Northern District Judge Remands Kids’ SSI Cases

January 1, 2009

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Ann Biddle, Esq., Paul M. Ryther, Esq.

Although the mantra in the Northern District of New York is hurry up and wait in Social Security cases, passing the time seems worth it when a good decision comes at the end.  Two good decisions make the wait doubly bearable.
 
Chief Judge Norman A. Mordue recently issued Memorandum Decisions and Orders in two children’s SSI cases handled by Louise Tarantino of the Empire Justice Center. Both cases had been pending at the District Court for nearly four years. Although both cases were remanded, the Judge made specific recommendations in each as to what should occur at the hearing level.
 
In the case of Stover o/b/o EL v. Astrue, 2008 WL 4283421(NDNY 2008), Judge Mordue adopted a Report and Recommendation (R&R) from Magistrate George H. Lowe.  The Magistrate had determined that the Administrative Law Judge’s (ALJ) finding that the plaintiff did not meet or equal the ADHD Listing was not supported by substantial evidence. The government read the R&R as finding that the plaintiff did meet the Listing, and filed objections asking for a remand rather than reversal.
 
Judge Mordue found that the government’s objections had no merit.  He determined that the Magistrate  had found that the ALJ’s decision on the Listing was not supported by substantial evidence, and that the Court could not, in the first instance, make an independent determination as to whether the record supported a finding that plaintiff met or equaled a Listing. Judge Mordue ordered that, on remand, the Commissioner must address Listing 112.11 and apply the evidence to the requirements set forth therein.
 
In the case of Armstead o/b/o VV v. Astrue, 2008 WL 4517813 (NDNY 2008), Judge Mordue issued a decision disagreeing with an ALJ’s finding that the plaintiff child did not have marked impairments in several domains of functioning.  In this case, plaintiff’s attorney from the Legal Aid Society of Northeastern New York submitted very good medical evidence to the Appeals Council.  That evidence, a report from a treating psychiatrist, documented treatment prior the date of the ALJ’s decision, recounted the child’s medical history, rendered a diagnosis based both on the child’s history and present behavior, and questioned a diagnosis of Tourette’s Syndrome.  The Judge found that the government’s argument that the evidence should be disregarded because it was dated after the ALJ’s decision was without merit.
 
The ALJ found that the child had no marked limitation in any domain of functioning. Plaintiff argued marked limitations in acquiring and using information, attending and completing tasks, interacting and relating to others, and caring for self.  The Court found that the new evidence submitted to the Appeals Council required a finding that the ALJ’s decision was not supported by substantial evidence in the three of the four domains argued by the plaintiff.  Only the finding in the domain of interacting and relating to others was supportable.
 
Judge Mordue chastised the ALJ for picking and choosing among the evidence to support his decision of no marked limitations.  The Judge also made very good findings in the domain of caring for self.  Although the ALJ found less than marked limitation in this domain because the plaintiff was able to take care of his personal needs and complete household chores, there was no discussion about the plaintiff’s pattern of reckless, risk taking behavior that should have been evaluated in this domain.
 
Judge Mordue noted that “[O]ne of the relevant areas of inquiry in the ‘caring for yourself’ domain is whether the claimant ‘is able to avoid behaviors that are unsafe or otherwise not good for you.’” Judge Mordue relied on evidence in the record before the ALJ, as well as the evidence submitted to the Appeals Council, for a finding that the ALJ’s decision was not supportable.
 
On remand, Judge Mordue ordered that the Commissioner should consider the psychiatrist’s report submitted to the Appeals Council, as well as the other evidence of record as discussed in the Court’s opinion.
 
Good things come to those who wait.  We just wish the wait was not quite so long for our clients in these cases.