Opinion
No. 00 Civ. 5828 (JGK) (RLE)
July 24, 2002
Luz Maria Perez, Bronx, New York, Plaintiff, Pro Se.
Lorraine S. Novinski, Assistant United States Attorney, New York, NY, for Defendant.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se plaintiff Luz M. Perez ("Perez"), on behalf of her daughter, Jeanette Perez ("Jeanette"), seeks federal judicial review of a decision of the Commissioner of the Social Security Administration ("Commissioner"), pursuant to § 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g). On March 22, 2001, defendant filed a motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for an order affirming the decision of the Commissioner. For the reasons that follow, I recommend that defendant's motion be GRANTED, and that plaintiffs complaint be DISMISSED.
II. PROCEDURAL HISTORY
On May 13, 1998, Perez filed an application for Supplemental Security Income ("SSI") payments on behalf of Jeanette with the Social Security Administration. Transcript of the Administrative Record ("Tr.") at 10. According to Perez, Jeanette was disabled because of a learning disorder and an adjustment disorder. Id. After the application was denied initially and on reconsideration, Perez requested a hearing before an administrative law judge. Defendant's Memorandum in Support of His Motion for Judgment on the Pleadings ("Def. Mem.") at 1. On April 6, 1999, a hearing was held before an administrative law judge ("ALJ") in the Bronx, New York. Tr. at 10. In a decision dated October 27, 1999, the ALJ found that Jeanette was not under a disability, and therefore ineligible for SSI under § 1641(a)(3)(A) of the Act. Id. at 17. After the Appeals Council denied Perez's request for review on May 2, 2000, the ALJ's decision became the final decision of the Commissioner. Def. Mem. at 2.
On August 8, 2000, Perez filed a complaint in federal court pursuant to 42 U.S.C. § 405(g) seeking review of the ALJ's decision. Perez alleged that Jeanette was entitled to receive SSI benefits because she suffered from the following disabilities: learning disability, vision problems, and sleep disorder. Complaint at 1. Defendant answered the complaint on February 20, 2001, and filed the instant motion to dismiss the complaint pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on March 22, 2001. In response to defendant's motion, Perez filed an affirmation in opposition to the motion on June 7, 2001. After the undersigned was referred this case on February 4, 2002, a pretrial conference was held with the parties on April 3, 2002. At the conference, Perez indicated that she intended the affirmation she filed in June to serve as her opposition to defendant's motion. The Court directed the defendant to review Perez's affirmation and notify the Court if a reply would be forthcoming, so that the motion could be considered fully submitted. On April 9, 2002, defendant informed the Court that it would not file a reply, but would rely on the arguments made in its motion and accompanying memorandum.
III. FACTUAL BACKGROUND
Jeanette was born on February 9, 1983. Tr. at 11. She was fifteen years old when the application was filed, and was sixteen years old when the ALJ rendered his decision. Id. At the time of the hearing, Jeanette lived on the third floor of an apartment building with Perez, Perez's husband, and Perez's five other children. Id. at 21. According to Perez, Jeanette always fought in school and often fell asleep in the classroom. Id. at 23. After her school found that she had a learning disability, she underwent counseling and speech therapy at school. Id. at 24. At the hearing, Jeanette said that she was able to run around, jump around, walk, and take gym at school. Id. at 28. She has not engaged in any substantial gainful activity during any part of the period under adjudication. Id. at 11.
At the time of the hearing, Jeanette had been undergoing psychiatric treatment at Bronx Lebanon Hospital for three months. Id. at 23. She saw a therapist twice a week, met with a doctor once a month, and was taking fifty milligrams of the medication diphenhydramine. Id.
IV. DISCUSSION
A. Standard of Review
A reviewing court does not determine de novo whether the claimant is disabled. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). Rather, the court is limited to inquiring whether the Commissioner applied the correct legal standard in making the determination and whether such determination is supported by substantial evidence in the record. 42 U.S.C. § 405(g) (West Cumulative Annual Pocket Part 2001); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). If the decision contains an incorrect application of the law, the case must be remanded to the Social Security Administration for reevaluation under the correct standard. 42 U.S.C. § 405(g) (West Cumulative Annual Pocket Part 2001); see also Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (remanded to reapply the correct treating physician rule). If the Commissioner applied the correct legal standard, the court must apply the substantial evidence test. Where the Commissioner's findings of fact are supported by substantial evidence, they shall be conclusive, and the reviewing court shall affirm the decision. 42 U.S.C. § 405(g) (West Cumulative Annual Pocket Part 2001); Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) (citing Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). "Where evidence is susceptible of more than one rational interpretation, it is the Commissioner's conclusion which must be upheld." Fernandez v. Apfel, 1998 WL 812591, at *1 (E.D.N.Y. Apr. 20, 1998) (citing Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207, 75 L.Ed.2d 447 (1983)).
The Supreme Court has defined substantial evidence as "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,'" which must be "`more than a mere scintilla.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The substantial evidence test not only applies to "the Commissioner's findings of fact, but also to the inferences and conclusions to be drawn from such facts." Shin v. Apfel, 1998 WL 788780, at *4 (S.D.N.Y. Nov. 12, 1998).
B. Legal Standards for Determining Childhood Disability
On August 22, 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. 104-193, 110 Stat. 2105, which amended 42 U.S.C. § 1382c(a)(3) and the framework for determining such a disability. Under the new law, a child under the age of eighteen is considered disabled for purposes of SSI benefits "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. § 1382c(a)(3)(C)(i) (1997).
The regulations promulgated pursuant to the statute set forth a three-step analysis for determining childhood disability through which the ALJ must examine all of the relevant evidence in the record. 20 C.F.R. § 416.924(a); see also Luna de Medina v. Commissioner of Social Security, 2000 WL 964937, at *4 (S.D.N.Y. 2000) (citations omitted). First, the ALJ must first determine whether the child is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). If the child is found to be engaged in substantial gainful activity, a finding of disability is precluded. If the ALJ determines that she is not engaged in substantial gainful activity, the analysis proceeds to the second step of determining whether the child's impairment or combination of impairments is "severe." 20 C.F.R. § 416.924(c). The child will not be found to have a severe impairment if it merely constitutes a "slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations." Diaz v. Commissioner of Social Security, 994 F. Supp. 541, 545 (S.D.N.Y. 1998). If the ALJ finds that the child has a severe impairment, she proceeds to the third and final step of determining whether the impairment meets, medically equals, or functionally equals in severity a listed impairment in Appendix I of the regulations, 20 C.F.R. Pt. 404, Subpt. P ("Appendix 1"). 20 C.F.R. § 416.924(d). If the ALJ finds that the child does not have an impairment or combination thereof that medically meets or is functionally equivalent to a listed impairment, she will be found to be "not disabled." Id.
Effective January 2, 2001, the Commissioner published revised final rules for determining a child's disability. This Court, however, applies the interim rules that were in effect at the time of the Commissioner's final decision, which in this case was May 2, 2000. Tr. at 2-4.
In determining whether an impairment is functionally equivalent, the ALJ must consider whether the child's impairment: (1) results in "extreme limitation of one specific function . . . [or] more than one specific function . . ." 20 C.F.R. § 416.926a(b)(1); (2) effects "broad areas of development or functioning" as a result of "extreme limitations in one area of functioning or marked limitations in two areas of functioning . . ." 20 C.F.R. § 416.926a(b)(2); (3) consists of similar episodic impairments that "are not necessarily related to a single, specific function" 20 C.F.R. § 416.926a(b)(3); and (4) requires treatment spanning at least one year which itself causes marked and severe functional limitations." 20 C.F.R. § 416.926a(b)(4). In determining the functional equivalence of the child's impairment to those listed in Appendix 1, the ALJ must address the child's development or functioning in each of the following five areas: (1) cognitive/communicative; (2) motor; (3) social, (4) personal and (5) concentration, persistence or pace. 20 C.F.R. § 416.926a(c)(4).
The regulations define "extreme limitation" as
(A) When standardized tests are used as the measure of functional abilities, a valid score that is three standard deviations or more below the norm for the test; or
* * *
(A) When standardized tests are used as the measure of functional abilities, a valid score that is two standard deviations or more below the norm for the test (but less than three standard deviations); or
(C) For children from age 3 to attainment of age 18, `more than moderate' and `less than extreme.' Marked limitation may arise when several activities or functions are limited or even when only one is limited as long as the degree of limitation is such as to interfere seriously with the child's functioning.20 C.F.R. § 416.926a
C. Application to Jeanette's Case
In considering Jeanette's application for benefits, the ALJ applied the sequential evaluation required by 20 C.F.R. § 416.924a. First, the ALJ found that Jeanette had not engaged in any substantial gainful activity during any part of the pertinent period. Tr. at 11. Next, the ALJ found that Jeanette had a learning disorder and an adjustment disorder which he found to be severe" within the meaning of 20 C.F.R. § 416.924(c). Id. In assessing Jeanette's impairments through the final step of the appropriate analysis, however, the ALJ found that they were not functionally equivalent in severity to any of the impairments listed in Appendix 1. Id. at 12. Because the ALJ found that Jeanette did not have a condition which resulted in extreme limitation of functioning in one or more specific functions, he examined whether she had functional limitations resulting from her impairments which were "extreme" in at least one area or "marked" in at least two areas. Id. at 12-13.
1. Cognitive/Communicative Functioning
Assessing Jeanette in the area of cognition and communication applicable to adolescents, the ALJ found that she had a "marked" limitation of functioning. Id. at 14. In arriving at this conclusion, the ALJ took into account reports from her mother that Jeanette exhibited significant behavioral problems as well as academic and behavioral reports and family history indicating that she was diagnosed with an adjustment disorder and borderline intellectual functioning. Id.
2. Motor Functioning, Personal Development, and Concentration, Persistence, or Pace
In assessing Jeanette in the motor and personal development areas, as well as in the area of concentration, persistence, and pace, the ALJ compared Jeanette to the standard applicable to other adolescents. Id. at 15, 16. Taking notice of information provided by her mother, teachers, and counselors, he found that she did not have any limitations in motor functioning, nor abnormalities with respect to her hygiene or general personal care, nor limitations in her concentration, persistence or pace functioning. Id. at 15-16.
3. Social Functioning
The ALJ compared Jeanette to other adolescents in terms of her social functioning, and determined that she had slight to moderate, but less than marked limitation. Id. at 15. He noted that according to her mother, she has had outbursts of anger at home and at school. Id. The ALJ also concluded that although it has been noted that Jeanette is `withdrawn in her own world[,]' she has been observed as "pleasant and cooperative with normal activities and an engaging manner." Id.
4. The Conclusion of the ALJ's Findings
Because the ALJ found no "extreme" limitations in any areas of functioning, and only found one "marked" limitation — in that of cognitive/communicative development — he concluded that Jeanette could not be considered disabled pursuant to 20 C.F.R. § 416.926a(b)(1) or (2). Similarly, he found that Jeanette's condition did not fall under the provisions of 20 C.F.R. § 416.926a(b)(3) or (4), which characterizes impairments as either "episodic" or of the type such that prolonged requisite treatment would itself result in marked and severe functioning. From his findings, the ALJ concluded that Jeanette did not have an impairment that met, medically equaled, or functionally equaled in severity a listed impairment in Appendix 1, and therefore, was not disabled for purposes of the Act.
This Court finds that, as described supra, the ALJ correctly applied the legal standards set out in 20 C.F.R. § 416.924 for determining childhood disability for adolescents like Jeanette. 42 U.S.C. § 405(g). Upon review of the entire record, the Court also finds that the Commissioner's decision to affirm the ALJ's decision is supported by substantial evidence in the record. Furthermore, the Court notes that Perez has failed to rebut any of defendant's arguments in either her affirmation in opposition to defendant's motion, or during the pretrial conference held before the Court on April 3, 2002.
V. CONCLUSION
For the reasons stated above, I recommend that defendant's motion for judgment on the pleadings be GRANTED and the complaint be DISMISSED without prejudice.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable John G. Koeltl, 500 Pearl Street, Room 1030, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 989) (per curiam); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).
* * *
(C) For children from birth to the attainment of age 18, no meaningful functioning in a given area. There may be extreme limitation when several activities or functions are limited or even when only one is limited.20 C.F.R. § 416.926a(c)(3)(ii).