The opinion of the court was delivered by: CHIN
Plaintiff Brenda Brown ("Brenda"), on behalf of her daughter Kristin Brown ("Kristin"), brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), challenging a final determination of the Commissioner of Social Security (the "Commissioner") that Kristin is not entitled to Supplemental Security Income ("SSI"). Both parties move for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, plaintiff's motion is denied, the government's cross-motion is granted, and the Commissioner's determination is affirmed.
Brenda applied for SSI benefits on February 6, 1989, claiming that Kristin's asthma entitled her to disability payments under Title XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 1381-1383 (1988). The claim was denied. It was subsequently readjudicated under new guidelines for evaluating children's disabilities, pursuant to the Supreme Court's decision in Sullivan v. Zebley, 493 U.S. 521, 107 L. Ed. 2d 967, 110 S. Ct. 885 (1990). The application, however, was once again denied. Brenda then requested and received a hearing before Administrative Law Judge Thomas P. Dorsey (the "ALJ"), who conducted a hearing de novo on December 15, 1993. On May 26, 1994, the ALJ found that Kristin was not disabled and thus not entitled to disability benefits. The Appeals Council denied the request for review on November 30, 1994, and thus the ALJ's findings and conclusions became the Commissioner's final decision. Brenda appeals to this Court for review of the Commissioner's determination.
Kristin is currently a fourteen year-old girl who was diagnosed with bronchial asthma in 1986, at the age of four. (Tr. 36). Her mother and brother are asthmatic as well as her maternal and paternal aunts. (Tr. 172). Her treating physician, Dr. K. Jothianandan, has provided therapy, including injections and parenteral and steroidal medication, since 1986. (Tr. 65, 66). On September 14, 1988, Dr. Jothianandan categorized Kristin's asthma as moderate to severe and suggested that she be provided with special school transportation. (Tr. 139). He further recommended that she attend a school with fewer steps or an elevator. (Tr. 138).
Kristin testified that she attends a mainstream rather than a special education class, and that she had friends at school. (Tr. 46-48). While Kristin has never been left back, she is, however, excused from gym class because she has shortness of breath when exercising. (Id.).
On September 15, 1988 Kristin underwent a psychological and educational examination. The tests indicated that she was a "well-adjusted young girl" with language and perceptual-motor abilities in the average range and high average potential. (Tr. 156). Educational deficits exist, however, in reading comprehension, writing skills (manuscript), arithmetic concepts, problem solving and computational operations. Kristin's school also performed an individualized assessment on September 26, 1988. The report noted that she was medicated for asthma, with theodure and proventil, but concluded that academic remediation was not needed at the time and that no specialized equipment or adaptive devices were warranted. (Tr. 140-41).
On April 24, 1989, Dr. Jothianandan treated Kristin with two epinephrine shots for an acute episode of bronchial asthma. She was later discharged on bronchodilators and prednisone. (Tr. 170). Dr. Brea examined plaintiff at Union Hospital nine days later, on May 3, 1989. (Tr. 172). Dr. Brea found that Kristin's lungs were clear, with good aeration and no wheezes. The pulmonary function tests showed a "mild restrictive pattern." (Tr. 173). A subsequent pulmonary function test performed for the New York State Department of Social Services Office of Disability Determinations on June 1, 1989, also characterized Kristin's condition as exhibiting a "mild restrictive pattern." (Tr. 175).
Dr. Flores, a consultative examiner, performed a chest exam on November 6, 1992, revealing no deformities or retractions, good air entry, no rales or rhonchi, and good resonance on percussion. (Tr. 186). An x-ray showed the lungs to have no infiltrates, masses or pleural effusions. (Tr. 187).
In response to a request from the Office of Disability Determinations, Dr. Jothianandan submitted an account of his treatment of the plaintiff as of May 1993. (Tr. 170). In addition to the medical visits noted above, Kristin also suffered acute attacks on January 15, 1993, January 20, 1993, and May 6, 1993. In the January incidents Kristin responded to epinephrine shots and was discharged with prednisone, a proventil pump and slobid capsules. Dr. Jothianandan also noted that Kristin suffered from wheezing and difficulty in breathing in between acute attacks. (Tr. 170). Corroborating Kristin's testimony in which she alleged to have missed about 30 days of school in fifth grade and about 18 in sixth grade, the doctor stated that she was absent on several occasions. (Tr. 151, 170).
Dr. Jothianandan submitted a Child's Residual Functional Capacity Evaluation on December 14, 1993. (Tr. 200-2). He currently sees plaintiff preventively, once every three to six months. He indicated that she suffers from difficulty in breathing and coughing, as well as sporadic chest pains as a result of her asthma. In addition, she wheezes and has difficulty breathing during acute attacks. Kristin is regularly medicated with a proventil inhaler with nebulizer, a proventil pump which she uses 5 times daily, one 300mg capsule of slolid every twelve hours, and 20mg of prednisone for five days during attacks. (Tr. 195, 200). The report also noted that while Kristin has never been hospitalized she has been to the emergency room on several occasions. (Tr. 200). According to the report, as a result of her numerous absences due to asthma, Kristin demonstrated lack of ...