United States District Court, Eastern District of New York
August 13, 2001
TRACIE MCCASKILL, ON BEHALF OF DIIJON T. HARRIS, PLAINTIFFS,
LARRY G. MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY,[FN1] DEFENDANT.
The opinion of the court was delivered by: Block, District Judge.
MEMORANDUM AND ORDER
Plaintiff Tracie McCaskill ("McCaskill") brings this action on
behalf of her son, Diijon T. Harris ("Diijon"), pursuant to
42 U.S.C. § 405(g) of the Social Security Act (the "Act") to review
a final determination of the Commissioner of the Social Security
Administration, (the "Commissioner"), denying an application for
Supplemental Security Income Child Benefits ("SSI"). Both
parties have moved for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure. For the
reasons set forth below, the Court denies both motions and
remands to the Administrative Law Judge ("ALJ") for further
development of the record.
Since his birth on November 22, 1994, Diijon has experienced
frequent asthma attacks requiring the daily administration of
medication, and trips to the emergency room. On November 23,
1995, Diijon applied for SSI benefits due to his chronic
bronchial asthma. Diijon's claim was denied initially, and upon
reconsideration. Thereafter, Diijon requested a hearing with an
ALJ. On September 27, 1999, after conducting a hearing and a
review of the entire record, the ALJ denied the claim. Diijon
requested an additional review by the Appeals Council, which was
denied on August 11, 1998. Diijon timely filed this complaint on
September 9, 1998.
The Court, in reviewing a decision denying benefits under the
Social Security Act, must first determine whether the ALJ
applied the correct legal standard. See Tejada v. Apfel,
167 F.3d 770, 773 (2d Cir. 1999);
see also Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
Until August 22, 1996, a child was entitled to ("SSI")
disability benefits if he suffered from a "medically
determinable physical or mental impairment of comparable
severity" to one that would disable an adult.
42 U.S.C. § 1382c(a)(3)(A) (1994). In 1996, the Personal Responsibility and
Work Opportunity Reconciliation Act ("PRWORA") changed the
standard governing child disability claims, replacing the
"comparable severity" standard with one that focuses on whether
a child has "marked and severe limitations." See Personal
Responsibility and Work Opportunity Reconciliation Act of 1996,
Pub.L. No. 104-193 § 211(d)(1)(A)(ii), 110 Stat. 2105 (codified
at 42 U.S.C. § 1382c). The 1996 standard applies to cases that
had not yet been decided on August 22, 1996. See PRWORA,
Pub.L. No. 104-193 § 116; Quinones v. Chater, 117 F.3d 29, 33
n. 1 (2d Cir. 1997) (applying prior "comparable severity"
standard due to timing of appeal but noting that Congress
amended the definition of childhood disability effective August
22, 1996). Because Diijon's application was not decided until
September 17, 1997, PRWORA governs.
A determination that a child has marked and severe limitations
entitling him to disability benefits requires a three-step
analysis. See 20 C.F.R. § 416.924(a). First, the ALJ must
consider whether the child is engaged in substantial gainful
activity. See 20 C.F.R. § 416.924(b). If not, the ALJ must
consider whether the child has a severe impairment. See
20 C.F.R. § 416.924(c). A severe impairment is one that is more
than a slight abnormality. Id. Finally, if the child's
impairment is severe, the ALJ must consider whether the
impairment meets or is medically or functionally equal in
severity to a disability listed in the Listing of Impairments.
See 20 C.F.R. § 416.924(c) (referring to 20 C.F.R. Part. 404,
Subpart P Appendix 1 (the "listings")). If all three
requirements are met, and the disability duration requirement
(twelve months) is met, the child will be found disabled. See
20 C.F.R. § 416.924(d).
An impairment meets the severity of a listing if it matches
the precise definition in the listings. An impairment is
medically equivalent to a listed impairment if it is "at least
equal in severity and duration to the listed findings."
20 C.F.R. § 416.926(a). This requires the ALJ to compare the
"symptoms, signs, and laboratory findings" of the claimant's
impairment based on his or her medical records with "the
corresponding medical criteria shown for any listed impairment."
Id. If an impairment is not listed, or medically equivalent to
a listing, an ALJ must assess its functional equivalence, i.e.,
"all functional limitations caused by [the] impairment."
20 C.F.R. § 416.926a(a). An impairment is functionally of
"`listing-level severity' if it causes marked limitations in two
broad areas of functioning or extreme limitations in one such
area." 20 C.F.R. § 416.925(b)(2). Extreme limitations in walking
or talking are examples of severity in one specific function
sufficient to support a determination of functional equivalence
to a listing. See 20 C.F.R. § 416.926a(b)(1). If there are no
limitations of specific functions, then the ALJ should consider
the effects of the impairment on broad areas of development or
functions. See 20 C.F.R. § 416.926a(b)(2). Among the areas of
development to consider are cognition/communication; motor
skills; socialization skills; personal hygiene and maintenance;
and concentration, persistence or pace.
20 C.F.R. § 416.926a(c)(4). Marked and severe limitations may also result
from episodic impairments (frequent illnesses or attacks, or by
exacerbations and remissions), or long-term treatment or
medication effects. 20 C.F.R.
§ 416.926a(b)(3). Finally, the ALJ must also consider the nature
of the impairment, age of the claimant, ability to be tested
based on age, whether the claimant needs help from others in
order to perform any particular activity (e.g., dressing), and
other relevant factors. 20 C.F.R. § 416.926a(c)(2).
In reviewing Diijon's claim for disability benefits the ALJ
applied the above-mentioned three-pronged legal standard and
found that the claimant (1) never performed substantial gainful
activity; (2) had asthma, but not as it is defined as an
impairment listed in the listings; and (3) did not have asthma
to a degree that is medically equal to or functionally equal to
an impairment listed in the listings. See R. at 14.*fn2
Based on these findings the ALJ concluded that Diijon's
"impairments do not result in marked and severe functional
limitations." Id. Although the ALJ used the correct legal
standard in considering Diijon's application, the Court,
nonetheless, must remand the case for the reasons that follow.
Once it determines that the correct legal standard has been
applied, a court must then determine whether the ALJ's
conclusion was supported by substantial evidence. See Curry v.
Apfel, 209 F.3d 117, 122 (2d Cir. 2000). Substantial evidence
is "more than a mere scintilla" which "a reasonable mind might
accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842
(1971) (citation omitted). In deciding whether the ALJ's
conclusions are supported by substantial evidence, the Court
first must be satisfied that "the claimant has had a full
hearing under [the] regulations and in accordance with the
beneficent purposes of the Act." Cruz v. Sullivan, 912 F.2d 8,
11 (2d Cir. 1990). Furthermore, it is important that the ALJ
consider the subjective complaints of the claimant regarding
pain and other symptoms throughout the evaluation process. See
Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984); Smith v.
Apfel, 69 F. Supp.2d 370, 378-79 (N.D.N.Y. 1999). If the
subjective testimony of a claimant is rejected, the ALJ must do
so explicitly and "with sufficient specificity to permit
intelligible plenary review of the record." Williams v. Bowen,
859 F.2d 255, 260-61 (2d Cir. 1988); see also Brandon v.
Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987). "It is not
sufficient for the [ALJ] to make a single, conclusory
statement." SSR 96-7p, 61 Fed. Reg. 34,483 at 34,484 (July 2,
1996) ("Evaluation of Symptoms in Disability Claims: Assessing
Credibility of an Individual's Statements"). If a district court
reviewing a Social Security benefits determination requires
additional evidence in order to perform its review function, it
should remand the case. See, e.g., Curry, 209 F.3d at 124
(remanding to the district court with instructions to remand the
matter to the Commissioner).
In the present case, the ALJ explicitly stated that he
"considered claimant's subjective complaints." R. at 14. He then
specifically found, in a single, conclusory statement, that
Diijon's "statements regarding the degree of functional
limitations are not fully credible as they are not supported by
the medical evidence of record or claimant's mother's
statements." R. at 15. Although the ALJ refers several times to
the appearance and testimony of the claimant, the extent to
which the ALJ directly examined Diijon, including whether Diijon
ever testified, is entirely unclear from the record.
Notably, on August 14, 1997, the date of the hearing, Diijon
was approximately thirty months old. The Court is hard-pressed
to understand how any meaningful testimony of this young child
was taken. Furthermore, no trial transcript has been produced
nor are there any other papers included in the record showing
that Diijon was questioned or made any statements on his own
behalf. Having placed great weight on the testimony of this
toddler (which may or may not have occurred), and finding that
it lacked credibility, the ALJ has failed to explain or support
his findings with any evidence, let alone any degree of
Furthermore, the ALJ failed adequately to discharge his
heightened duty to develop the record. See Perez v. Chater,
77 F.3d 41, 47 (2d Cir. 1996) (because a hearing on disability
benefits is a non-adversarial proceeding, the ALJ generally has
an affirmative obligation to develop the administrative record).
This duty exists even when the claimant is represented by
counsel, or as here, by a paralegal. See Echevarria v. Sec'y of
Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982)
(stating that among the Commissioner's responsibilities is the
duty to provide a claimant with a full and fair hearing in
accordance with the beneficent purposes of the Act and the
regulations promulgated thereunder).
In addition to failing to explain his reliance on testimony by
Diijon, the ALJ's questioning of Diijon's mother regarding his
attacks was inadequate. The following questions represent the
totality of the inquiry by the ALJ:
[Q]: How does this problem affect his life?
[A]: Well, he can't — he cannot — he's limited
because when he plays too hard or runs around too
much, he goes into an attack, he can't breathe, he
can't catch his breath, and I'm always running back
and forth to the doctor with his allergies and his
attacks or even to the hospital.
[Q]: And I assume he's taking some medication, is he
[Q]: Does he eat pretty well?
[A]: Only when he gets sick with asthma he don't eat
that much . . .
[Q]: And if we don't consider the attacks that he
has, his activities are not restricted, is that
correct? He runs around and plays?
[A]: If I see he's playing too hard I stop him —
[A]: — because he'll go into one.
R. at 27.
By making the above cursory inquiry, and concluding summarily
that Diijon did not suffer from a marked and severe limitation,
the ALJ failed to make any specific findings regarding the
listings or how Diijon's illness does not medically or
functionally equal a listed impairment. There is no inquiry
regarding the frequency of the attacks, or how often Diijon's
mother intervened to prevent an attack at its onset. There are
also no questions regarding how often she must stop him from
playing too hard and the practicalities of how that restricts
the normal activities of a young child. Instead, the ALJ focused
his questions around Diijon's life excluding the attacks,
without considering the efforts taken to elude the onset of an
attack on a daily basis. In regards to broad or
specific areas of functioning, the ALJ merely stated that
Diijon's asthma "has had a mild limitation in his motor
functioning . . . [but] does not prevent him from playing and
interacting . . . [and] has improved with medication." R. at 15.
The ALJ did not explicitly consider Diijon's cognition or
communication; his socialization skills or ability to take care
of himself; his concentration or persistence; or his age,
ability to be tested, or need for help from others. Without a
more extensive undertaking by the ALJ into the precise effect
and nature of the illness and its repercussions, the Court finds
that it is unable to ascertain whether the ALJ's determination
is supported by substantial evidence.
The Commissioner's motion for judgment on the pleadings is
denied as is the plaintiff's motion for judgment on the
pleadings. The Court remands the case for further development of
*fn2 "R." refers to the bound set of documents comprising the
entire record of all prior proceedings.