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WILLIAMS v. BARNHART

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.

  I. BACKGROUND

  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.

  II. DISCUSSION

 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).

 B. DISABILITY

  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"). Id.

  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 following:
. . .
2. Short courses of corticosteroids that average more than ...

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