has been receiving treatment at the Montefiore Children's Cardiac Clinic under the supervision of Dr. Veith, Chief of Vascular Surgery at Montefiore, and Dr. Eisenberg, Director of the Pediatric Catheterization Laboratory at Montefiore, every three to six month since May 1988. Tr. 192, 213, 240-41, 247-48, 286.
Reimundo has poor circulation in his legs due to his heart impairment and as a result of the femoral artery bypass. Tr. 258. Dr. Veith's diagnosis indicates that Reimundo suffers mobility impairments due to his limited blood supply to the left lower extremity, a residual effect of the vaso-occlusive disease. Tr. 286. Reimundo often experiences pain in his left leg; he has trouble walking up stairs, and does not participate in gym class or play during recess. Tr. 38-41, 108, 111, 192, 286, 290. He has to take breaks while walking up the stairs to his second floor apartment, and he leaves the apartment only to go to school or see the doctor. Tr. 39, 40.
Because of Reimundo's medical condition, he was unable to attend Kindergarten, and, in 1985, began schooling in the first grade at the age of six. Reimundo was left back in first grade, but has kept up since that time. Tr. 36, 46. Reimundo has missed up to 31 days during the school year due to frequent doctors' appointments, and because he was receiving home instruction until he could be transferred to a school that would not require him to walk up five flights of stairs to his homeroom. Tr. 51, 162-64, 175.
Reimundo gets along very well with his two older brothers, who were living at home until 1992 and 1993, respectively, and with his cousin who was staying with the Pagans, and with his friends. Tr. 46-47.
The SSI program is a federal program that provides benefits to needy, aged, blind or disabled individuals who meet the statutory income and resources limitations. 42 U.S.C. §§ 1382-1382d. For purposes of the SSI program, an individual shall be considered disabled "if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." 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 Reimundo 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).
The Commissioner has promulgated a four-step sequential analysis for evaluating whether a childhood disability exists. See 20 C.F.R. § 416.924(b). First, the Commissioner considers whether the child is currently engaging in substantial gainful activity. 20 C.F.R. § 416.924(b). If he is, the child will be found to be not disabled. 20 C.F.R. § 416.924(c). Second, if he is not engaging in substantial gainful activity, the Commissioner next considers whether the child has an impairment or combination of impairments that is severe. 20 C.F.R. § 416.924(b). If the child does not have a severe impairment, the Commissioner will determine that he is not disabled. 20 C.F.R. § 416.924(d). Third, if he does have a severe impairment, the Commissioner then considers whether he has an impairment which meets or equals the criteria of an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1 (the "Listings"). If the criteria are met, the Commissioner will find the child disabled. 20 C.F.R. § 416.924(e). Fourth, if the child does not have a listed impairment, the evaluation proceeds to the final step, and the Commissioner will conduct an individualized functional assessment ("IFA"). 20 C.F.R. § 416.924(f). In conducting an IFA, the Commissioner will assess the impact of the impairments on the child's overall ability to function independently, appropriately, and effectively in an age-appropriate manner. Id. This analysis will determine whether the child has an impairment of comparable severity to an impairment that would disable an adult. Id.
An IFA evaluates children in terms of six so-called domains: (1) cognitive, (2) communicative, (3) motor, (4) social, (5) personal/behavioral, and (6) concentration, persistence and pace. 20 C.F.R. § 416.924d(h)(1)-(6). Age is also a factor when considering the functional assessment of a child. 20 C.F.R. § 416.924a(a)
Generally, the Commissioner will find a child disabled if he has a "marked" limitation in one of six domains, and a "moderate" limitation in a second domain, or if he has a "moderate" limitation in three of six domains. 20 C.F.R. § 416.924e(c)(2). 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) (incorporating by reference the definition of marked impairment at 20 C.F.R. pt. 404, subpt. P, app. 1, 112.00C). A "moderate" impairment is one that is not as severe as a "marked" impairment. Id.
In this case, the ALJ determined that (1) Reimundo was not engaged in substantial gainful activity; (2) he had the following severe impairments: bronchial asthma, vaso-occlusive disease with secondary impairment of motor function of the left leg, and aortic stenosis; but (3) the impairments were not of listing severity. Tr. 27. The ALJ then conducted an IFA. Tr. 27-28. The ALJ concluded that there was no limit in Reimundo's cognitive, communicative, social or personal/behavior functions, and that Reimundo had only a moderate limitation in motor function. Tr. 26, 28. He found also that there was no evidence of limitation in the area of "concentration, persistence and pace." Tr. 26. The ALJ thus concluded that Reimundo does not have an impairment comparable to one which would disable an adult. Tr. 28.
The parties agree that the ALJ conducted the first two steps of the sequential analysis without error. However, plaintiff argues that the ALJ improperly failed to find that Reimundo's asthma was of listing severity (step three), and conducted an improper IFA (step four) by failing to accord proper weight to the treating physician's diagnosis. Furthermore, plaintiff argues that the ALJ applied the incorrect legal standard in deciding not to reopen plaintiff's 1988 Application.
I. The Listings
Plaintiff argues that the ALJ failed to find that Reimundo's asthma qualifies under the Listings because he failed to develop the record with respect to Reimundo's asthma medication. See Pl.'s Mem. of Law in Support of Pl.'s Motion for Judgment on the Pleadings, at 27-28 ("Pl.'s Mem."). Plaintiff argues that the disability record documents that Reimundo's prescribed course of treatment for bronchial asthma included the use of corticosteroids and bronchodilators. Pl.'s Mem., at 27. According to plaintiff, if the ALJ had inquired about the use of the steroid, Prednisone, a type of corticosteroid, the ALJ "could have obtained proof such as the enclosed pharmacy list" attached as an exhibit to plaintiff's memorandum. Pl.'s Mem., at 27. Plaintiff then argues that "this pharmacy print-out reveals that the claimant's respiratory disorder satisfied the criteria of Listing 103.03 C.2." Pl.'s Mem., at 28. The criteria of this listing are as follows:
Persistent low-grade wheezing between acute attacks or absence of extended symptom-free periods requiring daytime and nocturnal use of sympathomimetic bronchodilators with . . . short courses of corticosteroids that average more than 5 days per month for at least 3 months during a 12-month period.
20 C.F.R. pt. 404, subpt. P, app. 1, 103.03C. Plaintiff argues that the ALJ failed to inquire about the frequency of Reimundo's use of steroids, implying that if the ALJ had made such inquiries, he would have concluded that Reimundo had been taking steroids often enough to render him "disabled" under the Listings.
In deciding whether the ALJ's conclusions are supported by substantial evidence, the Court must first satisfy itself that "'the claimant has had "a full hearing under the [Commissioner's] regulations and in accordance with the beneficent purposes of the Act."'" Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (quoting Echevarria v. Secretary of Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982); Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir. 1972)). "Because a hearing on disability benefits is a nonadversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record." Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).
Although Reimundo and Antonia were represented by a legal assistant, see supra n.3, the obligation of the ALJ to develop fully the disability record of a disability claimant is not obviated by the presence of a paralegal or a legal assistant representing the claimant. See Smith v. Bowen, 687 F. Supp. 902, 906 (S.D.N.Y. 1988) ("It may be true . . . that 'plaintiff was represented by Harlem Legal Services, which has considerable expertise in litigating Social Security Claims.' But plaintiff's actual representative before the ALJ was a paralegal. . . . The ALJ's duty to develop the comprehensive record requisite for an equitable determination of disability is greatest when claimant is unrepresented; but the duty still exists when plaintiff is represented and even more, as here, where plaintiff is represented at hearing by a paralegal.") (citations omitted). Indeed, if the claimant appears without the aid of counsel, "the ALJ has a duty 'to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Cruz, 912 F.2d at 11 (citing Echevarria, 685 F.2d at 755).
Plaintiff's argument that the ALJ failed to adequately develop the record with respect to Reimundo's asthma, and improperly found that Reimundo's asthma did not fit the criteria of the Listing is without merit. The ALJ specifically addressed, inter alia, section 103.03 of the Listings and found that Reimundo's condition did not meet the criteria based on a thorough investigation of all the relevant facts:
The claimant's asthma does not meet the requirements of Section 103.03 or Section 3.03 of the Listings because there is no documentation of chronic asthmatic bronchitis, recent recurrent asthmatic attacks, or severe attacks occurring at least once every 2 months or on average at least 6 times per year, despite prescribed treatment.