United States District Court for the District of Columbia
February 4, 2004.
LOVIE MORGAN o/b/o ANTONIO MORGAN, Plaintiff,
JO ANNE B. BARNHART, Commissioner, Social Security Administration, Defendant
The opinion of the court was delivered by: DEBORAH ROBINSON, Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff Lovie Morgan brings this action on behalf of her son,
Antonio Morgan, for judicial review pursuant to 42 U.S.C. § 405(g),
of the final decision of the Commissioner of the Social Security
Administration terminating Antonio's supplemental security income ("SSI")
benefits under the Social Security Act, 42 U.S.C. § 1381, 1382c
(a)(3)(C), effective July 1, 1997. Plaintiff's Motion for Judgment of
Reversal (Docket No. 7), and Defendant's Motion for Judgment of
Affirmance (Docket No. 10), are pending for consideration by the
undersigned.*fn1 Upon consideration of the parties' submissions, the
administrative record, and the entire record herein, the undersigned will
recommend that Plaintiff's motion be granted; that Defendant's motion be
denied; and that this action be remanded to the Commissioner for further
Plaintiff's son, Antonio, was born on February 9, 1990. R. at 12.
Antonio was awarded
SSI benefits effective November 1, 1993, based upon a determination
that he was disabled as a result of a severe speech impediment and a
learning disorder. R. at 10, 43-46. On July 31, 1997, Plaintiff received
notice from the Social Security Administration that Antonio "no longer
qualifie[d]" for SSI benefits as of July 1, 1997, and was scheduled to
receive his last payment in September, 1997. R. at 50-51.*fn2 On August
21, 1997, Plaintiff requested reconsideration of the determination that
Antonio would no longer be qualified for SSI benefits. R. at 53-54. A
hearing was conducted on June 17, 1998, and on July 9, 1998, the hearing
officer determined that Antonio was not disabled. R. at 55-61. Plaintiff
sought reconsideration of the July 9, 1998 determination, and on February
13, 1999, requested a hearing before an Administrative Law Judge ("ALJ").
R. at 62. The hearing before the ALJ was conducted on September 9, 1999.
R. at 10. In a decision rendered on November 22, 1999, the ALJ found that
Antonio was not disabled for the purposes of eligibility for SSI
benefits. R. at 10-22. Plaintiff's subsequent request for review by the
Appeals Council was denied on January 17, 2002. R. at 2-3. Plaintiff
timely filed this action on March 21, 2002.
STANDARD OF REVIEW
A. Scope of Review
The applicable standard of review requires considerable deference to
rendered by the administrative law judge. Davis v.
Shalala, 862 F. Supp. 1, 4 (D.D.C. 1994). The issue before this
court is whether the Administrative Law Judge's findings, which have been
adopted by the Commissioner, are supported by substantial evidence.
See 42 U.S.C. § 405(g); see also Jackson v.
Barnhart, 271 F. Supp.2d 30, 33 (D.D.C. 2002). If the findings are
(1) supported by substantial evidence and (2) not tainted by error of
law, then the district court must affirm the Commissioner's decision.
Id.; see Davis, 862 F. Supp. at 4. Thus, when a
claimant challenges the decision of the Commissioner, judicial review is
limited to ensuring that the decision rendered is in accordance with
applicable law and rests upon substantial evidence. Id.
"Substantial evidence" is that evidence which "a reasonable mind might
accept to support a conclusion." Richardson v. Perales,
402 U.S. 389, 401 (1971). Substantial evidence need not be a large amount,
but must be more than a scintilla. See Pierce v. Underwood,
487 U.S. 552, 565 (1988).
The District of Columbia Circuit has held that "Section 405(g), which
governs judicial review of final SSA decisions, authorizes only two types
of remands: those pursuant to sentence four and those pursuant to
sentence six." Krishnan v. Barnhart, 328 F.3d 685, 691 (D.C.
Cir. 2003) (citing Melkonvan v. Sullivan, 501 U.S. 89, 99-100
(1991)). Upon a finding by the district court that the Commissioner's
decision does not rest upon substantial evidence, "sentence four"
provides that the court may remand the case to the Commissioner for
further proceedings, but requires the court to enter "a judgment
affirming, modifying, or reversing the decision of the Commissioner."
42 U.S.C. § 405(g): see Melkonvan, 501 U.S. at 98.
Alternatively, a district court may retain jurisdiction over the case
while remanding it to the Commissioner when either "(1) the Commissioner
requested a remand before filing his answer, or (2) there is `new
which is material and  there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding.'"
Krishnan, 328 F.3d at 691 (quoting 42 U.S.C. § 405(g)).
B. Eligibility Standard
Section 1381a of the Social Security Act provides that every eligible
"aged, blind, or disabled individual" shall be awarded benefits by the
Commissioner of Social Security. 42 U.S.C. § 1381a; Morales v.
Barnhardt, 2002 WL 31729526, at *5 (S.D.N.Y. December 5, 2002).
On August 22, 1996, Congress enacted the 1996 Personal Responsibility
and Work Opportunity Reconciliation Act ("PRWORA" or "the Act"). The
PRWORA set forth new standards for determining whether a child is
"disabled" for purposes of eligibility for supplemental security income
benefits. Personal Responsibility and Work Opportunity Reconciliation Act
of 1996, Public Law 104-193, §§ 211-212. The Act provides, in
pertinent part, that
[a]n individual under the age of 18 shall be
considered disabled for the purposes of this
subchapter if that individual has a medically
determinable physical or mental impairment, which
results in marked or 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
42 U.S.C. § 1382c(a)(3)(C)(i)*997); see also Rodriguez v.
Barnhart, 2003 WL 22709204, at *2 (E.D.N.Y. November 7, 2003).
PRWORA further mandated that within one year of its date of enactment,
the Commissioner "redetermine the eligibility of individuals under the
age of 18 who qualified for SSI based on disability as of August 22,
1996, and whose eligibility might terminate because of changes made by
Public Law 104-193." Supplemental Security Income; Determining Disability
for a Child Under Age 18, 65 Fed. Reg. 54, 747-48 (Sept. 11, 2000). It was
in accordance with this
provision that the Social Security Administration determined that
Antonio was no longer eligible for SSI benefits as of July 1, 1997.
The Social Security Administration promulgated new regulations to
conform to the requirements of the new legislation, and issued "interim
final regulations," effective April 14, 1997. Childhood Disability
Provisions, 62 Fed. Reg. 6408; see Keys, 347 F.3d at 992. The
interim final regulations ("interim regulations") established a
three-step sequential evaluation process pursuant to which the
Commissioner inquired whether a child: (1) had engaged in substantial
gainful activity; (2) suffered from one or more severe impairments; (3)
and had an impairment or combination of impairments that met, medically
equaled or functionally equaled the Listing of Impairments for childhood
disability. 20 C.F.R. § 416.924(a) (2000) (codifying interim final
regulations); see also Morales, 2002 WL 31729526, at *5-6. At
step three, the child's impairment(s) would be found functionally equal
to a listed impairment if the child's condition: (1) resulted in "extreme
limitation of one specific function, such as walking or talking" or
"extreme limitation in one area of functioning or marked limitation in
two areas of functioning[;]" (2) subjected the child to "episodic"
limitations such as "frequent illnesses or attacks[;]" or (3) required
treatment that "cause [d] marked and severe functional limitations."
20 C.F.R. § 416.926a(b)(1)-(4)(2000); Booker-Shelton v.
Barnhart, 266 F. Supp.2d 818, 821 (N.D.Ill. 2003). "Broad areas of
functioning" for children between the ages of three and 18 were defined
as: (1) cognition/communication; (2) motor; (3) social;(4) personal; and
(5) concentration, persistence, or pace.
20 C.F.R. § 416.926a(c)(4)(2000); Morales, 2002 WL 31729526, at *6. The
interim regulations were in effect on November 22, 1999, at the time of
the ALJ's decision that Antonio was not disabled for the purposes of SSI
benefits. R. at 10.
On September 11, 2000, the Social Security Administration published
final regulations implementing PRWORA, effective January 2, 2001. 65
Fed. Reg. at 54, 747. The final regulations provide for substantially the
same three-step sequential analysis for the determination of whether a
child is "disabled" as the analysis for which interim regulations
provided. 20 C.F.R. § 416.924(a). First, the ALJ must determine
whether the child is engaged in substantial gainful activity.
Id. If the ALJ finds that the child is engaged in substantial
gainful activity, then he or she is not entitled to SSI benefits.
20 C.F.R. § 416.924(b). Next, the ALJ must determine whether the child
has a severe impairment. 20 C.F.R. § 416.924. If the ALJ finds the
child's impairment to be severe, then step three requires the ALJ to
consider whether the child's impairment "meets, medically equals, or
functionally equals the listing" and "meets the duration requirement."
20 C.F.R. § 416.924(a).
The most significant change in the final regulations is with respect to
the analysis required for the determination of whether the child's
impairment results in a limitation that is "functionally equal" to the
listings. Compare 20 C.F.R. § 416.926a, and 20 C.F.R. § 416.926a
(c)(4)(2000). Pursuant to the final regulations, the Commissioner will
consider how the child "function[s] in  activities in terms of six
domains." 20 C.F.R. § 416.926a(b)(1). Those domains are: "(i)
Acquiring and using information; (ii) Attending and completing tasks;
(iii) Interacting and relating with others; (iv) Moving about and
manipulating objects; (v) Caring for yourself; and (vi) Health and
physical well-being." 20 C.F.R. § 416.926a(b); Keys, 347
F.3d at 994.
A child will be found to have a "marked" limitation where the
impairment interferes seriously with child's ability to "independently
initiate, sustain, or complete activities."
20 C.F.R. § 416.926a(e)(2). Further, "`[m]arked' limitation also means a
limitation that is `more than
moderate' but `less than extreme.'" Id. A child will be
found to have an "extreme" limitation where the impairment "interferes
very seriously with [the child's] ability to independently initiate,
sustain, or complete activities." 20 C.F.R. § 416.926a(e)(3).
Although "marked" and "extreme" limitations can be established by
standardized test scores, "the bulk of 20 C.F.R. § 416.926a is
devoted to `general descriptions of each domain' against which a
claimant's functioning may be compared[.]" Keys, 347 F.3d at
994. These final regulations became effective on January 2, 2001, after
the ALJ's decision in this case, but before the Appeals Council denied
Plaintiff's request for review on January 17, 2002. R. at 2-3.
In the commentary to the final regulations, the Social Security
Administration explained that the "final rules would `apply to the entire
period at issue for claims that are pending at any stage of [SSA's]
administrative review process, including claims that are pending
administrative review after remand from a [f]ederal court.'"
Booker-Shelton v. Barnhart, 266 F. Supp.2d at 821 (quoting 65
Fed. Reg. 54751). Further, "[w]ith respect to claims in which there was a
final decision, and that are pending judicial review in [f]ederal court,
the SSA `expect[ed] that the court's review of the Commissioner's final
decision would be made in accordance with the rules in effect at the time
of the final decision.'" Id. (quoting 65 Fed. Reg. 54751).
At the time the Appeals Council denied Plaintiff's request for review
on January 17, 2002, the final regulations had already become effective,
and in accordance with 65 Fed. Reg. 54751, the final regulations were to
have been applied. In denying Plaintiff's request for review of the ALJ's
decision, the Appeals Council "considered the final regulations,
effective January 2, 2001, implementing the childhood disability
provisions of Public Law 104-193." R. at 2. The Appeals Council concluded
that "[t]he new regulations do not provide a basis to change the
Law Judge's decision." Id.
The United States Court of Appeals for the Seventh Circuit, in the only
published circuit court opinion addressing the very issue presented in
this action, concluded that the final regulations govern the court's
review of the Commissioner's decision. Keys, 347 F.3d at 994.
The facts presented in the instant action are similar in many respects to
the facts presented in Keys. With respect to both cases, the
ALJ evaluated the child's claim for SSI benefits by applying the interim
regulations; the final regulations went into effect while the appeal of
the ALJ's decision was pending before the Appeals Council; and the
Appeals Council, in denying the plaintiff's request for review of the
ALJ's decision, concluded that "[t]he new regulations do not provide a
basis to change the Administrative Law Judge's decision." Id.
at 992. In reviewing the evidence in the record in the context of the
final regulations, the court in Keys found that "[i]n the six
domains of functioning, [the claimant] is extremely deficient in none and
markedly deficient only in only in one[,]" and concluded that "[t]he
denial of benefits was therefore reasonable and must stand."
Id. at 994. In so finding, the court questioned "the propriety
of reviewing an administrative law judge's decision when it was based on
 inapplicable old regulations[,]" but concluded that "when it is plain,
as it is in this case, that the administrative law judge's factual
determinations would compel a denial of benefits under the new
regulations as well as under the old, the doctrine of harmless error,
which is fully applicable to judicial review of administrative decisions,
would spare us from having to order a remand in any event." Id.
at 994-95 (citations omitted).
Upon consideration of the commentary to the final regulations issued by
the Social Security Administration, the Seventh Circuit's thorough
decision in Keys, and the procedural
posture of the instant action, undersigned finds that the final
regulations govern the Court's review of the ALJ's determination.
In the instant case, the ALJ applied the three-step sequential analysis
outlined in the interim regulations, and first determined that Antonio
was not engaged in substantial gainful activity. R. at 12. Second, the
ALJ found that Antonio's attention deficit hyperactivity disorder is a
"severe" impairment within the meaning of
20 C.F.R. § 416.924(c)(2000). Id. Third, the ALJ concluded that "the child
does not have a listed impairment or an impairment (or combination of
impairments) which medically `equals' the severity of a listed
impairment." Id. The ALJ evaluated the functional limitations
of Antonio's impairment to determine whether it was functionally
equivalent in severity to any listed impairment, and concluded that it
was not. R. at 12, 17.
Plaintiff, in her motion for judgment of reversal, contends that the
Commissioner's final decision was not supported by substantial evidence,
and is erroneous as a matter of law. More specifically, Plaintiff
maintains that the ALJ (1) failed to properly evaluate the child's
impairments at the third step of the sequential evaluation process, and
(2) erroneously determined that the child's impairment was not
functionally equivalent to a listing. Memorandum in Support of
Plaintiff's Motion for Judgment of Reversal ("Plaintiff's Memorandum") at
9-11, 14-15. Plaintiff seeks a judgment of reversal, or, in the
alternative, a remand to the Social Security Administration for a new
administrative hearing. Id. at 15.
Defendant opposes Plaintiff's motion, and moves for a judgment of
affirmance on the
ground that the ALJ's findings were supported by substantial
evidence. Defendant does not address Plaintiff's alternative request for
a remand for a new administrative hearing.
Plaintiff filed an opposition to Defendant's motion; neither party
filed a reply.
A. Plaintiff's Contention that the ALJ Erred in Failing to Consider
Whether Antonio's Impairment Meets the Requirements of Listing
Plaintiff asserts that the ALJ "failed to articulate any reason to
support his determination that the Plaintiff's condition did not meet the
requirements of Listing 112.11[,] [20 C.F.R. Pt. 4, Subpt. P, App. 1,
112.11.[,] . . . [and] has therefore failed in his duty of
explanation." Plaintiff's Memorandum at 9. Further, Plaintiff contends
that "the medical evidence reveals that the Plaintiff's impairment meets
or equals listing 112.11" and that the ALJ erred by failing "to mention
the State Agency physicians' opinions, the Plaintiff's Bender-Gestalt or
WIAT scores, or the Plaintiff's hearing testimony, all of which
demonstrate that the Plaintiff has a marked cognitive impairment, as well
as marked impairment in concentration, persistence, and pace."
Id. at 9, 11.
Defendant, in its motion and opposition, does not expressly dispute
Plaintiff's contention that the ALJ failed to adequately support his
finding that Antonio's condition did not meet the requirements of Listing
112.11. See Memorandum of Points and Authorities in Support of
Defendant's Motion for Judgment of Affirmance and in Opposition to
Plaintiff's Motion for Judgment of Reversal ("Defendant's Memorandum") at
8-10. Instead, Defendant submits that the "analysis is, practically
speaking, substantially the same for both finding that an impairment
meets or equals a listed impairment and for finding that an impairment
has functional limitations that equal a listed impairment." Id.
at 9. Defendant disputes Plaintiff's contention that a consultative
examiner showed that Antonio's impairment met the criteria of
Listing 112.11 A. However, Defendant does not address the other evidence
on which Plaintiff relies in support of her contention that the ALJ
erroneously found that Antonio's condition did not fall within the
parameters of the condition listed at 20 C.F.R. Pt. 4, Subpt. P, App. 1,
Plaintiff, in her opposition to Defendant's motion, submits that the
ALJ's failure to provide a rationale to support his decision that the
child's condition did not meet a Listed Impairment should preclude the
Court from affirming the ALJ's determination. Plaintiff's Opposition to
Defendant's Motion for Judgment of Affirmance ("Plaintiff's Opposition")
at 2-4. Plaintiff further contends that she relied upon more than the
report of the consultative examiner, and that "Defendant has failed to
address in any manner the other evidence cited by the Plaintiff, and its
impact on the evaluation of the Plaintiff's impairment at step three of
the sequential evaluation process." Id. at 5.
Pursuant to the final regulations, consideration of whether an
impairment "meets" a "listing" requires consultation of the Listing of
Impairments in 20 C.F.R. Pt. 404, Subpt. P, App.1.*fn3
20 C.F.R. § 416.925. Attention Deficit Hyperactivity Disorder is an
impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, 112.11. The
regulation provides that "[t]he required level of severity for these
disorders is met when the requirements in both A and B are satisfied."
20 C.F.R. Pt. 404, Subpt. P, App. 1, 112.11. "A" requires "[m]edically
documented findings of all three of the following: (1) [m]arked inattention;
and (2) [m]arked impulsiveness; and (3) [m]arked hyperactivity." Id. "B"
provides, with respect to children ages three through 18, the impairment
must "[result] in at least two of the appropriate age-group
criteria in paragraph B2 of 112.02." Id. The relevant criteria
listed in paragraph B2 of 112.02 are "(a) marked impairment in
age-appropriate cognitive/communicative function . . . (b) marked
impairment in age-appropriate social functioning . . . (c) marked
impairment in age-appropriate personal functioning . . . (d) marked
difficulties in maintaining concentration, persistence, or pace."
Id. at 112.02(B)(2).
Here, the ALJ concluded that "[t]he impairment does not meet or equal
in severity the criteria for any impairment listed at 20 C.F.R. part
404, subpart P, appendix 1[,]" and that "[l]isted impairments related to
mental impairment at listings 112.02 through 112.12 have been
considered." R. at 12. The ALJ further found that "[s]ince it has been
concluded that the child does not have a listed impairment or an
impairment (or combination of impairments) which medically `equals' the
severity of a listed impairment, it must now be determined whether the
child has an impairment which is functionally equivalent in severity to
any listed impairment." Id. The ALJ made no finding regarding
the criteria listed in section "A" of 20 C.F.R. Pt. 404, Subpt. P, App.
"If there is one fundamental principle guiding judicial review of an
ALJ decision in a Social Security case, it is that the ALJ may not ignore
evidence inconsistent with his opinion without explanation." Martin
v. Apfel, 118 F. Supp.2d 9, 15 (D.D.C. 2000). Given the probative
medical evidence in the record that Plaintiff has "marked" levels of
inattention, impulsiveness and hyperactivity, the undersigned finds that
the ALJ failed to articulate the weight he afforded the medical evidence
that Antonio has marked levels of inattention, impulsiveness and
hyperactivity. First, Dr. Neil Schiff, the consultative examiner who
evaluated Antonio, found that he is "hyperkinetic and easily
distracted[,]" and observed that he has "considerable difficulty
maintaining a focus on the testing tasks." R. at 146. Further, Dr.
Schiff observed that Antonio "had trouble concentrating or sustaining his
effort on any task for more than a very brief period[,]" and had
"significant difficulties with hyperactivity and impulsiveness, which
interfere with his optimum functioning." R. at 146-47. Additionally, two
other physicians concluded that Antonio had "marked" impairment with
respect to his "concentration, persistence, or pace." R. at 150, 169. A
fourth physician observed that Antonio was "very hyper" and "goes from
chair to chair." R. at 154. In a childhood Disability Evaluation Form
completed by Patricia Cott, PhD., Dr. Cott found Antonio's "impulsive,
inattentive, hyperactive behavior deems marked [impairment] on
pace/[concentration]." R. at 171.
"In a disability proceeding, the ALJ `has the power and the duty to
investigate fully all matters in issue, and to develop the comprehensive
record required for a fair determination of disability.'" Simms v.
Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989)(quoting Diablo
v. Sec'y of HEW, 627 F.2d 278, 281 (D.C. Cir. 1980)). Because the
ALJ, at stage three, failed to articulate the weight he afforded the
medical evidence that Antonio has marked levels of inattention,
impulsiveness and hyperactivity, the undersigned will recommend that this
action be remanded for the ALJ to "explain what weight he attaches to
[the physicians'] conclusions, or if he attached none, his reason
therefor." Butler v. Barnhart, 2004 WL 51 116, at *8 (D.C. Cir.
January 13, 2004) (quoting Simms, 877 F.2d at 1053): see
also Jackson v. Barnhart, 271 F. Supp.2d 30, 36 (D.D.C. 2002);
cf. Morales, 2002 WL 31729526, at *7 (holding that the ALJ is
required "to consider `all of the relevant evidence in the record,
including: (1) the objective medical facts; (2) the medical opinions of
the examining or treating physicians; (3) the subjective evidence of the
claimant's symptoms submitted by the claimant, [her] family, and others;
and (4) the claimant's
educational background, age, and . . . experience.").
B. Plaintiff's Contention that the ALJ Erred in Concluding
That Antonio's Impairment was not Functionally Equivalent.
Plaintiff contends that "[i]n order to have an impairment that is
functionally equivalent to a Listed Impairment, one must have a marked
impairment in two areas of function, or an extreme impairment in one area
of function." Plaintiff's Memorandum at 14. Plaintiff submits that the
evidence demonstrates that Antonio has "a marked impairment of
concentration, persistence, and pace[,]" as well as a "marked impairment
in cognitive function." Id. at 14-15. Plaintiff submits that
the evidence also shows, contrary to the ALJ's determination, that
Antonio's weakness in fine motor skills result in a "limitation of
function." Id. at 15.
Defendant submits that "[i]t is important to note that, in order to be
found to have an impairment functionally equivalent to a listed
impairment, a child would have to be found to have a marked impairment in
two areas, not just one." Defendant's Memorandum at 14 (citation
omitted). Defendant contends that Antonio does not have more than
moderate cognitive limitation, and that the evidence suggests that
"Antonio was able to function in a normal manner, apparently without
behavioral problems, as long as he took his medication." Id. at
15 (citation omitted). Defendant further submits that substantial
evidence supports the ALJ's determination "that Antonio had no
limitations in the motor area of development." Id. at 16.
Plaintiff, in her opposition to Defendant's motion, contends that the
Defendant and the ALJ both relied only on the report of Ryland Randolph
to support the conclusion that Antonio did not have more than a moderate
impairment of his cognitive functioning, but that significant evidence in
the record, including Plaintiff's test results and hearing testimony,
contrary conclusion. Plaintiff's Opposition at 6-7. With respect to
Defendant's arguments regarding Antonio's failure to follow prescribed
treatment, Plaintiff submits that Defendant has failed to discharge its
burden to establish noncompliance by substantial evidence. Id.
In determining whether a child's impairment is functionally equivalent
to a listed impairment, an ALJ, pursuant to the interim regulations, was
required to consider whether a child had two "marked" limitations or one
"extreme" limitation in a broad area of functioning, such as
cognition/communication; motor; social; personal; and concentration,
persistence and pace. 20 C.F.R. § 416.926a (2000). Applying the
interim regulations, the ALJ assessed "five areas of development of
functioning," R. at 13, and determined that in the
"cognition/communication area of development[,]" social functioning, and
the concentration, persistence or pace area of development, Antonio had
moderate but less than marked limitation of functioning. R. at 14-17.
Further, with respect to motor and personal functioning, the ALJ found
that Antonio had no limitation. R. at 15, 17. The ALJ concluded that "the
claimant does not have `extreme' limitation in one area of functioning or
`marked' limitation in two areas[,]" and accordingly, was not disabled.
R. at 18.
The final regulations encompass numerous substantive changes with
respect to the determination of functional equivalence, see Kittles
v. Barnhart, 245 F. Supp.2d 479, 489 (E.D.N.Y. 2003), that have a
profound implication on the Court's evaluation of the instant action.
First, while the interim regulations required the ALJ to consider five
"broad areas of functioning" for children between the ages of three and
18, 20 C.F.R. § 416.926a(c)(4)(2000), the final regulations contain
six domains which the ALJ must consider in evaluating the claimant's
functioning. 20 C.F.R. § 416.926a(b)(1). Second, while some of the
"domains" may correlate to
the "broad areas of functioning." e.g., "attending and
completing tasks" and "concentration, persistence, or pace," "the name
change also reflects some substantive differences." Kittles,
245 F. Supp.2d at 489. Of particular significance is that "elements from
the former `cognition/communication' category are now split between two
domains: `acquiring and using information' and `interacting and
relating[.]'" Id. Third, the final regulations clarify the
criteria included in each of the domains, and provide new definitions for
terms. Id. at 489. For instance, the domain "attending and
completing tasks" includes "a new definition of `attention' as `level of
alertness, concentration, and the initiating, sustaining, and changing of
focus needed to perform tasks.'" Id. (quoting 65 Fed. Reg. at
"The Commissioner's ultimate determination will not be disturbed if it
is based on substantial evidence in the record and correctly applies the
relevant legal standards." Butler v. Barnhart, 2004 WL 51116,
at *8 (D.C. Cir. January 13, 2004) (quoting 42 U.S.C. § 405(g),
1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)).
Another court, confronted with the same issue that is now before this
Court, concluded that a remand was necessary "because it is unclear to
this Court how exactly it should engage in a substantial evidence
review." Kittles, 245 F. Supp.2d at 492 (finding that an
"attempt to review the Commissioner's decision for substantial evidence
utilizing the Final Rules is a bit like comparing apples and oranges,
since the ALJ's decision was made under a completely different rule
regime namely, the Interim Rules.") See also Booker-Shelton
v. Barnhart, 266 F. Supp.2d at 823 (remanding the action to the
Commissioner and finding that "the court is precluded from conducting a
meaningful review of the plaintiff's case").
Upon consideration of the substantial modifications of the analysis
determination of whether a child is disabled, as well as the ALJ's
failure to articulate the weight accorded to all of the relevant
evidence, the undersigned will recommend that this action be remanded to
the Commissioner for rehearing and findings in accordance with the
applicable regulations. Butler v. Barnhart, 2004 WL 51116, at
*8 (D.C. Cir. January 13, 2004) (quoting Simms, 877 F.2d at
For the foregoing reasons, and in accordance with the District of
Columbia Court of Appeals decision in Krishnan, 328 F.3d at
691, it is, this 4th day of February, 2004,
RECOMMENDED that Plaintiff's Motion for Judgment of Reversal
(Docket No. 7) be GRANTED, and (1) that the Commissioner's
final decision be REVERSED and (2) that this case be
REMANDED to the Commissioner, pursuant to sentence four of
42 U.S.C. § 405(g), for a rehearing and further findings in accordance
with the applicable regulations; and it is
FURTHER RECOMMENDED that Defendant's Motion for Judgment of
Affirmance (Docket No. 10) be DENIED.
Within ten days after being served with a copy, either party may
file written objections to this report and recommendation. The objections
shall specifically identify the portions of the proposed findings and
recommendations to which objection is made and the basis for the
objection. In the absence of timely objections, further review of issues
decided by this report and recommendation may be deemed waived.