treated in the emergency room on December 9, 1993. (Tr. 197-99).
C. The ALJ's Decision
The ALJ used the four-step sequential test ("the four-step test") to determine whether a child is eligible for Title XVI benefits. (Tr. 34). 20 C.F.R. § 416.924(b). First, the ALJ found that Kristin had never engaged in "substantial gainful activity." (Id.). 20 C.F.R. § 416.924(c). Second, the ALJ determined that Kristin's impairment is severe, in that it imposes more than a minimal or slight limitation on her ability to function in an age-appropriate manner. (Id.). 20 C.F.R. § 416.924(d). Third, the ALJ concluded that the severe impairment does not meet or equal any listed impairment under 20 C.F.R. Appendix 1 of Subpart P of Part 404. (Id.). 20 C.F.R. § 416.924(e). Fourth, the ALJ determined that the severe impairment does not substantially reduce claimant's ability to function independently, appropriately, or effectively in an age-appropriate manner, and that the impairment is not of comparable severity to that which would disable an adult. (Id.). 20 C.F.R. § 416.924(f).
The ALJ based his decision on the evidence that Kristin's intelligence tests demonstrate average ability, and that there is likewise "no evidence of limitation . . . in regard to concentration, persistence, and pace." (Tr. 34). He further noted that her motor functions are less than moderately limited, and that there are no limitations to her sensory and communicative functions. (Id.). Finally, the ALJ cited the lack of evidence of limitations of claimant's social, personal, and behavioral functions. (Id.).
A. Determining "Disability" for Children
A child under 18 is eligible for disability benefits if the child "suffers from any medically determinable physical or mental impairment of comparable severity," i.e., comparable to what would be considered a disability for an adult. 42 U.S.C. § 1382(a)(3)(A) (1988). The Social Security Administration defines "comparable severity" as a "physical or mental impairment [that] so limits [a child's] ability to function independently, appropriately and effectively in an age-appropriate manner that [the child's] impairment[s] and the limitations resulting from it are comparable to those which would disable an adult." 20 C.F.R. § 416.924(a). To determine comparable severity in a child, the Commissioner must evaluate the claimant using the four-step test. 20 C.F.R. § 416.924(b); see Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988).
B. Scope of Judicial Review
This Court must give the Commissioner's final decision great deference, "even if [the Court] might justifiably have reached a different result upon de novo review." Valente v. Secretary of Health & Human Serv., 733 F.2d 1037, 1041 (2d Cir. 1984). Specifically, "the findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g) (1988). Substantial evidence, however, 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) (citations omitted). This Court's review thus centers on whether the Commissioner's "conclusions are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990).
C. Review of the ALJ's Decision
I find that the Commissioner's determination is supported by substantial evidence, and that he correctly applied the four-part test under 20 C.F.R. § 416.924. The record supports the ALJ's finding that Kristin functioned in an age-appropriate manner. First, the ALJ correctly determined that plaintiff was not engaged in substantial gainful activity. Second, the ALJ correctly found that Kristin's bronchial asthma caused her more than a minimal impairment. Third, despite plaintiff's contentions, the ALJ correctly found that Kristin's impairments did not meet or equal a listed impairment under Appendix 1 to Subpart P of Part 404 in 20 C.F.R.
Plaintiff argues that she does in fact satisfy the requirements for listings 103.03B and 103.03C(2), under Appendix 1 to Subpart P of Part 404 in 20 C.F.R. Pursuant to 103.03B, a claimant who suffers six attacks requiring physician intervention and occurring despite the prescribed treatment during a twelve month period is disabled. Plaintiff cites the attacks occurring on December 9, 1993, August 11, 1994, August 19, 1994, August 30, 1994 and two attacks occurring on October 4, 1994. (See Plaintiff's Initial Brief, at 6-7). Also, under § 103.03C(2), a claimant is disabled if she suffers "persistent low-grade wheezing between acute attacks . . . with . . . short courses of corticosteroids that average more than 5 days per month for at least 3 months during a 12-month period." Plaintiff relies on four occurrences requiring such medication: on August 11, August 21, October 4, and October 14, 1994. (See Plaintiff's Initial Brief at 6-7, 13-14).
Although these series of incidents may qualify Brenda for future benefits, they do not support the present application. In Perez v. Chater, 77 F.3d 41 (2d Cir. 1996), the Second Circuit held that district courts may consider evidence that was added to the administrative record after the hearing before the ALJ. However, such evidence must relate "to the period on or before the ALJ's decision." Id. at 45. Accordingly, under Perez, I may only consider evidence added to the administrative record that relates to the period before May 26, 1994. Because plaintiff's argument that her asthma qualifies her for disability benefits under the listings rests on events that occurred after that date and that do not relate to the period before, it must fail. Hence, the ALJ's finding that Kristin's asthma does not meet or equal an impairment listed on Appendix 1, Subpart P of Part 404 on 20 C.F.R. is correct. 20 C.F.R. § 416.924(e). (Tr. 33, 38).
The additional evidence incorporated into the record in Perez is distinguishable from the evidence submitted here by plaintiff. The additional evidence in Perez consisted of medical reports made available or prepared after the ALJ hearing, the substance of which concerned the patient's treatment before the hearing. Plaintiff's evidence, on the other hand, is based on new asthma attacks that occurred after the ALJ hearing. By submitting this new evidence, plaintiff was submitting, in essence, a new application for benefits arising out of a new set of facts. Plaintiff's proper course of action is to submit a new application, relying on the six new attacks. Perez, 77 F.3d at 45.
Finally, the ALJ correctly applied the fourth step of the four-step sequential test. The ALJ determined that the severe impairment does not substantially reduce claimant's ability to function independently, appropriately, or effectively in an age-appropriate manner, and that the impairment is not of comparable severity to that which would disable an adult. Plaintiff's academic achievement indicated that she was functioning normally in school: she had never been left back, her grades were average, and she had friends with whom she interacted regularly. (Tr. 156). Moreover, I.Q. tests showed that plaintiff exhibited average intelligence and "high average potential." (Tr. 156). Her treating physician maintains that there are no behavioral, physical or developmental limitations, and that her cognitive and sensory domains only exhibit mild limitations. (Tr. 201). For all these reasons, the ALJ's decision is supported by substantial evidence.
For the reasons set forth above, plaintiff's motion for judgment on the pleadings is denied. Defendant's cross-motion for judgment on the pleadings is granted. The final determination of the Commissioner is affirmed. The Clerk of the Court is directed to enter judgment accordingly.
Dated: New York, New York
July 1, 1996
United States District Judge
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