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.
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)).
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, ...