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BAKER v. SECRETARY

January 11, 1995

CHRISTOPHER BAKER By his Parent and Natural Guardian, RENEE BAKER, SSN: 071-68-8174, Plaintiff, against SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: JOHN G. KOELTL

 JOHN G. KOELTL, District Judge*:

 The issue in this case is whether substantial evidence supports the finding by the Secretary of the Department of Health and Human Services ("Secretary") that Christopher Baker, an eleven year old child, is not entitled to Supplemental Security Income benefits because he is not disabled within the meaning of that program. The administrative denial of disability benefits was based on a review of both medical and school records which demonstrate that, while Christopher, who has been classified as learning disabled, is in a special education class, his performance on a standardized intelligence test and on other achievement tests demonstrates that he is of average intelligence and his performance in school, while improving, has been hampered by an ocular-motor dysfunction. After listening to the sworn testimony of Christopher and his mother, and reviewing all of the school and medical records that were submitted, the Administrative Law Judge ("ALJ") determined that Christopher was not disabled. The Appeals Council of the Social Security Administration denied the request to review the ALJ's decision. This appeal followed. *fn1" For the reasons explained below, after reviewing the administrative record, this Court concludes that there is substantial evidence supporting the Secretary's determination that Christopher is not disabled within the meaning of the Supplemental Security Income program.

 I.

 The plaintiff, Christopher Baker, was born on November 10, 1983 and is now eleven years old. (R. at 24.) He has been classified as learning disabled by the Saranac Central School District's Committee on Special Education and is currently enrolled in a self-contained special education class. (R. at 158.) Christopher also suffers from an ocular-motor dysfunction that causes impairments in his binocular skills (i.e., his ability to use both eyes), his fine motor eye tracking and his visual span. (R. at 112-13.)

 In July of 1992, Christopher's mother, Renee Baker, filed an application for Supplemental Security Income benefits based on Christopher's disability under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 1382 et seq. (1992 & Supp. 1994), which provides such benefits to the aged, the blind and the disabled. (R. at 52.) The application was denied by notice dated November 18, 1992. (R. at 60-62.) The denial was based on a report by Dr. Deborah Bostic who reviewed the reports by the Saranac Central School District and by Dr. Hayes I. Sogoloff, an eye doctor who had examined Christopher. Dr. Bostic concluded that the severity of Christopher's impairment did not satisfy the requirements for disability under the Supplemental Security Income program. (R. at 59.). Christopher's mother made a timely motion for reconsideration that was denied by notice dated March 23, 1993, (R. at 67-69); subsequently, she requested a hearing on the denial, (R. at 70-71).

 
to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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 (or, in the case of a child under the age of eighteen, if he suffers from any medically determinable physical or mental impairment of comparable severity).

 42 U.S.C. § 1382c(a)(3)(A) (1992). The Secretary defines "comparable severity" as a child's "physical or mental impairment(s) [that] so limits [the] ability to function independently, appropriately, and effectively in an age-appropriate manner that [the] impairment(s) and the limitations resulting from it are comparable to those which would disable an adult." 20 C.F.R. § 416.924(a) (1994). For a child between the ages of three and sixteen, the impairment must substantially reduce the child's ability to "grow, develop, or mature physically, mentally, or emotionally and, thus, to enter in age-appropriate activities of daily living . . . in self-care, play and recreation, school and academics, community activities, vocational settings, peer relationships, or family life[.]" 20 C.F.R. § 416.924(a)(2) (1994); see also 20 C.F.R. § 416.924b(b)(3) (1994).

 The Social Security Regulations pertaining to Supplemental Security Income claims for children were revised following the Supreme Court's decision in Sullivan v. Zebley, 493 U.S. 521, 107 L. Ed. 2d 967, 110 S. Ct. 885 (1990). They prescribe a sequential evaluation process that is used to determine whether a child is eligible for supplemental payments based on a disability. In evaluating a child, first it is determined whether the child is engaging in a substantial gainful activity. If the child is engaging in a substantial gainful activity, he is not considered disabled under the Act. If he is not, it is then determined whether the child has an impairment or combination of impairments that is severe. If the child does not have a severe impairment, he is not considered disabled under the Act. If he does have a severe impairment, it is then determined whether the impairment meets or equals in severity any impairment listed in Appendix 1 of Subpart P of Part 404 of the regulations. If the impairment meets such criteria, the child is considered disabled. If the child does not have a listed impairment, an individualized functional assessment is conducted to determine whether the impairment is of comparable severity to that which would disable an adult. 20 C.F.R. § 416.924(b) (1994).

 Christopher's case was one that required the ALJ to reach this final level of inquiry end to determine whether Christopher's impairment was of comparable severity to that which would disable an adult. Pursuant to the regulations, ALJ Brown performed an individualized functional assessment of Christopher in order to make such a determination. This required him to assess Christopher in six different areas: cognitive function; communicative function; motor function; social function; personal/behavioral function; and concentration, persistence and pace. 20 C.F.R. § 416.924d(h) (1994). The Social Security Administration generally considers a child between the ages of three and sixteen disabled if the child has a marked impairment in one of the six areas and a moderate impairment in a second area, or if the child has a moderate impairment in any three of the six areas. 20 C.F.R. § 416.924e(c)(2)(i)-(ii) (1994).

 A "marked impairment" is one that is "more than moderate but less than extreme" where "the degree of limitation is such as to interfere seriously with the ability to function (based upon age-appropriate expectations) independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. § 416.924e(c)(2) (1994) (incorporating by reference the definition of marked impairment at 20 C.F.R. Part 404, Subpt. P, App. 1, § 112.00(C) (1994)). A "moderate impairment" is one that is not as severe as a marked impairment. Id.

 ALJ Brown ruled that Christopher had: no limitation in either cognitive function or social function; a less than moderate limitation in communicative function, motor function and personal/behavioral function; and a less than moderate limitation in concentration, persistence and pace. (R. at 15.) Accordingly, he found that Christopher's impairment was not of comparable severity to that which would disable an adult, and he denied the application for supplemental benefits. (R. at 15.) Ms. Baker requested a review of ALJ Brown's decision by the Social Security Administration's Appeals Council on October 28, 1993. (R. at 7-8.) The Appeals Council denied the request on January 25, 1994. (R. at 4-5.) ALJ Brown's decision therefore became the final decision of the Secretary with respect to the ...


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