The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE BARBARA S. JONES, UNITED STATES DISTRICT JUDGE
Joanna Solano ("Solano") brings this action on behalf of her
infant daughter, Ebony V. Jernigan ("Jernigan" or "plaintiff"),
pursuant to 42 U.S.C. § 405(g), to obtain judicial review of a
final decision of the Commissioner of Social Security
("Commissioner") denying the plaintiff's application for
Supplemental Security Income ("SSI") benefits under Title XVI of
the Social Security Act, 42 U.S.C. § 1381, et seq.*fn1
The Commissioner has moved for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil
For the reasons set forth below, I recommend that the
defendant's motion be granted.
On May 23, 2000, Solano filed an application for SSI benefits,
in which she alleged that Jernigan was born disabled by right
Erb's Palsy.*fn2 (Tr. 12).*fn3 The application was
denied initially on July 12, 2000, and upon reconsideration on
August 23, 2000. (Tr. 33-34). Solano then requested a de novo
hearing before an Administrative Law Judge ("ALJ"), and appeared,
without counsel, before ALJ Kenneth Scheer on March 28, 2001.
(Tr. 10). On June 20, 2001, ALJ Scheer (hereafter "the ALJ")
issued a decision finding that the plaintiff was not entitled to
SSI benefits because she was not disabled within the meaning of
the Social Security Act. (Tr. 16). The ALJ's decision became the
final decision of the Commissioner when the Appeals Council
denied the plaintiff's request for review on November 16, 2001.
(Tr. 3-4). See 42 U.S.C. § 405(h). Thereafter, Solano filed the
instant complaint seeking review of the Commissioner's decision.
Although Solano received notice of the defendant's motion for
judgment on the pleadings, she has not filed any response to that
1. Non-Medical Evidence The plaintiff was born on March 22, 2000, and was approximately
one year old at the time of the March 28, 2001 hearing. (Tr.
33-34). At the hearing, Solano testified that the plaintiff was
born with a brachial plexus*fn4 injury that impaired the
plaintiff's ability to use her right hand and shoulder and caused
her to limp. (Tr. 23-24, 26). Solano reported that the plaintiff
had worn a splint and cast on her right arm for six months,
although she no longer wore it at the time of the hearing. (Tr.
30). Solano stated that the plaintiff was left handed. Although
the plaintiff does attempt to use her right hand, it has little
strength, according to Solano. (Tr. 27). Solano stated that she
enrolled the plaintiff in an early intervention program at Saint
Mary's Hospital ("St. Mary's") in June or July of 2000. (Tr. 24).
Occupational therapists from the early intervention program
visited the plaintiff at her home twice per week and worked to
improve the plaintiff's range of motion on her right side. (Tr.
25). St. Mary's also provided the services of a special educator,
who worked with Jernigan twice per week to improve her motor
skills. (Tr. 25). Solano stated that the plaintiff's condition
had improved since she began therapy and that the plaintiff was
using her right hand more often. (Tr. 29-30). Solano testified
that the plaintiff was bright and alert, did not take medication
on a regular basis, recognized people and noises, liked music,
and was a happy baby. (Tr. 26).
Jernigan's medical records indicate that she was examined at
New York Medical College by Dr. Deborah L. Benzil in April, May,
August and October of 2000. (Tr. 57, 111-13). On May 23, 2000,
Dr. Benzil examined Jernigan and reported that the plaintiff,
then two months old, had been receiving therapy at home for a right brachial plexus
injury and had been using her right arm more than she had
earlier. (Tr. 111). The report noted that the plaintiff's parents
had no new complaints about her medical condition and that there
had been no substantial changes in her condition since her
previous visit. (Id.). Dr. Benzil reported that the plaintiff
was active, awake, and alert, and had: 1) a symmetrical face; 2)
good suck, root, and gag reflexes; 3) a deltoid strength of four
out of five, a bicep strength of three or four out of five, and a
tricep strength of three out of five; 4) strong finger extension,
finger flexion, and thumb movement; 5) no obvious
scapular*fn5 winging; 6) sensation throughout her right
hand; 7) a splint on her right extremity; 8) no joint
deformities; 9) toes that remained up going bilaterally; 10) an
excellent range of motion; 11) strength in nearly all muscle
groups; and 12) a below average wrist extensor strength of two
out of five. According to Dr. Benzil, Jernigan's recovery from
her brachial plexus injury had progressed significantly, and she
might, in time, make a complete or nearly complete recovery. Dr.
Benzil considered it unlikely that the plaintiff would require
On August 22, 2000, Dr. Benzil again examined the plaintiff.
(Tr. 112). Dr. Benzil noted that Jernigan's right arm was
somewhat shorter than her left arm. (Id.). It was reported that
the plaintiff was receiving physical and occupational therapy and
was exercising at home. Dr. Benzil stated that the plaintiff was
a very playful and active child. (Id.). The plaintiff
reportedly smiled, fixed and followed very well. Dr. Benzil
indicated that Jernigan had excellent head control and appeared
to be meeting her developmental milestones. (Id.). Except for
her right upper extremity, the plaintiff was reported to be neurologically
intact. Dr. Benzil stated that there was evidence of scapular
winging, although the plaintiff had no infra or supra
spinates wasting. (Id.). On the right side, the plaintiff had a
deltoid strength of three to four-minus out of five, a tricep
strength of three to four-minus out of five, and a bicep strength
of three out of five. Dr. Benzil reported that Jernigan had
excellent wrist and finger activity and that her sensation
appeared to be grossly intact throughout. (Id.). It was
reported that the plaintiff had made some progress since her
visit in May of 2000. Dr. Benzil noted that Jernigan still had a
lag, evidenced by scapular winging. (Id.). Dr. Benzil scheduled
another examination of the plaintiff two months hence, to
determine whether the infant had root avulsion.*fn6 (Id.).
On October 24, 2000, Dr. Benzil conducted another examination
of the plaintiff, who was then seven months old. (Tr. 113). She
reported that the plaintiff continued to be a playful and active
child who smiled, fixed and followed well. Dr. Benzil stated that
the plaintiff rolled over from front to back, pushed up on her
forearm and continued to meet her developmental milestones.
(Id.). It was reported that Jernigan was intact, except for her
right upper extremity. Dr. Benzil reported mild scapular winging,
but no infra or supra spinates wasting. (Id.). The
plaintiff reportedly had a deltoid strength of at least four out
of five, a tricep strength of at least four-minus to four out of
five, and a bicep strength of four to four-plus out of five. Dr.
Benzil stated that the plaintiff's wrist and finger activity was
virtually normal and that she had good sensation throughout. It
was noted that the developmental delay that the plaintiff
exhibited in her previous visit was "resolved." (Id.) Dr.
Benzil reported that the plaintiff had ...