AR 04-1(9): Howard on behalf of Wolff v. Barnhart , 341 F.3d 1006 (9th Cir. 2003) — Applicability of the Statutory Requirement for Pediatrician Review in Childhood Disability Cases to the Hearings and Appeals Levels of the Administrative Review Process — Title XVI of the Social Security Act.

Acquiescence Ruling 04-1(9)

EFFECTIVE/PUBLICATION DATE: 04/26/2004

Issue:

Whether the provisions of section 1614(a)(3)(I) of the

Social Security Act apply to Administrative Law Judge (ALJ) and

Administrative Appeals Judge (AAJ) decisions.

Statute/Regulation/Ruling Citation:

Sections 1614(a)(3)(C) , 1614(a)(3)(I) and 1633(a) of the Social

Security Act (42 U.S.C. 1382c(a)(3)(C), 1382c(a)(3)(I), and 1383b(a)); 20 CFR 416.903 , 416.1400 , 416.1401 , 416.1402 , 416.1407 , 416.1015 , 416.1016 and 416.1429 .

Circuit:

Ninth (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada,

Northern Mariana Islands, Oregon, Washington).

Howard on behalf of Wolff v. Barnhart , 341 F.3d 1006 (9th

Cir. 2003).

Applicability of Ruling:

This Ruling applies only to the Administrative Law Judge (ALJ) and Appeals

Council levels of the administrative review process in 20 CFR 416.1400 .

Description of Case:

Sherry Howard, the maternal aunt and legal guardian of Sarah Wolff,

applied for Supplemental Security Income (SSI) payments based on

disability on behalf of her niece, in 1996, when Sarah was 3 years old.

Sarah was found disabled due to secondary borderline IQ and developmental

delays under the version of the law in effect at that time.

Effective August 22, 1996, section 211 of Public Law 104- 193, The

Personal Responsibility and Work Opportunity Act of 1996 , amended

section 1614(a)(3)(C) of the Act, 42 U.S.C. 1382c(a)(3)(C) and established a new standard for

determining SSI benefits for children under the age of

18. [1] Under the new law,

certain children previously granted SSI benefits were required to have

their eligibility for SSI payments redetermined in accordance with the

provisions of the new law. Sarah's eligibility was redetermined under the

new law and she was found ineligible for benefits effective in November

1997.

andard for

determining SSI benefits for children under the age of

18. [1] Under the new law,

certain children previously granted SSI benefits were required to have

their eligibility for SSI payments redetermined in accordance with the

provisions of the new law. Sarah's eligibility was redetermined under the

new law and she was found ineligible for benefits effective in November

1997.

In 1999, an ALJ conducted a hearing. Prior to and again during the ALJ

hearing, Ms. Howard requested that a medical expert specializing in

pediatrics be called to testify regarding Sarah's impairments. The ALJ

denied the requests, explaining that the record was sufficiently well-

developed and that a medical expert was not needed. At the hearing, both

Ms. Howard and Sarah testified. The ALJ found, after independently

reviewing the medical records and listening to the testimony, that Sarah's

impairments did not meet or equal any of the criteria contained in the

Listing of Impairments and that, she was no longer disabled. The Appeals

Council denied the request for review of the ALJ's decision.

Ms. Howard appealed to the United States District Court for the District

of Arizona, where she argued that the ALJ engaged in a selective

evaluation of the evidence and failed to consider the combined effects of

Sarah's impairments. Additionally, Ms. Howard asserted that the ALJ

committed a legal error by not making a reasonable effort to ensure a

qualified pediatrician or other individual who specializes in a field of

medicine appropriate to Sarah's disability evaluated Sarah's case, under

section 1614(a)(3)(I) of the Act, 42 U.S.C. 1382c(a)(3)(I). The district court found that the

ALJ did not selectively analyze the evidence and that the ALJ did not err

in refusing to call an expert witness in order to evaluate the case. On

appeal to the United States Court of Appeals for the Ninth Circuit, Ms

eld of

medicine appropriate to Sarah's disability evaluated Sarah's case, under

section 1614(a)(3)(I) of the Act, 42 U.S.C. 1382c(a)(3)(I). The district court found that the

ALJ did not selectively analyze the evidence and that the ALJ did not err

in refusing to call an expert witness in order to evaluate the case. On

appeal to the United States Court of Appeals for the Ninth Circuit, Ms.

Howard argued that the ALJ considered Sarah's impairments in isolation and

failed to consider the combined effects of her impairments. Ms. Howard

also argued that the ALJ denied her request and made no effort to have a

qualified pediatrician or other individual who specialized in a field of

medicine appropriate to Sarah's disability evaluate her case before

deciding that Sarah was no longer disabled.

Holding:

The Ninth Circuit held that, although the ALJ's decision was supported by

substantial evidence, the ALJ committed a legal error by not complying

with the mandate of section 1614(a)(3)(I) of the

Act, 42 USC 1382c(a)(3)(I). Section 1614(a)(3)(I) states,

in part, that in making "any determination" under title XVI of the Act

"with respect to the disability of an individual who has not attained the

age of 18," the Commissioner "shall make reasonable efforts to ensure that

a qualified pediatrician or other individual who specializes in a field of

medicine appropriate to the disability of the individual...evaluates the

case" of the individual. The Court of Appeals interpreted this to mean

that an ALJ is required to make reasonable efforts to obtain a case

evaluation, based on the record in its entirety, from a pediatrician or

other appropriate specialist, rather than simply evaluating the evidence

in the case record on his or her own. The Court of Appeals noted that,

despite the various reports from doctors and specialists offering their

medical opinions in Sarah's case, the ALJ did not have her case evaluated

as a whole

o obtain a case

evaluation, based on the record in its entirety, from a pediatrician or

other appropriate specialist, rather than simply evaluating the evidence

in the case record on his or her own. The Court of Appeals noted that,

despite the various reports from doctors and specialists offering their

medical opinions in Sarah's case, the ALJ did not have her case evaluated

as a whole. The court also stated that "[i]t may be that the ALJ achieved

substantial compliance with the statute, in that the state agency doctors

... who did evaluate Sarah's case[ ] may be appropriate qualified

specialists; however, we cannot make that determination on the record. In

addition, the ALJ did not consider these evaluations in making his

decision."

Statement as to How Howard Differs From

SSA's Interpretation of the Social Security Act

Our regulations make clear that section 1614(a)(3)(I) of the

Act, 42 U.S.C. 1382c(a)(3)(I), applies only to determinations made by a

State agency and not to decisions made by ALJs or AAJs (when the Appeals

Council makes a decision). The words "determination" and "decision" are

terms of art in our program, defined in our regulations at 20 C.F.R.

416.1401. This regulation explains that the word "determination" means the

initial determination or reconsidered determination, while the term

"decision" means the decision made by the ALJ or the Appeals Council. Our

regulations that implement section 1614(a)(3)(I) of the

Act maintain this distinction, providing that the requirement for review

by a pediatrician or other appropriate specialist in childhood SSI cases

applies only to cases decided by State agencies at the initial and

reconsideration levels of the administrative review process. See 20 C.F.R. 416.903(f) and 416.1015(e) . [2]

The Ninth Circuit interpreted the statutory provision more broadly than we

do, by applying it to cases decided by an ALJ or AAJ (when the Appeals

Council makes a decision).

propriate specialist in childhood SSI cases

applies only to cases decided by State agencies at the initial and

reconsideration levels of the administrative review process. See 20 C.F.R. 416.903(f) and 416.1015(e) . [2]

The Ninth Circuit interpreted the statutory provision more broadly than we

do, by applying it to cases decided by an ALJ or AAJ (when the Appeals

Council makes a decision).

Explanation of How SSA Will Apply the Howard Decision Within the Circuit

This Ruling applies only to title XVI childhood disability cases in which

the claimant resided in Alaska, Arizona, California, Guam, Hawaii, Idaho,

Montana, Nevada, Northern Mariana Islands, Oregon or Washington at the

time of the ALJ or Appeals Council decision. This Ruling applies only to

the Administrative Law Judge and Appeal Council levels of the

administrative review process.

For cases that are subject to this Ruling, ALJs and AAJs (when the Appeals

Council makes a decision) must make reasonable efforts to ensure that a

qualified pediatrician or other individual who specializes in a field of

medicine appropriate to the disability of the individual (as identified by

the ALJ or AAJ) evaluates the case of the individual. To satisfy this

requirement, the ALJ or AAJ may rely on case evaluation made by a State

agency medical or psychological consultant that is already in the record,

or the ALJ or AAJ may rely on the testimony of a medical expert. When the

ALJ relies on the case evaluation made by a State agency medical or

psychological consultant, the record must include the evidence of the

qualifications of the State agency medical or psychological consultant. In

any case, the ALJ or AAJ must ensure that the decision explains how the

State agency medical or psychological consultant's evaluation was

considered. (See also 20

C.F.R

the

ALJ relies on the case evaluation made by a State agency medical or

psychological consultant, the record must include the evidence of the

qualifications of the State agency medical or psychological consultant. In

any case, the ALJ or AAJ must ensure that the decision explains how the

State agency medical or psychological consultant's evaluation was

considered. (See also 20

C.F.R. 416.927(f) and Social Security Ruling 96-6p , "Titles II and XVI:

Consideration of Administrative Findings of Fact by State Agency Medical

and Psychological Consultants and Other Program Physicians and

Psychologists at the Administrative Law Judge and Appeals Council Levels

of Administrative Review; Medical Equivalence." 61 FR 34466 (1996)).

[1] This law changed the

standard governing childhood claims under title XVI of the Social Security

Act. An individual under the age of 18 will be found disabled under title

XVI of the Act if he or she has a "medically determinable physical or

mental impairment, which results in marked and severe functional

limitations, and 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." Section 1614(a)(3)(c)(i) of the

Act, 42 U.S.C. 1382c(a)(3)(c)(I).

[2] This interpretation is

supported by the statute. Section 221 of the Act, 42 U.S.C.

421, entitled "Disability Determinations" specifies in section 221(a) , 42 U.S.C. 421(a)

that "the determination of whether or not [an individual] is under a

disability * * * shall be made by a State agency * * *." Section 221(h) of the Act, 42

U.S.C

3)(c)(i) of the

Act, 42 U.S.C. 1382c(a)(3)(c)(I).

[2] This interpretation is

supported by the statute. Section 221 of the Act, 42 U.S.C.

421, entitled "Disability Determinations" specifies in section 221(a) , 42 U.S.C. 421(a)

that "the determination of whether or not [an individual] is under a

disability * * * shall be made by a State agency * * *." Section 221(h) of the Act, 42

U.S.C. 421(h) requires the Commissioner to "make every reasonable effort"

to ensure that a qualified psychiatrist or psychologist has completed the

medical portion of the case review before a State agency makes "[a]n

initial determination * * * that an individual is not under a disability,

in any case where there is evidence which indicates the existence of a

mental impairment * * *." Section 221 is incorporated by

reference in section 1633(a) of the Act, 42

U.S.C. 1383b(a). Section 1614(a)(3)(I) also

refers to section 221(h) .