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GOMEZ v. BARNHART

May 28, 2003

ESMA GOMEZ, ON BEHALF OF INES ENRIQUE GOMEZ, PLAINTIFF, AGAINST JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT


The opinion of the court was delivered by: Laura Taylor Swain, District Judge

OPINION AND ORDER

Esma Gomez brings this action on behalf of minor Ines Enrique Gomez ("Plaintiff") pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405 (g) (the "Act"), challenging the final determination of the Commissioner of Social Security (the "Commissioner") denying disability benefits for her infant son Ines Enrique Gomez. The Commissioner has moved to remand these proceedings to consider additional evidence. Plaintiff has crossed moved for a judgment pursuant to 42 U.S.C. § 405 (g) or, in the alternative, remand. Because both parties agree that remand is appropriate unless Plaintiff is currently entitled to judgment in his favor, the issue before the Court is whether Plaintiff is entitled to a judgment.

For the following reasons, Plaintiff's cross-motion for judgment is denied and the case is remanded to the Commissioner for further proceedings pursuant to the sixth sentence of

FACTS

Plaintiff was born on September 17, 1996. He was then hospitalized for two months at Lincoln Medical and Mental Health Center ("Lincoln Hospital") because he suffered from elevated blood pressure which appeared to be connected to a kidney condition characterized by the growth of cysts.*fn1 (Tr. 116-23, 160-61.) Upon Plaintiff's discharge, his condition was described as stable, but physicians prescribed continuing medication to control his blood pressure and antibiotics to prevent urinary tract infections. (Tr. 118.)

From November 1996 to January 1997, Plaintiff was treated at Lincoln Hospital as an outpatient. During that time period his blood pressure was under control and he was described as "doing well" or "asymptomatic" from the medical perspective. (Tr. 291, 292.)

On January 28, 1997, Plaintiff was treated for asthma, a urinary tract infection and high blood pressure. (Tr. 199-09.) He was hospitalized for five days. Id. On February 7, 1997, Plaintiff was again treated for an asthma attack. On February 9, 1997, he was again admitted to Lincoln Hospital for eight days to treat asthma. Subsequent outpatient visits in February and March 1997 showed that his asthma was under control. (Tr. 155.) On April 8, 1997, Plaintiff was hospitalized for another urinary tract infection. In May and early June 1997, Plaintiff's doctors indicated that his condition was stable. (Tr. 153-54 276.)

On June 13, 1997, Plaintiff was seen in the hospital emergency room with asthma attack and further diagnosed with another urinary tract infection. (Tr. 149-151, 264-65.)

Plaintiff was next admitted to the hospital on August 1, 1997 for another urinary tract infection; (Tr. 299-300.) Physicians noted large cysts in Plaintiff's kidneys. (Id.) He was hospitalized for seven days for treatment. (Tr. 359-60.) On September 19, 1997, Plaintiff was admitted to Lincoln Hospital for an eight day stay for another urinary tract infection. (Tr. 165-68, 229.) From 1997 to 1998, Plaintiff's hospital and clinic visit reports showed him as stable or "doing well." (Tr. 241-61.) He was treated for further urinary tract infections in June and July of 1998. (Tr. 248-49.)

Ms. Gomez, Plaintiff's mother, filed an application for Social Security Income ("SSI") benefits on behalf of Plaintiff, on March 27, 1997. (Tr. 56-103.) The application was denied in May of 1997. (Tr. 30-36, 39-42, 134-43.) Ms. Gomez subsequently requested a hearing before an administrative law judge (Tr. 43-44.) The hearing was held on February 12, 1998. (Tr. 22-29.) The administrative law judge issued a decision denying the claim, concluding that Plaintiff did not have a condition that was the functional equivalent of an impairment listed in the applicable regulations governing SSI disability benefits. (Tr. 13-21.) On January 18, 2001, the Social Security Administration's Appeals Council issued a decision refusing to review Plaintiff's appeal of the administrative law judge's decision. (Tr. 4-7.)

DISCUSSION

42 U.S.C.A. section 1382c(a)(3)(C)(i) (West 2000) provides that an individual under the age of 18 "shall be considered disabled . . . if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." However, "no individual under the age of 18 who engages in substantial gainful activity . . . may be considered to be disabled." Id. § 1382c(a)(3)(C)(ii).

Interim regulations concerning 42 U.S.C. § 1382 were in place from 1997 through 2000. See Supplemental Security Income; Determining Disability for a Child Under Age 18; Interim Final Rules With Request for Comments, 62 Fed. Reg. 6408 (Feb. 11, 1997) (codified at 20 C.F.R. pts. 404 & 416 (1998)) ("interim rules"). In September 2000, the Commissioner published revised final regulations for determining a child's disability, which have been effective since January 2, 2001. See Supplemental Security Income; Determining Disability for a Child Under 18, 65 Fed. Reg. 54, 747 (Sept. 11, 2000) (codified at 20 C.F.R. pts. 404 & 416 (2002)) ("final rules").

The ALJ decided Plaintiff's case on April 18, 1998. (Tr. 15-21.) The court reviews the ALJ's decision in accordance with the interim regulations that were in effect at the time of the decision. See Morales ex rel. Morales v. Barnhart, No. 00 Civ. 9675, 2002 WL 1962001, at *7 n. 8 (S.D.N.Y. Aug. 21, 2002) (court applies the interim rules that were in effect at the time of the Commissioner's final decision); Panos v. Barnhart, No. 00 Civ. 2252, 2002 WL ...


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