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COUNTERMAN v. CHATER

April 22, 1996

HERTHA COUNTERMAN, Individually and as next friend on behalf of minor child, Tammy Counterman, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of Social Security, 1 Defendant.



The opinion of the court was delivered by: LARIMER

 Plaintiff Hertha Counterman, on behalf of her minor daughter Tammy Counterman, commenced this action pursuant to 42 U.S.C. §§ 405 and 1383(c)(3), to review the final determination of the Commissioner of Social Security (the "Commissioner") denying her application for Supplemental Security Income ("SSI") disability benefits. Pending before me is the Commissioner's motion for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c). For the reasons set forth below, the motion is granted.

 BACKGROUND

 Plaintiff applied for SSI disability benefits on behalf of her 10 year old daughter ("Tammy") in November 1992. The bases for the application were that Tammy suffered from asthma and allergies, and was learning disabled. The application was denied initially and on reconsideration. Plaintiff then requested a hearing before an administrative law judge ("ALJ"), which hearing occurred on September 24, 1993. The ALJ found that Tammy was not disabled. This determination became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on June 8, 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). The determination of the Commissioner is conclusive as long as it is supported by substantial evidence and is not based on legal error. Crawford v. Bowen, 687 F. Supp. 99, 102 (S.D.N.Y. 1988) (citing Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir. 1981).

 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 than twelve months. 42 U.S.C. § 1382c(a)(3)(A). In the case of a child under the age of 18, the child is deemed to be disabled if he suffers from any medically determinable physical or mental impairment of comparable severity to the impairments which would render an adult disabled. 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 such as Tammy, between 3 and 16 years of age, the comparability of disability is measured primarily by whether the impairment substantially reduces the child's ability to "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); 20 C.F.R. § 416.924b(b)(3).

 Formulating an IFA for the child requires an analysis of 6 functional "domains" -- the 'cognitive' function; the 'communicative' function; the 'motor' function; the 'social' function; the 'personal/behavioral' function; and the 'concentration' function (which requires an analysis of the child's concentration, persistence and pace in the completion of age-appropriate tasks). 20 C.F.R. 416.924d(h)(1)-(6). Each domain is assessed separately, and, pursuant to the Commissioner's regulations, a child between the ages of 3 and 16 is deemed to be "disabled" if he (1) is impaired to a marked degree in one domain and to a moderate degree in at least one other domain; or (2) he is impaired to a moderate degree in three of the six domains. 20 C.F.R. § 416.924e(c)(2)(i)(ii).

 In this case, the ALJ determined that Tammy was not engaged in substantial gainful activity. He also found that Tammy suffered from mild attention deficit hyperactivity disorder, a learning disability, asthma and post-traumatic stress disorder. *fn2" Although not explicitly stated, the ALJ apparently determined that separately or together Tammy's ailments constituted a "severe impairment" because he proceeded to a determination that her ailments did not meet or equal the impairments listed on Appendix 1 of 20 CFR part 404, subpart P. Thus, he performed the fourth step of the process: the IFA. The ALJ determined that Tammy had "less than moderate" impairments in the cognitive, motor, social, personal/behavioral, and concentration domains; and no impairment in the communicative domain. Accordingly, the ALJ found that Tammy 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 disputes this and also asserts that the decision is based upon errors of law, i.e., the ALJ failed to consider all the relevant evidence. Plaintiff also 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 the Commissioner's decision to be supported by substantial evidence. The ALJ appears to have weighed all the relevant evidence before him, some of which was inconsistent, and arrived at a reasonable, amply supported outcome. I find no error of law.

 Finally, I find that the "new and material evidence" which plaintiff seeks to introduce is not relevant to Tammy's condition during the time period for which benefits were denied, and also is not probative. See Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991).

 (i) List of Impairments

 In her opposition to the Commissioner's motion, plaintiff asserts that the ALJ erred and that Tammy's impairment meets the requirements of Impairment 112.06 -- "Anxiety Disorders." 20 C.F.R. 404, App. 1, subpart P.

 
In these disorders, anxiety is either the predominant disturbance or is experienced if the individual attempts to master symptoms, e.g., confronting the dreaded ...

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