Remand to Consider All Child's Impairments, Structured Setting, and Listing

March 10, 2010

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

In the past year, the U.S. District Court for the Northern District of New York has moved through a tremendous backlog, issuing numerous decisions in Social Security cases.  We’re happy to say that many of those decisions have been favorable to our clients. A recent decision in the case of Gonzalez ex rel. C.C. v. Astrue, 2009 WL 4724716 (N.D.N.Y. Dec. 02, 2009) is a good example.

In Gonzalez, the Court adopted the Report and Recommendation of Magistrate Victor Bianchini remanding the case for further consideration.  The plaintiff filed an application for SSI on behalf of C.C., who was then 12 years old, claiming disability because of attention deficit hyperactivity disorder (ADHD), major depressive disorder, neurofibromatosis 1 (“NF-1”), migraines, headaches, and a learning disorder.  The Court first held that the ALJ improperly dismissed C.C.’s NF-1 diagnosis.  First, the record, though sparse, clearly indicated that C.C. was diagnosed with NF-1 and treated at Albany Medical College (AMC) since infancy, and the ALJ should have attempted to obtain more complete medical records from AMC or re-contacted the treating doctors to determine the basis, if any, for C.C.’s NF-1 diagnosis before rejecting the diagnosis for lack of “clinical and laboratory diagnostic techniques.” See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999), see also Dundas v. Astrue, 2008 WL 4282621, at *5 (W.D.N.Y. Sept. 16, 2008) (remanding where the ALJ rejected a treating physician’s diagnosis because “absolutely no clinical or diagnostic findings” confirmed the diagnosis, but the ALJ failed to re-contact the physician for an explanation of the basis for that diagnosis). 

Second, the ALJ would have required C.C. to have genetic testing, absent which, the ALJ would find no evidence of this NF-1.  The Court held, hover, that “as a lay person, the ALJ was simply not in a position to know whether the absence” of a particular medical finding - in this case genetic testing - in fact precludes a diagnosis.  See Rosa, 168 F.3d at 79.  Third, the ALJ mischaracterized the record when he concluded that C.C. lacked “clinical indicia” of NF-1; C.C.’s child neurologist did not reject the diagnosis of NF-1, but only noted that C.C. did not seem to fulfill all the   criteria for NF-1 and therefore recommended “genetic testing to confirm or to eliminate the diagnosis of NF-1.”  Finally, the ALJ improperly rejected C.C.’s claims of frequent headaches and migraines because he thought that there was no evidence to suggest that the headaches were secondary to NF-1 other than his mother’s statements; however, the NIH describes both headaches and ADHD as common symptoms or conditions associated with NF-1 and if the ALJ doubted the association, he should have re-contacted C.C.’s neurologists for clarification.  See 20 C.F.R. § 416.912(e)(1).  We’re always glad when the District Court takes an ALJ to task for playing “Dr. ALJ.”

The Court next held that the ALJ did not properly consider the effects of a structured setting on C.C.’s functioning. The ALJ mistakenly believed that C.C. was “mainstreamed in core subjects,” whereas the record showed that C.C. has been in “self-contained” special education classes for his “core subjects” since at least fifth grade. Additionally, a recent review of C.C.’s educational needs recommended that he be placed in an even smaller and more highly supportive setting, specifically recommending that he be in a class with no more than nine other students and three teachers or support staff. 

Finally, the Court held that the ALJ failed to provide a sufficient rationale for finding that C.C.’s impairments did not meet listing 112.11. The ALJ found that C.C. suffered from ADHD and depression but concluded: “However, said impairments fail to meet or equal the level of severity of any disabling condition contained in Appendix 1, Subpart P of Social Security Regulations No. 4.”  That single sentence constitute the ALJ’s entire analysis of whether C.C.’s impairments met or equaled a Listing. The Court ordered on remand ALJ must provide a “sufficient rationale” for his conclusion that C.C. does or does not meet a listed impairment.

This looks like a good case on remand. The plaintiff was represented by Louise Tarantino of the Empire Justice Center, on a case referred by the Legal Aid Society of Northeastern New York.