Opinion
Civil Action No. 99-3647, Section "A".
February 20, 2001.
ORDER AND REASONS
Before the Court are cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. These motions were submitted on the briefs. Having reviewed the motions, memoranda, exhibits/administrative record, and the applicable law, and for the reasons detailed herein below, this Court GRANTS Commissioner's motion for summary and DENIES the plaintiff's motion for summary judgment.
I. Procedural Background
On September 30, 1993, plaintiff, Irene VERRETT, filed an application for Title XVI child's Supplemental Social Security Income benefits (SSI) on behalf of her nephew, Reginald D. Girod, alleging disability since his birth on February 24, 1992 claiming "asthma, heart murmur" as the type of impairment. As of the date of filing the instant application for supplemental benefits Reginald was one year and seven months old and had reached the age of five as of the time of the Administrative Law Judge's (ALJ's) decision denying benefits in his case.
Application for Supplemental Security Income, Administrative Record, at p. 49 [Fed.Rec.Doc. No. 6].
See, August 9, 1997 ALJ Decision, Administrative Record, at pp. 9-18 (finding claimant not disabled at any time throught he date of the decision and not otherwise eligible for social security income child benefits) [Fed.Rec.Doc. No. 6].
Initially, on February 7, 1994, claimant's application was denied and was affirmed after reconsideration on September 22, 1994. On May 28, 1996 and May 30, 1997, oral hearings were conducted before the Administrative Law Judges (ALJ's) Donald Colpitts and William A. Gershuny, respectively. Claimant's great-aunt, Irene Verrett, testified at the hearings and was accompanied by counsel.
See, Notice of Disapproved Claim dated February 7, 1994, Administrative Record, at pp. 53-54.
See, Notice of Reconsideration dated September 22, 1994, Administrative Record, at p 59.
See, Transcripts of Oral Hearings, Administrative Record, at pp. 20-48.
Having considered the Irene Verrett's testimony and other evidence of record, on August 9, 1997, ALJ William A. Gershuny issued his decision denying Reginald's application. The ALJ determined pursuant to a three-step evaluation process as outlined in Public Law 104-193, and based on the record that:
See, August 9, 1997 Notice of Unfavorable Decision and Decision of the ALJ, Administrative Record, at pp. 9-18.
The three steps were: (1) determine whether the claimant is or has been engaged in substantial gainful activity, and if not; (2) determine whether the claimant has a "medically determinable severe impairment within the meaning of Stone v. Heckler and Social Security Ruling (SSR 96-3p), and if so; (3) determine whether the impairment(s) meet, medically equal, or functionally equal a listed impairment set forth in Appendix 1, Subpart P, Part 404. ALJ's Decision, Administrative Record, at pp. 12-13.
[C]laimant has not engaged in substantial gainful activity since the alleged onset date, and that claimant has a "medically determinable severe impairment."
* * *
[C]laimant's condition does not meet or medically equal the criteria for any impairment listed in Appendix 1, Subpart P, Part 404. Claimant has not had asthma attacks as defined in Listing 103.00, nor has he required treatment that meets the severity and durational requirements of Listing 103.03. It is noted that steroids have not been required on an ongoing or prolonged basis. Moreover, claimant does not have growth deficiencies, cardiovascular or orthopedic abnormalities of such a degree to meet or equal any pertinent listing.
Id., at p. 14.
Upon considering whether an impairment or combination of impairments were the functional equivalent to one listed in Appendix 1, and having given consideration to four categories of limitation (i.e., those related to specific functions, those related to episodic impairment, those related to treatment or medication effects, and broad functional limitations), the ALJ concluded that the "claimant does not have limitations related to the above three functional areas" and as to broad functional limitations that the "no functional restriction is established" noting a "less than marked limitation in the area of motor functioning" and "it is clear that claimant's condition is improving with age and that he is not held back by his problem in any meaningful way."
Id.
Id., at p. 15.
Id., at p. 16.
Id.
The Appeals Council considered claimant's position that the ALJ failed to evaluate claimant's growth impairment under Listing 100.02 by failing to compare evidence of claimant's symptoms, signs and findings of impairment with the medical criteria shown with the Listing 100.02 and resulted in a decision not supported by substantial evidence and must be reversed. The Appeals Council concluded that no basis existed under the regulations for granting claimant's review of the ALJ's decision, and the ALJ's decision became final.
See Claimant's Brief in Support of his Appeal of ALJ Gershuny's August 9, 1997 Decision Denying SSI benefits, Administrative Record, at pp. 171-72.
See Action of Appeals Council on Request for Review, dated September 30, 1999, Administrative Record, at p. 4.
On December 5, 1999, Plaintiff, Irene Verrett brought this action pursuant to 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), denying SSI benefits under the Act. On August 11, 2000, plaintiff filed a motion for summary judgment and on September 14, 2000, the defendant filed a cross motion.
Plaintiff submits that the pleadings and records show no genuine issue of material facts, and that she is entitled to judgment as a matter of law because that the ALJ erred in his failure to evaluate the claimant's impairment under Listing 100.02. In its cross motion, the Commissioner submits that the ALJ's decision is proper, supported by medical evidence, and that the ALJ correctly applied the applicable law and regulations, and thus, his decision should be affirmed on summary judgment, there being no material issue of fact.
II. Medical History of Claimant Reginald D. Girod
As the ALJ observed and the medical records show that claimant has a history of delayed bone age, physiologic bowing of the knees short stature. At age 27 months, claimants bone age was 18 months. Dr. Bennett treated him with Denis-Browne bar brace which the claimant wore at night. His asthma is treated at home with a breathing machine (nebulizer) and ventolin. He has been given no prescription for steroids and has never been hospitalized for asthma. Claimant has had a few steroid treatments during office visits. He has had a few emergency room visits complaining of asthma, the last late in 1995, but no prescription for a steroid was issued.
Claimant has short stature, delayed bone age and marked bowing. Tulane University Medicical Center, Clinic Note dated 8/18/94 [Exhibits 16-5 and 16-24, Adm.Rec., at pp. 130, 149]. His X-ray report noted the deformity (i.e., bow legs) "with no evidence of bone destruction or abnormal metaphyseal beaking to suggest Blounts disease" and "no other significant bone or joint space or soft tissue abnormality seen." [Exhibit 16-9, Adm.Rec., at p. 134]. Physicians Progress Notes of Tulane's Pediatric Endocrine Clinic, dated 6/28/94 notes that X-rays and lab work showed no evidence of Rickets or metabolic bone disease. [Exhibit 16-10, Adm.Rec., at p. 135]. As of 6/14/94 while it was noted that bone age equals approximately eighteen months, because his bone age fell within two standard deviations for his chronologic age of two years, and therefore was at the low end of normal limits. [Exhibit 16-14, Adm.Rec., at p. 139]. Also the views of both lower extremities showed physiologic bowing of the lower extremities, however, the epiphyseal centers were within normal limits, without any evidence of fragmentation. Id. Dr. Bennett resolved to treat claimant's bowing problem with a Denis-Browne bar. [Exhibit 16-23, Adm.Rec., at p. 148]
Exhibits 15 and 17 [Adm.Rec., at PP. 118-125, 152-167].
The ALJ's decision is supported by substantial evidence of record. Claimant's medical history indicates that he has undergone no recent treatments for the medical conditions complained of or any other medical problems. Treating physicians further determined that claimant's short stature did not warrant further follow-up. In fact, the records reflect as to all orthopaedic problems for which the claimant was seen at Tulane Medical Center, no further treatment was proposed, since the consensus was to wait until the claimant grows a bit.
See Exhibit 16-10 [Adm.Rec., at p. 135].
See Transcript of Hearing [Adm.Rec., at pp. 37, 40]. Claimant's great-aunt Irene Verrett testified that the physicians are waiting because his legs appear to have straightened up some. She further testified that the claimant wore the Denis-Browne bar/brace from the time he was eleven months old until he was about 2 1/2 years old when he slept at night or took a nap. Id., at pp. 40-41.
Claimant's great-aunt, Irene Verrett, testified that he can do most things children his age do, including play and run, but he cannot get overheated or play in water because of his asthma. She further testified that when he runs, he falls down.
See Transcript of Hearing [Adm.Rec., at pp. 39-40]
III. ALJ's Findings
"After consideration of the entire record, I find:
1. There is no evidence that claimant has engaged in substantial gainful activity since the alleged onset date.
2. The medical evidence establishes that claimant has a `medically determinable severe impairment' within the meaning of Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) and SSR 96-3p.
3. Claimant's condition does not meet or medically equal the criteria for any impairment listed in Appendix 1, Subpart P, Part. 404.
4. Claimant's assertions relative to symptomatology, pain, functional limitations and restrictions of activities of daily living have been considered in the light of the factors set forth in 20 C.F.R. § 416.929 and SSR 96-7p, are found to lack corroboration or substantiation in the medical evidence and are not fully credible as to a disabling impairment.
5. There is no evidence of limitation by way of treatment or medication effects.
6. A thorough review of the medical and other evidence reveals that there is no evidence of impairment in the areas of cognition/communication social functioning, personal functioning, or concentration, persistence or pace.
7. There is less than marked limitation in the area of motor functioning.
8. There is no evidence that any impairment or combination of impairments presented the requisite functional limitations in the pertinent areas of development or functioning such that the impairment or combination of impairments were functionally equivalent to any impairment set forth in Appendix 1 of Subpart P, Part 404.
9. Claimant was not disabled at any time through the date of this decision."
IV. Law and Analysis
A. Standard of Review
A review of a final decision of the Commissioner of the Social Security Administration involves a determination of whether the decision is supported by substantial evidence and whether the appropriate legal standards were applied. 42 U.S.C. § 405(g); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
Substantial evidence is "that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion." Spellman, 1 F.3d at 360. The evidence must be more than a scintilla but may be less than a preponderance. Id. In applying the aforesaid standard, the district court must carefully scrutinize the record to determine whether, in fact, substantial evidence is present.
During the review process, a district court may not reweigh the evidence or substitute its own judgment for that of the Commissioner. Ripley, 67 F.3d at 555. Any of the ALJ's factual determinations that are supported by substantial evidence are conclusive. Id., at 554. In the case at bar, as previously mentioned, the plaintiff makes one claim — that the ALJ erred in his failure to evaluate the claimant's impairment under Listing 100.02, and thus, his determination is not supported by substantial evidence.
B. "Disability" under the Social Security Act
To qualify for SSI benefits, a claimant must be "disabled" as defined by the Act. 42 U.S.C. § 423(a)(1)(D). In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("the 1996 Act" or "PRAWORA"), which redefined the eligibility standard for children under the SSI disability determination process. This statute applies to all child disability applicants who filed claims on or after August 22, 1996 or whose cases were not finally adjudicated before August 22, 1996. Id. § 211(d)(!)(A)(I). A claim is not considered to be fully adjudicated if "there is pending a request for either administrative or judicial review with respect to such claim that has been denied in whole." Id. 211(d)(1)(A)(ii). In the instant case, plaintiff's request for Appeals Council review was pending on or after August 22, 1996, and the 1996 Act therefore applies to him. Brown v. Callahan, 120 F.3d 1133, 1135 (10th Cir. 1997).
According to the legislation, "(a)n individual uner the age of 18 shall be considered disabled for the purposes of this title if that individual has a medically determinable physical or mental impairment, which results in marked or severe functional limitations, and which can be expected to last for a continuous period of not less than 12 months." Pub.L. No. 104-193, § 211(a)(C)(I), 110 Stat. 2105 1996) (codified at 42 U.S.C. § 1382c (a)(3)(C)(I)). The legislation also instructs the Commissioner to discontinue the use of individualized functional assessment of children set forth in 20 C.F.R. § 416.924d and 416.924e. Pub.L. No. 104-193, § 211(b)(2).
The ALJ's decision in the case at bar, issued on August 9, 1997, found the claimant not disabled under the "comparable severity" standard enumerated at 20 C.F.R. § 416.924(a) (1996) and which formerly appeared at 42 U.S.C. § 1382c(a)(3)(A). See ALJ's Decision [Fed.Rec.Doc. No. 6, at pp. 12-18]. The pre-1996 Act regulations that the ALJ used here follow the Supreme Court's ruling in Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), and include the following sequential steps leading to a finding of disability or lack thereof: (1) whether the child is engaged in substantial gainful activity; (2) if the child is not engaged in substantial gainful activity, whether the child's impairment or combination of impairments is severe; (3) if the child's impairment or combination of impairments is sever, whether his impairment(s) meets or equals in severity any impairment listed in Appendix 1, Subpart P, Part 404 of the Commissioner's regulations; and (4) if the child's impairment or combination of impairments is severe, but his impairment(s) does not meet or equal in severity any listed impairment, an individualized functional assessment (IFA) is used to assess the impact of his impairment(s) on his overall ability to function independently, appropriately, and effectively in the age-appropriate manner and determine whether his impairment(s) is of comparable severity to an impairment(s) that would prevent an adult from engaging in substantial gainful activity. After evaluating various individualized functional assessments of the claimant Reginald, the ALJ concluded that he was not disabled under the fourth and final step of the sequential evaluation process. Specifically, the ALJ concluded that Reginald's impairments did not limit his ability to function, and consequently, that he did not suffer from an impairment of"comparable severity" to that which would disable an adult.
The "comparable severity" standard and use of the IFA (fourth step) were repealed by Section 211 of the 1996 Act. Nelson
As previously mentioned PRAWORA, the 1996 Act, eliminated the "comparable severity" standards and also changed the SSI regulations by discontinuing use of the individualized functional assessment (IFA). This change is of little or no importance since the older standard under which Reginald was evaluated ( i.e., the "comparable severity" standard) is more lement than the disability standard established by PRAWORA, the 1996 Act.
See Harris v. Apfel, 209 F.3d 413, 418 (5th Cir. 2000) (PRAWORA changed the definition of disability for purposes of SSI eligibility as ti pertains to individuals under the age of eighteen, eliminated the "comparable severity" standard, and discontinued use of IFA).
See, Harris, 209 F.3d at 419 (ruling that where there substantial evidence in support of the ALJ's decision under the "comparable severity" standard, we must conclude and hold that the ALJ's decision is consistent with the sterner PRAWORA standard, and the case need not be remanded for reevaluation under the 1996 Act).
Plaintiff claims that the ALJ erred in finding that claimant's growth impairment and bow legs do not meet or equal the applicable Appendix 1 listing. Specifically, Listing 100.02 regarding Growth Impairment, states:
Growth impairment, considered to be related to an additional specific medically determinable impairment, and one of the following:
A. Fall of greater than 15 percentiles in height which is sustained; or
B. Fall to, or persistence of, height below the third percentile.
See 20 C.F.R. Part 404, Subt. P, App. 1, 100.02.
Counsel for Commissioner aptly argues that the plain language of Listing 100.02 explains that growth impairment considered related to a specifically medically determinable impairment is the first step. The claimant then must also meet one of two criteria: (1) Fall of greater than 15 percentiles in height which is sustained; or (2) Fall to, or persistence of, height below the third percentile.
Plaintiff's suggestion that Reginald satisfies Listing 100.02 fails to take into account that his alleged growth impairment must be related to an additional specific medical impairment while meeting either of the two criteria set forth in Listing 100.02. The burden is on the plaintiff/claimant to prove that he satisfies the listed impairment.
The medical evidence shows that Reginald has a history of delayed bone age with bowing of the knees. It further shows that Reginald was treated for his condition. Between the ages of 11 months and 2 1/2, Reginald wore a Denis-Browne bar while sleeping. As to his short stature, a work up was performed by Endocrinology at Tulane Medical Center, but the cause Reginald's short stature remains unknown. Treating physicians determined that it did not warrant any further work up. At the time of the hearing Reginald was not being treated for this or any other medical problems.
Claimant's medical history reflects that his asthma is controlled at home using a nebulizer and ventolin. He has only been administered steroids during an office visit or at the emergency room. Also, the medical record reflects that Reginald has never been prescribed steroids and that he has never been hospitalized on account of his asthma.
The record as a whole contains "substantial evidence" which supports the ALJ's findings in this case. The Commissioner's finding that Reginald is not "disabled" is consistent with the regulatory criteria. ALJ Gershuny's denial of SSI benefits is affirmed. Accordingly,
IT IS ORDERED that:
(1) the Commissioner's Motion for Summary Judgment is GRANTED; and
(2) that the Plaintiff's Motion for Summary Judgment is DENIED.