Debra A. Fazio and Dean Fazio v. Margaret M. Heckler, Secretary of Health and Human Services

750 F.2d 541, 1984 U.S. App. LEXIS 15776, 8 Soc. Serv. Rev. 163
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 19, 1984
Docket83-3098
StatusPublished
Cited by3 cases

This text of 750 F.2d 541 (Debra A. Fazio and Dean Fazio v. Margaret M. Heckler, Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Debra A. Fazio and Dean Fazio v. Margaret M. Heckler, Secretary of Health and Human Services, 750 F.2d 541, 1984 U.S. App. LEXIS 15776, 8 Soc. Serv. Rev. 163 (6th Cir. 1984).

Opinions

GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.

This appeal involves denial of an application for supplemental social security income benefits under provisions applicable to minors below the age of 18. Subchapter XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383 (1976 & Supp. V 1981). It has been filed by the mother of an infant [542]*542who at four months was found to be suffering from sleep apnea or sudden death syndrome.

The applicable statute provides as follows:

(3)(A) An individual shall be considered to be disabled for purposes of this subchapter if he is unable 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 twelve months (or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity).

42 U.S.C. § 1382c(a)(3)(A) (1976) (emphasis added).

It does not appear that the usual dispute over whether or not the applicant can perform substantial gainful employment is involved under this statute. It does appear, however, that there are two preconditions for award of benefits: 1) proof that the disability lasted for more than a year, and 2) comparable severity to similar conditions medically recognized as disabling as to adult claimants. 20 C.F.R. §§ 416.906, 416.923 (1983).

This case was filed in pro per by this infant’s mother. It was heard before a Social Security Administrative Law Judge (AU). The infant’s mother appeared without counsel, representing herself and the child, i Neither of the preconditions referred to above were judged by the AU to have been met in the record developed at this hearing. Benefits were therefore denied by the AU, the Appeals Council, and subsequently on appeal by a U.S. Magistrate before whom the parties agreed to have the appeal heard.

On appeal to the District Court, the claimant, now represented by counsel, sought to remand the case to take additional evidence. Specifically, a letter was submitted from the baby’s doctor, attesting that the apnea had persisted beyond the Act’s one year duration requirement.

Durational Requirement

On this record, the first question presented is whether or not this court should remand for supplementation of the record and redetermination by the AU and the Appeals Council, since the case was heard before the child was one year old and there was no conclusive medical evidence submitted as to the comparable severity of the illness.

On appeal, legal counsel for the mother and child filed a letter on the duration of the child’s problem. Dr. Fleming’s letter, dated January 27, 1982, reads as follows:

Dean Fazio has been followed by me since a few weeks of age for apnea episodes. Dean was placed on an apnea monitor at an early age. He continues to have apnea episodes in the 20-30 second range, which requires stimulation to resolve. For that reason he continues to remain on a monitor, and is considered in the high risk category. He will remain on this monitor till he is at least 2 years old, and will be reevaluated at that time.

Generally, a remand for receipt of additional evidence is permitted only where the evidence sought to be introduced is material, and there is good cause for the failure to introduce such evidence in a prior proceeding. 42 U.S.C. § 405(g); Willis v. Secretary of Health and Human Services, 727 F.2d 551, 554 (6th Cir.1984).

Neither party disputes the materiality of the duration evidence sought to be introduced, and we think its relevance self-evident. The new evidence bears directly and substantially on the matter in dispute, inasmuch as the AU held in part that the infant did not meet the Act’s one year durational requirement. . Ward v. Schweicker, 686 F.2d 762, 764 (9th Cir. 1982).

There was also good cause, beyond the mother’s obvious lack of legal knowledge, for claimant’s failure to introduce the evidence below. The AU hearing occurred before the child was one year of age. It [543]*543was not until after the infant’s first birthday that it was obvious his illness was of a duration sufficient to meet the Act’s requirement. Dr. Fleming’s letter, submitted after the child’s first birthday, confirmed the continuing nature of his illness, the continuing severity of risk, and a protracted course of treatment. “Good cause” exists because this evidence was simply not available at the AU hearing. Wilson v. Secretary of Health and Human Services, 733 F.2d 1181, 1182-83 (6th Cir.1984).

Dr. Fleming’s letter, as quoted above, offers evidence previously missing in this case that the baby’s medical impairment would continue beyond the durational requirement of one year. Such evidence, however, cannot appropriately be accepted on appeal.

For this reason, we remand this case to the District court for remand to the Secretary for the admission of additional evidence and redetermination.

The Comparability Issue

As pointed out earlier, the second statutory requirement in this infant’s case is that there be proof he suffers from a medically determinable physical impairment of comparable severity. 20 C.F.R. § 416.923 (1983). See 20 C.F.R. Part 404, Subpart P, Appendix 1. In this regard, the Secretary “will consider the impairment most like [a claimant’s] impairment to decide whether [the claimant’s] impairment is medically equal.” 20 C.F.R. § 416.926(a). The child’s mother, who sought to represent him before the AU, presented no proof on the comparability or equivalence score. The record, however, does contain discussion of this issue by Dr. Richard Watts, the medical advisor, under the questioning of the ALJ:

With adequate treatment, would this child be expected to improve? Yes, child grows out of condition as nervous system matures.
It would seem evident at the present time that there certainly in Dean Fazio’s case an up and down kind of course, [sic] Things were bad in March, better in April, much better in May, June and July, and then considerably worse, culminating with his most recent hospitalization.
So, as Mrs.

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Bluebook (online)
750 F.2d 541, 1984 U.S. App. LEXIS 15776, 8 Soc. Serv. Rev. 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/debra-a-fazio-and-dean-fazio-v-margaret-m-heckler-secretary-of-health-ca6-1984.