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March 21, 2003


The opinion of the court was delivered by: Robert P. Patterson, Jr., United States District Judge


Plaintiff, Alberta McFadden ("Plaintiff"), moves on behalf of her minor granddaughter, Shaquan Steed ("Shaquan"), for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure ("Fed.R. Civ. P.") reversing the determination of the Defendant, the Commissioner of Social Security ("Defendant" or "Commissioner"), and remanding Plaintiff's claim solely for calculation of benefits, or in the alternative, a remand of Plaintiff's claim for a new hearing or decision pursuant to 42 U.S.C. § 405(g). The Defendant cross-moves for a judgment on the pleadings affirming her final decision that Shaquan was not entitled to child's Supplemental Security Income ("SSI") benefits under 42 U.S.C. § 1382(a)(3)(C)(i). For the reasons stated below, Plaintiff's motion is granted and the claim is remanded solely for the calculation of benefits. Defendant's motion is denied.


In September of 1992, Alberta McFadden filed an application for SSI on behalf of her then 6 year old granddaughter, Shaquan Steed born October 23, 1985, claiming disability based on learning disabilities. (Tr. 35-37). The application was denied initially on December 4, 1992 and upon reconsideration on December 16, 1992. (Tr. 34-43). No further action was taken to pursue that claim. (Tr. 197).

On April 6, 1993, Alberta McFadden again filed an application for SSI on behalf of Shaquan, alleging that the claimant had been disabled since September of 1992. (Tr. 78-83). The application was defied initially on August 10, 1993 and upon reconsideration on September 7, 1993. (Tr. 51-53). Ms. McFadden, proceeding pro se then requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 54-57).

On May 19, 1994, a hearing was held before ALJ Stephen A. Jones in New York City, his decision was issued on July 18, 1994. (Tr. 10-18, 243-48). Judge Jones found that Shaquan had a learning disability which constituted a severe impairment. (Tr. 247). However, after analyzing her degree of limitation, he concluded that her impairment did not meet or medically equal any listing. (Id.) He determined that she only had moderate limitations in two areas (social function and concentration, persistence and pace) and slight limitations in two others (cognitive function and personal/behavioral function). (Id.) Because she did not satisfy the "one marked plus one moderate" standard required under law at the time to show functional equivalence, her claim was denied. (Id.) On October 20, 1994, the Appeals Council denied review rendering Judge Jones' decision "final." (Tr. 5-6, 251-52).

On December 5, 1994, an action was commenced in this Court for review of the Commissioner's decision. The SSA subsequently filed a motion to affirm the agency's decision and dismiss the complaint. Plaintiff, represented by Bronx Legal Services, filed a cross-motion to remand the case for a new hearing, based in part on two psychiatric reports of Dr. Reagan, a child psychiatrist who had begun treating Shaquan in May of 1995 for Psychotic Disorder, Not Otherwise Specified ("NOS") and acute behavioral problems. (Tr. 259-62). Thereafter, pursuant to an agreement between the parties, by order dated April 17, 1996, the Court remanded the matter for further administrative proceeding pursuant to the sixth sentence of 42 U.S.C. § 405(g). An order by the Appeals Council remanding Plaintiff's claim for a new hearing in accordance with the stipulation was issued on June 28, 1997. (Tr. 254-55).

In August of 1996, Ms. McFadden moved to South Carolina. (Tr. 228). On March 11, 1997 the Plaintiff requested that her claim be transferred there. (Tr. 215).

On January 8, 1998, the ALJ received the exhibits from the 1994 hearing, numbered 1-36 (Tr. 184-185); exhibits 37-43, which included the 1994 decision of ALJ Jones and subsequent correspondence (Tr. 240-258); and exhibits 44 and 45, the psychiatric assessments of Dr. Reagan which were the focus of the remand order. (Tr. 259-262). In a package from the Plaintiff's attorney dated January 19, 1998, the ALJ received a Psychoeducational Evaluation report dated December 18, 1996 (Tr. 269-274), and the Individualized Education Program report from September 13, 1996 to May 30, 1997 (Tr. 275-281), exhibits 46-48. (Tr. 269-282).

On February 3, 1998, the remand hearing was held before ALJ Peter J. Baum in Florence, South Carolina, at which the ALJ took testimony from Ms. McFadden. (Tr. 216-239). Shaquan was not present at the hearing. That same day, prior to the commencement of the hearing, the Plaintiff's attorney submitted exhibits 49-54 (Tr. 283-348), which included the Curriculum Vitae, Outpatient Evaluation and Psychiatric Review Technique of board certified Psychiatrist, James W. Thrasher, M.D., J.D. (Tr. 283-300); an Individualized Education Program report from New York City Public Schools, dated June 19, 1995 (Tr. 302-312); an Individualized Education Program report from the Clarendon County School District #3, dated May 26, 1997 (Tr. 340-348);*fn1 and material from the underlying 1994 decision. (Tr. 313-339).

The ALJ considered the matter de novo under the interim regulations in effect from February 11, 1997 through December 31, 2000. The ALJ noted that Dr. Thrasher's evaluation, dated January 27, 1998, reported that Shaquan exhibited disabling symptoms, including auditory hallucinations, disrupted thought process and delusional thinking. (Tr. 201-202). However, the ALJ stated, "Dr. Thrasher's opinions regarding the severity of the claimant's impairments and whether she meets the requirements of a Listing are given no weight. His opinions are based upon the claimant's status without medication!" (Tr. 202).

In a decision dated April 11, 1998, Judge Baum denied Shaquan's claim based on a finding that the Plaintiff was not disabled. (Tr. 194-205). Judge Baum did find that Shaquan had several impairments, including "a psychotic disorder, controlled on medication," borderline intellectual functioning, a learning disorder, and a history of oppositional defiant disorder, and that one or more of these impairments passed the severity threshold. (Tr. 199, 203). However, the ALJ found that the limitations exhibited by Shaquan did not satisfy the two marked limitations standard under the 1997 regulation. While the ALJ found that Shaquan had a marked limitation in the area of cognitive/communicative functioning, he found that her degree of limitation in the area of social functioning was less than marked and that she actually exhibited no limitations in the remaining three areas (motor functioning, personal functioning, and concentration, persistence, and pace). (Tr. 203-4).

On April 30, 1998, Plaintiff filed a timely request for review of the ALJ'S decision, submitting with the request evidence relating to Shaquan's recent school attendance and behavior. (Tr. 189-93). By order dated October 27, 1998, the Appeals Council denied any further review. (Tr. 187).*fn2

In the instant motion, the Plaintiff contends that the Commissioner's decision was erroneous and must be reversed for two reasons: (1) the Commissioner made an improper assessment of the evidence of the record of Shaquan's disability; and (2) the Commissioner improperly relied on "failure to follow prescribed treatment" as a basis for denial. The Defendant argues that the decision was not based on "failure to follow prescribed treatment," rather, the decision was based on ...

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