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Nunez v. Astrue

March 27, 2009

GRISELDA NUNEZ O/B/O Y.C., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. Introduction

Plaintiff Griselda Nunez ("Nunez") brings this action on behalf of her minor daughter, Y.C., pursuant to Section 405(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g), to seek review of a final decision of the Commissioner of Social Security ("Commissioner") denying Y.C.'s application for Supplemental Security Income ("SSI") benefits. The Commissioner now has moved to remand the case for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). Nunez has cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking to reverse the decision of the Administrative Law Judge ("ALJ") and remand the case solely for the calculation of benefits or, alternatively, for further administrative proceedings.

For the reasons that follow, the Commissioner's motion is granted, and Nunez's cross-motion is denied.

II. Background

A. Procedural History

On July 31, 2006, Nunez filed an application for SSI benefits in which she alleged that her daughter became disabled on June 7, 2005. (R. 18, 34).*fn1 After the application was denied,*fn2 Nunez requested a hearing before an Administrative Law Judge ("ALJ"), which took place before ALJ Mark Hecht on June 7, 2007. (Id. at 30, 179). On July 6, 2007, ALJ Hecht denied the application for SSI benefits. (Id. at 17). Nunez then sought review of the ALJ's decision, (id. 167-70), but the Appeals Counsel denied that request on November 9, 2007, (id. at 4A-8).

Nunez commenced this action on December 7, 2007. (See Docket No. 2 (Compl.)). She has been represented by counsel at the hearing, in connection with her request for review by the Appeals Council, and in this suit. (Id.; R. 167-70, 179). On November 21, 2008, the parties consented to my exercise of jurisdiction over this matter for all purposes pursuant to 28 U.S.C. § 636(c). (Docket No. 15). The Commissioner then moved to remand the case for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). (Docket No. 11). Thereafter, on October 15, 2008, Nunez cross-moved for judgment on the pleadings pursuant to Rule 12(c), seeking to reverse the ALJ decision and remand solely for the calculation of benefits, or, alternatively, for further administrative proceedings. (Docket No. 12). The Commissioner replied on October 23, 2008, arguing that the case is not ripe for calculation of benefits because the ALJ's decision was "based on an incomplete record and improper evaluation of the evidence." (Docket No. 17 at 1).

B. Relevant Facts

1. Nunez's Testimony

Nunez testified at the hearing that her daughter was born on November 8, 1996, and that the two were involved in a car accident when Y.C. was four years old. (R. 183). Two to three years later, Y.C. began complaining of neck pain, without any other prior injury or disease. (Id. at 184). At first, Nunez did not take her daughter to the doctor because she thought she was merely tired and did not want to acknowledge that something might be wrong. (Id. at 185-86). When Nunez eventually brought Y.C. to the doctor two years later, she was told that the x-rays revealed a "bulging disc" and "[s]omething about cervical ribs." (Id. at 186). The doctor suggested physical therapy and prescribed Motrin, which often gave Y.C. headaches. (Id. at 186-87). Y.C. also treated the headaches, which usually lasted for half an hour, with Tylenol. (Id. at 187).

Y.C. had physical therapy twice a week, but Nunez did not notice any improvement. (Id. at 188). No doctor ever suggested that Y.C. use a neck brace, but a surgery consultation, to which Nunez had yet to take Y.C., had been recommended. (Id. at 191-92).

Y.C. is unable to play or run with other children because her knees and neck begin to hurt. (Id. at 194-95). Nunez often ices her daughter's head because she gets headaches from the neck pain. Moreover, Y.C. has difficulty completing homework assignments and staying in class because she cannot sit for more than about one-half hour without discomfort. (Id. at 194-96). Y.C.'s school activities such as gym class have been restricted, and she was absent once or twice each week during the 2006-2007 school year because of neck and knee pain. (Id. at 189-90). Despite these absences, Nunez believed that her daughter's grades were "normal." (Id. at 191).

According to Nunez, Y.C. also expressed anxiety about riding in elevators ever since a blackout in New York City two years earlier. (Id. at 196-97). Although Y.C. and her mother live on the thirteenth floor of a building, Y.C. often is afraid to take the elevator downstairs in order to go to school. (Id. at 197).

2. Y.C.'s Testimony

Y.C. testified that she has pain almost every day, is unable to attend gym class, and has difficulty sitting through her classes. (Id. at 210-11). Her back starts to hurt almost every day before lunch, at which point she asks her teacher for permission to walk around to stretch it. (Id. at 211-12). Y.C. confirmed her mother's testimony that she was absent from school approximately twice each week because of her condition, but nevertheless has been able to manage her schoolwork. (Id. at 212). She stated that she is able to do her homework for about one-half hour before her neck begins to hurt, after which her mother puts her on the couch to rest. ...


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