United States District Court, S.D. New York
April 20, 2004.
DOROTHY WILLIAMS o/b/o BRANDON TORRES Plaintiff, -against- JO ANNE B. BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND AND ORDER
Plaintiff Dorothy Williams ("Williams") seeks judicial review of the
decision of the Commissioner of Social Security (the "Commissioner")
rejecting an application for Supplemental Security Income ("SSI")
benefits that Williams filed in March 2000 (the "2000 Claim") on behalf
of her son Brandon Torres ("Torres"), who suffers from asthma. Both
parties agree that the Administrative Law Judge (the "ALJ") who conducted
a hearing on Williams's application erred by, inter alia,
inadequately developing and considering the evidence on the record.
Because the Commissioner's decision is not supported by substantial
evidence, and in light of the already extensive delay in adjudicating
this application, remanding this case to the ALJ for further
administrative proceedings as to the 2000 Claim would serve no useful
purpose. Accordingly, in a Decision and Order dated March 30, 2004, the
Court denied the Commissioner's motion for remand and granted Williams's
motion for judgment on the pleadings as to the 2000 Claim, and remanded
the 2000 Claim to the Commissioner for the sole purpose of awarding
benefits. The Court indicated that it would make its findings, reasoning
and conclusions available separately.
Doctors first diagnosed Torres as asthmatic when he was six months old.
He is now seven years old, was hospitalized twice for asthma when he was
very young, and has suffered asthma attacks throughout his life. Torres
generally begins to cough and wheeze after ten to fifteen minutes of
physical activity. His asthma is also triggered by hot or cold weather,
rain, laughter, cats, dogs, perfume, strong smells, and colds.
Williams first filed an SSI claim on behalf of Torres in June 1998 (the
"1998 Claim"), when Torres was one year old. She asserted that Torres was
disabled due to asthma. An administrative law judge rejected that
application, and the ALJ's decision became the final decision of the
Commissioner on January 4, 2001.
On March 22, 2000, Williams filed a second SSI claim on behalf of
Torres, the claim at issue in the present case. The 2000 Claim was denied
initially and upon reconsideration. Williams requested a de novo hearing, which was held
before an administrative law judge on April 12, 2001. At the hearing,
Williams's counsel presented evidence on Torres's asthma, including
Torres's medical history, symptoms, and treatment. Williams presented
additional medical evidence to the ALJ after the hearing, and also
requested that the ALJ reopen the 1998 Claim. The ALJ issued a decision
on July 26, 2002 denying the 2000 Claim. The ALJ did not rule on
Williams's request to reopen the 1998 Claim. The ALJ's decision became
the final decision of the Commissioner in April 2003 when the Appeals
Council denied Williams's request for review.
Williams now seeks judicial review of the Commissioner's decision on
the 2000 Claim. Both parties agree that the ALJ erred during the hearing
by inadequately developing and considering the evidence on the record and
by failing to rule on Williams's request to reopen the 1998 Claim. The
parties dispute the appropriate remedy. The Commissioner has moved for
remand for further consideration of the evidence and development of the
record. Williams has filed a cross-motion for judgment on the pleadings.
A. STANDARD OF REVIEW
On appeal from a final decision of the Commissioner, the Court may "enter, upon pleadings and transcript of record, a
judgment affirming, modifying, or reversing" the Commissioner's decision
"with or without remanding the case for a rehearing." 42 U.S.C. § 405
(g). When the administrative record contains gaps requiring further
development of the evidence, or when the ALJ has applied an incorrect
legal standard, the usual course is to remand the case to the
Commissioner for further proceedings. See Rosa v. Callahan,
168 F.3d 72, 82-83 (2d Cir. 1999). But, when there is uno apparent basis to
conclude that a more complete record might support the Commissioner's
decision, " the Court may reverse the Commissioner's decision and remand
solely for a calculation of benefits. Id. at 83; see also.
Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2002).
A child under age 18 may receive SSI benefits if his income and assets
are below a certain threshold and if he "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." 42 U.S.C. § 1382 (a)(1) & 1382c(a)(3)
(c)(i). The Commissioner employs a three-step inquiry to determine
whether a child is disabled. See 20 C.F.R. § 416.924.
First, the Commissioner examines whether the child is engaged in "substantial
gainful activity." Id. Second, the Commissioner determines
whether the child has a severe medically-determinable impairment.
See id. Finally, the Commissioner considers whether the child's
impairment "meets, medically equals, or functionally equals" any of the
several hundred medical conditions listed in Appendix 1 to Part 404,
Subpart P of Title 20 of the Code of Federal Regulations ("Appendix 1").
The listing for asthma in Appendix 1 imposes two relevant requirements
which Torres must meet to receive SSI benefits:
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
. . .
2. Short courses of corticosteroids that average
more than 5 days per month for at least 3 months
during a 12-month period.
§ 103.03C of Appendix 1.
Williams argues that Torres satisfies these requirements because he has
both persistent low-grade wheezing between acute attacks and an absence
of extended symptom-free periods, and because between December 1999 and
November 2000 he received three short courses of Prelone, a
corticosteroid used for the treatment of asthma attacks, that averaged
more than five days per month over that period. The Commissioner argues
that Torres fails to meet either the wheezing or the short course of corticosteroids criteria.
In her written decision after the hearing on the March 2000 Claim, the
ALJ stated that "[t]he clinical records regarding treatment before the
March 22, 2000 alleged onset date are not relevant." (Decision
in re. Brandon Torres dated July 26, 2002, (the "ALJ Decision")
at 7, attached to Transcript of Administrative Record ("Tr.") at 19.)
Both parties agree this is incorrect, because in making a determination
of disability the Commissioner is obligated to "develop [the claimant's]
complete medical history for at least the 12 months preceding the month
in which you file your application." 20 C.F.R. § 416.912(d). As
noted above, when the ALJ applies an incorrect legal standard the Court
will typically remand the case to the Commissioner for further
proceedings. But in this case, the Court's review of the record indicates
that remanding this case for anything other than a calculation of
benefits would serve no useful purpose and only further delay an award of
benefits to a child who has already been waiting several years since his
claim was filed,
1. Persistent Wheezing and Symptom-Free Periods
To establish disability due to asthma, a claimant must first prove that
he suffers from either "[p]ersistent low-grade wheezing between acute
attacks or absence of extended symptom-free periods requiring daytime and
nocturnal use of sympathomimetic bronchodilators." § 103.03C of Appendix 1. The
Commissioner argues that Williams has failed to demonstrate that Torres
meets this criterion.
Williams filed the 2000 Claim in March 2000. The Court will therefore
examine the record of evidence regarding Torres's condition for the
preceding twelve months as part of its inquiry into the disability claim.
The Commissioner argues that because an ALJ previously rejected
Williams's 1998 Claim on September 8, 1999, the Court must apply
principles of administrative res Judicata to Torres's condition
before that date. Neither the ALJ's decision on the 1998 Claim nor any
materials relating to that claim are part of the record before the Court
on the 2000 Claim. There is no indication whether all the evidence of
Torres's condition as to the period before September 8, 1999 that is in
the record in the present case was also before the ALJ who ruled on the
1998 Claim, or whether the record for the 2000 Claim contains any new
evidence regarding Torres's condition before September 8, 1999.
Res judicata would not apply to a new claim that is based on the same
alleged disability as a prior rejected claim that occurred during an
overlapping time period if the new claim is based on new evidence.
See Green v. Weinberger, 500 F.2d 203, 205 & n. 1 (5th Cir.
1974); Minton v. Richardson, 328 F. Supp. 1264 (C.D.TX.
1971); Annotation, Applicability of Doctrine of Administrative Res Judicata to Determination by
Secretary of Health, Education and Welfare that Claimant Is Not Entitled
to Social Security Benefits, 14 A.L.R. Fed. 776 (2004). Any new
evidence of wheezing would be directly relevant to the question of
whether Torres suffers from persistent low-grade wheezing or an absence
of extended symptom-free periods.
But even if the ALJ who decided the 1998 Claim was presented with the
evidence of Torres's persistent wheezing before September 8, 1999, Torres
still satisfies the first prong of the asthma test based on medical
reports between that date and the April 12, 2001 ALJ hearing on the 2000
The record contains seventeen reports from Torres's treating physicians
between September 13, 1999 and February 26, 2001 that refer to
Torres's wheezing. On September 13, 1999, for example, Torres's physician
recorded that Torres had been coughing and wheezing for the previous
week. (Tr. 354.) A physician's report for January 6, 2000 indicated that
Torres was coughing four nights per week with a lot of wheezing. (Tr.
335.) As a whole, the reports indicate persistent wheezing between acute
attacks. Additionally, Williams testified that she gives Torres
bronchodilators several times each day and again in the middle of the
night three or four times every week when Torres wakes up coughing. (Tr.
67-68.) The Commissioner argues that the treatment notes are insufficient to
satisfy the persistent wheezing or absence of symptom-free periods factor
because the notes are based on Williams's reports to physicians rather
than on any doctor's personal observations. The Commissioner relies upon
42 U.S.C. § 423(d)(5)(A), which provides:
An individual's statement as to pain or other
symptoms shall not alone be conclusive evidence of
disability as defined in this section; there must
be medical signs and findings, established by
medically acceptable clinical or laboratory
diagnostic techniques, which show the existence of
a medical impairment that results from anatomical,
physiological, or psychological abnormalities
which could reasonably be expected to produce the
pain or other symptoms alleged[.]
But Courts frequently consider and rely upon patient reports of
ailments when those reports were accepted by the patient's treating
physician and are not contradicted. See Virola v. Barnhart, No.
02 CIV. 6165, 2003 WL 22990081 (S.D.N.Y. Dec. 18, 2003). As the Ninth
Circuit stated, " [L]ay testimony as to a claimant's symptoms is
competent evidence that an ALJ must take into account, unless he or she
expressly determines to disregard such testimony and gives reasons
germane to each witness for doing so." Lewis v. Apfel,
236 F.3d 503
, 511 (9th Cir. 2001). To be sure, "A physician's opinion of
disability `premised to a large extent upon the claimant's own accounts
of his symptoms and limitations' may be disregarded where those
complaints have been `properly discounted.'" Morgan v. Apfel, 169 F.3d 595
, 602 (9th
The Commissioner argues that on some routine follow-up visits a
physician examining Torres determined that his chest was clear, and that
therefore Williams cannot legally establish that Torres suffers
persistent wheezing or an absence of extended symptom-free periods. But
all of Torres's treating physicians accepted Williams's reports of
Torres's wheezing and coughing. They repeatedly proscribed medication to
control asthma based on Williams's reports. There is no indication that
Williams's reports to Torres's physicians are anything other than
entirely credible. The ALJ credited Williams's testimony that Torres's
asthma is induced by exercise, hot or cold weather, smoke, cats, dogs,
perfume, and laughing. An absence of extended symptom-free periods
implies something other than constant, continuous symptoms. This differs
from other ailments whose symptoms are always present and observable by a
2. Short Courses of Corticosteroids
To establish disability from asthma, Torres must also demonstrate that
he received "short courses of corticosteroids that average more than 5
days per month for at least 3 months during a 12-month period." §
103.03C of Appendix 1.
Torres's treatment satisfies this condition. Beginning on December 13, 1999, he received four days of prelone, a
corticosteroid.*fn1 (Tr. 390, 584.) Torres took prelone for seven days
beginning on January 6, 2000. (Tr. 584.) Finally, on November 1, 2000
Torres began a five-day prescription for prelone. (Tr. 582.) These three
courses of treatment yield an average of 51/3 days per month for
three months during a 12-month period. For reasons that are unclear, the
Commissioner argues that Torres fails this criteria. The Commissioner's
submissions to the Court make no reference to the January 6, 2000
prescription. This apparent oversight would seem to be the only basis on
which the Commissioner could argue that Torres fails to meet this
standard. Because Torres's treatment records are clear, no useful purpose
would be served by remanding the case to the Commissioner to resolve this
Williams argues that in light of the substantial amount of time that
has elapsed since she filed the 2000 Claim, the Court should grant her
judgment on the pleadings and remand to the Commissioner merely for a
determination of benefits rather than remand for further administrative
proceedings. The Commissioner argues that there is no persuasive proof of disability and therefore remand for further proceedings rather than
an award of benefits by the Court is proper. Because the Court has
determined that there is persuasive proof of Torres's disability, the
Commissioner's principal argument against an award of benefits is no
longer valid. Furthermore, Williams filed the present claim on behalf of
Torres more than four years ago. The Court is reluctant to contribute
further to the delay in an award of benefits to a young child by
remanding this claim to the Commissioner for additional administrative
proceedings. See Curry v. Apfel, 209 F.3d 117, 124 (2d Cir.
2002). In light of the already substantial history of this case, and
because remanding for further administrative proceedings would serve no
useful purpose, the Court grants Williams's motion for judgment on the
pleadings and remands to the Commissioner only for a determination of
benefits. See id.; Carroll v. Sec, of Health and Human
Servs., 705 F.2d 638, 644 (2d Cir. 1983).
The Commissioner failed to rule on Williams's request to reopen the
1998 Claim. Accordingly, as the parties recognize is appropriate, the
Court remands the 1998 Claim to the Commissioner to rule on the request.
See 28 U.S.C. § 1361.
For the reasons discussed above, it is hereby ORDERED that the Court's Order herein dated March 30,
2004 is amended to incorporate the discussion set forth in this Decision;
and it is further
ORDERED that the decision of Defendant Jo Anne Barnhart, as
Commissioner of Social Security (the "Commissioner"), affirming the
determination of the Administrative Law Judge dated July 26, 2002 denying
the application for Supplemental Security Income ("SSI") benefits filed
by Plaintiff Dorothy Williams ("Williams") on behalf of Brandon Torres
("Torres"), is reversed and remanded to the Commissioner; and it is
ORDERED that the Commissioner is directed to calculate and
award to Torres the SSI benefits to which he is entitled pursuant to this
order; and it is further
ORDERED that the Commissioner is directed to issue a ruling
on Williams's request to reopen the claim for SSI benefits filed on
behalf of Torres on June 30, 1998.
The Clerk of Court is directed to close this case.