MERILL v APFEL, 9836000
U.S. 9th Circuit Court of Appeals
MERILL v APFEL
9836000
ANGELINA MERRILL, on behalf of
Austin Merrill, a minor,
No. 98-36000
Plaintiff-Appellant,
D.C. No.
v.
CV-98-05047-FDB
KENNETH S. APFEL, Commissioner
OPINION
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Submitted August 11, 20001
Seattle, Washington
Filed September 25, 2000
Before: Betty B. Fletcher, Cynthia Holcomb Hall, and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge Hall
cants for SSI disability benefits based on an inability to walk
should not be able to accrue time towards the statutory 12-
month durational requirement until they have reached the
starting age when a typical child can walk unassisted.
In August 1994, Appellant Angelina Merrill filed an appli-
cation for SSI disability benefits for her son Austin, alleging
that he had been disabled since his March 1994 birth by
asthma and bilateral clubfeet. Surgery on Austin's feet in
1995 went well. Austin's physician reported that Austin had
started walking.
Austin's SSI application and request for reconsideration
were denied. Merrill filed a request for a hearing before an
ALJ. At the hearing, medical experts testified that Austin--
just over two years old--was making good progress with his
feet. Mrs. Merrill testified that Austin still could not walk
unassisted. The ALJ found that Austin's impairment did not
meet the criteria for disability. The Appeals Counsel denied
Austin's request for review. The district court affirmed the
Commissioner's decision to deny benefits.
Merrill appealed.
[1] A child is disabled for the purposes of the SSI program
if he suffers from a medically determinable impairment,
which results in marked and severe functional limitations, and
which can be expected to last for a continuous period of not
less than 12 months. An impairment causes marked and
severe functional limitations if it matches the impairments
described in the federal regulations' Listing of Impairments.
Under the Listing, a musculoskeletal impairment exists if
there is a deficit of musculoskeletal function due to deformity
or musculoskeletal disease and walking is markedly reduced
in speed or distance despite orthotic or prosthetic devices; or
ambulation is possible only with obligatory bilateral upper
limb assistance.
[2] The ALJ's decision that Austin did not satisfy the
marked and severe functional limitation criterion was not sup-
ported by substantial evidence. Austin's clubbed feet consti-
tuted a musculoskeletal impairment under the Listing. Merrill
testified repeatedly that Austin was unable to walk unassisted.
[3] The ALJ, however, relied on the testimony of medical
experts that Austin was making good progress. The medical
evidence only established that Austin had a good prognosis
after corrective surgery, not that he failed to satisfy the
criteria for a disability at the time of the hearing in front of
the ALJ. The experts did not refute Merrill's testimony that
Austin could not walk by himself. The ALJ needed to provide
a specific explanation for rejecting Merrill's testimony that
Austin could not walk without bilateral upper limb assistance,
and thus, had a marked and severe impairment.
[4] Austin was a little over two years old at the time of the
hearing, and Mrs. Merrill testified that Austin's impairment
has been present from birth. When the ALJ made his decision,
Austin had been impaired for over two years.
[5] The 12-month duration requirement of the statute and
regulation should be read as classifying a condition as an
impairment only when the condition prevents the applicant
from walking at a time when a child of normal development
would be walking. Most children take their first steps shortly
within a few months of their first birthday. On remand, the
Commissioner was to determine the starting age for when a
typical child can walk unassisted. Child applicants for SSI
disability benefits based on inability to walk should not be
able to accrue time towards the durational requirement until
they have reached this starting age.
_________________________________________________________________
COUNSEL
David B. Lowrey, Portland, Oregon, for the plaintiff-
appellant.
Richard H. Wetmore, Assistant Regional Counsel, Social
Security Administration, Seattle, Washington, for the
defendant-appellee.
_________________________________________________________________
OPINION
HALL, Circuit Judge:
Angelina Merrill, on behalf of her son, Austin Merrill
("Austin"), appeals the district court's affirmance of the deci-
sion of the Commissioner of Social Security ("the Commis-
sioner") to deny Austin's application for supplemental
security income ("SSI") disability benefits under Title XVI of
the Social Security Act, 42 U.S.C. SS 1381-1383d. The dis-
trict court's holding was based on the decision of an adminis-
trative law judge ("ALJ"), who found that Austin was not
disabled. This Court has jurisdiction over Mrs. Merrill's
appeal under 28 U.S.C. S 1291.
On August 8, 1994, Mrs. Merrill filed Austin's application
for SSI disability benefits. She alleged that Austin has been
disabled by asthma and bilateral clubfeet since his birth on
March 7, 1994. Austin underwent surgery on his feet in May
and July of 1995. The surgery went well. In March 1996,
Austin's physician reported that Austin was wearing clubfoot
splints and had started walking.
Austin's SSI application and request for reconsideration
were denied. Mrs. Merrill then filed a request for a hearing
before an ALJ. The hearing took place on April 4, 1996.
Expert medical testimony was presented that Austin was mak-
ing "good progress" with his feet. Mrs. Merrill testified, how-
ever, that Austin still could not walk unassisted. The ALJ
found that Austin's impairment did not meet the criteria for
disability. The ALJ's decision became the final decision of
the Commissioner when the Appeals Counsel denied Austin's
request for review. On September 9, 1998, the district court
affirmed the Commissioner's decision to deny benefits.
This Court reviews de novo the district court's decision to
uphold the Commissioner's denial of social security benefits.
See Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).
The Court may set aside a denial of benefits only if not sup-
ported by substantial evidence in the record or if it is based
on legal error. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th
Cir. 1999). "Substantial evidence is relevant evidence which,
considering the record as a whole, a reasonable person might
accept as adequate to support a conclusion." Flaten v. Secre-
tary of Health and Human Servs., 44 F.3d 1453, 1457 (9th
Cir. 1995).
[1] A child is disabled for the purposes of the SSI program
if he suffers from "a medically determinable physical or men-
tal 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." 42 U.S.C.
S 1382c(3)(C)(i) (Supp. 1998). An impairment causes
"marked and severe functional limitations" if it matches the
impairments described in the Listing of Impairments
("Listing"). See 20 C.F.R. S 416.924(d) (1999). The Listing
includes criteria for musculoskeletal impairments in children.
Such an impairment exists if there is a:
[d]eficit of musculoskeletal function due to defor-
mity or musculoskeletal disease and one of the fol-
lowing:
A. Walking is markedly reduced in speed
or distance despite orthotic or pros-
thetic devices; or
B. Ambulation is possible only with
obligatory bilateral upper limb assis-
tance (e.g., with walker, crutches);
. . . .
20 C.F.R. Pt. 404, Subpt. P., Appendix 1, Part BS 101.03
(1999).
Thus, to be eligible for disability benefits, Austin must sat-
isfy two criteria. First, he must have an impairment that
results in marked and severe functional limitations. He satis-
fies this criterion if his impairment matches one of those
described in the Listing. Second, the impairment must have
lasted or can be expected to last for a continuous period of at
least 12 months.2
[2] The ALJ's decision that Austin did not satisfy the
Pt. 404, Subpt. P, Appendix 1, Part B S 101.03 (1996). Thus, regardless
of whether we apply the old or new definition of disability, the analysis
of Austin's claim remains the same: Austin is entitled to disability benefits
if: (1) his impairment does not allow him to walk without assistance; and
(2) the impairment has lasted or can be expected to last for a continuous
period of at least 12 months.
"marked and severe functional limitation" criterion was not
supported by substantial evidence. Evidence was supplied at
the administrative hearing demonstrating that Austin's
clubbed feet constituted a musculoskeletal impairment under
the Listing. Mrs. Merrill testified repeatedly that Austin was
unable to walk unassisted. This Court has held that an ALJ,
in determining a claimant's disability, must give full consider-
ation to the testimony of friends and family members. See
Smolen, 80 F.3d at 1288; Dodrill v. Shalala , 12 F.3d 915, 919
(9th Cir. 1993).
[3] The ALJ, however, did not mention Mrs. Merrill's testi-
mony in his ruling. Instead, he relied on the testimony of
medical experts that Austin was making good progress. The
medical evidence relied on by the ALJ only established that
Austin had a good prognosis after corrective surgery, not that
he failed to satisfy the criteria for a disability at the time of
the hearing in front of the ALJ. The experts did not refute
Mrs. Merrill's testimony that Austin could not walk by him-
self. The ALJ needed to provide a specific explanation for
rejecting Mrs. Merrill's testimony that Austin could not walk
without "bilateral upper limb assistance," and thus, had a
marked and severe impairment at the time of the administra-
tive hearing. See Dodrill, 12 F.3d 915, 919 (9th Cir. 1993)
("If the ALJ wishes to discount the testimony of the lay wit-
nesses, he must give reasons that are germane to each wit-
ness.").
[4] Under the second criterion for SSI eligibility, Austin's
impairment must have lasted or be expected to last for a con-
tinuous period of at least 12 months. At first glance, Austin
easily meets the duration requirement. He was a little over
two years old at the time of the hearing, and Mrs. Merrill tes-
tified that Austin's impairment has been present from birth.
Therefore, when the ALJ made his decision, Austin had been
impaired for over two years.
[5] The problem is that any child has trouble walking in the
early stages of development. A more common sense approach
is to begin counting time towards the 12-month requirement
only at the time when a typical, unimpaired child would be
able to walk unassisted. The statute and regulation should be
read as classifying a condition as an impairment only when
the condition prevents the applicant from walking at a time
when a child of normal development would be walking. Oth-
erwise, the applicant is not impaired from engaging in an
activity that a child free from musculoskeletal deficit can
engage in. Most children take their first steps shortly within
a few months of their first birthday. See Bernard Valman,
Columbia University Department of Pediatrics Children's
Medical Guide 24-25 (1997) (noting on chart of developmen-
tal milestones that children "can walk without help" between
10 and 18 months); American Medical Association, Encyclo-
pedia of Medicine 347 (1989) ("[C]hildren are not considered
delayed unless they are not walking by themselves by 18
months."); Arlene Eisenberg et al., What to Expect the First
Year 365 (1989) (describing "various studies placing the aver-
age age for first-steptaking between thirteen and fifteen
months"). We leave to the Commissioner on remand to deter-
mine an exact starting age for when the typical child can walk
unassisted. Child applicants for SSI disability benefits based
on inability to walk should not be able to accrue time towards
the durational requirement until they have reached this start-
ing age.
The ALJ's decision does not show that Austin failed to
meet the durational requirement. Moreover, the ALJ's find-
ings do not address Mrs. Merrill's testimony that Austin was
incapable of walking by himself, and therefore that his
impairment was "marked and severe." Accordingly, the judg-
ment of the district court is reversed and remanded with direc-
tions that the ALJ's decision be vacated and the case be
further remanded to the Commissioner for a determination of
whether, despite his prognosis, Austin's disability met the
criteria for impairment under Part B S 101.03 of the Listing
of Impairments and, if so, whether Austin satisfied the 12-
month requirement.
REVERSED AND REMANDED.
_______________________________________________________________
FOOTNOTES
1 The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
2 Public Law No. 104-193 provides the current statutory definition of
disability for individuals under the age of 18. The current definition
applies to any individual whose claim for disability benefits is finally
adjudicated on or after August 22, 1996. See Effective Date of 1996
Amendments, 42 U.S.C. S 1382c (Supp. 1998). Since Austin's claim is
currently before this Court on direct appeal, the amended definition
applies to his claim.
At the time of Austin's hearing in front of the ALJ, an individual under
the age of eighteen was disabled for the purposes of the SSI program if
he suffered from an impairment of "comparable severity" as that of an
adult who is "unable to engage in any substantial gainful activity by rea-
son 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." 42 U.S.C.
S 1382c(3)(A)(1994). The regulations implementing the SSI program
offered guidance as to the meaning of "comparable severity." For the pur-
poses of a musculoskeletal impairment, a child's impairment was of com-
parable severity to an adult's impairment if it matched the criteria in the