262, 268.
See id. at 245, 246-247, 255.
See id. at 248, 250, 254, 268.
See id. at 244, 268.
See id. at 205-241.
See id. at 45.
Id. at 17-18.
Id. at 18.
Id. at 19. This Court assumes that the ALJ found that "three emergency room visits for asthma exacerbations," which occurred between January 2003 and November 2004, did not functionally meet the frequency requirements for the domain of health and physical well-being. See, e.g., 20 C.F.R. § 416.926a(e)(2)(iv) ("frequent" means that the child has "episodes of illness or exacerbations that occur on an average of 3 times a year, or once every 4 months, each lasting 2 weeks or more . . ."). The ALJ also found that Tariq has "no limitations" in the areas of attending and completing tasks, interacting and reacting with others, moving about and manipulating objects and caring for himself (self-care). Tr. at 18.
See Tr. at 4-10.
Plaintiff initially commenced this action without the assistance of counsel. On April 17, 2006, Legal Services for Children, Inc., filed and served a Notice of Appearance on behalf of McDonald and the Commissioner filed and served her Answer on July 7, 2006. Plaintiff then filed this motion.
See Plaintiff's Memorandum of Law in Support of Motion for Judgment on the Pleadings ("Pl. Mem.") at 3.
See id. at 3-4.
B. Factual Background
On October 3, 2002, Tariq was admitted to Montefiore Hospital with complaints of asthma, wheezing, a cough, and a sore throat. His symptoms had started the night before. Dr. Harvey examined Tariq, who was then twelve years old, and found that he had fine wheezing on expiration, allergies to pollen, dust, cats, dogs, and poor compliance with medications. Tariq's medications included Flovent, Proventil, Albuterol and Singulair. Tariq was diagnosed with mild persistent asthma. It was noted that Tariq's last hospitalization was in December 2001, and he was last seen in the emergency room in 2001.
See Tr. at 94.
See id.
See id.
See id.
See id.
See id.
Dr. Tomasito Virey, a consulting pediatrician for HS Systems, evaluated Tariq on October 30, 2002. McDonald reported that Tariq has a history of learning disabilities and chronic asthma. She also stated that Tariq had been hospitalized six times for asthma, beginning when he was four years old and more recently when he was twelve and a half years old. Dr. Virey reported that Tariq's lungs were clear and that there were no "wheezes, rhonci or rales." In addition, Dr. Virey found that Tariq's "age-related activities" were "moderately affected." Tariq was diagnosed with a "history of learning disability" and "chronic asthma." Dr. Virey's prognosis was "fair to guarded" and recommended that Tariq "[f]ollow up with [his] treatment source."
See id. at 1.41.
See id.
See id.
See id. at 143.
See id. at 144.
Id.
Id.
On January 30, 2003, Tariq was admitted to the North Central Bronx emergency room on complaints of chest congestion, asthma, and inspiratory wheezing. On examination, his chest was found to be "clear." Tariq was diagnosed with acute reactive airway disease. He was prescribed a three day course of prednisone and Albuterol and then discharged.
See id at 200.
Id. at 202.
See id. at 203.
See id.
On November 24, 2003, Tariq was admitted to Jacobi Medical Center in order to remove staples in his head from a prior accident. The report also noted that Tariq complained of asthma and wheezing. Tariq was treated with Albuterol and a four day course of prednisone.
See id. at 220. See also id. at 224-229.
See id. at 220.
See id. at 221, 223.
Tariq was seen for a check-up at the Jacobi Asthma Allergy Center for Children on February 12, 2004. It was reported that Tariq has had "asthma since infancy," "[seven] hospitalizations at St. Barnabas," and that his last hospitalization was in December 2002. In the past six months, Tariq's asthma had gotten "better." It was noted that "[e]very morning [his] chest hurts" and that he has "wheezing" "but [that] he doesn't use Albuterol." The medical examiner also noted that Tariq has a "big problem with taking med[ications]."Tariq was diagnosed with "moderate persistent asthma [with] poor control." He was treated at the clinic with four puffs of Albuterol, and prescribed Advair and a five day course of prednisone.
See id. at 219.
Id.
Id.
Id.
Id.
Id.
See id.
On March 11, 2004, Tariq had a follow-up appointment at the Jacobi Asthma Allergy Center for Children. Tariq was "doing much better" and had no cough. He was diagnosed with "moderate persistent asthma" and his medications included Albuterol and Advair. It was also noted that Tariq was allergic to dust, roaches, cats, dogs and rabbits.
See id. at 215.
Id.
Id.
See id.
Tariq was seen for another follow-up appointment at the Jacobi Asthma Allergy Center for Children on May 12, 2004. He complained that he had nasal congestion, back pain, and a sore throat for the past two weeks. Lakesha Johnson, the nurse practitioner, noted that Tariq had "missed a few days of Advair," one of his medications, because he "went away and forgot [his] medicine at home." Tariq was diagnosed with "moderate persistent asthma" and allergies. He was prescribed Allegra, Flonase, Maxair and Rithromax.
See id. at 214.
See id.
Id.
Id.
See id.
On November 8, 2004, Tariq was admitted to Jacobi Medical Center with complaints of coughing and wheezing that began on November 5, 2004.The report indicated that Tariq's last asthma attack was two months prior and that he was taking Albuterol. Tariq was diagnosed with "asthma exacerbation." He was treated with Albuterol, Advair and a four day course of prednisone.
See id. at 210.
See id.
Id. at 213.
See id.
Tariq was examined by Dr. William Lathan on March 10, 2005 on referral from the Division of Disability Determination. Dr. Lathan noted a history of learning disability and asthma. He reported that Tariq took Advair and Albuterol "on a regular basis." He opined that Tariq can "participate fully in all age-appropriate educational, social and recreational activities," but that there "may be periods of diminished functional capacity secondary to respiratory distress due to bronchial asthma." Dr. Lathan's prognosis was "guarded."
See id. at 233.
See id.
Id.
Id. at 236.
Id.
Finally, on June 23, 2005, nurse practitioner Margaret Chin examined Tariq at the Jacobi Asthma Allergy Center for Children. Chin reported that Tariq had been a patient at the Center since February 12, 2004. She noted that he has had "persistent asthma since infancy with seven hospitalizations secondary to asthma exacerbations." Chin also reported that Tariq "is currently diagnosed with severe persistent asthma, food and environmental allergies." In addition, Chin found that as a result of his "environmental allergies, Tariq's asthma symptoms are not always controlled by daily control asthma medications." Chin therefore recommended "weekly allergy shots" to be administered at the allergy clinic.
See id. at 241.
See id.
Id.
Id.
Id.
Id.
III. LEGAL STANDARD
A. Substantial Evidence
The Commissioner's final decision in a disability benefits case must be affirmed if the "decision was `supported by substantial evidence.'" Courts have interpreted "substantial evidence" to consist of "`more than a mere scintilla'" and "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence" — it is sufficient if the Commissioner's resolution of such factual issues is supported by substantial evidence. "To determine whether the 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." However, if substantial evidence exists to support the Commissioner's decision, the decision must be affirmed, "even if there is also substantial evidence for the plaintiff's position." "`Reversal and entry of judgment for the claimant is appropriate only when the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose.'"
Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)).
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Accord Halloran, 362 F.3d at 31; Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). Accord Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002) ("Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner.").
Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999).
Morillo v. Apfel, 150 F. Supp. 2d 540, 545 (S.D.N.Y. 2001). Accord Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984) ("An administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite position.").
Pimentel v. Barnhart, No. 04 Civ. 3769, 2006 WL 2013015, at *8 (S.D.N.Y. July 19, 2006) (quoting Cruz ex rel. Vega v. Barnhart, No. 04 Civ. 9794, 2005 WL 2010152, at *8 (S.D.N.Y. Aug. 23, 2005), modified on other grounds on reconsideration, 2006 WL 547681 (S.D.N.Y. Mar. 7, 2006)).
B. Requirements for Eligibility
For a child to qualify for SSI benefits, the child must be disabled within the meaning of the Act. A child less than eighteen years of age is disabled under the Act if the child 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 twelve months." Determining whether a child is disabled involves a three-part analysis. First, the ALJ considers whether the child is engaged in "substantial gainful activity." If so, the child will not be awarded SSI benefits. Second, the ALJ considers whether the child has "an impairment or combination of impairments that is severe." "A severe impairment is an impairment that is more than a slight abnormality." Third, if the child's impairment is severe, the ALJ considers whether the impairment "meets, medically equals, or functionally equals the listings."
Id.
Id.
Leach ex rel. Murray v. Barnhart, No. 02 Civ. 3561, 2004 WL 99935, at *5 (S.D.N.Y. Jan. 22, 2004) (citing 20 C.F.R. §§ 416.924-25).
With regard to functional equivalence, the third step of the analysis, the Commissioner assesses the "limitations in functioning" caused by the child's impairment. If those limitations are the same as the functional limitations caused by a listed impairment, the Commissioner will find that the child's impairment is functionally equivalent to a listed impairment, and the child will be found eligible for SSI benefits.
See id.
An impairment will be found functionally equivalent to a listed impairment if it results in marked limitations in two of six domains of functioning or an extreme limitation in one domain. The six domains of functioning for minors are: "(i) [a]cquiring and using information; (ii) [a]ttending and completing tasks; (iii) [i]nteracting and relating with others; (iv) [m]oving about and manipulating objects; (v) [c]aring for yourself, and (vi) [h]ealth and physical well-being." A marked impairment is one that "interferes seriously with [a child's] ability to independently initiate, sustain, or complete activities." This "more than moderate but less than extreme" limitation may "limit only one activity," as long as the degree of limitation is such that it seriously interferes with the ability to function within that activity.
20 C.F.R. §§ 416.926a(b)(1)(i-vi).
Id.
C. Requirements for the ALJ's Determination
In determining whether a claimant is disabled, the ALJ considers relevant evidence in the record, including but not limited to "[w]hat activities [the claimaint is] able to perform . . . [w]hat activities [the claimaint is] not able to perform . . . [and] [w]hich of [the claimaint's] activities are limited or restricted compared to other children [of the claimant's] age who do not have impairments." "Because benefit proceedings are non-adversarial in nature, the ALJ must affirmatively develop the record." To do so, the ALJ must try "to fill any clear gaps in the administrative record." If the available "clinical records are inadequate, the ALJ has a duty to seek additional information."
20 C.F.R. § 416.926a(b)(2)(i-iii).
Leach, 2004 WL 99935, at *7.
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
Id.
IV. DISCUSSION
A. The Parties' Contentions
Plaintiff claims that the ALJ's decision should be reversed and remanded solely for the calculation of benefits on two grounds: first, that the evidence establishes that Tariq has a marked limitation in the domain of health and physical well-being, and second, in view of the ALJ's determination that Tariq has a "marked limitation" in the area of acquiring and using information, "one additional finding of a marked limitation in a domain would entitle Tariq to benefits as a matter of law."
Pl. Mem. at 5.
In the alternative, plaintiff claims that the ALJ's decision should be reversed and remanded for further administrative proceedings on five grounds: first, the ALJ "failed to analyze the evidence in relation to the requirements of any Listing," second, the ALJ "failed to analyze the evidence to determine whether Tariq has a marked limitation in the domain of health and physical well-being," third, the ALJ "failed to analyze the evidence to determine whether Tariq has a marked limitation in the domain of attending and completing tasks," fourth, the ALJ "failed to take into account the interactive and cumulative effects of Tariq's impairments," and fifth, the ALJ's "conduct at and after the hearing violated the Commissioner's rules and due process of law."
Id. at 7.
Id. at 8.
Id. at 11.
Id. at 14.
Id. at 15.
The Commissioner, in turn, claims that the record does not demonstrate that Tariq has a marked limitation in the domain of physical health and well-being. In addition, the Commissioner supports plaintiff's claim that the ALJ's decision should be reversed and remanded for further administrative proceedings.
See Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Support of the Commissioner's Cross-Motion for Remand for Further Administrative Proceedings ("Opp. Mem.") at 15.
See id. at 12.
B. The Record Is Not Supported By Substantial Evidence That Tariq Has a Marked Limitation in the Domain of Health and Physical Well-Being
In the domain of health and physical well-being, the ALJ considers "the cumulative physical effects of physical or mental impairments and their associated treatments or therapies on [a child's] functioning. . . ." With regard to this domain, examples of limitations include: "generalized symptoms, such as weakness, dizziness, agitation," "somatic complaints related to impairments," "limitations in physical functioning because of treatment,""exacerbations from one impairment or a combination of impairments that interfere with physical functioning." These examples "do not necessarily describe a `marked' or `extreme' limitation." Rather, the ALJ considers "all relevant information" to decide whether the child's "medically determinable impairment(s) results in a `marked' or `extreme' limitation in this domain." In addition, the ALJ may also determine that the child has a "marked" limitation if the child is "frequently ill because of [his or her] impairment(s) or has frequent exacerbations . . . that result in significant, documented symptoms or signs."
Id.
20 C.F.R. § 416.926a(e)(2)(iv). For purposes of this domain, "frequent" means that the child has "episodes of illness or exacerbations that occur on an average of 3 times a year, or once every 4 months, each lasting 2 weeks or more . . . more often than 3 times in a year or once every 4 months but do not last for 2 weeks, or occur less often than an average of 3 times a year or once every 4 months but last longer than 2 weeks, if the overall effect (based on the length of the episode(s) or its frequency) is equivalent in severity." Id.
In order to qualify as marked, Tariq's limitation would have to "interfere seriously with [his] ability to independently initiate, sustain, or complete activities." Plaintiff asserts that the evidence of "multiple treatments for asthma," "daily and short-course treatment with corticosteroid medications," "weekly allergy shots," "school absenteeism," "limitations of activities," "sleep disturbance due to wheezing and discomfort" and treating source reports that his condition "progressively worsened" prove that Tariq has a marked limitation in this domain.
20 C.F.R. § 416.926a(e)(2)(i) (emphasis added).
Plaintiff's Reply Memorandum of Law ("Reply Mem.") at 3.
The record discloses that Tariq was hospitalized three times for asthma exacerbations from January 2003 through November 2004. In each case, Tariq was admitted for asthma exacerbations and was discharged with treatments of three to four-day courses of prednisone. While this does not functionally meet the "frequency" requirements for the domain of health and physical well-being, there are references in the record to other hospitalizations in this time period, such as "seven hospitalizations" for asthma exacerbations at St. Barnabas. Furthermore, although Tariq's most recent treating source noted that Tariq has "severe persistent asthma" and that as a result of his allergies Tariq's "asthma symptoms are not always controlled by daily control asthma medications," Tariq's previous examiners found that his condition improved when he took his medications. It does, however, appear from the record that a number of Tariq's medical reports are missing as McDonald refers to the lack of evidence of his "weekly" asthma visits. Moreover, the record does not support a finding that Tariq's asthma substantially limited his age-related activities. In fact, many examiners report that Tariq is only "moderately" limited in his ability to do age-related activities.
See Tr. at 200, 220, 210.
See id.
See Tr. at 219, 241.
Id. at 241.
See id. at 94, 143, 203, 215, 219.
See id. at 9-10.
See id. at 266, 144.
Because there are substantial gaps in the record, the record does not persuasively support a finding that Tariq has a marked limitation in the area of health and physical well-being. Thus, a remand solely for the calculation of benefits is not warranted.
See Navarro v. Barnhart, No. 02 Civ. 1748, 2003 WL 942535, at *2 (S.D.N.Y. Mar. 10, 2003) ("Of course, where `the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose,' the proper remedy is to remand solely for the calculation of damages.") (quoting Parker, 626 F.2d at 235); Del Pilar v. Sullivan, 756 F. Supp. 117, 119 (S.D.N.Y. 1990) ("There is no reason to remand for agency reconsideration where application of correct legal principles to the record could lead to only one conclusion, that is, that plaintiff is disabled as defined by agencyregulations.").
C. Plaintiff's Case Should Be Remanded for Further Administrative Proceedings
Both parties agree that the ALJ did not develop this record. ALJ Noonan did not mention a single Listing by name and did not analyze the evidence presented in relation to the Listings or in relation to the functional domains. Because there are "gaps in the administrative record [and] the ALJ applied an improper legal standard" a remand for further administrative proceedings is the appropriate remedy in this case. In addition, given that ALJ Noonan did not properly handle this matter, Commissioner agrees, on remand, to "assign this matter to a different ALJ for the purposes of developing the record, holding a new hearing, and issuing a new decision." In light of the fact that it has been more than four years since McDonald applied for SSI benefits on behalf of her son, the Commissioner is urged to proceed expeditiously in scheduling a new hearing.V. CONCLUSION
For the foregoing reasons, plaintiff's motion for judgment on the pleadings is denied, and plaintiff's motion reversing the Commissioner's decision and remanding for further administrative proceedings is granted. Defendant's cross-motion for remand for further administrative proceedings is also granted. The Clerk of the Court is directed to close these motions (documents 10 and 11 on the docket) and this case.
SO ORDERED: