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GOMEZ v. BARNHART

United States District Court, Southern District of New York


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 54609 (S.D.N.Y. Jan. 15, 2002) (applying interim rules to review of the Commissioners October 1998 decision in the case).

Under the interim regulations, in order to determine whether a child is disabled, the Commissioner engaged in a three-step analysis. 20 C.F.R. § 416.924 (a) (1998). First, the Commissioner was to consider whether the child is engaged in "substantial gainful activity." Id. § 416.924(b). If the Commissioner found that the child is so engaged, the child would not be awarded benefits. Id. Second, the Commissioner was to consider whether the child has a "severe" impairment. Id. § 416.924(c). The rule states: "If your impairment(s) is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations, we will find that you do not have a severe impairment(s) and are, therefore, not disabled." Id. Third, if the impairment was found to be severe, the Commissioner next considered whether the impairment met or was medically or functionally equal to a disability listed in the designated "Listing of Impairments." Id. § 416.924(d); see also 20 C.F.R. pt. 404, subpt. P, app. 1 (1998) ("the Listings"). The interim regulations provided that an impairment qualified as a disability under the Act if it was severe and constituted, or was medically or functionally equal to, a disability in the Listings. 20 C.F.R. § 416.924 (d). In addition, there was a duration requirement for the establishment of the impairment. Id. § 416.924(d)(1). Here, the administrative law judge appears to have ruled that Plaintiff's impairments did not meet the severity threshold (Tr. 19) and that Plaintiff did not have a condition that met or was the functional equivalent of a Listed impairment. (Tr. 20.)

Whether Plaintiff's Impairment is Sufficiently Severe

Plaintiff has not contested specifically the administrative law judge's determination that Plaintiff's impairment was not sufficiently severe. Plaintiff, however, necessarily challenges the administrative law judge's determination concerning the severity of Plaintiff's impairment by arguing that the impairment meets the Listing requirements. Defendant argues that remand is appropriate in order to fully develop the record concerning the severity of Plaintiff's impairment. The applicable regulations make it clear that a determination of whether the impairment is sufficiently severe must be made before the determination of whether the impairment meets the Listing requirements or is the functional equivalent of a Listing. 20 C.F.R. § 416.924 (c). Because the record requires further development as to whether Plaintiff's impairment is sufficiently severe, remand is appropriate. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (to award benefits, court must conclude that "application of the correct legal standard could lead to only one conclusion").

Whether Plaintiff Meets Listing Requirements

Plaintiff argues that he should be awarded benefits because he meets the requirements for the Listing for childhood asthma.

The Listing for childhood asthma requires, in pertinent part, the following:

Section 103.3 Asthma.

B. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each inpatient hospitalization for longer than 24 hours for control of asthma counts as two attacks and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks;
Or

C. Persistent low grade wheezing between acute attacks or absence of extended symptom-free periods requiring daytime and nocturnal use of sympathomimetic bronchodilators with one of the following:
1. Persistent prolonged expiration with radiographic or other appropriate imaging techniques evidence of pulmonary hyperinflation or peribronchial disease; or
2. Short courses of corticosteroids that average more than 5 days per month for at least 3 months during a 12-month period.
Or

D. Growth impairment as described under criteria in 100.00.

20 C.F.R. Part 404, Subpart P. Appendix 1, § 103.3.

Asthma attacks are defined as "prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 3.00C. Hospital admissions are defined as "inpatient hospitalizations for longer than 24 hours." Id.

For a claimant to be awarded benefits based upon Listing criteria, the impairment "must meet all of the specified medical criteria. . . . An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

The parties focus on section 103.3 B of the interim regulations, which deals with the Listing requirements for asthma. Plaintiff contends that he meets the requirements of the childhood asthma Listing under section 103.03 because he experienced at least 6 attacks in a twelve month periods. There appears to be no dispute that his asthma attacks on February 9, 1997 and June 13, 1997 equal three attacks because he stayed in the hospital more than 24 hours on February 9, 1997 and because Plaintiff received the intensive treatment on each of February 9, 1997 and June 13, 1997 as required under 3.00C of 20 C.F.R. Part 404, Subpart P, Appendix 1. Plaintiff admits that the record is incomplete with respect to his hospitalizations on February 7, 1997 and August 1, 1997, but argues that it is sufficiently probable that Plaintiff met the Listing requirements in the twelve-month period beginning January 28, 1997, that an award of benefits is warranted.

The record regarding Plaintiff's February 7, 1997 treatment is insufficient to establish that Plaintiff received intensive treatment as required by Section 3.00C. The record regarding the August 1, 1997 hospitalization reflects that Plaintiff was treated for a urinary tract infection and, although Plaintiff was also diagnosed with asthma, the record is incomplete as to whether he received intensive treatment for asthma on that occasion as required by the applicable regulations. Regarding Plaintiff's January 28, 1997 hospitalization, he was admitted for a urinary tract infection and also received treatment for asthma. On the record before the Court, however, it is not clear that Plaintiff received intensive treatment as required under the applicable regulations on that occasion either.

Because Plaintiff must meet all the specified criteria to be classified as impaired under the asthma Listing and the record does not establish that Plaintiff has met all of the specified criteria, there is no basis for granting plaintiff judgment under 42 U.S.C. § 405 (g) under the Listing requirements for childhood asthma. See Sullivan v. Zebley, 493 U.S. at 530.

Whether Plaintiff Meets Medical Equivalency Requirements

Under the interim regulations, functional equivalence could be found, by evaluating the effects of [a child's] impairment(s) in broad areas of development or functioning, such as social functioning, motor functioning, or personal functioning . . . and determin[ing] if [the] functional limitations are equivalent in severity [to the listings] . . .
20 C.F.R. § 416.926a(b)(2) (1998). Further, "[i]f [a child had] extreme limitations in one area of functioning or marked limitation in two areas of functioning, [the Commissioner] [would] find that [a child's] impairment(s) was functionally equivalent in severity to a listed impairment." Id.

In determining functional equivalence, the Commissioner employed four methods. The first was called the limitation of specific functions. Under this analysis, the Commissioner could find that a child's impairments were functionally equivalent in severity to a Listed impairment because of extreme limitation of one specific function, such as walking or talking. See 20 C.F.R. § 416.926a(b)(1). The second method dealt with broad areas of development or functioning. Here, for children between the ages of three and eighteen, the Commissioner evaluated their development in the areas of cognitive/communicative function, motor function, social function, personal function and concentration, persistence or pace. See 20 C.F.R. § 416.926a(c)(4). If a child had extreme limitations in one area, or marked limitations in two areas of functioning, the Commissioner may find that the child's impairment was functionally equivalent in severity to a Listed impairment. See 20 C.F.R. § 416.926a(b)(2). A third method of analysis concerned "episodic impairments," and was used to evaluate chronic impairments characterized by frequent illness or attacks. The fourth method of analysis evaluated limitations related to treatment or medication effects. It appears that third method, concerning episodic impairments, is relevant here.

Plaintiff contends that the Commissioner's Listing for childhood asthma is analogous to Plaintiff's impairment of polycystic kidney disease with frequent urinary tract infections. Defendant points out that the SSI benefit regulations contain other specific Listings for impairments for chronic renal disease including polycystic disease. See 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 106.02 (for children) and 6.02 (for adults). The question of whether the combined effect of impairments as equivalent to a Listing is a medical question. See Honeysucker v. Bowen, 649 F. Supp. 1155, 1159-60 (E.D. Ill. 1986). The medical consultants chosen by the Commissioner reviewed the record before all the medical evidence was obtained. See Plaintiff's Mem. at 20, n. 12. Thus, because medical consultants have not fully reviewed all the medical evidence, the Court cannot conclude that "application of the correct legal standard could lead to only one conclusion." Schaal v. Apfel, 134 F.3d at 504. Accordingly, remand is appropriate in order to determine whether Plaintiff qualifies for Listing equivalence.

Whether Benefits Should be Awarded Under the Health and Well-Being Standard

Plaintiff requests that the Court direct an award of benefits under the regulations effective January 2, 2001, based on Plaintiff's "health and well-being." Under the new regulations, a child may be eligible for benefits if the child meets certain requirements concerning the frequency and duration of episodes of illness. As explained above, the Court reviews an administrative law judge's decision in accordance with the regulations 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. Accordingly, because the "health and well-being" standard was not in effect at the time of the Commissioner's decision in this case, the Court cannot retroactively evaluate the Commissioner's decision under the "health and well-being" standard.

CONCLUSION

For the foregoing reasons, Defendant's motion for remand, pursuant to sentence six of 42 U.S.C. § 405 (g), is granted and Plaintiff's motion for judgment is denied. The above-captioned case, hereby remanded pursuant to the Act, is closed subject to reinstatement by either party upon completion of administrative proceedings. Such reinstatement shall be effected by letter application to this Court without need for filing a new action or obtaining a new docket number. The Clerk of the Court is directed to close this case.

SO ORDERED.


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