United States District Court, S.D. New York
July 26, 2004.
MARILU BARRETO o/b/o ANGEL RIVAS, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Marilu Barreto, suing on behalf of her minor son,
Angel Rivas ("Angel"), moves for a judgment pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure reversing the
determination of Defendant Commissioner of Social Security that
Angel does not qualify for Supplemental Security Income ("SSI")
under the Social Security Act, and ordering the granting of
benefit payments, or, alternatively, remanding the matter for a
new hearing and decision. Defendant cross-moves for a judgment on
the pleadings affirming her decision.
The Court has considered thoroughly all submissions in
connection with this motion. For the following reasons,
Defendant's determination that Angel is not eligible for SSI is
reversed and Plaintiff's claim is remanded to the Commissioner
for a new hearing and decision.
I. The Legal Standard For Determining Disability Of A Child
The SSI program is a federal program providing benefits to
needy, aged, blind or disabled individuals who meet the statutory requirements.
42 U.S.C.A. § 1381 (West 2003). To qualify for disability benefits,
a child under the age of eighteen must have "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.A. § 1382c(a)(3)(C)(i) (West 2003).
To determine whether a child is disabled, the ALJ engages in a
three-step analysis. 20 C.F.R. § 416.924(a). First, the ALJ must
consider whether the child is engaged in "substantial gainful
activity." 20 C.F.R. § 416.924(b). If the child is so engaged, he
or she will not be awarded SSI benefits. Id. Second, the ALJ
must consider whether the child has a severe impairment.
20 C.F.R. § 416.924(c). A severe impairment is an impairment that is
more than a slight abnormality. Id. Third, if the impairment is
severe, the ALJ must consider whether the impairment meets or is
medically or functionally equal to a disability listed in the
designated "Listing of Impairments." 20 C.F.R. § 416.924(c);
see 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listing").
In making the third determination whether a child's
impairment meets or equals a listed impairment the ALJ must
consider whether the impairment, alone or in combination with
another impairment, "medically equals, or functionally equals the
listings." Encarnacion v. Barnhart, 331 F.3d 78, 84 (2d Cir.
2003). Functional equivalency means that the impairment is of
"listing-level severity; i.e., it must result in `marked'
limitations in two domains of functioning or an `extreme
limitation' in one domain. . . ." 20 C.F.R. § 416.926a(a). A
marked limitation is one that interferes seriously with the
child's "ability to independently initiate, sustain, or complete activities." Id. § 416.926a(e)(2)(i). The ALJ considers how a
child functions in his activities "in terms of six domains": "(i)
Acquiring and using information; (ii) Attending and completing
tasks; (iii) Interacting and relating with others; (iv) Moving
about and manipulating objects; (v) Caring for yourself; and,
(vi) Health and physical well-being." Id. 416.926a(b)(1). The
regulations provide that a child must be found to be disabled if
he or she has an impairment or impairments of "listing-level
severity," that is, an "extreme" limitation in one of these
domains, or "marked" limitations in two or more domains.
20 C.F.R. § 416.926a(a).
The Claimant, Angel J. Rivas, is a child who, at the time of
his application for benefits, was nine years old, enrolled in
elementary school, and attending regular classes. (Record of
Social Security Proceedings ("R.") at 12.) Angel was initially
diagnosed with asthma when he was eight months old. (R. at 114.)
In February, 2001, Angel was also diagnosed with diabetes. (R. at
181). Angel also suffers from Type I von Willebrand Disease (R.
at 114), a hemorrhagic condition causing frequent nosebleeds.
On February 27, 2001, Marilu Barreto filed an application for
Supplemental Security Income payments based on disability on
behalf of Angel, alleging disability due to asthma. (R. at
62-64.) The claim was denied initially and on reconsideration,
and a request for hearing was timely filed. (R. at 37). A hearing
was held on September 20, 2001. (R. at 20-30.) The claimant and
his mother appeared and testified. The administrative law judge
(the "ALJ") issued a decision denying the claim, concluding that
claimant was not disabled within the meaning of the Social
Security Act. (R. at 8-18.) The ALJ based his findings upon his analysis of Plaintiff's
testimony at the hearing regarding Angel's impairments and
functional abilities, the medical records submitted by Plaintiff,
the questionnaire submitted by Angel's teacher, and reports of
the state agency medical consultants. (R. at 8-18).
The ALJ found that Angel has never engaged in substantial
gainful activity. (R. at 12). The ALJ also found that Angel
suffered from "mild, intermittent asthma that is controlled with
medication," first diagnosed when he was eight months old. (R. at
12, 15). The ALJ further found that Angel was diagnosed with
diabetes on February 21, 2001, but that this impairment did not
reach the degree of disability defined by section 109.08 of the
Listings. (R. at 13). He found that both impairments were
"severe" within the meaning of Social Security Regulations. (R.
The ALJ listed the numerous occasions on which Angel sought
treatment at the Montefiore Medical Center between 1999 and 2001,
along with the medical notes indicating Angel's condition. The
ALJ also found claimant did not have any marked or extreme
limitations in the six domains required to meet functional
equivalence of the Listings. (R. at 15-17). The ALJ also
evaluated Plaintiff Marilu Barreto's testimony and did not find
it "entirely credible in light of the medical evidence cited
above." The ALJ did not explain why Plaintiff's testimony
contradicted the medical evidence, and furthermore failed to
explore several statements made by plaintiff regarding Angel's
The ALJ devoted less than one page of his written decision to a
summary of the evidence, and only one paragraph to his findings.
On the basis of this evidence, the ALJ concluded that Angel's
asthma was a severe impairment but that it did not meet,
medically equal nor functionally equal the impairments listed in Appendix 1.
Accordingly, he found that Angel was not disabled as defined by
the Social Security Act. (R. at 17). On April 12, 2002, the
Social Security Administration's Appeals Council issued a
decision refusing to review Plaintiff's appeal of the
administrative law judge's decision. (R. 5-6.) Plaintiff appeals.
A. Scope of Judicial Review
A final determination by the Commissioner must be affirmed if
it is not the result of legal error and is based on "substantial
evidence." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)
(findings of the Commissioner as to any fact shall be conclusive
if supported by substantial evidence); Morales v. Barnhart,
218 F. Supp.2d 450, 458 (S.D.N.Y. 2002); 42 U.S.C.A. §§ 405(g),
1383(c)(3) (West 2003). Substantial evidence is "`more than a
mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'" Rosa v.
Callahan, 168 F.3d at 77 (quoting Pratts v. Chater,
94 F.3d 34, 37 (2d Cir. 1996)). "`To determine whether the findings are
supported by substantial evidence, the reviewing court is
required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be
drawn.'" Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999)
(quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)
B. Duty to Develop the Record
The ALJ has a responsibility to develop the record at the
administrative level. See Tejada v. Apfel, 167 F.3d 770, 1999
WL 64710, at *4 (2d Cir. 1999). While the ALJ need not "reconcile every conflicting shred of medical testimony," Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981), he must discuss the
relevant evidence and factors "crucial" to the overall
determination with "sufficient specificity to enable [reviewing
courts] to decide whether the determination is supported by
substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587
(2d Cir. 1984) (citing Treadwell v. Schweiker, 698 F.2d 137,
142 (2d Cir. 1983)).
The ALJ must also normally make findings regarding the
credibility of uncontradicted witnesses whose testimony the ALJ
subsequently rejects. Williams v. Bowen, 859 F.2d 255, 261 (2d
Cir. 1988). As noted in Polidoro v. Apfel, No. 98 Civ. 2071
(RPP), 1999 WL 203350, at *7 (S.D.N.Y. Apr. 12, 1999), "the ALJ's
failure to mention [certain relevant] evidence and set forth the
reasons for his conclusions with sufficient specificity hinders
the ability of a reviewing court to decide whether his
determination is supported by substantial evidence." (Citation
there are limits . . . upon the extent to which a
reviewing court may permit an ALJ's conclusion to be
based upon an unarticulated finding of fact or
analysis, for it is the function of the Commissioner,
and not a reviewing court, to pass upon the
credibility of witnesses, and to set forth clearly
its findings which form the basis for its decision.
Stupakevich v. Chater, 907 F. Supp. 632, 637 (E.D.N.Y. 1995)
Furthermore, under the Social Security Regulations, where a
claimant has alleged several impairments, the ALJ is obligated to
consider the disabling effect of the combination of the
claimant's impairments without regard to whether any one
impairment, if considered separately, would be disabling.
20 C.F.R. § 416.923; Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir.
1995). C. Application to Plaintiff's Case
Plaintiff argues that Defendant's decision denying Angel
benefits should be reversed because 1) Angel meets the
requirements for the Listing for childhood asthma; 2) the ALJ
failed to analyze the evidence of seven asthma attacks within a
twelve-month period, and Angel's three prescribed medications, in
relation to the requirements of the asthma listing; 3) the ALJ
failed to take into account the interactive and cumulative
effects of the child's three impairments (bronchial asthma,
insulin-dependent diabetes, von Willebrand disease); 4) the ALJ
failed to take into account the effect of two prescribed
medications on the child's functioning; 5) the ALJ's finding that
the child's limitations were "less than marked" in the domains of
moving about, and health and well-being, was not supported by
substantial evidence; and 6) the ALJ committed reversible error
in rejecting the testimony of claimant's mother. The Court will
address each ground in turn.
1. The ALJ did not properly analyze the medical evidence
related to Angel's asthma
Based on 20 C.F.R. Part 404, Subpart P, Appendix 1, § 103.3 and
3.00C, the ALJ found that "there is no clinical evidence to show
that claimant has ever had an FEV1*fn1 as required by the
listings," that claimant "has no history of attacks in spite of
prescribed treatment that required physician intervention at the
frequency required by the listing," that "there has been no
persistent low grade wheezing or persistent prolonged expiration,
nor has there been any short course of steroids that averaged
more than 5 days per month over a 12 months period," and that the child "does not have a growth impairment. ® at 13). The
first and last findings are not disputed by Plaintiff.
Plaintiff correctly points out that the ALJ's findings do not
analyze Plaintiff's evidence regarding Angel's seven medical
visits and treatment. The ALJ's conclusory statements do little
more than restate the requirements of the Listing in the
negative. The ALJ is required to set forth "not only an
expression of the evidence s/he considered which supports the
result, but also some indication of the evidence which was
rejected. In the absence of such an indication, the reviewing
court cannot tell if significant probative evidence was not
credited or simply ignored." Cotter v. Harris, 642 F.2d 700,
705 (3d Cir. 1981).
On the current record, it is impossible for the Court to know
whether the ALJ found that Angel did not meet the listing for
asthma because he did not show the required number of hospital
visits, because he did not show that the required intensive
treatment was administered on those occasions, or because those
visits were not made in an emergency setting. The transcript of
the hearing suggests that the ALJ found the absence of emergency
room visits important (see R. at 22-23), but he makes no
mention of this in his opinion.
Similarly, the ALJ did not explain why he found that there was
no evidence of treatment with short courses of corticosteroids
despite medical evidence that prednisone, a steroid, was
prescribed to Angel on June 21, 1999, February 27, 2000,
September 5, 2000, and September 11, 2000. Furthermore, the ALJ
made a conclusory finding that there has been no persistent low
grade wheezing despite the mother's testimony that, in between
attacks, Angel has trouble breathing ® at 28). Because the ALJ
failed to adequately analyze the evidence in front of him and
explain his reasoning, remand is appropriate so that the ALJ can
explain which parts of the record he relied on and which he rejected in his
2. The ALJ failed to take into account the interactive and
cumulative effects of the child's three impairments as well as
the effects of Angel's treatment
"[I]t is the duty of the [ALJ] to make specific and
well-articulated findings as to the effect of the combination of
impairments and to decide whether the combined impairments cause
the claimant to be disabled." Bowen v. Heckler, 748 F.2d 629,
635 (11th Cir. 1984). Similarly, it is the ALJ's duty to inquire"
whether [claimant's] medications create any side effects that
cause or contribute to [his] functional limitations."
20 C.F.R. § 416.924a (b)(9)B.
Plaintiff argues that diabetes, while not disabling in itself,
can exacerbate Claimant's asthma. The ALJ found that both
impairments were severe, that the asthma was "mild" and the
diabetes was "controlled with medication," and concluded that
"claimant does not have an impairment (or impairments) that
meets, medically equals, or functionally equals any of the
impairments listed in Appendix 1." ® at 12, 17). However, this
conclusion fails to clearly indicate that the ALJ gave proper
consideration to the effect upon claimant of the coexistent
combination of illnesses from which claimant claimed to suffer.
Under the regulations and case law discussed above, this is an
error of law requiring reversal or remand Cutler v. Weinberger,
516 F.2d 1282, 1285 (2d Cir. 1975). On remand, the ALJ should
consider the combined and cumulative impact of all three
diseases, as well any possible side effects of the treatment
claimant is receiving.
3. The ALJ committed reversible error in rejecting the
testimony of the Plaintiff's mother
The ALJ committed reversible error in rejecting Angel's
mother's testimony wholesale and without analysis. As a fact-finder, an ALJ is free
to accept or reject testimony, but a finding that the witness is
not credible must nevertheless be set forth with sufficient
specificity to permit intelligible plenary review of the record.
Carroll v. Secretary of Health and Human Servs., 705 F.2d 638,
643 (2d Cir. 1983).
The ALJ found the testimony of claimant's mother at the hearing
to be "not entirely credible" in light of the medical evidence
and her "allegations of total disability overstated." ® at 16.)
However, a review of the record shows that the mother's testimony
was largely consistent with the medical testimony. Furthermore,
the ALJ clearly relied on her testimony in support of some of his
other findings. Therefore, on remand, the ALJ should indicate
with specificity which parts of the testimony he is rejecting and
his reasons for doing so.
Similarly, the ALJ failed to fulfill his duty to develop
diligently the evidentiary record. The hearing transcript
consists of ten pages, of which only six represent testimony
given by Plaintiff regarding Angel. ® at 4-9.) Similar brevity
has been found to indicate failure to fulfill the ALJ's
investigative duty. See Straw v. Apfel, No. 98 Civ. 5089
(RPP), 2001 WL 406184, *3 (S.D.N.Y. April 20, 2001) ("brief"
hearing with ten page transcript, "of which only six or seven
[pages] represent testimony by Plaintiff [mother] regarding
[claimant son]" constitutes evidence of ALJ's failure to explore
relevant facts). Specifically, the ALJ missed several
opportunities to elicit further information from Angel's mother
regarding his condition. To the ALJ's question "other than
[becoming short of breath when he runs] he can move around and
play like other boys his age?", Plaintiff replied "No." ® at
25). However, the ALJ did not ask any follow-up questions about
this statement and instead moved on to questions about Angel's
ability to wash and dress himself. Similarly, Plaintiffs
statement that Angel "needs to go for counseling because his behavior . . ." was interrupted by the
ALJ with a question about homework assignments, and was never
explored further. ® at 25.) These statements are relevant to the
ALJ's determination of whether Angel has any functional
limitations. On remand, the ALJ should further inquire into why
Angel cannot move around and play like other children his age and
further explore what sorts of behavioral problems Angel
experiences. See Masella v. Heckler, 592 F. Supp. 621, 624
(W.D.N.Y. 1984) ("[t]he fact that a claimant is represented by
counsel does not absolve the ALJ from his abiding responsibility
to develop fully the facts of the claimant's case in a
non-adversarial fashion consistent with the broadly remedial
purposes of the Social Security Act").
4. The ALJ's findings regarding functional equivalence
The ALJ found that claimant had "less than marked" limitations
in the domains of attending and completing tasks; interacting and
relating with others; moving about and manipulating objects;
self-care; general health and physical well-being. Plaintiff
disputes the findings as to the domains of moving about and
health and general well-being. Because the ALJ failed to develop
the record relating to Plaintiff's testimony regarding Angel's
behavior and well-being, these findings should also be
reconsidered on remand in light of any new relevant testimony and
in relation to the available medical evidence.
5. Whether Plaintiff meets Listing requirements
"`Where there are gaps in the administrative record or the ALJ
has applied an improper legal standard, we have, on numerous
occasions, remanded to the [Commissioner] for further development of the evidence.'" Pratts, 94 F.3d at 39
(quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980));
see also Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y.
1997) ("Where there are gaps in the administrative record, remand
to the Commissioner for further development of the evidence is in
order."). In other situations, where the courts have had no
apparent basis to conclude that a more complete record might
support the Commissioner's decision, a simple remand for a
calculation of benefits was deemed appropriate. See, e.g.,
Balsamo v. Chater, 142 F.3d 75, 82 (2d Cir. 1988). This case,
in the Court's view, is one in which remand for further
development of the evidence is the wiser course.
"A decision to reverse and direct an award for benefits `should
be made only when . . . substantial evidence on the record as a
whole indicates that the claimant is disabled and entitled to
benefits.'" Id. (quoting Gilliland v. Heckler, 786 F.2d 178,
184 (3d Cir. 1986)); see also Molina v. Barnhart, 2002 WL
377529, at *8 (S.D.N.Y. Mar. 11, 2002) (declining to remand where
application of the correct legal standards could only lead to
conclusion that Plaintiff was disabled).
For the forgoing reasons, Plaintiff's motion for judgment on
the pleadings is granted to the extent it seeks remand, pursuant
to sentence six of 42 U.S.C. § 405(g), and Defendant's motion is
Plaintiff also moves for attorneys' fees under the Equal Access
to Justice Act, 28 U.S.C. § 2412(d) (West 1994 & Supp. 2004)
("EAJA"). Plaintiff's counsel is directed to submit an application for attorneys' fees under the EAJA, based on
contemporaneous time records, as required by New York State
Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d