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MORGAN v. CHATER

February 2, 1996

BRENDA MORGAN, on behalf of Joshua Morgan, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: LARIMER

 Plaintiff Brenda Morgan, on behalf of her minor son Joshua Morgan, commenced this action pursuant to 42 U.S.C. §§ 405 and 1383(c)(3), to review the final determination of the Commissioner of Health & Human Services ("the Commissioner") *fn1" denying her application for disabled child Supplement Security Income ("SSI") disability benefits. Pending before me are the parties' cross-motions for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c). For the reasons set forth below, the Commissioner's motion is denied and plaintiff's motion is granted. This matter is remanded to the Commissioner for further proceedings consistent with this decision.

 BACKGROUND

 Plaintiff applied for SSI disability benefits on behalf of her son ("Joshua") on July 14, 1993. The basis for the application was that Joshua has attention deficit disorder and "behavioral" impairments. The application was denied initially and on reconsideration. Plaintiff then requested a hearing before an administrative law judge ("ALJ"), which hearing occurred on April 7, 1994. In a determination dated May 11, 1994, the ALJ found that Joshua is not disabled. This determination became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 14, 1994. This action to review the Commissioner's determination followed.

 DISCUSSION

 A. The Standard of Review

 A court may reverse the factual findings of the Commissioner only if those findings are not supported by substantial evidence in the record. 42 U.S.C. §§ 405(g) and 1383(c)(3). Substantial evidence is "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, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). Thus, the determination of the Commissioner is conclusive as long as it is supported by substantial evidence and is not based on legal error. Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989)(citations omitted).

 B. The Standard for Finding a Disability

 A person is considered to be disabled under the Social Security Act if "he is unable 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 that twelve months..." 42 U.S.C. § 1382c(a)(3)(A). In the case of a child under the age of 18, disability exists if the child suffers from any medically determinable physical or mental impairment of "comparable severity" to that of a disabled adult. Id.

 "Comparable severity" (for a child) means that the impairment so limits the child's ability to function independently, appropriately, and effectively in an age-appropriate manner that the impairment and the limitations resulting from it are comparable to those which would disable an adult. 20 C.F.R. § 416.924(a). For a child between 3 and 16 years of age, this is measured primarily by whether the impairment substantially reduces the child's ability "grow, develop, or mature physically, mentally, or emotionally and, thus, to engage 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); see also 20 C.F.R. § 416.924b(b)(3).

 The Commissioner must follow a four-step evaluation process to determine whether a child has an impairment of "comparable severity" such that he or she is entitled to SSI disability benefits. See 20 C.F.R. § 416.924(b). First, it must be determined whether the child is engaging in "substantial gainful activity." Id. at subpart (c). If so, there can be no finding of disability. If not, then it must be determined whether or not the child has a severe impairment, or combination of impairments. Id. at subpart (d). If not, there is no disability. If so, however, then it must be determined whether or not the impairment(s) meets or equals certain impairments set forth in the Listing of Impairments, 20 C.F.R. § 404, subpart P, Appendix 1. Id. at subpart (e). If so, then the child is disabled. If not, then the evaluation proceeds to its fourth and final step -- an "individualized functional assessment" ("IFA"). Id. at subpart (f).

 The IFA, through separate analysis of six distinct categories of child development, measures "the impact of [the child's] impairment(s) on [his] overall ability to function independently, appropriately, and effectively in an age-appropriate manner." Id. The results of this analysis will determine whether the child has an impairment of comparable severity to an impairment that would disable an adult. Id.

 In this case, the ALJ determined that Joshua was not engaged in substantial activity. Although not explicitly stated, the ALJ apparently determined that Joshua was "severely impaired" because he proceeded directly to an assessment of whether Joshua's impairment met or equaled the impairments listed at Appendix 1 of 20 CFR § 404, subpart P. The ALJ determined that it did not. Thus, he proceeded to perform the fourth step of the process: the IFA. Through his IFA analysis, the ALJ determined that Joshua did not suffer an impairment of comparable severity to that of a disabled adult, and he denied plaintiff's application.

 C. The Parties' Arguments and My Findings

 The Commissioner asserts that the ALJ's findings are supported by substantial evidence and must be upheld. Plaintiff does not dispute the ALJ's determination but asserts that new and material evidence now exists to support plaintiff's application and that this matter should be remanded for further consideration.

 I find that new and material evidence exists that should be considered by the ALJ. Additionally, although plaintiff only seeks a remand because of the new evidence, I find sua sponte that the ALJ failed to provide any explanation whatsoever for his rejection of considerable relevant evidence that appears to support a finding of an impairment justifying the payment of benefits. Accordingly, I reverse the Commissioner's determination and remand this matter for further proceedings consistent with this decision.

 D. New and Material Evidence

 Plaintiff asserts that new, material evidence exists which should be considered by the ALJ. Specifically, plaintiff presents two reports prepared by psychiatrists at the Elmira Psychiatric Center on September 6, 1994 and on September 14, 1994. Joshua was admitted to the Elmira Psychiatric Center on September 2, 1994, following a series of fire-starting incidents and oppositional behavior at home. He remained there until January 1995.

 The first report is the "Screening/Admission Note and Psychiatric Evaluation" done soon after Joshua's admission to the facility. That report contains a history of Joshua's present illness, which notes a pattern of firesetting behaviors throughout the prior year. The report notes that Joshua sets fires when he is angry at people. It also notes a history of violent behavior toward animals, "i.e., " has killed a cat by strangulation with string" and violent behavior toward family members. It is noted that Joshua threatens suicide when his demands are not met. The report concludes with a finding of "extensive firesetting behavior; history of violent behavior towards family and animals; attention-deficit disorder with hyperactivity." Ex. A to Plaintiff's Memorandum of Law.

 The second report, a Psychological Evaluation performed several days later, contains similar information about Joshua's behavior throughout the preceding year and beyond. This report finds a "long history of attention deficit... history of dangerous fire setting behavior as well as ... oppositional tendencies...." Ex. B to Plaintiff's Memorandum of Law.

 The Social Security Act provides that a court may remand a case to the Commissioner to consider additional evidence, "only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). The Second Circuit has further refined this standard with the following guidelines. The applicant must show that the proffered evidence is: (1) "new" and not merely cumulative of what is already in the record; (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative; and (3) he must demonstrate good cause for the failure to present the evidence earlier. See Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (citations omitted).

 I find that the proffered additional evidence meets all these criteria. The two psychiatric reports provide evidence of additional maladaptive behaviors that were not reported earlier; many of the reported behaviors had occurred throughout the prior year or so; and there was good cause for not presenting the evidence earlier -- the reports were not created until September 6th and 14th, respectively, within days of (and, in the case of the latter report, the same day as) the Appeals Council's final denial. Accordingly, I find that good cause has been shown why these reports were not submitted earlier. The ALJ is ...


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