It was therefore concluded that Reilly did not have a disability impairment prior to her 22nd birthday and thus was not entitled to an award of child insurance benefits.
Plaintiff applied for child insurance benefits based on a disability. To be eligible for such benefits, a claimant must establish that she is under a disability that began before she attained the age of 22 and that the disability continued to the time of the claimant's application for benefits. 42 U.S.C. § 402(d)(1). Therefore, Reilly, the claimant in this case must establish that she was under a disability on or before June 19, 1969.
Disability is defined as the inability to engage in any substantial gainful activity by reason of a 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). An individual will be presumed to be disabled when it is shown that the alleged impairment is among those listed in Part A of Appendix 1, or is the medical equivalent of a listed impairment therein.
The existence of an impairment must be demonstrable by medically acceptable clinical or laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). Also, the court must consider other factors, such as objective medical facts, subjective evidence of disability, and claimant's age, educational background and work history. Curtin v. Harris, 508 F. Supp. 791 (D.N.J. 1981).
The ALJ, in making his determinations, excluded all medical evidence dated after 1969. Consequently, the ALJ did not consider Dr. Pitone's diagnosis of July 1978 and Dr. Victor's diagnosis of July 1983. Hence, the medical evidence considered by the ALJ essentially consisted of a neurological/psychiatric report dated November 17, 1960.
The two reports issued by the child study department of the South Orange-Maplewood Public Schools were reviewed, but apparently dismissed as unsupportable.
A court should affirm the judgment of an ALJ if it is supported by substantial evidence. See Appendix B. After careful consideration of the entire record, I find that the ALJ's decision is not supported by substantial evidence. Therefore, the decision below must be reversed and remanded for further consideration consistent with this opinion.
Plaintiff and Reilly were not represented by counsel prior to this appeal. In this situation, the ALJ has the obligation to fully develop the record. Hess v. Secretary, 497 F.2d 837 (3rd Cir. 1974). This may require that the ALJ advise Reilly that vital data is missing or order a physical examination by a Social Security Administration doctor. Id. at p. 841; Gachette v. Weinberger, 551 F.2d 39, 41 (3rd Cir. 1977). In such a case, omission to inform a claimant of the desirability of securing medical reports from a treating physician is cause for remand. Singleton v. Schweiker, 551 F. Supp. 715 (E.D.Pa. 1982) Upon review, however, additional medical information seems not only proper, but necessary.
On page 3 of his findings, the ALJ concluded that "(t)he remainder of the medical evidence dates from the period after June 19, 1969, and is, therefore, not relevant to the central issue of the existence of a disabling impairment prior to the claimant's 22nd birthday." (T. 7). In ascertaining whether a disability existed prior to 1969, it is not necessarily correct that only medical reports issued prior to that date be afforded consideration. Conceivably, a post-1969 diagnosis which concludes that a disability existed prior to 1969 and which discusses the extent of that disability would be relevant. Such is the case here.
Counsel for plaintiff has submitted two additional medical reports subsequent to the ALJ's decision. The report issued by Dr. Charles Semel, dated July 2, 1984, states that Reilly apparently sustained a birth injury causing a syndrome either similar to or consistent with cerebral palsy. Dr. Semel also notes that the most likely explanation for Reilly's intellectual and emotional impairment stems from either intrauterine damage or damage to the brain at the time of birth. This is most likely caused by a lack of oxygen (anoxia). Dr. Semel thus concludes that Reilly "could not hold the most simple of jobs at the present time or any time during the prior two decades." See p.2 of Report.
Also, Dr. Sol Heckleman, a licensed psychologist, issued a report dated September 18, 1984. Dr. Heckleman apparently reviewed the same medical reports and documents previously considered by the ALJ. In noting the marked and serious disabilities in practical and social functioning throughout Reilly's school years, Dr. Heckleman states that Reilly clearly was disabled long before her 22nd birthday. After a perceptive discussion of Reilly's school records, he concludes that "Ms. Reilly has never been able to adequately handle any sort of competitive job with criteria for output or reliability." See p.2 of Report.
Under 42 U.S.C. § 405(g), the Court may at any time "order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." In Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 833 (3rd Cir. 1984), the Third Circuit construed § 405(g), which had been amended and revised in 1980, as follows:
As amended in 1980, § 405(g) now requires that to support a "new evidence" remand, the evidence must first be "new" and not merely cumulative of what is already in the record. E.g. Bomes v. Schweiker, 544 F. Supp. 72, 75-76 (D. Mass. 1982). Second, the evidence must be "material"; it must be relevant and probative. E.g. Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981). Beyond that, the materiality standard requires that there be a reasonable possibility that the new evidence would have changed the outcome of the Secretary's determination. Id.; See Also Bomes, 544 F. Supp. at 76. An implicit materiality requirement is that the new evidence relate to the period for which benefits were denied, and that it not concern evidence of a later-acquired disability or of the subsequent deterioration of the previously non-disabling condition. See Ward v. Schweiker, 686 F.2d 762, 765 (9th Cir. 1982). Finally, the claimant must demonstrate good cause for not having incorporated the new evidence into the administrative record. E.g. Brown v. Schweiker, 557 F. Supp. 190 at 192 (M.D. Fla. 1983).
Plaintiff has certainly met the materiality requirement, as both reports contain relevant and probative evidence which manifests a clear probability that Reilly's present state of impairment did exist prior to her 22nd birthday. Furthermore, since the plaintiff and Reilly were not represented by counsel at the hearing before the ALJ, it seems clear that good cause has been shown. Finally, the paucity of the record below warrants this additional evidence under the "new evidence" standard as these medical reports provide important medical data not contained in the record. Specifically, Dr. Semel's diagnosis of a birth defect as the primary cause of Reilly's severe condition was not documented in any of the earlier reports. Also, Dr. Heckelman's psychological report discusses in detail the history of Reilly's mental disabilities as well as her lifelong inability to cope in the job market. Thus, these reports are to be included in the record, and upon remand, are to be given serious consideration as there is a "reasonable possibility" that this evidence might have changed the ALJ's decision.
It is also suggested that the assistance of a vocational expert may be helpful. See Stewart v. Harris, 508 F. Supp. 345 (D.N.J. 1981).
Childhood disability benefits may not be denied based on a mere theoretical ability of a claimant to perform substantial gainful activity. Secoolish v. Celebrezze, 216 F. Supp. 935 (D.N.J. 1963). The provisions of the Act must be read in terms of what is reasonably possible and not what is conceivable. Janek v. Celebrezze, 336 F.2d 828 (3rd Cir. 1964). In the instant case, the ALJ erroneously placed undue emphasis upon the absence of objective criteria, as the findings made by the ALJ seemed to be purely speculative. Curtin, 508 F. Supp. at 795; Smith v. Califano, 637 F.2d 968 (3rd Cir. 1981). The decision to deny benefits to Reilly is thus not supported by substantial evidence because the evidence relied upon in the record was inadequate. Therefore, the ALJ's decision will be reversed and remanded for proceedings consistent with this opinion.
The court will enter its own order.
Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938). Hence, even though a court might render a different decision if it were weighing the evidence, it may not displace the Secretary's choice between two fairly conflicting views. Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1972). On the other hand, despite the deference which must be accorded the administrative agency, the reviewing court retains "a responsibility to scrutinize the entire record and to reverse or remand" if the Secretary's decision is not supported by an adequate factual foundation. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
To enable this court to properly perform its function of review, the administrative decision "should be accompanied by a clear and satisfactory explanation of the basis on which it rests," Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981), and the "examiner's findings should be as comprehensive and analytical as feasible." Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S. 931, 95 S. Ct. 1133, 43 L. Ed. 2d 403 (1975). The ALJ should indicate not only the evidence which supports his or her conclusion, but also any "significant probative" evidence that was rejected and the reasons for so doing. Cotter v. Harris, supra.
An ALJ's determination is not supported by substantial evidence if it is based upon "purely speculative inferences" from the record. Corroboration by sound medical evidence is "essential to a finding of nondisability." Smith v. Califano, supra, at 972; see also Taybron v. Harris, 667 F.2d 412 (3d Cir. 1981). If the record is not sufficiently complete to support a reasoned decision for or against disability, the ALJ has a duty to develop the record, particularly if the claimant is not represented by counsel at the administrative hearing. Dobrowolsky v. Califano, 606 F.2d 403, 406-407 (3d Cir. 1979). Proper development of the record involves a careful examination of the claimant and available witnesses in light of the standards governing proof of disability, Livingston v. Califano, 614 F.2d 342 (3d Cir. 1980). If essential medical evidence is absent from the record, the ALJ must secure additional information from claimant's own physician or arrange for a medical examination by a physician of the Social Security Administration's own selection. Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837 (3d Cir. 1974). See 20 C.F.R. § 950(d).