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DIAZ v. APFEL

February 23, 1998

EMILIA DIAZ o/b/o DAURIS PENA, Plaintiff, against KENNETH S. APFEL, Commissioner of Social Security, Defendant.1


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Plaintiff Emilia Diaz, on behalf of her minor son Dauris Pena, brings this action pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3) challenging the final determination of the Commissioner of Social Security ("Commissioner") denying her application for disabled child Supplemental Security Income ("SSI") disability benefits. Pending before the Court is the Commissioner's motion for judgment on the pleadings. For the reasons set forth below, the Court grants Commissioner's motion and dismisses the complaint.

 Background

 Prior Proceedings

 On April 29, 1993 plaintiff applied for SSI disability benefits on her son's behalf, apparently on the ground that Dauris suffered from stomach pain and kidney problems. *fn2" Plaintiff's application was denied on June 29, 1993, based in part on Duaris' medical records from Lincoln Hospital. *fn3" On September 23, 1993, plaintiff requested reconsideration of her application, which request was denied on February 11, 1994. *fn4" Plaintiff's request for a hearing before an Administrative Law Judge ("ALJ") was granted, and the hearing was held on February 7, 1995. *fn5" On June 21, 1995, the ALJ ruled that Dauris was not disabled. *fn6" This determination became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for a review on December 8, 1995. *fn7"

 Facts of Record

 The Court begins its review with a summary of the relevant facts concerning Dauris' medical condition and the extent, if any, to which that condition impacts his functioning.

 1. Medical Evidence

 At the age of two months, Dauris was admitted to Lincoln Medical and Mental Health Center for treatment of dehydration and diarrhea. *fn8" Within a day or two his condition apparently normalized, as his symptoms had resolved and there were no further complaints from plaintiff. *fn9" One month later, in March 1992, Dauris was taken to the Pediatric Urology Clinic because of both a urinary tract infection, for which he apparently already was taking antibiotics, and a Grade II reflux. *fn10" The examining physician concluded that the child was healthy, though he did order continuation of the antibiotic treatment. *fn11" At a follow-up appointment, it was noted that Dauris had mild nasal congestion. *fn12" During a subsequent appointment, doctors concluded that Dauris had a ventral hernia. *fn13" Despite this, the doctors described Dauris as alert and active, and he was observed crawling and smiling. *fn14" It appears that an operation had been scheduled at some point to treat the hernia, but it later was canceled by plaintiff. *fn15"

 In October 1992, Dauris was referred to the Pediatric Hematology Clinic for examination and treatment of a condition described as "G6PD" deficiency. *fn16" At that time, doctors again described Dauris as alert and active. *fn17" The G6PD blood deficiency was noted subsequently by doctors at the Pediatric Clinic in January 1993, at which time it was observed also that Dauris had been vomiting, and that he had experienced watery stools three times in one day. *fn18" Dauris was subsequently admitted to Lincoln Hospital on October 20, 1993 for treatment of an ear infection, though he was discharged the next day in stable condition. *fn19"

 At the behest of the Office of Disability Determinations, Dauris was examined by Dr. E. Florez on January 6, 1994. *fn20" Dr. Florez' report indicated that the two-year-old was "cooperative, alert, well developed, well nourished, [and] in no acute distress." *fn21" Dr. Florez noted also that Dauris was capable of jumping in place, combining multiple words, participating in interactive games, and scribbling spontaneously, leading the doctor to conclude that Dauris' development was "normal for [his] age." *fn22" Dr. Florez did note, however, his impression of "recurrent urinary tract infections, urethral reflux, 6 GPD Deficiency, and Epigastric Hernia." *fn23"

 2. The Administrative Hearing

 The administrative hearing was held on February 7, 1995. The ALJ began by painstakingly ascertaining that plaintiff understood her right to counsel and that she nonetheless wished to proceed pro se.24 Plaintiff indicated also that she understood the purpose of the administrative hearing. *fn25" The ALJ then examined her on the subject of her son's condition. *fn26" Plaintiff subsequently made numerous statements relevant to the determination of disability, the first of which was that "the only problem that [Dauris] has is the problem in his stomach." *fn27" She later explained that Dauris still had "the same [hernia] problem." *fn28" When pressed by the ALJ for an explanation of any other problems Dauris might currently suffer from, plaintiff stated that he had a "problem with his nose that he can't breathe" and, additionally, that he sweated, wet his bed, had a blood problem, a urination problem, and a history of infections including ear infections. *fn29" Plaintiff elaborated on Dauris' vomiting, explaining that he vomited several times every month. *fn30" It appears that Dauris was taking antibiotics to treat some or all of these difficulties. *fn31" When asked if Dauris had any pain and discomfort other than that related to the vomiting, plaintiff said "no. Just to sleep." *fn32"

 The ALJ then attempted to ascertain the extent to which any or all of these difficulties impacted Dauris' life. When asked whether Dauris was able to run and jump around, plaintiff answered in the affirmative. *fn33" She stated also that Dauris knew how to get on a tricycle, though he did not yet know how to ride one. *fn34" Plaintiff indicated further that Dauris did not play with other children his own age, but on the other hand, that he did play with his older brother. *fn35" For example, Dauris and his brother "sometimes [will] be playing around and they'll climb up to the dresser drawer . . . to throw themselves on the bed. They jump on the bed." *fn36" Plaintiff described Dauris as "like a little man" *fn37" who "knows a lot" ...


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