Opinion
CIVIL ACTION NO. 00CV10764-GAO.
September 28, 2001
MEMORANDUM AND ORDER
The plaintiff, Shaneia Tameisha Nelson, a minor, by and through her mother, Paula Nelson, brought this action to reverse a decision by the Commissioner of the Social Security Administration denying her application for benefits, or alternatively, to remand the matter for consideration of additional evidence. For the reasons stated below, the motion is DENIED, and defendant's motion to affirm the Commissioner's decision is GRANTED.
I. Facts Appearing in the Record
An application for Supplemental Security Income (SSI) benefits was filed on behalf of the plaintiff, Shaneia Tameisha Nelson, a minor, by and through her mother, Paula Nelson, on March 3, 1997. The final decision by the Social Security Administration ("SSA") affirmed the March 17, 1999, decision of the Administrative Law Judge ("ALJ"), which found that plaintiff was not disabled within the meaning of the Social Security Act. This decision became final after plaintiff's appeal was denied by the Appeals Council on February 10, 2000. The matter is before this Court pursuant to 42 U.S.C. § 405(g), which provides for judicial review of the final decision of the Commissioner.
Some of the pertinent facts appearing in the lengthy record are as follow:
Plaintiff, born on June 16, 1989 (R. at 82), was seven years old when her application for SSI benefits was filed and was nine years old at the time of the adverse ALJ decision. Her application for benefits alleged that she had been disabled since July 5, 1994, due to post-traumatic stress syndrome, headaches, and vision problems. R. at 88.
In August 1994, a neurologist, Dr. James Riviello, examined the plaintiff after reports of behavioral problems following an incident on July 5, 1994, when a tree fell on plaintiff's mother's car, in which plaintiff was a passenger. According to the neurologist's report, the plaintiff was not injured and did not lose consciousness, but she was terrified by the event. R. at 153. Plaintiff's mother reported that after the car accident, her daughter had become withrdrawn, was having trouble sleeping, and was wetting the bed. R. at 153. The neurologist reported that plaintiff did not display any seizure activity, staring spells, or regression in her motor or intellectual abilities. R. at 154. The neurologist further observed that plaintiff was alert, cooperative, and responsive, and he noted that several other disruptions were occurring in the family dynamic including the separation of the parents. R at 154.
On September 1, 1994, plaintiff underwent an electroencephalogram ("EEG"). The results of the EEG were "abnormal," indicating the possibility of seizures. R. at 156-57.
On October 3 and 4, 1994, plaintiff was evaluated at Children's Hospital to determine whether or not she was suffering from seizures. R. at 158-60. The physicians concluded at that time that plaintiff was not having seizures but was experiencing some tics, sleeping problems associated with incontinence, and rare headaches. R. at 161-62.
On October 4, 1994, Dr. Douglas Lee of the Children's Hospital Psychiatry Program evaluated plaintiff's behavioral symptoms. Dr. Lee reported that plaintiff was animated and out-going with no apparent psychomotor abnormality. Dr. Lee remarked on plaintiff's fear of trees and fear of being killed by a tree and offered a diagnosis of post-traumatic stress disorder. R. at 136. He noted that the degree and intensity of her symptoms impaired her functioning at the time but that her prognosis was "fairly good." R. at 136-37. Dr. Lee also noted that the plaintiff had been in counseling with Dr. Miriam Freidin since August of that year but that plaintiff was not receiving any psycho-pharmacological treatment. He recommended the continuation of this therapy. R. at 136.
In a letter dated January 18, 1995, Dr. Miriam Freidin indicated to the Leased Housing Division of the Boston Housing Authority that plaintiff was under treatment for separation anxiety and that as a medical necessity she required her own bedroom. R. at 137a.
In March 1997, plaintiff underwent neuropsychological testing at the direction of Margaret Marino, Ph.D. R. 138-143. Dr. Marino reported that plaintiff's test results indicated that plaintiff was in the average range of intellectual functioning, that plaintiff's achievement scores were at or above her age level, but that the neurological testing results were consistent with a learning disability stemming from problems with visual organization and attention, as well as mind deficits with frontal lobe tasks. R. at 140-42. Dr. Marino remarked that plaintiff's learning disabilities overlapped with sufficient emotional difficulties in the plaintiff's home life and that the original diagnosis of post-traumatic stress disorder continued to be appropriate. R. at 142.
On March 27, 1996, the neurologist who had evaluated the plaintiff in 1994, Dr. Riviello, performed a follow-up examination. He again found that plaintiff was alert, cooperative and responsive, but noted that her mother had reported an increase in the plaintiff's tics. R. at 161. The neurologist reported that the tics were not associated with any alteration of awareness, loss of postural tone, or frank seizure activity. He further noted that plaintiff was in the first grade, doing very well in her school work, was currently sleeping well with no incidents of incontinence, and demonstrated no regression in her intellectual or motor milestones. R. at 161.
On May 7, 1997, Oscar A. Cartaya, M.D., a consultative physician to the State Disability Determination Services ("DDS") reviewed plaintiff's existing medical records and concluded that while plaintiff's impairments were severe, no evidence existed of any findings of sufficient seriousness to establish a condition that met, medically equaled, or functionally equaled a Listed Impairment. R. at 145, 147-48.
Also on May 7, 1997, plaintiff was evaluated at the Children's Hospital Department of Psychiatry for behavioral difficulties, anger, and anxiety. R. at 173-78. The reporting social worker reported that based upon her observations of the plaintiff, plaintiff suffered from Attention Deficit Disorder and an Adjustment Disorder/Oppositional Defiant Disorder. R. at 177. The social worker rated plaintiff's level of functioning on the Global Assessment of Functioning Scale ("GAF") at 51-60 for "moderate symptoms or impairment of function." R. at 177.
On May 8, 1997, plaintiff returned to neurologist Dr. Riviello for a follow-up visit. Dr. Riviello reported that plaintiff was doing well with her school work but that some questions about her attention abilities and some visual dysfunction persisted. He recommended a follow-up EEG. R. at 164-65.
That follow-up EEG took place on June 11, 1997, and was interpreted as "mildly abnormal." R. at 166. On September 3, 1997, Dr. Sumner Stone, a psychiatrist and consultive physician to DDS, reviewed plaintiff's medical records and concluded that plaintiff's post-traumatic stress disorder was severe but that it did not meet, medically equal, or functionally equal the intensity of a Listed Impairment. R. at 168-72.
On January 7, 1998, plaintiff visited the Pain Management Department of Children's Hospital in relation to neck and upper-back pain, which began after plaintiff was thrown from her seat on the school bus. At the time, plaintiff reported that she was currently taking Prozac to treat her post-traumatic stress disorder. R. at 179. The attending physician diagnosed plaintiff's pain as consistent with a myofascial pain syndrome but noted that the patient's physical examination was completely normal. R. at 181.
On September 24, 1998, a hearing was held before ALJ Robert L. Halfyard. Plaintiff, her mother, her attorney, and a Medical Expert appeared at the hearing. R. at 22. Plaintiff testified briefly, and plaintiff's mother offered the substance of the testimony. Plaintiff's mother testified that her daughter had been having social and academic difficulties at school but that she had recently shown improvement in both areas. R. at 33. She testified that her daughter's grades had improved, that she had made the honor roll twice in the last semester, and that she was in the advanced class work program at the Murphy School. R. at 33-34. Plaintiff's mother testified that she believed her daughter was disabled because her daughter was overly sensitive, cried frequently, had difficulty separating from her mother, and had difficulty sleeping. R. at 34. She claimed that her daughter did not perform on the level at which she was accustomed to her daughter performing before their car was hit by a tree. R. at 34. Plaintiff's mother further testified that the neurologist treating the tic problem believed that the tics were a symptom of the psychological issues and that once the psychological issues were addressed the tics became less frequent. R. at 36. Plaintiff's mother confirmed that seizures were ruled out as a diagnosis. R. at 37.
The Medical Expert, Dr. Gerald Koocher, testified that he reviewed all of plaintiff's medical records but commented that the most recent record was dated May 1997. R. at 43. He noted that it was impossible to know from the medical records he reviewed how the plaintiff's daily life was affected, if at all, by the impairments discussed in the records. R. at 43. Dr. Koocher recommended that this necessary information could be gleaned from school reports or from a report from Dr. Nazario, plaintiff's treating psychiatrist, indicating how often the plaintiff needs her assistance in dealing with anxiety. R. at 44. Plaintiff's attorney indicated at the hearing that he had sent evaluations to Dr. Nazario and to Dr. Simmons but had not yet received responses. R. at 46. Dr. Koocher stated that based on what was in the file at that time, there was no "marked" evidence of a disability. R. at 51. At the conclusion of the hearing, the ALJ gave plaintiff's attorney two weeks to produce additional documentation. R. at 53.
In a letter dated September 25, 1998, Dr. Lelis L. Nazario of the Children's Hospital Psychiatry Outpatient Clinic reported to plaintiff's attorney that plaintiff was currently receiving treatment in the outpatient clinic in the forms of therapy and medication management. Dr. Nazario reported that plaintiff's symptoms were consistent with a mood related disorder, anxiety, and depressive features and that plaintiff's symptoms have responded "very well" to a combination of therapy and Prozac. She reported that plaintiff had been doing very well in school both academically and socially and that she seemed to be functioning appropriately for her age. She noted that the symptoms of plaintiff's post-traumatic stress disorder had mostly been resolved by September 1997. R. at 182.
In a letter dated November 27, 1998, the Medical Expert, Dr. Gerald Koocher, concluded after review of the additional and more recent medical records that the symptoms of plaintiff's post-traumatic stress disorder had been mostly resolved by September 1997. R. at 185.
The ALJ issued a decision on March 17, 1999, finding that plaintiff was not disabled within the meaning of the Social Security Act. R. at 11-21.
II. Discussion
Plaintiff asks this Court to review the ALJ's decision to determine (1) whether the ALJ's findings were supported by substantial evidence; (2) whether the ALJ correctly evaluated the evidence; and (3) whether the case should be remanded for review of new evidence.
Under the Social Security Act a child under the age of 18,
"shall be considered disabled . . . if that individual 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. Notwithstanding clause (i), no individual under the age of 18 who engages in substantial gainful activity (determined in accordance with regulations prescribed pursuant to subparagraph (E) may be considered disabled." 42 U.S.C. § 1382c (a)(3)(C)(i) and (ii).
This Court finds that substantial evidence existed to support the ALJ's decision, that the ALJ properly evaluated the evidence and the record in this case, and that the case should not be remanded to review new evidence.
A. Lack of Substantial Evidence Claim
The issue for determination is whether there is substantial evidence to support the ALJ's finding that plaintiff was not disabled. See Newbury v. Heckler, 592 F. Supp. 64, 64-65 (D.Mass. 1984). Substantial evidence exists where a reasonable mind could accept the evidence in the record as adequate to support the ALJ's conclusion. See Ortiz v. Secretary of Health and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). The Court's role in reviewing the final decision of the Commissioner is a narrow one. Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir. 1969). In reviewing the administrative decision, this Court may base its decision solely upon the parties' pleadings and the administrative record. 42 U.S.C. § 405(g). This Court does not make de novo determinations.See Rodriquez v. Secretary of Health and Human Servs., 647 F.2d 218 (1st Cir. 1981). If there is a contradiction in the evidence, it is to be resolved by the Commissioner. Lizotte v. Secretary of Health and Human Servs., 654 F.2d 127, 128 (1st Cir. 1981).; Newbury, 592 F. Supp. at 66. Although there may be more than one possible finding based on the evidence in the record, if there is substantial evidence to support the determination of the Commissioner, this Court must uphold that final agency action. See Rodriquez, 647 F.2d at 218.
The ALJ followed the three-step sequential evaluation process for determining whether a child is eligible for SSI benefits. See 20 C.F.R. § 416.924. First, the ALJ determines whether the child is engaging in substantial gainful activity. If not, the second step of the evaluation requires a determination of whether the child's impairment is "severe." If a child's impairment is severe, then the ALJ would move to the third step of the analysis, which determines whether the child has an impairment that causes "marked and severe functional limitations." The child will be found "disabled" if she has an impairment which meets or medically equals in severity the criteria for an impairment listed in the "Listing of Impairments" in Appendix 1 of Subpart P of the Commissioner's Disability Regulations. See 20 C.F.R. § 416.924.
Using this process, the ALJ found that plaintiff's impairments did not meet or medically equal in severity the medical criteria for any impairment in the Commissioner's "Listing of Impairments" and that plaintiff's impairment is not functionally equal in severity to a listed impairment. R. at 20. After careful review of the medical records, the ALJ found that plaintiff had post-traumatic stress disorder which was "severe" within the meaning of 20 C.F.R. § 416.924 but that plaintiff suffered from none of the listed impairments nor from any functionally equivalent impairments. R. at 16. The ALJ also found that allegations of attention deficit disorder and motor tics were not adequately supported in the record.
While many of plaintiff's symptoms seem difficult to diagnose clearly and distinctly, this Court finds substantial evidence in the record, including the evidence recited above, to support the ALJ's findings that plaintiff does not qualify as "disabled" under the Social Security Act.
B. Evaluation of the Evidence Claims
Plaintiff claims that the ALJ did not fully develop the record in the case before rendering his opinion. At the hearing before the ALJ, the expert Medical Examiner noted that the most recent report in the file of the plaintiff's medical records was dated May 1997. The ALJ instructed plaintiff's attorney to provide more recent reports of plaintiff's current treatment and condition. Subsequently, the Medical Examiner was provided with further medical records including a letter from Dr. Nazario, who was then treating plaintiff at the Children's Hospital Psychiatry Outpatient Clinic. That letter, dated September 25, 1998, (the day after the hearing) indicates that plaintiff was suffering from some anxiety and depressive features but that she was responding "very well" to a combination of therapy and Prozac. R. at 182.
On November 27, 1998, the Medical Examiner submitted a letter to the ALJ that indicated that he had reviewed the updated records and concluded that plaintiff's remaining difficulties were of "moderate or lower intensity" and were "not causing major disruptions in cognitive, communication, social, or personal functioning." R. at 185.
The combination of the supplemental medical records and the Medical Expert's opinions adequately addressed the ALJ's concern about the adequacy of the record. The ALJ had no further obligations to develop the record. This Court finds that the ALJ's decision is based on adequate and substantial evidence.
Plaintiff also challenges the ALJ's findings of credibility. In his report, the ALJ finds that at the hearing, the plaintiff's mother "exaggerated and magnified the effect the motor vehicle accidents had on her daughter." R. at 19. The ALJ stated that this alleged severity was not supported by the medical records concluding that "a mother may be concerned about possible long range effects from any accident, but in this case other observers do not tend to substantiate the mother's viewpoint." R. at 20. The ALJ's stated reasons for his finding of credibility are sufficiently supported by evidence in the record.
C. New Evidence
Plaintiff also contends that new and material medical evidence, which was not presented to the ALJ, supports remand of this case to the Commissioner. Plaintiff's new evidence consists of two doctors' reports. The first report, dated July 21, 1999, from Dr. Miriam Rosenberg of Harvard Pilgrim, Wellesley Mental Health, reported that plaintiff was brought in by her mother on account of anxiety and obsessive symptoms. Dr. Rosenberg reported that plaintiff "has been an excellent student until recently" and that plaintiff reports having difficulty sleeping and has become preoccupied with some compulsive behaviors. Dr. Rosenberg stated that plaintiff's medical history is "[e]ssentially negative" and her "impression" diagnosis stated "OCD, rule out anxiety disorder." Pl.'s Mem. of Law in Supp. of Mot. to Reverse or Remand Decision of the Comm'r, Attach. B.
The second report is dated February 18, 2000 from neurologist Dr. James Riviello of Children's Hospital. Dr. Riviello indicated that he last examined the plaintiff in 1997. He reported that plaintiff's mother brought her in for an evaluation because she was having some difficulties in school, including a worsening of her school work and difficultly completing tasks and following commands. Dr. Riviello concludes that she continues to demonstrate evidence of a post-traumatic stress disorder with some stomach aches, some difficulty sleeping, and occasional high-pitched grunting and shrieking movements. However, he also noted that her previous tics and headaches had been resolved. Dr. Riviello noted a worsening in plaintiff's school behavior and indicated that CORE testing should be repeated either at Plaintiff's school or at the Children's Hospital Learning Disability Program. He concluded his report, "I did not see any changes in her examination, and therefore do not think that repeat EEG studies or neuroimaging is needed at this point." Pl.'s Mem. of Law in Supp. of Mot. to Reverse or Remand Decision of the Comm'r, Attach. A.
Plaintiff argues that this Court should remand this case under 42 U.S.C. § 405(g) so that the ALJ may consider this new evidence. Under 42 U.S.C. § 405(g), courts may remand cases for further proceedings where new evidence is presented after the ALJ's decision if the evidence is material and good cause is shown for the failure to present it on a timely basis. See Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001). The First Circuit has held that new material may warrant a remand for reconsideration where that evidence would meaningfully alter and cast doubt on the sufficiency of the administrative record. See Evangelista v. Secretary of Health and Human Servs., 826 F.2d 136, 139-40 (1st Cir. 1987).
"The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files [his] answer, remand the case to the [Commissioner] for further action by the [Commissioner], and it may at any time order additional evidence to be taken before the [Commissioner], but only upon a showing that there is new evidence which is material and that there is good casue for the failure to incorporate such evidence into the record . . . ." 42 U.S.C. § 405(g).
The new evidence offered by the plaintiff in this case does not meaningfully alter or cast doubt on the ALJ's findings. Dr. Riviello's comments in his letter of February 18, 2000, are not inconsistent with the findings of the ALJ that the plaintiff suffers from post-traumatic stress disorder but that plaintiff's impairment is not of a severity which medically meets or equals the severity of any Listed Impairment. R. at 20. Furthermore, Dr. Rosenberg's report that plaintiff's medical history is "essentially negative" does not accurately reflect plaintiff's medical history as it was presented to this Court in the lengthy record. Since the new evidence is not material, this Court need not proceed to analyze whether good cause existed for plaintiff's failure to present the evidence to the ALJ.
III. Conclusion
For the foregoing reasons, the plaintiff's motion for an order reversing or remanding the decision by the Secretary is DENIED, and the decision is AFFIRMED.
It is SO ORDERED.