Haws ex rel. Haws v. Apfel, 97-1138-Civ-ORL-22C.

• Decision Date: 28 July 1999
• Docket Number: No. 97-1138-Civ-ORL-22C.,97-1138-Civ-ORL-22C.
• Citation: 61 F.Supp.2d 1266
• Parties: Deborah HAWS for William HAWS, a minor, Plaintiff, v. Kenneth APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Middle District of Florida

61 F.Supp.2d 1266

Deborah HAWS for William HAWS, a minor, Plaintiff, v. Kenneth APFEL, Commissioner of Social Security, Defendant.

No. 97-1138-Civ-ORL-22C.

United States District Court, M.D. Florida, Orlando Division.

July 28, 1999.

COPYRIGHT MATERIAL OMITTED

William Earl Horne, Jr., Law Office of William C. Davis, Jr., Jacksonville, FL, for plaintiff.

Mary Ann Sloan, Chief Counsel, Office of the General Counsel, Region IV, Social

Security Admin., Atlanta, GA., for defendant.

Karen L. Gable, Asst. U.S. Atty., Orlando, FL.

ORDER

CONWAY, District Judge.

This cause comes before the Court on the Complaint filed by Plaintiff seeking review of the final decision of the Commissioner of Social Security denying her application for Child's Supplemental Security Income benefits.

This matter was considered by the United States Magistrate Judge, pursuant to the general order of assignment, who has filed a report recommending that the decision of the Commissioner be reversed.

After an independent de novo review of the record in this matter, and noting that no objections were timely filed, the Court agrees entirely with the findings of fact and conclusions of law in the Report and Recommendation.

Therefore, it is ORDERED as follows:

1. The Report and Recommendation filed June 28,1999 (Dkt.18), is ADOPTED and CONFIRMED and made part of this Order.

2. The decision of the Commissioner is hereby REVERSED.

3. The Clerk is directed to enter judgment accordingly.

DONE AND ORDERED.

REPORT AND RECOMMENDATION

GLAZEBROOK, United States Magistrate Judge.

Plaintiff Deborah Haws ("Haws") appeals to the district court on behalf of her minor son, William J. Haws, from a final decision of the Commissioner of Social Security [the "Commissioner"¹] denying her application for Child's Supplemental Security Income ["SSI"] benefits. For the reasons set forth below, it is recommended that the decision be REVERSED.

I. PROCEDURAL HISTORY

The United States Supreme Court decided Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), a case discussed below, on February 20, 1990. On March 28, 1994, Mrs. Haws filed her first application for Child's SSI on behalf of her son, alleging disability due to chronic asthma and developmental problems including eating, swallowing, walking, talking, running, and reaching. R. 68-70. Haws claimed that her son's disability began on December 29, 1992, the day he was born. R. 68. The Commissioner denied the application initially on June 28, 1994, and on reconsideration on November 10, 1994. R. 71-72, 75-76.

On January 3, 1995, Haws requested a hearing. R. 77-78. On January 22, 1996, the Honorable Apolo Garcia, Administrative Law Judge ("ALJ"), held a nine-minute hearing on Haws' claims, and heard testimony from Mrs. Haws. R. 59-67. On April 19, 1996, the ALJ issued a decision that William Haws was not entitled to SSI benefits because he had no impairment which met or equaled the severity of any impairment listed in Appendix 1, Subpart P, Regulation No. 4, and no functionally equivalent impairment. R. 26, Finding 3. The ALJ further found that Haws did not have an impairment of comparable severity to that which would disable an adult. R. 26, Finding 4. The ALJ concluded that Haws suffered from chronic respiratory difficulties which responded to medical treatment, and that Haws had developmental delays that involved swallowing. R. 26, Finding 2.

Effective August 22, 1996 — after the ALJ's decision but before Appeals Council review — the United States Congress enacted a new definition of childhood disability intended to rectify deficiencies that the Zebley Court had observed in the Commissioner's regulations and procedures for determining childhood disability. 42 U.S.C. § 1382c(a)(3) (1996). Congress abandoned the "comparable severity" standard, and redefined child disability as "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." Id. Congress expressly applied the new statutory definition to all claims awaiting review by the Appeals Council on August 22, 1996, including Haws' claim. See 110 Stat. 2105, 2189, P.L. 104-193, 1996 H.R. 3734.²

On appeal to the Appeals Council, Haws supplemented the record with additional evidence that he had muscular dystrophy, a debilitating disease likely to result in death by age 20. R. 4-5; 229-63. The Appeals Council considered the new evidence and the new diagnosis (together with the entire record previously submitted to the ALJ) in light of the statute, regulations, and rulings in effect as of July 29, 1997 — i.e., in light of the new statutory definition of childhood disability and implementing regulations effective April 14, 1997. R. 5.

Based on the new law and new evidence, the Appeals Council issued its decision denying review of Haws' claim on July 29, 1997. R. 5-6. According to the Appeals Council, the ALJ had neither erred nor abused his discretion, and had relied on substantial evidence in the record to support his action, findings, and conclusions. R. 5. The Appeals Council further determined that the ALJ's actions, findings, and conclusions were not contrary to the weight of the evidence "currently of record" on July 29, 1997 — i.e., presumably including the new evidence and the new diagnosis. R. 5. On appeal, Haws now challenges the Appeals Council's decision as error.

On September 18, 1997, Haws filed a complaint in the United States District Court for the Middle District of Florida seeking judicial review of "the decision of the Appeals Council of the Social Security Administration." Docket No. 1 at 1-2. Mrs. Haws filed her appeal brief on November 25, 1998 arguing that the Appeals Council had failed to recognize that the ALJ had abused his discretion, and that the ALJ had proffered a decision not supported by substantial evidence. Docket No. 13 at 2. Haws asked this Court to review, reverse, and set aside the Appeals Council's decision, and to grant Haws' claim. Docket No. 1 at 2.

The Commissioner filed his brief on February 3, 1999 noting that the new definition of childhood disability applied to Haws' claim. Docket No. 16. The Commissioner, however, argued that the Court should nevertheless affirm the ALJ in his application of the old "comparable severity" standard because application of the new definition based on marked and severe functional limitations imposed an even stricter standard for childhood disability. Docket No. 16 at 5-6. The Commissioner also argued that this Court must disregard the new medical evidence considered by the Appeals Council in making its final decision — including the new evidence of Duchenne muscular dystrophy — because the Appeals Council chose to deny review. Neither party requested oral argument. Docket No. 13.

II. THE STANDARD OF REVIEW

The Commissioner's findings of fact are conclusive if supported by substantial evidence, 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n. 3 (11th Cir.1991).

Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n. 3 (11th Cir.1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir.1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.1992) (court must scrutinize the entire record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177 (11th Cir.1986) (court also must consider evidence detracting from evidence on which Commissioner relied).

The district court will reverse a Commissioner's decision on plenary review, however, if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Department of Health and Human Services, 21 F.3d 1064, 1066 (11th Cir.1994); accord Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.1990). Remand is unnecessary where all of the essential evidence was before the Appeals Council when it denied review, and the evidence establishes without any doubt that the claimant was disabled. Bowen v. Heckler, 748 F.2d 629, 631, 636-37 (11th Cir.1984).

The district court may remand a case to the Commissioner for a rehearing under sentence four of 42 U.S.C. § 405(g); under sentence six of 42 U.S.C. § 405(g); or under both sentences. Jackson v. Chater, 99 F.3d 1086, 1089 - 92, 1095, 1098 (11th Cir.1996). To remand under sentence four, the district court must either find that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim. Jackson, 99 F.3d at 1090-91 (remand appropriate where ALJ failed to develop a full and fair record of claimant's residual functional capacity); accord Brenem v. Harris, 621 F.2d 688, 690 (5th Cir.1980) (remand appropriate where record was insufficient to affirm, but also was insufficient for district court to...