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Stover, ex rel E.L. v. Commissioner of Social Security

September 16, 2008


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge



Plaintiff Carlisa Stover on behalf of her son E.L., brings the above-captioned action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act, seeking review of the Commissioner of Social Security's decision to deny her application for supplemental security income on behalf of her son. The parties moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Court referred this matter to United States Magistrate Judge George H. Lowe pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(d) for a Report and Recommendation. Magistrate Judge Lowe reported that:

(1) the Administrative Law Judge failed to apply the correct legal standard when considering whether E.L.'s condition, Attention Deficit Hyperactive Disorder ("ADHD"), met or medically equaled the requirements of a listed impairment; and (2) that, in any event, the ALJ's conclusion that E.L.'s condition did not meet or medically equal a listed impairment was not supported by substantial evidence. Magistrate Judge Lowe therefore recommended that the Court remand this matter to the Commissioner for further proceedings.


Presently before the Court is the Commissioner's objection to the Report and Recommendation. Pursuant to 28 U.S.C. § 636(b)(1)(c), the Court engages in a de novo review of any part of a Report and Recommendation to which a party specifically objects. Failure to object to any portion of a Report and Recommendation operates as a waiver of further judicial review of those matters. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Secretary of Health & Human Serv., 892 F.2d 15, 16 (2d Cir. 1989).

In this case, the Commissioner agrees that remand is necessary but objects to the Report and Recommendation to the extent it recommends remand solely for calculation of benefits.

Having reviewed the Report and Recommendation, the Court concludes that the Commissioner misapprehends Magistrate Judge Lowe's recommended disposition, which explicitly contemplates remand for "further proceedings", including application of the correct legal standard and consideration of the evidence which suggests that E.L.'s condition satisfies the criteria of Listing 112.11. See 20 C.F.R. Pt. 404, Subpt. P, App. 1.

Social Security - Standard of Review

Under 42 U.S.C. §§ 405(g) and 1383(c)(3), the Court does not employ a de novo review, but rather must determine whether substantial evidence supports the Commissioner's findings and that the correct legal standards have been applied. See Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Urtz v. Callahan, 965 F. Supp. 324, 325-26 (N.D.N.Y. 1997) (citing, inter alia, Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Substantial evidence is "more than a mere scintilla," it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938).

The ALJ must set forth the crucial factors supporting the decision with sufficient specificity. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Where the ALJ's findings are supported by substantial evidence, the court may not interject its interpretation of the administrative record. Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988); 42 U.S.C. § 405(g). Where the weight of the evidence, however, does not meet the requirement for substantial evidence or a reasonable basis for doubt exists as to whether correct legal principles were applied, the ALJ's decision may not be affirmed. Johnson, 817 F.2d at 986.

Determination of Childhood Disability

An individual under the age of eighteen is disabled, and thus eligible for SSI benefits, 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. § 1382c(a)(3)(C)(I). That definitional provision goes on to exclude from coverage any "individual under the age of 18 who engages in substantial gainful activity. . . ." 42 U.S.C. § 1382c(a)(3)(C)(ii). By regulation, the agency has prescribed a three-step evaluative process to be employed ...

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