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

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 who 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 was 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. Fazio testified a minute ago, the general implication is that this is an automatic nervous system which is immature, lacking the current balance in controls. And, that with the passage of time, providing the infant survives, these controls will be incorporated into the function of the automated nervous system.

So far in Dean Fazio’s case, this has not occurred.

Q Okay. What I want to ask you, doctor, is the medical evidence that you have observed, do you have an opinion satisfactory to yourself that this evidence demonstrated the claimant, the little child, has a physical or mental impairment that results in anatomical, physiological or psychological abnormalities which are demonstratable by medically acceptable clinical and laboratory diagnostic techniques?

Do you have — just a minute.

Q All right.

A Yes, I do.

Q What is your opinion, doctor?

A Well, Judge Denning, the child obviously has a severe impairment in terms of functioning of the automated nervous system and the function of the respiratory center.

If the question has to do with looking at disability determinations, I would not be able to find one that I could point to that would be correlated with this particular abnormality.

The abnormality, of course, is a version of the sleep apnea (phonetic) condition, which Mrs. Fazio also referred to. It does occur in adults and indeed does. That, also, is not covered in the disability listings that I’ve been presented with.

But, I think it seems evident in looking at this data, for instance, that the child— that the child’s life is at risk on a great many occasions.

And, fortunately, all of these occasions have been averted by the quick action of the parents.

Q Let me ask you this, doctor. Is this disease — an adult disease, do you know of any cases where it lasted into their adult life of an individual?

A No, but it does occur in adults. But, it usually occurs in adults who have airway obstruction for one reason or another. Either they have disease of the cartilage of the larnyx and trachea, or, you know, we also see it in people who are extremely obese, for instance, or people who develop nasal and oral abnormalities, so that there is an obstruction — a physical obstruction to the airway.

And, of course, during the waking hours, they’re doing some voluntary ventilation. But, when they go to sleep, they have to rely upon the function of the automated nervous system.

In adults in most cases, as I said a minute ago and as Mrs. Fazio testified, this is a relatively recently recognized abnormality in adults and in children. (Emphasis added).

But, in answer to your question, I don’t — I personally, and I’m certainly not an expert in this field, don’t know of any cases where it has lasted from infancy clear through into adulthood.

There may be a reason for that. It may be, like my younger brother, these people died as infants. And, obviously, therefor did not live long enough to manifest it as adults.

Under additional questioning by the AU, Dr. Watts asserted that the condition suffered by Dean Fazio was “on the medical frontier” but then added that he did not believe that it could be said with certainty to be likely to last for the entire durational requirement of one year. The AU then took the case under advisement and subsequently entered an opinion denying benefits.

We now hold that the “comparable severity” issue should likewise be remanded for rehearing. Although the Secretary’s regulations require such a determination, based on consideration of the listed impairment “most like” the claimant’s, and the italicized portions of Dr. Watts’ testimony do tend to establish that there are listed conditions comparable to sleep apnea, there has been no exploration of the comparable severity of any listed conditions. See 20 C.F.R. § 416.926(a). For example, this record does not contain any mention of such common and sudden life-threatening disease conditions in adults as inoperable aneurisms, a variety of heart diseases, including but not limited to arrhythmia, or the similarities, if any, between sleep apnea in infants and various respiratory and neurologic impairments in youths and adults, such as asthma, cystic fibrosis, episodic asthma, seizure disorders, motor dysfunctions, severe speech impediments, Parkinson’s disease, spinal lesions, and Lou Gehrig’s disease. See 20 C.F.R. Part 404, Sub-part P, Appendix 1, Parts A and B.

For the reasons outlined in this opinion, we remand this appeal to the District Court to remand to the Secretary for rehearing on both issues discussed above.