Opinion
02 Civ. 0377 (AJP)
July 26, 2002
OPINION AND ORDER
Pro se plaintiff Catherine Morris brings this action on behalf of her minor child, Daron Quattlebaum, pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (the "Commissioner") to deny Quattlebaum disability benefits. (Dkt. No. 2: Compl.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 7-9.) The parties have consented to a decision by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 10.)
Plaintiff Morris did not respond to the Commissioner's motion despite the Court's scheduling order requiring her to do so by June 21, 2002 and warning that "Should plaintiff fail to oppose defendant's motion, the Court will grant the motion by default." (Dkt. No. 6:4/10/02 Order.) The Court notes that it received the return receipt for that Order, signed by Morris.
For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is GRANTED.
FACTS Procedural Background
On December 4, 1995, Catherine Morris, on behalf of her then one and a half year old son Daron Quattlebaum, filed an application with the Social Security Administration (the "SSA") for Supplemental Security Income ("SSI") disability benefits based upon Quattlebaum's asthma. (Dkt. No. 9: Administrative Record filed by the Commissioner ["R."] 19-22.) On April 9, 1996, the SSA determined that Quattlebaum was disabled as of December 1, 1995 and granted his SSI application. (R. 10, 23.)
On November 24, 1998, the SSA notified Morris that it had reevaluated Quattlebaum's disability case and determined that Quattlebaum's "health has improved," that he "no longer meets the disability requirements," and that his disability benefits would terminate as of January 1999. (R. 24-28.) The redetermination was made based upon a medical report dated October 12, 1998 prepared by Dr. Emma Florez, a consulting physician. (R. 28, 135-39.)
Morris sought reconsideration at a hearing before a Disability Hearing Officer ("DHO"). (R. 30.) The DHO heard testimony from Morris and reviewed medical evidence provided by Quattlebaum's treating physician and others. (R. 33-38.) On October 6, 1999, the DHO issued her decision that there had been "significant medical improvement in [Quattlebaum's] asthmatic condition," confirmed the decision that Quattlebaum was not disabled, and denied Morris' request for reconsideration. (R. 32-40.) Morris requested a hearing before an Administrative Law Judge ("ALJ"). (R. 45.)
On February 16, 2000, Morris and Quattlebaum appeared pro se before ALJ Allan T. O'Sullivan. (R. 182.) The ALJ adjourned the hearing to allow Morris an opportunity to obtain legal counsel. (R. 187-88.) On April 18, 2000, a second hearing was held at which Morris and Quattlebaum again appeared pro se. (R. 189, 191.)
The Hearing Before the ALJ
At the April 18, 2000 hearing (R. 189-99), Morris and Quattlebaum, who was almost six years old, were present. (See R. 189.)
1. Morris' Testimony
Morris testified that she believed Quattlebaum was disabled due only to his asthma. (R. 193-94.) She testified that she had taken Quattlebaum to the hospital emergency room for his asthma "twice last year and once this year." (R. 194.) Morris testified that at the emergency room visits the hospital staff generally would give Quattlebaum medication for his asthma and send him home. (Id.) Morris also testified that the medication made Quattlebaum "hyperactive." (Id.) Morris testified that Quattlebaum, who was in kindergarten, was having "a hard time with his alphabet" at school. (R. 194-95.) Morris testified that Quattlebaum is "not keeping still long enough to learn" in school. (R. 184-85.) Morris testified that Quattlebaum "does pretty well" with his motor functioning, his physical abilities. (R. 195.) Morris also told the ALJ that Quattlebaum had visited the hospital the week prior to the hearing for "allergies acting up," which aggravated his asthma. (R. 198-99.)
2. Quattlebaum's Testimony
Quattlebaum told the ALJ that he was five years old and that he would be six on May 10th, 2000, less than a month after the hearing. (R. 193.) Quattlebaum stated that he talked with friends in school and that he played "hot potato," basketball, baseball and football at school. (R. 196-97.) At home, he watched television. (R. 197-98.) He also informed the ALJ that he "already ha[s] homework." (R. 199.) Quattlebaum said that he coughs once a day in school, his stomach hurts and he feels like he has to throw up because of his asthma. (R. 185-86.)
The Medical Evidence in the Record 1. Dr. Emma Florez
Quattlebaum was examined by Dr. Emma Florez, a consulting physician, on October 12, 1998. (R. 135-39.) Dr. Florez's report noted that Quattlebaum's last asthmatic episode was in June 1998. (R. 135.) Her examination yielded normal results. (R. 136-38.) She stated that Quattlebaum "is a cooperative, well-developed, well-nourished, alert, active, afebrile child with no acute distress." (R. 136.) Dr. Florez found Quattlebaum's "lungs good, even air entry" with "[n]o wheezing, rales, [or] rhonchi" and "[g]ood resonance on percussion." (R. 137.) Quattlebaum's daily activities included playing ball, reading, coloring and playing video games. (Id.) Dr. Florez noted "running up stairs" and "jumping" as restricted activities but otherwise noted Quattlebaum's activity capabilities and motor skills were normal. (R. 138.) Dr. Florez opined that Quattlebaum's "[d]evelopment and activities have not been affected by" the asthma and that "[e]ating/feeding, dressing, playing, home activity are at full range." (Id.) Dr. Florez's prognosis concluded that Quattlebaum had "Mild Intermittent Asthma" and that his "[a]sthmatic episodes can be controlled at home with a nebulizer." (Id.)
2. Dr. David Stevens
Dr. Stevens, Quattlebaum's treating physician, completed an evaluation of Quattlebaum's functioning and medical condition on November 11, 1998. (R. 140-44.) Dr. Stevens noted that he had first seen Quattlebaum shortly after Quattlebaum's birth, and continued to see him every three to six months. (R. 140.) The doctor noted that the current treating diagnosis was mild, persistent asthma (id.) and that in the spring and fall, Quattlebaum coughed and wheezed most days (R. 141). Lately, however, the doctor noted that Quattlebaum experienced coughing and wheezing only twice monthly. (R. 141.) Dr. Stevens noted that Quattlebaum's asthma necessitated two emergency room visits in the past year but did not require inpatient hospital admission. (R. 143.)
Dr. Stevens concluded that Quattlebaum's motor skills, sensory abilities, communication skills, cognitive skills, and social/emotional skills were all age-appropriate. (R. 141-42.)
In May 1999, Dr. Stevens examined Quattlebaum and noted that Quattlebaum had a slight cough each night, but that his chest was clear. (R. 134.)
On July 27, 1999, Dr. Stevens prepared a medical report based upon an evaluation of Quattlebaum. (R. 160-63.) The doctor noted that Quattlebaum's only current symptom was mild nighttime coughing. (R. 161.)
On September 13, 1999, Dr. Stevens again examined Quattlebaum. (R. 164.) Dr. Stevens reported that while Quattlebaum was "fidgety," his development was "on par for his age." (Id.)
3. Dr. Baum
Dr. R. Baum, a state agency physician, performed a childhood disability evaluation on Quattlebaum on March 9, 1999. (R. 149-52.) Based upon his evaluation, Dr. Baum indicated that Quattlebaum had no limitations related to specific functions or episodic impairments, or limitations due to his medical treatments or medication. (R. 150.) Further, Dr. Baum found no evidence of limitation with respect to Quattlebaum's cognitive/communicative, social and personal functions. (R. 151.) Additionally, the doctor noted no limitation in Quattlebaum's concentration, persistence, and pace. (Id.) Dr. Baum noted only a less than marked limitation in Quattlebaum's motor function. (Id.) Dr. Baum wrote in his explanation of findings that Quattlebaum's condition had "much improved since the CPD [Comparison Point Determination] date." (R. 152.) Dr. Baum concluded that the asthma's severity was "not at listings level at this time." (Id.)
The Comparison Point Determination (or Decision) date is the date of the SSA's "most recent favorable decision" that claimant was disabled or continued to be disabled. The most recent favorable decision is the "latest final determination or decision involving a consideration of the medical evidence and whether you were disabled or continued to be disabled." 20 C.F.R. § 416.994a(c)(1).
The ALJ's Decision Subsequent Events
On June 5, 2000, after hearing Morris' and Quattlebaum's testimony and considering the medical evidence, the ALJ issued a decision finding Quattlebaum no longer disabled as of November 19, 1998. (R. 10-18.)
The ALJ followed the "sequential evaluation for determining whether the disability of a child continues," citing 20 C.F.R. § 416.994a. (R. 11.) The ALJ stated that the "first step of the sequential evaluation is to determine whether there has been medical improvement in the child's condition." (R. 11.) The ALJ reviewed the medical reports of Dr. Stevens and Dr. Florez, as well as Morris' testimony. (R. 11-12.) The ALJ concluded:
Based on the recent medical evidence summarized above, it is clear that the claimant's condition has medically improved. He no longer suffers from frequent acute asthma attacks. While he used to require frequent emergency room treatment, his condition can now be managed at home. His development has not been impacted by his condition. He is able to participate in age appropriate activities including physical activities so long as he takes his medication.
(R. 12.) The ALJ found that Quattlebaum has asthma, a "severe" impairment, but that it does not meet the criteria in the Listing of Impairments, nor does it medically or functionally equal in severity any listed impairment. (R. 14-17.) The ALJ thus concluded that Quattlebaum's disability ceased on November 19, 1998. (R. 16-17.)
The Appeals Council denied Morris' request for review on October 18, 2001 and the ALJ's decision thus became the Commissioner's final decision. (R. 4-5.) On November 27, 2001, Morris filed this action. (Dkt. No. 2: Compl.)
The issue before the Court is whether the Commissioner's decision that Quattlebaum was not disabled as of November 19, 1998 is supported by substantial evidence.
I. APPLICABLE LEGAL STANDARDS A. Standard of Review
For additional decisions by this Judge discussing the standard of review in Social Security cases, in language substantially similar to that in this entire section of this Opinion Order, see Tucker v. Massanari, 99 Civ. 12037, 2001 WL 868031 at *5-6 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *5 (S.D.N.Y. July 11, 2001) (Peck, M.J.); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at *6 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Jones v. Apfel, 66 F. Supp.2d 518, 536 (S.D.N.Y. Sept. 20, 1999) (Pauley, D.J. Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 181 (S.D.N.Y. July 12, 1999) (Preska, D.J. Peck, M.J.); Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *7 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.); Vega v. Commissioner, 97 Civ. 6438, 1998 WL 255411 at *6 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 423 (S.D.N.Y. Nov. 13, 1996) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *6 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.); 42 U.S.C. § 405(g).
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Vapne v. Apfel, No. 01-6247, 36 Fed. Appx. 670, 672, 2002 WL 1275339 at *2 (2d Cir. June 10, 2002); Horowitz v. Barnhart, No. 01-6092, 29 Fed. Appx. 749, 752, 2002 WL 337951 at *2 (2d Cir. Mar. 4, 2002); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Roy v. Apfel, No. 99-6153, 201 F.3d 432 (table), 1999 WL 1295361 at *1 (2d Cir. Dec. 22, 1999); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983); Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); 42 U.S.C. § 405(g). "Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision." Burris v. Chater, 1996 WL 148345 at *3.
The Supreme Court has defined "substantial evidence" as "`more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207 (1983). The Court must be careful not to "`substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). The Court will not defer to the Commissioner's determination if it is "`the product of legal error.'" E.g., DeLeon v. Apfel, 2000 WL 1873851 at *6; see also, e.g., Tejada v. Apfel, 167 F.3d at 773 (citing cases).
Accord, e.g., Shaw v. Chater, 221 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Roy v. Apfel, 1999 WL 1295361 at *1; Coleman v. Apfel, No. 99-6107, 199 F.3d 1321 (table), 1999 WL 1024705 at *1 (2d Cir. Nov. 8, 1999); Brown v. Apfel, 174 F.3d at 61; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Callahan, 167 F.3d at 773-74; Perez v. Chater, 77 F.3d at 46.
See also, e.g., Toles v. Chater, No. 99-6065, 104 F.3d 351 (table), 1996 WL 545591 at *1 (2d Cir. Sept. 26, 1996).
B. The Applicable Legal Standard For Determining Disability Of A Child
For additional decisions by this Judge and other Judges in this District discussing the applicable legal standard for determining disability of a child, see, e.g., Tucker v. Massanari, 99 Civ. 12037, 2001 WL 868031 at *6-7 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.); Cotis v. Massanari, 00 Civ. 4693, 2001 WL 527471 at *3 (S.D.N.Y. May 17, 2001); Straw v. Apfel, 98 Civ. 5089, 2001 WL 406184 at *4 (S.D.N.Y. Apr. 20, 2001); Colon v. Apfel, 133 F. Supp.2d 330, 338 (S.D.N.Y. 2001); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at *6-7 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.); Carballo v. Apfel, 34 F. Supp.2d 208, 216 (S.D.N.Y. 1999); Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *9 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.); Almonte v. Apfel, 96 Civ. 1119, 1998 WL 150996 at *1 n. 2 (S.D.N.Y. Mar. 31, 1998); Evans v. Apfel, 96 Civ. 7741, 1998 WL 91127 at *4 (S.D.N.Y. Mar. 2, 1998); Diaz v. Apfel, 994 F. Supp. 541, 545-46 (S.D.N.Y. 1998); Fuller v. Apfel, 96 Civ. 4475, 1998 WL 9402 at *6 (S.D.N.Y. Jan. 13, 1998).
Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the "PRWORA"), Pub.L. No. 104-193, 1996 U.S.C.C.A.N. (110 Stat.) 2105, the definition of disability for children seeking SSI benefits was revised. See, e.g., Tucker v. Massanari, 99 Civ. 12037, 2001 WL 868031, at *6 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.). Under the PRWORA, a disability exists for purposes of SSI benefits if a child under the age of eighteen:
[1] has a medically determinable physical or mental impairment, [2] which results in marked and severe functional limitations, and [3] 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 . . . [however,] no individual under the age of 18 who engages in substantial gainful activity . . . may be considered to be disabled.42 U.S.C. § 1382c(a)(3)(C)(i)-(ii); see, e.g., Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002); Quinones v. Chater, 117 F.3d 29, 33 n. 1 (2d Cir. 1997); Tucker v. Massanari, 2001 WL 868031 at *6. The implementing regulations provide a three-step process for determining eligibility. In the first step, the ALJ must determine whether the child is engaged in "substantial gainful activity." 20 C.F.R. § 416.924(b). If the child engages in substantial gainful activity, there can be no finding of disability. 20 C.F.R. § 416.924(a)-(b). If not, the analysis proceeds to step two, which requires the ALJ to determine whether the child has a severe impairment or combination of impairments. 20 C.F.R. § 416.924(c). If the impairment(s) constitutes a "slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations," the child will not be found to have a severe impairment. 20 C.F.R. § 416.924(c). If there is a finding of severe impairment, however, the analysis proceeds to step three, which requires the ALJ to determine whether the impairment(s) meet, medically equal, or functionally equal in severity a listed impairment in appendix 1 of subpart P of part 404 of Title 20, Chapter III of the Code of Federal Regulations ("appendix 1"). An impairment causes marked and severe functional limitations if it meets or medically equals in severity the set of criteria for an impairment listed in the listing of impairments in appendix 1, or if it is functionally equal in severity to a listed impairment. 20 C.F.R. § 416.924(d). If this equivalency test is satisfied, and the statute's durational requirement is satisfied as well, then the child will be found to be disabled. 20 C.F.R. § 416.924(d)(1). Otherwise, he will not. 20 C.F.R. § 416.924(d)(2).
Substantial gainful activity is defined by the statute as work activity that is both substantial and gainful:
(a) Substantial work activity. Substantial work activity is work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like taking care of yourself, household tasks, hobbies, therapy, school attendance, club activities, or social programs to be substantial gainful activity.20 C.F.R. § 416.972.
See, e.g., Cotis v. Massanari, 2001 WL 527471 at *3; Straw v. Apfel, 2001 WL 406184 at *4-5; Colon v. Apfel, 133 F. Supp.2d at 341-42; DeLeon v. Apfel, 2000 WL 1873851 at *7; Fernandez v. Apfel, 1998 WL 603151 at *9.
C. The Applicable Legal Standard For Termination Of Disability Benefits
The Commissioner promulgated interim regulations for initial disability determinations and for continuing disability redeterminations which became effective April 1997. Supplemental Security Income; Determining Disability for a Child Under Age 18, 65 Fed. Reg. 54746, 54748-50 (Sept. 11, 2000) (codified at 20 C.F.R. pts. 404, 416). The Commissioner's interim regulations were replaced with final regulations that became effective January 2, 2001. 65 Fed. Reg. at 54746. Effective January 2, 2001, the final regulations apply to claims pending at any stage of the review process. 65 Fed. Reg. at 54751. Here, the ALJ's June 5, 2000 decision reviewed Quattlebaum's redetermination claim in accordance with the interim regulations. (R. 10-18.) The Appeals Council's October 18, 2001 decision "considered the final regulations, effective January 2, 2001 . . . [which] do not provide a basis to change the Administrative Law Judge's decision." (R. 4.) The SSA indicated that it anticipates federal courts to review SSA decisions under the rules in effect at the time of the SSA decision: "With respect to claims in which we have made a final decision, and that are pending judicial review in Federal court, we expect that the court's review of the Commissioner's final decision would be made in accordance with the rules in effect at the time of the final decision." 65 Fed. Reg. at 54751; see also Robles v. Commissioner, 99 Civ. 4248, 2001 WL 194888 at *2 n. 3 (S.D.N.Y. Feb. 27, 2001) (interim rules applied because they were in effect at the time of the Commissioner's final decision). Whichever rules are applied, however, the Court finds the Commissioner's decision to be supported by substantial evidence.
"After the SSA has determined that a claimant is disabled, the agency conducts a `continuing disability review' to periodically evaluate the claimant's eligibility to receive disability benefits." Lora v. Massanari, 00 Civ 8958, 2002 WL 655208 at *6 (S.D.N.Y. Apr. 18, 2002) (quoting 20 C.F.R. § 416.989). "The SSA may determine that the claimant is no longer entitled to such benefits if `the physical or mental impairment on the basis of which such benefits [were] provided has ceased, does not exist, or is [no longer] disabling.'" Id. (quoting 42 U.S.C. § 1382c(a)(4)).
The SSA has prescribed a three-step sequential evaluation for periodic determinations of whether a child's disability continues. See 20 C.F.R. § 416.994a(b). First, the SSA must determine if there has been any "medical improvement" in the child's condition. 20 C.F.R. § 416.994a(b)(1). Medical improvement is defined as "any decrease in the medical severity of [the child's] impairment(s) which was present at the time of the most recent favorable decision that [the child] w[as] disabled or continued to be disabled. . . . based on changes (improvement) in the symptoms, signs, or laboratory findings associated with [the child's] impairment(s)." 20 C.F.R. § 416.994a(c). If there has been no medical improvement, the child continues to be disabled (unless exceptions not here applicable apply). 20 C.F.R. § 416.994a (b)(1). Second, the SSA determines "whether the impairment(s) that [the SSA] considered at the time of [the SSA's] most recent favorable determination or decision still meets or equals the severity of the listed impairment it met or equaled at that time." 20 C.F.R. § 416.994a(b)(2). If the impairment does, the child's disability will be found to continue. Id. If the impairment does not, the SSA will proceed to the next step. Id. Third, the SSA must determine whether the child is currently disabled under the rules for determining eligibility in initial disability claims for children. 20 C.F.R. § 416.994a(b)(3). The implementing regulations provide a three-step test for determining initial eligibility. (See pages 10-12 above.)
The regulations provide for a three-step sequential evaluation to determine if a child's disability continues and that is the sequence followed by this Court. 20 C.F.R. § 416.994a(b)(1)-(3). The ALJ broke this three-step sequential evaluation into four steps. (R. 11-16.)
The three-step test for initial disability claims for children may be found at 20 C.F.R. § 416.924(b)-(d) and 20 C.F.R. § 416.994a(b)(3)(i)-(iii). Section 416.924, followed by this Court, contains an initial step to determine if the child engages in substantial gainful activity. Section 416.994a(b)(3)(i)-(iii) breaks the remaining two steps of § 416.924(b)-(d) into three steps.
II. APPLICATION OF THE LEGAL STANDARD TO QUATTLEBAUM'S CLAIM
The first step in the sequential evaluation is to determine if the there has been any "medical improvement" in Quattlebaum's condition since the date of his last favorable disability determination. 20 C.F.R. § 416.994a(b)(1). The date of the most recent favorable decision that Quattlebaum was disabled is April 9, 1996, when his eligibility for SSI benefits was initially determined. (See R. 10, 23.) At that time, Quattlebaum was found to have severe asthma attended with signs and symptoms that met the criteria of an appendix 1 listing. (R. 23.) Medical evidence established that prior to his initial SSI eligibility determination, Quattlebaum had visited the Jacobi Hospital emergency room for asthma-related symptoms in September 1994 (R. 107), November 1994 (R. 105-06), March 1995 (R. 109), July 1995 (R. 111), October 1995 (R. 110, 113), November 1995 (R. 112, 115, 121), December 1995 (R. 115), and January 1996 (R. 118-20). At each visit, Quattlebaum was treated with medication.
Since Quattlebaum's initial April 1996 initial disability determination, the medical record indicates that his asthmatic condition improved. Quattlebaum next visited a hospital emergency room in September 1997. (R. 156-57.) Prior to the SSA's November 1998 redetermination, Quattlebaum's condition was independently evaluated by two different physicians, Dr. Florez (R. 135-39), a consulting physician, and Dr. Stevens (R. 140-44), Quattlebaum's treating physician since birth. Each physician had found medical improvement in Quattlebaum's condition. (R. 136-38, 141-42.) Both found Quattlebaum's asthma to only be "mild" (R. 138, 140), and Dr. Florez noted that the "asthmatic episodes can be controlled at home with a nebulizer." (R. 138.)
Additionally, after Quattlebaum's disability redetermination he received a childhood disability evaluation from a third physician, Dr. Baum, in March 1999. (R. 149-52.) Dr. Baum found Quattlebaum's condition "much improved" and "not at listings level at this time." (R. 152.) Given Quattlebaum's medical record, which includes the opinions of three physicians that his condition has improved, this Court finds that the ALJ's conclusion that Quattlebaum's "condition has medically improved" (R. 12) is supported by substantial evidence.
The second step in the sequential evaluation is to determine "whether the impairment(s) that [the SSA] considered at the time of [the SSA's] most recent favorable determination or decision still meets or equals the severity of the listed impairment it met or equaled at that time." 20 C.F.R. § 416.994a(b)(2). The applicable impairment for Quattlebaum's condition is listed at Section 103.03A-D of appendix 1.
Section 103.03 of the appendix requires a child to have asthma with:
A. FEV1 equal to or less than the value specified in table I of 103.02A;
Or B. Attacks (as defined in [Listing] 3.00C), in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each inpatient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks; Or C. Persistent low-grade wheezing between acute attacks or absence of extended symptom-free periods requiring daytime and nocturnal use of sympathomimetic bronchodilators with one of the following:
1. Persistent prolonged expiration with radiographic of other appropriate imaging techniques evidence of pulmonary hyperinflation or peribronchial disease; or 2. Short courses of corticosteroids that average more than 5 days per month for at least 3 months during a 12-month period;
Or
D. Growth impairment as described under the criteria in [Listing] 100.00.20 C.F.R. Part 404, Subpart P, Appendix 1, § 103.03.
With respect to Section 103.03A, there was no medical evidence that satisfies this Section's criteria. In fact, while Quattlebaum was treated for persistent mild asthma, there is no evidence in the record that any physician found it necessary to refer Quattlebaum for pulmonary function testing.
Section 103.03B requires that asthma attacks occur at least once every two months or at least six times a year. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 103.03B. In November 1998, Dr. Stevens indicated that Quattlebaum had only visited the emergency room twice in the previous year for asthma. (R. 143.) Thereafter, the record indicates only two emergency room visits for allergies in April and May 1999. (R. 154-55, R. 158-59, 194.) Thus, the evidence in Quattlebaum's medical record does not indicate that the frequency of his asthma attacks satisfy the criteria of Section 103.03B.
Section 103.03C requires persistent low-grade wheezing between acute attacks or absence of extended symptom-free periods. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 103.03C.
On or around the time of the Commissioner's redetermination there is no evidence in the medical record that Quattlebaum had persistent low-grade wheezing or an absence of extended symptom-free periods. Quattlebaum in fact had few treatments on or around the time of the Commissioner's redetermination of his claim. Prior examinations had indicated that Quattlebaum's lungs were clear. (R. 131, 134, 137, 143, 155, 158, 159.) Dr. Stevens' impression was that Quattlebaum's asthma was mild. (R. 131, 140.) In November 1998, Dr. Stevens noted that Quattlebaum experienced coughing and wheezing only twice monthly. (R. 141.) In October 1998, Dr. Florez noted that Quattlebaum's last asthmatic episode was in June 1998. (R. 135.) The medical evidence does not satisfy the criteria of Section 103.03C. Section 103.03D requires the child to have experienced "growth impairment as described under the criteria in [Listing] 100.00." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 103.03D. The medical record does not indicate any documented growth impairment nor even any medical concern about Quattlebaum's height. Thus, the ALJ correctly found the evidence does not satisfy the criteria of Section 103.03D.
The third step in the sequential evaluation is to determine whether the child is disabled under the rules for determining eligibility in initial disability claims for children. The first step requires the ALJ to determine whether the child has a severe impairment or combination of impairments. 20 C.F.R. § 416.924(c). The ALJ found that Quattlebaum's condition is severe. (R. 14, 16.) If there is a finding of severe impairment, the analysis proceeds to the next step, which requires the ALJ to determine whether the impairment meets, medically equals, or functionally equals in severity the applicable listed impairment in appendix 1. 20 C.F.R. § 416.924(d). As Quattlebaum's impairment was found not to meet or medically equal a listed impairment in step two of the sequential evaluation, this Court therefore must determine whether substantial evidence supports the ALJ's conclusions that Quattlebaum's impairments were not functionally equivalent to Section 103.03 at 20 C.F.R. part 404, subpart P, appendix 1.
To support a finding of functional equivalence, Quattlebaum's impairments must either: (1) result in "extreme limitation of one specific function;" (2) produce "extreme limitations in one area of functioning or marked limitation in two" or more "broad areas of development or functioning;" (3) exhibit "episodic criteria," such as "frequent illnesses or attacks;" or (4) require medical treatment over a long time period that itself "causes marked and severe functional limitations." 20 C.F.R. § 416.926a(b)(1)-(4). An extreme impairment exists if there is "no meaningful functioning in a given area," 20 C.F.R. § 416.926a(c)(3)(ii)(C), while a marked limitation is one that is "more than moderate" and "less than extreme" and "interfere[s] seriously with the child's functioning." 20 C.F.R. § 416.926a(c)(3)(i)(C).
See, e.g., Tucker v. Massanari, 99 Civ. 12037, 2001 WL 868031 at *7 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.); Cotis v. Massanari, 00 Civ. 4693, 2001 WL 527471 at *3-4 (S.D.N.Y. May 17, 2001); Straw v. Apfel, 98 Civ. 5089, 2001 WL 406184 at *4 (S.D.N.Y. Apr. 20, 2001); Colon v. Apfel, 133 F. Supp.2d 330, 339-40 (S.D.N.Y. 2001); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at *7 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.); De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at *4 (S.D.N.Y. July 12, 2000).
See also, e.g., Tucker v. Massanari, 2001 WL 868031 at *7; Cotis v. Massanari, 2001 WL 527471 at *4; Straw v. Apfel, 2001 WL 406184 at *4-6; Colon v. Apfel, 133 F. Supp.2d at 340; DeLeon v. Apfel, 2000 WL 1873851 at *8; De Medina v. Apfel, 2000 WL 964937 at *5; Salomon v. Apfel, 99 Civ. 4250, 2000 WL 776924 at *3 (S.D.N.Y. June 15, 2000).
The record indicates that Quattlebaum does not suffer from any extreme limitations of function, because Quattlebaum is capable of functioning in all areas. (R. 141-42, 151.) In addition, he is not prone to frequent illness and does not receive medical treatment which results in severe functional limitations. (R. 150.) Thus, the inquiry focuses on whether Quattlebaum suffers from functional limitations resulting from conditions which are "marked" in at least two broad areas of functioning. Under this requirement, five broad areas of functioning must be assessed: (1) cognitive and communicative development; (2) motor function; (3) social development; (4) personal development; and (5) concentration, persistence and pace. 20 C.F.R. § 416.926a(c)(4).
See also, e.g., Tucker v. Massanari, 2001 WL 868031 at *7; Cotis v. Massanari, 2001 WL 527471 at *4; Straw v. Apfel, 2001 WL 406184 at *6; Colon v. Apfel, 133 F. Supp.2d at 341; DeLeon v. Apfel, 2000 WL 1873851 at *8; De Medina v. Apfel, 2000 WL 964937 at *5; Salomon v. Apfel, 2000 WL 776924 at *3.
The ALJ reviewed the evidence as to all five broad areas and found that Quattlebaum "has no limitation" in the "broad area[s]" of cognitive and communicative development, social and personal development, and concentration, persistence, and pace. (R. 17.) The ALJ found that Quattlebaum "has a slight limitation in the broad area of motor development." (R. 17; see also R. 15.) In making this determination, the ALJ was required to consider "all of the relevant evidence in the record, including: (1) the objective medical facts; (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant's symptoms submitted by the claimant, his family, and others; and (4) the claimant's educational background, age, and . . . experience." DeLeon v. Apfel, 2000 WL 1873851 at *8 (internal quotations omitted); see also, e.g., Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988); Tucker v. Massanari, 2001 WL 868031 at *7; Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *5 (S.D.N.Y. July 11, 2001) (Peck, M.J.) ( cases cited therein); De Medina v. Apfel, 2000 WL 964937 at *4 (quoting Marrero v. Apfel, 87 F. Supp.2d 340, 346 (S.D.N.Y. 2000), aff'd mem., No. 00-6117, 4 Fed. Appx. 45, 2001 WL 138340 (2d Cir. Feb. 15, 2001), cert. denied, 122 S.Ct. 677 (2001)). The ALJ met this standard in evaluating Quattlebaum's claim. The Court turns to the five areas of functioning: Cognitive and Communicative Development The regulations define cognitive function as a child's "ability or inability to learn, understand, and solve problems . . .; the ability to retain and recall information . . .[;] [and] [t]he ability or inability to comprehend and produce language . . . in order to communicate." 20 C.F.R. § 416.926a(c)(4)(i); see also, e.g., 20 C.F.R. § 416.926a(c)(5)(iv)(A); Tucker v. Massanari, 99 Civ. 12037, 2001 WL 868031 at *8 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at *9 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.); De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at *6 (S.D.N.Y. July 12, 2000). The ALJ reasonably found that Quattlebaum has no limitation with regard to his cognitive and communicative function. (R. 17.)
Furthermore, because Morris/Quattlebaum appeared pro se before the ALJ, the ALJ was under a heightened duty "`to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" DeLeon v. Apfel, 2000 WL 1873851 at *8 n. 6; Carballo v. Apfel, 34 F. Supp.2d 208, 214 (S.D.N.Y. Feb. 5, 1999) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)); see also, e.g., Tucker v. Massanari, 2001 WL 868031 at *7 n. 18; Cotis v. Massanari, 2001 WL 527471 at *4; Salomon v. Apfel, 2000 WL 776924 at *5.
Neither Morris' testimony, Quattlebaum's testimony, or the medical evidence indicates that Quattlebaum experiences any difficulties in these areas. Morris indicated that Quattlebaum had no speech problems (R. 83), and treating physician Dr. Stevens reported that Quattlebaum's communication skills were age appropriate. (R. 141-42.)
Motor Function
The ALJ found that Quattlebaum has a slight limitation in the area of motor function because his asthma "slightly limits [his] ability to perform exertional activities." (R. 16.) This slight limitation is supported by the evidence. (R. 138.) However, this slight limitation on exertional activities such as "running up stairs" (R. 138) does not "interfere seriously with [Quattlebaum's] functioning" and thus is not a "marked" limitation. See 20 C.F.R. § 416.926a(c)(3)(i)(C). Morris supported this conclusion by stating with regard to Quattlebaum's motor functioning that he "does pretty well." (R. 195.) In addition, Quattlebaum himself testified that he played baseball, basketball and football. (R. 96-97.) Social Development The regulations define the area of social development as a child's "ability or inability to form and maintain relationships with other individuals and with groups." 20 C.F.R. § 416.926a(c)(4)(iii); see also, e.g., 20 C.F.R. § 416.926a(c)(5)(iv)(C); Tucker v. Massanari, 99 Civ. 12037, 2001 WL 868031 at *9 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at *10 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.); De Medina v. Apfel, 99 Civ. 4149, 2000 WL 964937 at *6 (S.D.N.Y. July 12, 2000); Salomon v. Apfel, 99 Civ. 4250, 2000 WL 776924 at *4 (S.D.N.Y. June 15, 2000). The ALJ reasonably found that Quattlebaum has no limitation with regard to his social development. (R. 17.) Neither Morris' testimony, Quattlebaum's testimony, nor the medical evidence indicates that Quattlebaum experiences any difficulties in this area. Dr. Stevens reported Quattlebaum's social skills as age appropriate. (R. 131, 141-42.) Morris and Quattlebaum testified that he had friends at school and gets along with his sisters. (R. 83, 196.)
Personal Development and Concentration, Persistence and Pace
In the area of personal development, neither Morris, Quattlebaum, or any of his doctors reported that he has difficulty attending to his personal needs. The ALJ's conclusion that Quattlebaum has no limitation in this area is supported by substantial evidence.
The regulations define the area of concentration, persistence and pace as the child's "ability or inability to attend to, and sustain concentration on, an activity or task, such as playing, reading, or practicing a sport, and the ability to perform the activity or complete the task at a reasonable pace." 20 C.F.R. § 416.926a(c)(4)(vi); see also 20 C.F.R. § 416.926a(c)(5)(iv)(E); Tucker v. Massanari, 99 Civ. 12037, 2001 WL 868031 at *9-10 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at *11 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.). The ALJ reasonably found that Quattlebaum has no limitation with regard to concentration, persistence, and pace. (R. 17.) Neither Morris' testimony, Quattlebaum's testimony, or the medical evidence indicates that Quattlebaum experiences any difficulties in this area. While there was some evidence that Quattlebaum exhibited hyperactive behavior (R. 164), there was no evidence that it was in any way disabling (id.).
In sum, it is clear that Quattlebaum does not suffer from marked limitations in two of the five broad areas of functioning. The Commissioner's decision that Quattlebaum's asthma is not disabling is supported by substantial evidence.
CONCLUSION
For the reasons set forth above, because there is substantial evidence to support the ALJ's finding that Quattlebaum's mild asthma is not disabling, the Commissioner's motion for judgment on the pleadings is granted. The Clerk of Court shall enter judgment dismissing this complaint.
SO ORDERED.