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PAGAN v. CHATER

April 24, 1996

ANTONIO PAGAN o/b/o REIMUNDO PAGAN, Plaintiff, against SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.


The opinion of the court was delivered by: CONNER

 Conner, Sr. D.J.:

 Plaintiff Antonia Pagan ("Antonia") brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) on behalf of her son Reimundo Pagan ("Reimundo"), a minor child, seeking jurisdictional review of the final decision of the Commissioner of Social Security (the "Commissioner") which denied plaintiff's application for supplemental Security Income ("SSI") disability benefits. *fn1" Both parties have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For reasons discussed below, we remand this case for further proceedings consistent with this opinion.

 BACKGROUND

 Antonia, on behalf of Reimundo, filed applications for SSI on February 25, 1988 (the "1988 Application) and May 15, 1990 (the "1990 Application"). Tr. 61-64, 65-68. *fn2" Plaintiff avers that the 1988 Application was denied, although the record does not contain a copy of the denial notice. The 1990 Application was denied initially and on reconsideration. Tr. 70-72, 73-74, 76-77. The 1990 Application subsequently was re-adjudicated under new standards for evaluating disabled child's SSI claims, pursuant to Sullivan v. Zebley, 493 U.S. 521, 107 L. Ed. 2d 967, 110 S. Ct. 885 (1990), and was again denied initially and on reconsideration. Tr. 82-85, 86-87, 89-91. Plaintiff requested a hearing (the "Hearing") which was held on August 25, 1993 before Administrative Law Judge ("ALJ") Thomas P. Dorsey. See Tr. 31-60. Reimundo and his mother Antonia appeared and testified, and they were represented by a legal assistant. *fn3" On October 13, 1993, ALJ Dorsey issued a decision finding that Reimundo was not under a disability. See Tr. 17-28. In addition, ALJ Dorsey decided not to re-open the 1988 Application for disability benefits. Tr. 21. The decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied the request for review on May 3, 1994. See Tr. 5-6.

 STANDARD OF REVIEW

 In reviewing the denial of SSI benefits, this Court is limited to an assessment of the Commissioner's general treatment of the administrative record. Wagner v. Secretary of Health and Human Services, 906 F.2d 856, 860 (2d Cir. 1990). The Act provides that the "findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence in this context has been defined as "'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) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).

 We must keep in mind that the Social Security Act is a remedial statute which must be "liberally applied." Vargas v. Sullivan, 898 F.2d 293, 296 (2d Cir. 1990) (citations omitted). "Its intent is inclusion rather than exclusion." Id. (citations omitted).

 MEDICAL HISTORY

 Reimundo was born on November 23, 1978 in Puerto Rico, and, at the age of two, was diagnosed with a congenital heart disease. Tr. 257-58. Subsequent evaluations conducted at the Cardiology Clinic of Montefiore Medical Center in New York confirmed that Reimundo suffered a heart impairment, namely aortic stenosis. Tr. 213-14. In 1988 Reimundo underwent cardiac catheterization and balloon valvuloplasty in order to treat his aortic stenosis, with minimal success. Tr. 192, 257. Complications arose during the procedure from thrombosis in his femoral artery, necessitating bypass surgery and the insertion of an artificial graft. Tr. 192, 249, 257. The final diagnosis was mild to moderate aortic stenosis and unsuccessful balloon angioplasty. Tr. 212, 213-16. Reimundo was diagnosed also with poor circulation in the legs (vaso-occlusive disease) due to aortic stenosis and femoral artery bypass. Tr. 257-58.

 Then in or about 1989, Reimundo was diagnosed with asthma. See Tr. 205, 253, 257. In January 1993, Reimundo was hospitalized for five days due to his asthmatic condition. Tr. 43. Since that time, his asthma has not caused him to be hospitalized or to seek emergency treatment. Id. Reimundo's asthma is controlled by medication administered by a ventolin inhaler. See Tr. 44-45, 253, 257.

 Reimundo has been receiving treatment at a clinic located at 113 East 183rd Street in Bronx regularly since February 24, 1986. See Tr. 253. His treating physician at the clinic, Dr. Guillaume, noted that Reimundo had a history of heart disease and was taking asthma medication. Id. In addition, Reimundo 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. *fn4" 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.

 DISCUSSION

 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 ...


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