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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MIDAJAH SPENCER, a minor, )

by APRIL SPENCER, her mother, )

Plaintiff ) Civil Action No. 04-179 Erie

) District Judge McLaughlin

v. ) Magistrate Judge Baxter

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

Defendant )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I RECOMMENDATION

It is respectfully recommended that the Plaintiff’s Motion for Summary Judgment

[Document No. 8] be denied and the Defendant’s Motion for Summary Judgment [Document

No. 10] be granted. 

II REPORT

A Procedural Background

Plaintiff April Spencer brought this action on behalf of her minor daughter, Midajah

Spencer, pursuant to Section 205(g) of the Social Security Act, seeking judicial review of a final

decision by the Social Security Commissioner denying her Application for Social Security

Income (SSI). 

Spencer filed a protective claim for childhood Supplemental Security Income disability

benefits on Midajah’s behalf on November 22, 2002. The Social Security Administration

initially denied Spencer’s claim on March 10, 2003. 

Pursuant to Spencer’s request, the SSA conducted a hearing before Administrative Law

Judge James J. Pileggi on September 10, 2003. At the hearing, ALJ Pileggi agreed to keep the

record open for another two weeks. R. 293. On December 15, 2003, Spencer obtained a

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 From 2001 through 2003, Midajah was seen by family practitioner Dr. William Hebda and Franklin

Pediatrics during birth, for checkups and for treatment of a rash, sinusitis, diarrhea and other flu-like symptoms. (R.

65- 77, 88-98, 194-201). Although before the ALJ and the Appeals Council, these records generally do not address

Spencer’s alleged impairments.

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comprehensive evaluation of her alleged disabilities from the Riverview Intermediate Unit. 

However, Spencer did not forward the Riverview report to the ALJ until March 2, 2004. ALJ

Pileggi, without reference to Spencer’s March 2 submission, issued a decision on March 3,

2004. Pileggi found that although Spencer’s developmental problems were “severe” under 20

C.F.R. 416.924(c), her impairments did not meet, equal or functionally equal a listed

impairment. R. 17. Pileggi concluded Spencer was not “disabled” and was therefore not

entitled to S.S.I. Id. 

Thereafter, Spencer asked the SSA Appeals Council to review ALJ Pileggi’s findings in

light of her March 2 submission and forwarded the updated Riverview report to the Appeals

Council. (R. 3). The Appeals Council considered all of Spencer’s submissions but nevertheless

found no basis for changing the ALJ’s decision. (R. 3(a)). 

On June 23, 2004, Spencer filed this action seeking judicial review pursuant to 42 U.S.C.

§§ 405(g) and 1383(c)(3). She requests that the Court order the Commissioner to convene a

new administrative hearing to consider the Riverview report her counsel submitted to ALJ

Pileggi on March 2, 2004. The Commissioner and Spencer have filed cross-motions for

summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The matter is

therefore ripe for review and disposition.

B Factual Background and Records Submitted to the ALJ

Midajah Spencer was born on January 10, 2001 to Timothy and April Spencer of

Franklin, Pennsylvania. She was born three to four weeks prematurely, but her weight and other

physical attributes were normal.1 (R. 88). 

On May 11, 2001, Mrs. Spencer had become concerned with her daughter’s

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development. She brought Midajah to the Riverview Intermediate Unit for an evaluation. M.

Michelle Mitchell, an Early Intervention Teacher with Riverview, found that Midajah, who was

five months old at the time, exhibited a “25% or greater delay in the fine motor and

social/emotional area of development.” (R. 85). Mitchell recommended Midajah be treated by

an occupational therapist and that she be provided other early intervention services. (R. 86). 

After this evaluation, Midajah began receiving physical and speech therapy through the Venango

County Easter Seals Early Intervention Program. (R. 188, 193). 

Over the course of the next two years, the Venango Easter Seals program provided

almost weekly assessments of Midajah’s development and provided her with both speech and

physical therapy from June, 2001 through January, 2003. (R. 130-187). On January 14, 2003,

Easter Seals staff met with Midajah and found her motor skills conformed with her age group

and found she did not need additional physical therapy. (R. 128, 130). While her

comprehension skills fell within the normal range, staff recommended further speech therapy to

expand her vocabulary. (R. 129). Through September of 2003, Easter Seals continued to assess

her verbal skills and recommended that Midajah’s parents read more books to her and encourage

her to verbally identify pictures. (R. 112-127; 205-227). 

On January 20, 2003, Dr. Thomas Chesar, M.D. evaluated Midajah on behalf of the

Pennsylvania Bureau of Disability Determination. (R. 99-105). Chesar noted her motor skills

had improved and concluded Midajah’s only significant developmental delay related to her

speech. (R. 101). He opined she would likely improve with further therapy. (R. 101-102). 

Sanford Golin, Ph.D., and Frank Bryan, M.D., reviewed the Easter Seals Society’s findings and

Dr. Chesar’s evaluation on behalf of the Social Security Administration. Golin and Bryan found

that although Midajah’s expressive speech impairment was severe, it did not meet, equal or

functionally equal impairments listed in the Social Security Administration regulations. (R.

106).

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 Mrs. Spencer claimed Midajah was unable to attend because she was suffering from a

second bout with chicken pox. (R. 294).

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 In June, 2001, Spencer brought Midajah to Ear, Nose & Throat Specialist Dr. Pamela

Crawford to determine whether Midajah suffered from any hearing loss. Crawford found

Midajah appeared to have “questionable hearing” and referred her to Ear, Nose & Throat

Specialist Dr. Kirk Eidenmuller for further evaluation. (R. 81). Eidenmuller concluded

Midajah’s hearing was essentially normal. (R. 79). On January 20, 2003, Mrs. Spencer told Dr.

Chesar that Midajah’s ear infections were probably the result of her foster parents’ smoking

habits, since Midajah did not develop ear infections after she was moved out of foster care. (R.

99). According to her mother, Midajah resided with her foster parents from the age of five

months to the age of fifteen months. (R. 298).

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C Disability Hearing

 At the September 10, 2003 disability hearing, Mrs. Spencer2 and Attorney James Bukac

appeared on Midajah’s behalf. Mrs. Spencer testified that Midajah, two years old at the time,

continued to develop slowly, suffered from frequent ear infections and had begun to develop

behavioral problems. Spencer testified that although speech therapy had resulted in

improvements, Midajah’s speech was often unintelligible. (R. 296). Spencer also claimed that

while Midajah’s motor skills were improving, she continued to fall “at least six to ten times a

day.” (R. 297). She further testified Midajah suffered from frequent ear infections but that an

antibiotic normally resolved the infections.3 (R. 302). Finally, Spencer claimed that Midajah

behaved more aggressively than other two year olds. She claimed Midajah played “Tarzan off

the mini-blinds,” threw things, hit herself and her parents, smacked her sister with a paddle,

wrapped drawstrings and bucket handles around her neck and often ran out into the road. (R.

300-304). She testified that Midajah’s behavior was not addressed in therapy because Easter

Seals staff and Dr. Cartwright downplayed Midajah’s behavior as ordinary for two year-olds. 

(R. 300, 303).

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 The additions provided in Spencer’s March 25 and April 12 submissions to the

Appeals Council contain duplicates of the Riverview report and a series of worksheets outlining

objectives and recommendations for Spencer’s development. (R. 253-54, 257-78). 

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D Riverview Intermediate Unit Report

On September 24, 2003, the Riverview Intermediate Unit began conducting a

comprehensive evaluation of Midajah’s development. Riverview staff observed Midajah on two

occasions and administered two development tests to evaluate her personal, adaptive, motor,

cognitive and language skills. (R. 233, 235). Riverview psychologist Patti McIntyre prepared a

report of Riverview’s findings and delivered the report to Mrs. Spencer on December 15, 2003. 

(R. 238-39). The report indicated Midajah’s development was “significantly delayed” in seven

areas. (R. 233-35). At an age of 34 months, Midajah’s skills were equivalent to those of

children aged: 1) 21 months in the personal social area; 2) 17 months in the adaptive area; 3) 19

months in fine motor; 4) 23 months in gross motor; 5) 17 months in cognitive; 6) 19 months in

receptive language and 7) 24 months in expressive language. (Id.). McIntyre’s report concluded

Midajah was developmentally disabled and recommended Midajah be given specially designed

instruction to address her many needs. (R. 237). Spencer submitted the Riverview report to the

ALJ on March 2, and thereafter submitted three largely duplicative4 versions of the report to the

Appeals Council. (R. 240-289). 

E The Administrative Law Judge’s Decision

A child under the age of 18, like Spencer, is considered disabled under the Social

Security Act if she has medically-determinable physical or mental impairments that result in

marked or severe functional limitations that have lasted, or can be expected to last, for a

continuous period of at least 12 months, or that can be expected to result in death. 

Notwithstanding the foregoing, however, a child cannot be considered disabled if she is engaged

in substantial gainful activity. 42 U.S.C. § 1382(c)(a)(3)(C).

In determining whether a child is disabled, a three-step evaluation process is followed,

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under which the ALJ must consider: 1) whether the child is working or engaging in substantial

gainful activity; 2) whether the child has a physical or mental impairment or combination of

impairments, that is severe; and 3) whether the child’s impairment or combination of

impairments meets, medically equals, or functionally equals the severity of an impairment listed

in the “Listing of Impairments” in Appendix 1 of Subpart P of 20 C.F.R. Part 404. 20 C.F.R. §

416.924 (2004). 

A child meets a listing if the specific findings detailed within the description of a listing

exist with respect to that child’s diagnosis. 20 C.F.R. § 416.925(d). A child medically equals a

listing if the medical findings with respect to the child’s impairment are at least equal in severity

and duration to the listed findings. 20 C.F.R. § 416.926(a). A child functionally equals a listing

when she has a severe impairment that results in “marked” limitations in two domains of

functioning, or in an “extreme” limitation in one domain. 20 C.F.R. § 416.926a(a). 

There are six domains of functioning used in determining functional equivalence: 1)

acquiring and using information; 2) attending to and completing tasks; 3) interacting and

relating with others; 4) moving about and manipulating objects; 5) ability to care for oneself;

and 6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). A “marked” limitation in a

domain is found when an impairment interferes seriously with the child’s ability to

independently initiate, sustain or complete activities. 20 C.F.R. § 416.926a(e)(2). An “extreme”

limitation in a domain is found when an impairment interferes “very seriously” with the child’s

ability to independently initiate, sustain or complete activities. 20 C.F.R. § 416.926a(e)(3). 

In this case, the ALJ evaluated Spencer’s claims under the appropriate guidelines and

determined Spencer was not eligible for disability benefits. At the first step, he found Spencer

had never engaged in gainful employment. (R. 13). Second, he found Spencer’s developmental

delays were more than slight abnormalities and were therefore “severe” impairments within the

meaning of 20 C.F.R. § 416.924(c). (Id.). However, at step 3, the ALJ found Spencer’s

impairments did not meet, medically equal or functionally equal a listed impairment. (R. 16-

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17). Specifically, the ALJ found Spencer suffered from 1) “less than marked” cognitive

limitations; 2) no limitation in attending and completing tasks; 3) “less than marked” limitations

in social interaction with others; 4) no ongoing deficits in moving about and manipulating

objects; 5) no limitation in caring for herself; and 6) no limitation with respect to her overall

health and physical well-being. Ultimately, ALJ Pileggi found Spencer was not disabled for

purposes of eligibility for Supplemental Security Income. (R. 16). 

 

III STANDARD OF REVIEW

A Jurisdiction

The Social Security Act gives federal district courts the power to review final

determinations by the Commissioner. 42 U.S.C. § 405(g). A decision by the Commissioner

becomes final when: a) the Appeals Council affirms an ALJ’s decision; b) the Appeals Council

denies review of an ALJ’s decision; or c) the claimant fails to pursue remaining administrative

remedies. This Court obtained jurisdiction once the Appeals Council denied Spencer’s petition

for review. 

B Standards Applicable to the ALJ’s Decision 

District Court review of the Commissioner’s final decision is limited in scope. Hartranft

v. Apfel, 181 F.3d 358 (3d Cir. 1999). The Court must affirm the Commissioner’s final decision

unless it is not supported by substantial evidence. Substantial evidence does not mean a large or

considerable amount of evidence, but only “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65

(1988). See 42 U.S.C. § 405(g). However, the Court’s review of whether the Commissioner

applied the proper law is plenary. Matthews v. Apfel, 239 F.3d 589, 591 (3d Cir. 2001), citing

Tubari, Ltd., Inc. v. NLRB, 959 F.2d 451, 453 (3d Cir. 1992). As such, even if an ALJ’s

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 Sentence Six provides: “The court may, on motion of the Commissioner of Social

Security made for good cause shown before the Commissioner files the Commissioner’s answer,

remand the case to the Commissioner of Social Security for further action by the Commissioner

of Social Security, and it may at any time order additional evidence to be taken before the

Commissioner of Social Security, but only upon a showing 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; and the Commissioner of Social Security shall, after the case is remanded,

and after hearing such additional evidence if so ordered, modify or affirm the Commissioner’s

findings of fact or the Commissioner’s decision, or both, and shall file with the court any such

additional and modified findings of fact and decision, and a transcript of the additional record

and testimony upon which the Commissioner’s action in modifying or affirming was based.” 42

U.S.C. § 405(g).

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decision is supported by substantial evidence, this Court can overturn that decision if it finds

that it was based upon an incorrect interpretation of the law. Freidburg v. Schweiker, 721 F.2d

4445, 447 (3d Cir. 1983).

IV DISCUSSION

Unlike most Social Security claimants, Spencer has not asked this Court to review the

ALJ’s decision under the substantial evidence standard. Instead, she requests only that the Court

remand her case to the Commissioner to consider the Riverview report at a new administrative

hearing, pursuant to Sentence Six of 42 U.S.C. § 405(g)5 and the Third Circuit’s holding in 

Matthews v. Apfel, 239 F.3d 589 (3d Cir. 2001). The Matthews Court held that when the

Appeals Council has denied review of an ALJ’s decision, “the district court may affirm, modify

or reverse the Commissioner’s decision, with or without a remand, based upon the record that

was before the ALJ.” Matthews, 239 F.3d at 593. However, “when [a] claimant seeks to rely on

evidence that was not before the ALJ,” the district court may remand to the Commissioner only

if the plaintiff shows the evidence is 1) new and 2) material and 3) if there was good cause why

it was not previously presented to the ALJ. Id. 

Before reaching the Matthews analysis, the issue of whether the Riverview report was

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“before the ALJ” must be resolved. Spencer argues the report was before the ALJ because her

attorney, Mr. Bukac, mailed and faxed the report to ALJ Pileggi on March 2. However, the

record indicates Pileggi did not have the report before him prior to issuing his decision: 1)

Pileggi did not address the report in his opinion; and 2) the report is not included in the list of

exhibits before the ALJ, yet it is included in the list of exhibits considered by the Appeals

Council. (R. 1-4). In conclusion, the record indicates Pileggi did not have the Riverview report

before him prior to issuing his decision on March 3 and the Riverview report was therefore

considered as new evidence before the Appeals Council. 

A Materiality

This Court now turns to Matthews and concludes the Riverview report is “material.” 

Additional evidence is “material” if there is a reasonable possibility that it would have changed

the outcome of the Secretary’s determination. Szubak v. Sec’y of HHS, 724 F.2d 831, 833 (3d

Cir. 1984). The Riverview report surveyed Midajah’s development over the time period

relevant to her application for disability benefits. Newhouse v. Heckler, 753 F.2d 283, 287 (3d

Cir. 1985). More importantly, Riverview’s findings contrasted sharply with the rest of the

record. The Riverview report indicated Midajah’s physical and cognitive development was

significantly delayed in social, cognitive and physical areas; the rest of the record suggests

Midajah’s sole remaining problem related to her vocabulary. 

B New Evidence

While the report is December 15 report may be considered “material,” it is not “new”

evidence. Additional evidence is considered “new” if it was not available to the claimant at the

time of the administrative proceeding. Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). 

Although the record was apparently closed two weeks after the September 10 hearing (R. 293),

the overall proceeding remained open until ALJ Pileggi issued his decision nearly six months

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later. Spencer acknowledged receipt of the Riverview report on December 15, well before

Pileggi closed her case. Likewise, the March 25 and April 12 reports Spencer submitted to the

Appeals Council are not “new.” Evidence is not “new” if it is merely cumulative relative to the

existing record. Newhouse v. Heckler, 753 F.2d 283, 287 (3d Cir. 1985). The latter reports

presented more nuanced recommendations for future therapy, but they did not contain any new

findings regarding Midajah’s condition. Therefore, neither the December 15 report nor the

updated reports are “new” evidence for purposes of Matthews.

C Good Cause

Spencer claims she meets the Matthews good cause requirement because she faxed the

Riverview report to ALJ Pileggi before he issued his decision. This Court disagrees. Mrs.

Spencer acknowledged receipt of the report in writing on December 15, 2003. When Bukac

finally forwarded the report to Pileggi, he claimed he had “just become aware” of the report. (R.

228). Bukac has offered no explanation as to why he was unaware of a highly relevant,

comprehensive evaluation with a potentially decisive impact on his client’s disability claim. 

Likewise, Spencer has not attempted to explain why she did not share this report with Bukac

while her claims were pending before the ALJ. Even if we were to find the December 15

Riverview report new and material, Spencer has failed to show good cause for why she did not

include the Riverview report in the administrative record prior to Pileggi’s decision. Matthews,

239 F.3d at 593, citing Szubak, 745 F.2d 831, 833 (3d Cir. 1984). 

For the foregoing reasons, this Court concludes Spencer’s case should not be remanded

to the Commissioner pursuant to Sentence Six of 42 U.S.C. 405(g). 

 

V CONCLUSION

It is respectfully recommended that the Plaintiff’s Motion for Summary Judgment

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[Document No. 8] be denied and the Defendant’s motion for Summary Judgment [Document

No. 10] be granted. 

In accordance with the Magistrates Act, the parties are allowed ten days from the date of

service to file written objections to this report. See 28 U.S.C. 636(b)(1)(B) and (C) and Local

Rule 72.1.4 B. Any party opposing the objections shall have seven days from the date of service

of objections to respond thereto. Failure to file timely objections may constitute a waiver of

appellate rights. 

S/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

CHIEF UNITED STATES MAGISTRATE JUDGE

Dated: August 3, 2005

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