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United States District Court, S.D. New York

July 26, 2004.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


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).

  II. Background

  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. at 12.)

  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 impairments.

  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.

  III. Discussion

  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) (per curiam)).

  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 omitted.) Thus,

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) (citations omitted).

  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 determination.

  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).

  IV. Conclusion

  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 denied.

  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 Cir. 1983).


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