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MCCASKILL EX REL. HARRIS v. MASSANARI

August 13, 2001

TRACIE MCCASKILL, ON BEHALF OF DIIJON T. HARRIS, PLAINTIFFS,
V.
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.

I.

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.

II.

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.

III.

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 specificity.

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 ...


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