Quinones on Behalf of Quinones v. Chater

• Decision Date: 26 June 1997
• Docket Number: No. 1247,D,1247
• Citation: 117 F.3d 29
• Parties: Debbie QUINONES o/b/o Jennifer QUINONES, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee. ocket 96-6207.
• Court: U.S. Court of Appeals — Second Circuit

Page 29

117 F.3d 29

53 Soc.Sec.Rep.Ser. 642

Debbie QUINONES o/b/o Jennifer QUINONES, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security Defendant-Appellee.

No. 1247, Docket 96-6207.

United States Court of Appeals Second Circuit.

Argued May 9, 1997.

Decided June 26, 1997.

James M. Baker, New York City (Cardozo Bet Tzedek Legal Services), for Plaintiff-Appellant.

Linda A. Riffkin, Assistant United States Attorney, New York City, Mary Jo White, United States Attorney for the Southern District of New York, New York City, for Defendant-Appellee.

Before: FEINBERG, CARDAMONE, and LEVAL, Circuit Judges.

LEVAL, Circuit Judge:

Plaintiff Debbie Quinones ("Quinones") brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), challenging the final determination of the Commissioner of Social Security (the "Commissioner") that her daughter Jennifer Quinones ("Jennifer"), now thirteen years old, was not "disabled" and therefore was not entitled to Supplemental Security Income (SSI) benefits.

The Commissioner found that Jennifer suffered from a "less than moderate limitation ... in the area of concentration, persistence and pace" and that there was "no evidence of limitation in the domain[ ] of ... personal/behavioral development/ function." The United States District Court for the Southern District of New York (Peter K. Leisure, Judge ) affirmed. Because the Commissioner did not address substantial evidence of impairments in these areas, we reverse and remand.

Background

A. Jennifer's Condition

Jennifer was born on August 9, 1983, and suffers from both Hashimoto's thyroiditis and diabetes mellitus. She was diagnosed with diabetes when she was five. Jennifer takes oral medication once a day to control her thyroiditis. To treat her diabetes, Quinones gives Jennifer insulin injections and checks her blood sugar levels three times a day. When Jennifer's blood sugar level is too high, Quinones tests her urine for ketones. Jennifer makes quarterly visits to the Pediatric Endocrinology Department at Mount Sinai Medical Center, where doctors treat and monitor her condition.

Despite this treatment, Jennifer's diabetic condition is poorly controlled because she does not follow the appropriate dietary restrictions, and constantly "sneaks" inappropriate foods. As a result, her blood sugar levels remain high, increasing her hunger and thirst and affecting her concentration. Jennifer's uncontrolled condition also puts her at risk of blindness, renal failure, and/or the loss of limbs "in the near future."

Jennifer has twice been hospitalized in efforts to control her diabetes. After her first hospitalization in the spring of 1994, her treating physicians increased her daily dosage of insulin from two to the present three injections of insulin. When this dosage proved ineffective, Jennifer was admitted to the Cumberland Hospital for Children and Adolescents in New Kent, Virginia. She remained there from May 16, 1995 to September 1, 1995, participating in a highly structured program involving physical therapy, nutritional counseling, and remedial education. Jennifer's stay at Cumberland did not bring her blood sugar levels under control; despite the controlled setting and regular counseling, she gained 10.5 pounds and continued to find prohibited foods.

Jennifer also has a severe learning disorder. Although I.Q. tests reveal average intelligence, she has done poorly in school. In second grade, she could not recognize many letters and was essentially unable to read. In the middle of the fourth grade, having already repeated the second grade, her reading abilities were still at a first grade level. Although the precise nature of her learning disorder is unclear, it appears to result from an "auditory short term memory and sequencing deficit," which makes it difficult for her to process information.

Despite her various difficulties, Jennifer is apparently alert and friendly. She plays sports and other games, has friends and good social skills, and treats her teachers with respect. She is fluent in spoken English and her examining psychologists describe her as bright, attentive, and eager to please. She attends regular classes and also receives additional instruction at the "resource room" of her school.

B. Proceedings before the Commissioner

After Jennifer was diagnosed with diabetes, her mother applied in 1989 for SSI benefits on her behalf, claiming disability on account of diabetes. The Commissioner denied the application in June of that year. Although Quinones did not appeal, the Commissioner reopened Jennifer's application as a result of the Supreme Court's decision in Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), which required the reevaluation of applications of children whose claims had been decided under an overly restrictive definition of disability.

Applying the new standard, the Commissioner denied Jennifer's claim on March 16, 1993, and reaffirmed this decision upon reconsideration. Quinones then requested a hearing before an administrative law judge ("ALJ"). On June 2, 1994, ALJ Louis V. Zamora heard testimony from Quinones and Jennifer. He also received into evidence reports from Jennifer's physicians, teachers, and counselors. After the hearing, Jennifer's attorney presented, and the ALJ accepted, more recent school reports.

On November 12, 1994, the ALJ ruled that Jennifer was not entitled to benefits. Applying the four-step evaluation process set forth in 20 C.F.R. § 416.924, the ALJ found that Jennifer was not engaged in substantial gainful activity and was suffering from a "severe" impairment, but that her impairment did not meet or equal a listed impairment. Thus, the ALJ conducted an "individualized functional assessment" to determine whether the Jennifer's impairment was "of comparable severity to that which would disable an adult."

Reviewing the relevant "domains," the ALJ found that Jennifer suffers from a marked impairment in the area of cognition because of her learning disability, and less than moderate limitations of "motor development" and "concentration, persistence, and pace." The ALJ found no evidence of limitations in the domains of communicative development, social development, and personal/behavioral development. In reaching these conclusions, the ALJ relied on various psychological evaluations and the reports of Jennifer's teachers. In particular, the ALJ focussed on comments in the record that Jennifer is "bright," "friendly," "responsive," "well-adjusted," and "cooperative"; and that she "likes to interact verbally with classmates," "attends regular classes," takes part in a variety of physical activities, and "does not have problems in how she acts around other people [or] ... in self-care activities." Noting that Jennifer's teachers found her to have "problems with concentration, persistence, and pace when attempting to perform simple/complex tasks," the ALJ nevertheless found that there was "no clear documentation of an inability to engage in an activity and to sustain the activity for a period of time and at a pace appropriate to her age."

Quinones sought review of the ALJ's ruling before the Appeals Council. In doing so, she submitted another teacher evaluation describing Jennifer's problems with concentration. In May 1995, the Appeals Council issued a notice declining to review the ALJ's decision. In June 1995, after the Appeals Court denied Quinones' motion for reconsideration on the basis of additional evidence, the ALJ's ruling became the Commissioner's final determination.

C. Proceedings in the District Court

Mrs. Quinones then brought this action seeking to reverse the denial of benefits. She challenged the ALJ's findings that Jennifer suffered from a less than moderate impairment in the area of concentration, and no impairment at all with respect to personal/behavioral function. She argued that if Jennifer had at least a moderate impairment in either area, she was entitled to benefits under 20 C.F.R. § 416.924e(c)(2)(i).

Upon cross-motions for judgment on the pleadings, the district court affirmed the Commissioner's ruling and dismissed the complaint. The court found that "[t]he record is replete with evidence of a moderate impairment in Jennifer's concentration, persistence, and pace, as pertains to the area of reading." But the district court ruled that because the ALJ had already found Jennifer to have a marked impairment of cognition as a result of her reading problems, those problems could not form the basis for a finding that she suffered a moderate impairment in her concentration. The court explained its reasoning as follows:

[I]t is necessary to separate out a natural frustration, arising from a learning disorder, from a truly independent disability in the area of concentration. The distinction between the two must be maintained for the guidelines to be effective. Otherwise, any marked disability in the area of cognition would lead, almost automatically, to at least a moderate disability in the area of concentration. This would violate the intention of the regulations that a single marked disability is insufficient to qualify for benefits.

The district court found that the many concentration deficiencies reported by Jennifer's teachers all related to her frustration with reading, and that there was evidence that she was able to concentrate on tasks that she enjoyed. For this reason, it held that the ALJ's finding with respect to Jennifer's concentration was supported by substantial evidence.

The district court also affirmed the ALJ's decision that there was no evidence of limitation in the domain of personal/behavioral function. The court observed that "[i]t may be true that Jennifer is not exhibiting an ideal level of cooperation with respect to her diet. In fact, her level of cooperation may be quite poor, and it may in fact be placing her at greater risk of very serious complications from her...