# Debra A. Fazio and Dean Fazio v. Margaret M. Heckler, Secretary of Health and Human Services > Court of Appeals for the Sixth Circuit · December 19, 1984 · 750 F.2d 541 URL: https://www.frixlaw.com/law-library/cases/9472930 ## Case - **Full name:** Debra A. FAZIO and Dean Fazio, Plaintiffs-Appellants, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** December 19, 1984 - **Citations:** 750 F.2d 541; 8 Soc. Serv. Rev. 163; 1984 U.S. App. LEXIS 15776 - **Precedential status:** Published - **Opinion:** Dissent by Wellford - **Judges:** Wellford, Edwards, Peck - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9472930 ## Opinion text WELLFORD, Circuit Judge, dissenting. I respectfully dissent. Plaintiff’s application for benefits is based upon a novel and unusual condition of her infant son. It was considered and rejected as a basis for Social Security benefits by a state agency, by the AU after a de novo hearing in a sensitive and thorough decision, by the Appeals Council, and by a Magistrate. No one can fail to have sympathy for the mother who has rendered extraordinary care and attention to her child who was diagnosed as suffering, at the time of the hearing, from sleep apnea. The question before this court, however, is whether plaintiff has carried the burden of proving entitlement to benefits under the applicable law and regulations. Plaintiff described at the hearing the disorder and her son’s diagnosis: It’s a hard disease to even determine what causes it. They don’t know what causes it. They’ve had it narrowed down *545 to a few things with gastric stomach spasms (phonetic) or premature automatic nervous systems. And, in Dean’s case they’ve diagnosed him as a premature automatic nervous system____ There’s no danger while he’s awake ... he only gets into trouble when he’s asleep ____ We thought Dean was improving. We thought he was doing fairly well ____ It’s a problem that they — they do grow out of the problem. Okay. But, they don’t know how long it takes. They speculate on how long it takes, but they can’t tell you____ After hearing from plaintiff who described several harrowing episodes in which her child stopped breathing in his sleep, the AU considered the medical evidence offered and called one expert to give testimony. Dr. Richard Watts, a board certified internist and cardiologist, testified about the condition and the medical records available as to infant Fazio. (Dr. Watts had a particular interest in the case since his younger brother had been a sudden infant death victim). He was asked the following questions and gave the following responses: Q. 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? s)s :¡; if: 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. * * * * Sfc Hi Q. Doctor, the reason why I asked that question in order for this child to be eligible under the program — well, I’ll read the regulation that this covers: A child under age 18, which this child is, will be found to be disabled ... if he has a medically determinable, physical or mental impairment of comparable severity to which qualifies an individual age 18 or over, disability shall be deemed to be of comparable severity and to exist under the regulations if the child is not engaging in substantial, gainful activity, and if his impairment or impairments meet the duration requirement of 12 months listed in the Appendix of sub-part I. Now, this is not, as I understand you, is not listed in the Appendix in sub-part I? A. That’s right. Q. And, then it says if the child was 18. We have nobody 18 with this. This is a children — infant— A. That’s right. Q. —problem. So, I’m not deciding the legal questions surrounding this. But, I want to get from you whether or not we have — whether or not that this — they haven’t written the law to cover this problem? A. I think that’s right. Our problem, one of them — we have several problems — but one of our problems is that we’re at a medical frontier. And, obviously disability listings and other things like that must follow in the wake of the medical frontier. But, another problem that we have, also, which you touched on a minute ago, and that is duration. If the duration has to be 12 months, the child is first of all, not 12 months old. And, it is — has lasted or is expected to last for 12 months. I *546 think at this point it’s premature to say that it’s expected to last for 12 months. We hope it doesn’t last for 12 months. It may, but I think in August for a child born in October of the previous year, it — it would be premature to say that this is guaranteed to last for 12 months. Treating physicians, Michaels and Fleming, who made reports in April and May of 1981, indicated that the child would grow out of the sleep apnea condition as his nervous system matured and did not indicate that his impairment met, or was the equivalent of, disability listings. There was, therefore, no medical testimony before the AU which established an impairment or disability within the meaning of the law or regulations. The findings and the decision of the AU, hereafter set out, were based on the record before him. No substantial evidence to the contrary was presented by the date of his decision on September 30, 1981. After careful consideration of the entire record, the Administrative Law Judge makes the following findings: 1. The claimant experienced the onset of episodic “sleep apnea” in March 1981, at the age of 4 months. 2. The claimant’s condition requires him to be continuously monitored by his family and by a specialized machine. 3. The claimant’s condition causes intermittent, unpredictable life-threatening episodes. 4. The claimant’s condition has not lasted for 12 continuous months and cannot reasonably be expected, as of the date of hearing, to last for 12 continuous months from the date of onset. 5. The claimant does not have a medically determinable impairment of comparable severity to that which qualifies an individual age 18 or over. 6. The claimant’s documented condition is not listed in Part A or Part B of the Secretary’s Listing of Impairments. 7. The claimant’s documented condition is not the medical equivalent of any impairment or combination of impairments listed in either Part A or Part B of the Secretary’s Listing of Impairments. 8. The claimant’s documented condition does not meet the requirements for entitlement to Supplemental Security Income child’s benefits based on disability, as stated by section 416.915 of Social Security Regulation No. 16. It is the decision of the Administrative Law Judge that, based upon the application filed on March 31, 1981, the claimant is not entitled to Supplemental Security Income child’s benefits based on disability under Title XVI of the Social Security Act, as amended. The effort by plaintiff’s counsel “belatedly to deal with the missing proofs” should not be a basis for a remand in this case merely because Dr. Fleming 1 “submitted a letter showing that Dean [Fazio] had not outgrown his impairment” as of January 27, 1982. I agree with the Magistrate’s opinion in this case that “claimant has offered no explanation as to why the information in the letter from claimant’s treating physician was not gathered and incorporated into a prior proceeding” or in a request for rehearing. See Watts v. Harris, 614 F.2d 515 (5th Cir.), cert. denied, 449 U.S. 863 , 101 S.Ct. 168 , 66 L.Ed.2d 80 (1980); 42 U.S.C. § 405 (g). Our court, moreover, in a recent per curiam opinion involving a present and former Chief Judge, had occasion to refer to 42 U.S.C. § 405 (g), amended in 1980 (P.L. 96-265, § 307, 94 Stat. 458 ), stating that a reviewing court “may at any time order additional evidence to be taken before the Secretary but only upon a show *547 ing 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.” 42 U.S.C. § 405 (g) (emphasis added). We have examined the legislative history of the 1980 amendment to 42 U.S.C. § 405 (g) and it clearly indicates the amendment was designed to limit the ability of a reviewing federal court to remand the case to the Secretary. Willis v. Secretary of Health and Human Services, 727 F.2d 551, 553 (6th Cir.1984). The Willis decision, moreover, quotes from S.Rep. No. 96-408, 96th Cong., 2d Sess. 58, reprinted in 1980 U.S.Code Cong. & Ad.News 1277, 1336-37: The [1980] bill would continue the provision of present law which gives the court discretionary authority to remand cases to the Secretary, but adds the requirement that remand for the purpose of taking new evidence be limited to cases in which there is a showing that there is new evidence which is material and that there was good cause for failure to incorporate it into the record in a prior proceeding. 727 F.2d at 553-54 (emphasis added). It seems clear to me that the Willis decision was correct in concluding where, as here, there was no motion made before the AU or the Secretary that the record be kept open for additional evidence, the reviewing court should limit its discretion in remanding for further consideration. It is clear from our reading of the legislative history that this provision was enacted, at least in part, to limit the discretion of federal judges to remand for reconsideration of new evidence. Accord Dorsey v. Heckler, 702 F.2d 597, 604 (5th Cir.1983); Ward v. Schweiker, 686 F.2d 762, 764 (9th Cir.1982) citing Carter v. Schweiker, 649 F.2d 937, 942 (2d Cir. 1981). Willis, 727 F.2d at 554 . This is the very kind of case in which a limited discretion, properly exercised, would not effect a remand, especially as to matters not even attempted to be covered by the appellant herself or her counsel. 2 I dissent not only to the remand herein ordered, but also to the overly broad nature of the remand in this case. I would Affirm the decision below. . The Magistrate found in the course of a particularly careful and articulate 14 page memorandum opinion that Dr. Fleming’s May, 1981 report indicated that "the sleep apnea was mild 'in severity and probably developmental;’ ” that "most our [patients] become asymptomatic with time,” and that he did not "believe child would be on monitor more than [sic] several additional months.” . The majority attempts to establish good cause in this case by arguing that because the ALJ hearing took place before the child’s first birthday, no evidence could have been submitted so as to satisfy the 12 month durational requirement. The majority, however, loses sight of what the appropriate regulation says. That regulation states: Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months. 20 C.F.R. § 416.909 (emphasis added). Thus, as in any other social security case, the fact that the disability has not yet lasted a year at the time of the hearing does not defeat the claim. All that the claimant need do is present evidence that the disability will "be expected to last” for at least 12 months. Plaintiff failed in this burden, and offers no reason for her failure to present such evidence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472930. Public record. Not legal advice.