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Joely Zettlemoyer, O/B/O P.M.R v. Michael J. Astrue

May 9, 2013


The opinion of the court was delivered by: David G. Larimer United States District Judge


Plaintiff Joely Zettlemoyer, on behalf of her minor daughter, P.M.R., appeals from a denial of supplemental security income benefits ("SSI") by the Commissioner of Social Security ("the Commissioner"). The action is one brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner.

On September 25, 2009, plaintiff protectively filed an application on behalf of P.M.R. for SSI under Title II of the Social Security Act. Plaintiff alleged that P.M.R. had been disabled since February 6, 2006 (later amended to September 25, 2009) due to juvenile diabetes. (T. 85-87). Her application was initially denied, and plaintiff requested a hearing, which was held on February 3, 2011 before Administrative Law Judge ("ALJ") Michael W. Devlin. (T. 22-33). The ALJ issued a decision on March 4, 2011, concluding that P.M.R. was not disabled under the Social Security Act. (T. 7-21). That decision became the final decision of the Commissioner when the Appeals Council denied review on September 23, 2011 (T. 1-4). Plaintiff now appeals.

The Commissioner has moved (Dkt. #8) and plaintiff has cross moved (Dkt. #11) for judgment on the pleadings pursuant to Fed. R. Civ. Proc. 12(c). For the reasons that follow, I find that the Commissioner failed to properly apply the correct legal standards, and that substantial evidence of record establishes that P.M.R. is disabled. The Commissioner's motion (Dkt. #8) is denied, plaintiff's cross motion (Dkt. #11) is granted, and the matter is remanded for the calculation of benefits.

DISCUSSION Because the claimant is a child, a particularized, three-step sequential analysis is used to determine whether she is disabled. First, the ALJ must determine whether the child is engaged in substantial gainful activity. See 20 CFR §416.924. If so, the claimant is not disabled. If not, the ALJ proceeds to step two, and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act. If not, the analysis concludes with a finding of "not disabled." If so, the ALJ continues to step three.

At step three, the ALJ examines whether the claimant's impairment meets or equals the criteria of a listed impairment. If the impairment meets or medically equals the criteria of a listing and meets the durational requirement (20 CFR §416.926) -- that is, if the child's impairments are functionally equivalent in severity to those contained in a listed impairment -- the claimant is disabled. See 20 CFR §416.926(a). If not, she is not disabled. In making this assessment, the ALJ must measure the child's limitations in six areas: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for herself; and (6) health and physical well-being. See 20 CFR §416.926a(b)(1). Medically determinable impairments will be found to equal a listed impairment where they result in "marked" limitations in two or more domains of functioning, or an "extreme" limitation in one or more. 20 CFR §§ 416.926a(a), (d) (emphasis added).

The Commissioner's decision that P.M.R. is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ applied the correct legal standards. See 42 U.S.C. § 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). "The Court carefully considers the whole record, examining evidence from both sides 'because an analysis of the substantiality of the evidence must also include that which detracts from its weight.'" Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) quoting Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997). Still, "it is not the function of a reviewing court to decide de novo whether a claimant was disabled." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). "Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, [this Court] will not substitute our judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002).

Upon careful review of the record, I believe that the ALJ failed to sufficiently consider or properly apply the evidence concerning whether P.M.R. meets or equals the requirements of Listing 109.08(B).

The ALJ first concluded that P.M.R.'s juvenile diabetes constituted a severe impairment not meeting or equaling a listed impairment -- specifically, he found that P.M.R. does not satisfy the requirements of Listing 109.08 regarding juvenile diabetes requiring insulin injections, because "[a]lthough there is evidence of recurrent blood glucose levels below 70 in the records of the school nurse . . . the frequency of these episodes do [sic] not appear to satisfy the requirements of this listing." (T. 13). He then proceeded to analyze whether P.M.R. has "marked" or "extreme" limitations in any of the six domains of functioning, based on the medical, educational and testimonial evidence presented, and concluded that she did not, and was therefore not disabled.

Listing 109.08 reads, in relevant part:

Juvenile diabetes mellitus . . . requiring [injected] insulin. And one of the following, despite prescribed therapy . . .

B. Recent, recurrent episodes of hypoglycemia . . .

20 C.F.R. Pt. 404, Subpt. P, App. 1.*fn1 Plaintiff argues that the ALJ's conclusory finding that P.M.R.'s episodes of hypoglycemia did not meet the "recent, recurrent" requirement of the listing was in error. I agree.

There is ample evidence in the record that despite constant monitoring and daily treatment, including multiple blood tests and insulin injections every day, P.M.R. suffers from poor blood sugar control and recurrent hypoglycemic episodes, which occurred throughout the period under review, up to the night before her hearing. In fact, P.M.R.'s blood sugar tested at hypoglycemic (under 70 mg/dL) and even dangerous levels (below 50 mg/dL) on a frequent, ongoing basis. P.M.R.'s treatment records reflect that as early as March 31, 2009 and continuing to and beyond September 25, 2009, the alleged date ...

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