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Palomo v. Commissioner of Social Security

September 29, 2008


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff brings this action under 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of Social Security ("SSA") denying him childhood disability benefits. Now before the Court is defendant's motion for judgment of affirmance. For the reasons discussed below, the Court grants defendant's motion.


Plaintiff's father, Quirino Palomo, was "a regular US Army Bataan Defender and a guerilla fighter during the dark days of Japanese Occupation of the Philip[p]ines who died a US citizen." Compl. at 1. Based on his father's status as a wage earner and United States citizen, see id., plaintiff submitted an application to the Social Security Administration ("SSA") for child's insurance benefits on August 24, 2000.*fn1 A.R. 49-54. He reported that he suffered from pulmonary tuberculosis since March 1967, at which time he would have been about 15 years of age. See A.R. 93. He had obtained medical treatment at the Methodist Medical Mission, Mobile X-ray Clinic, in 1967, at the Tarlac Health Center in 1968, at the Philippine Tuberculosis Society in July 1982, and at the Angeles City Medical Laboratory in March 2000. See A.R. 95-96. SSA denied plaintiff's application in April 2001 for the following reasons:

You said you have been disabled since 03/07/67 due to Tuberculosis. We have determined that your condition was not disabling on any date through 10/01/74, when you were last insured for disability benefits. In deciding this, we studied your records, including medical evidence and your statements, and considered your age, education, training and work experience in determining how your condition affected your ability to work. According to the Disability Report that you completed, no records are available for the time period 10/1970 through 10/1974.

A.R. 26.

Plaintiff timely requested reconsideration of the April 2001 determination. A.R. 30. He mentioned in this request that his pulmonary tuberculosis "was so severe (far-advanced) to the extent that on moderate exertion, it would cause [him] to cough out blood-streaked sputum." Id. This condition persisted, plaintiff stated, "[f]rom the early part of 1967 to over 10 years," and has severely restricted his ability to make a living. Id. SSA concluded that the original determination was proper, and that available medical records "do not show that [he was] totally disabled since 1967." A.R. 32.

Plaintiff timely requested review by an Administrative Law Judge ("ALJ"), and waived his right to a hearing. A.R. 34, 36-37. In his September 22, 2005 decision, the ALJ concluded that plaintiff is not entitled to childhood disability benefits, A.R. 23, and the Appeals Council adopted the ALJ's decision on July 24, 2006. A.R. 7, 10.


The Court may affirm SSA's decision only if it is supported by substantial evidence in the record, and is not tainted by an error of law. See Smith v. Bowen, 826 F.2d 1120, 1121 (D.C. Cir. 1987); see also 42 U.S.C. § 405(g). Substantial evidence "is such evidence as a reasonable mind might accept as adequate to support a conclusion." Davis v. Shalala, 862 F. Supp. 1, 4 (D.D.C. 1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). Although the ALJ's decision is entitled to considerable deference, the Court still must ensure that substantial evidence supports the decision. See Davis v. Shalala, 862 F. Supp. at 4.

In order to qualify for childhood disability benefits, the claimant must show that, at the time of his application, he was under a disability which began before he attained 22 years of age.*fn2

See 20 C.F.R. § 404.350. "The term 'disability' means . . . [the] inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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 months." 42 U.S.C. § 423(d)(1)(A). A claimant whose "physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work," may be determined to be "under a disability." 42 U.S.C. § 423(d)(2)(A). A "'physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It is the claimant's burden to "furnish[] such medical and other evidence of the existence thereof as the Commissioner of Social Security may require." 42 U.S.C. § 423(d)(5)(A).

There is a five-step evaluation process to determine whether a claimant, including a claimant applying for child's disability benefits, is disabled. See 20 C.F.R. § 404.1520(a). First, SSA considers a claimant's work activity. 20 C.F.R. § 404.1520(a)(4)(i). If he is working and his work is substantial gainful activity, he is not disabled regardless of his medical condition or age, education, and work experience. 20 C.F.R. § 404.1520(b). Second, SSA considers the medical severity of the claimant's impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If he has neither an impairment nor a combination of impairments of a certain duration, the claimant is not disabled. Id. Third, SSA again considers the medical severity of the claimant's impairment and determines both whether it meets or equals a recognized impairment and is of a certain duration. 20 C.F.R. § 404.1520(a)(iii); see 20 C.F.R. § 404, Subpart P, App. 1 (Listing of Impairments). Fourth, SSA assesses the claimant's residual functional capacity and past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If he still can perform past relevant work, he is not disabled. Id. Fifth, SSA assesses the claimant's residual functioning capacity, age, education and work experience in order to determine whether he can adjust to other work. 20 C.F.R. § 404.1520(a)(4)(v). If he cannot make an adjustment to other work, he is disabled. Id. The claimant bears the burden of production and proof in the first four steps of the process. See Stankiewicz v. Sullivan, 901 F.2d 131, 133 (D.C. Cir. 1990). Only after reaching the fifth and final step does SSA bear the burden of showing that jobs exist for the applicant. See id.; see also Brown v. Bowan, 794 F.2d 703, 706 (D.C. Cir. 1986).

Here, the ALJ concluded that plaintiff "had no severe impairment or combination of impairments prior to age 22[,]" and reached "[a] finding of not disabled . . . without consideration of the remaining ...

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