Guthrie v. Barnhart ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TANETA GUTHRIE, on behalf of
JEMAL POWE,
Plaintiff, Civil Action No. 05-029 (CKK)
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION
(March 31, 2009)
Currently pending before the Court are Plaintiff’s Motion for Judgment of Reversal and
Defendant’s Motion for Judgment of Affirmance, respectively, of the decision of an
Administrative Law Judge (“ALJ”) denying Supplemental Security Income Benefits (“SSIB”) to
Plaintiff Jemal Powe, who has brought suit by and through his mother Taneta Guthrie, pursuant
to Title XVI of the Social Security Act. After reviewing the parties’ briefs, the administrative
record, and the relevant case law and statutory authority, the Court shall DENY Plaintiff’s [7]
Motion for Judgment of Reversal and GRANT Defendant’s [9] Motion for Judgment of
Affirmance.1
I. BACKGROUND
A. Legal Framework and Procedural History
On January 9, 2002, Taneta Guthrie filed an application for SSIB on behalf of her son,
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Plaintiff’s Complaint named as the Defendant the then-Commissioner of Social
Security, Jo Anne B. Barnhart. As Ms. Barnhart was sued in her official capacity, the Court has
substituted the current Commissioner of Social Security, Michael J. Astrue, as the Defendant
pursuant to Federal Rule of Civil Procedure 25(d).
Jemal Powe (born in 1992), pursuant to Title XVI of the Social Security Act. Pl.’s Mot. at 1-2;
Admin. Record (“A.R.”) at 17.2 Plaintiff’s application for SSIB was based on alleged learning
disabilities constituting severe functional limitations. Pl.’s Mot. at 2; A.R. at 79.
After Plaintiff’s claims were denied initially and upon reconsideration, he requested a
hearing before an ALJ. A.R. at 16, 38. That hearing occurred on April 1, 2003, and Plaintiff was
represented by counsel. Id. at 16, 162. In a decision dated May 2, 2003, the ALJ denied
Plaintiff’s requested benefits. Id. at 13-22. In order to place the ALJ’s opinion in context, the
Court sets forth below the legal framework relevant to Plaintiff’s application for SSIB.
To be eligible for SSIB, a child must be disabled within the meaning of Title XVI of the
Social Security Act. 20 C.F.R. § 416.901 (2008).3 The Social Security Administration (“SSA”)
will consider a child disabled if he or she has “a medically determinable physical or mental
impairment or combination of impairments that causes marked and severe functional limitations,
and that . . . has lasted or can be expected to last for a continuous period of not less than 12
months.” 20 C.F.R. § 416.906. A three-step sequential evaluation is used to determine whether
a child is eligible for SSIB on the basis of a disability. 20 C.F.R. § 416.924. This evaluation
involves determining: (1) whether the child is engaged in substantial gainful activity; (2) whether
the child has an impairment or a combination of impairments that is severe; and (3) whether the
child has an impairment(s) that meets, medically equals, or functionally equals the listings
included in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. If the child is engaged in substantial
2
Plaintiff’s application alleged that his disability commenced September 28, 2001, but
Plaintiff subsequently amended his onset date to January 9, 2002. Pl.’s Mot. at 1-2 & n.1; A.R.
at 52.
3
All citations to the C.F.R., or any subsection thereof, refer to the 2008 regulations unless
otherwise noted.
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gainful activity or does not have an impairment or combination of impairments that is severe, the
child is considered not disabled and the evaluation does not progress to the next step. Id.In determining whether a child’s impairment(s) functionally equals a listed impairment,
the SSA considers six separate “domains” or areas of functioning, which include: (1) Acquiring
and using information; (2) Attending and completing tasks; (3) Interacting and relating with
others; (4) Moving about and manipulating objects; (5) Caring for yourself; and (6) Health and
physical well-being. 20 C.F.R. § 416.924a(b)(1)(i)-(vi). In order to functionally equal a listed
impairment, a child’s impairment “must be of listing-level severity; i.e., it must result in
‘marked’ limitations in two domains of functioning or an ‘extreme’ limitation in one domain.”
Id. § 416.926a(a). A “marked” limitation exists when a child’s impairment “seriously interferes”
with his or her “ability to independently initiate, sustain, or complete activities.” Id. §
416.926a(e)(2)(i). The SSA describes a “marked” limitation as “more than moderate” but “less
than extreme,” and will generally find a “marked” limitation when a child has a “valid score that
is two standard deviations or more below the mean, but less than three standard deviations, on a
comprehensive standardized test designed to measure ability or functioning in that domain, and
[the child’s] day-to-day functioning in domain-related activities is consistent with that score.”
Id. § 416.926a(e)(2)(i), (iii). An “extreme” limitation is “more than marked” but “does not
necessarily mean a total lack or loss of ability to function.” Id. § 416.026a(e)(3)(i). The SSA
will generally find an “extreme” limitation when a child has a “valid score that is three standard
deviations or more below the mean on a comprehensive standardized test designed to measure
ability or functioning in that domain, and [the child’s] day-to-day functioning in domain-related
activities is consistent with that score.” Id. § 416.926a(e)(3)(iii).
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In the instant case, at Step One, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset of the disability. A.R. at 21. At Step Two, the
ALJ found that Plaintiff’s “speech and language delay; and BIF [borderline intellectual
functioning] are severe, within the meaning of the regulations.” Id. at 17. At Step Three, the
ALJ found that Plaintiff did not meet or medically equal Section 112.05 (“Mental Retardation”)
of the SSA’ Childhood Listings for disability evaluation under Social Security. See id. at 17-18.
The ALJ then continued to consider “whether [Plaintiff] has an impairment that is
functionally equivalent in severity to any listed impairment.” Id. at 18. The ALJ discussed the
relevant standards and the evidence contained in the Administrative Record, including testing
results, school records, and testimony during the administrative hearing, and found that Plaintiff
had “marked limitation” in the domain of Acquiring and Using Information. A.R. at 20. As to
the remaining domains, the ALJ found that Plaintiff had either “less than marked limitations” or
“no limitation.” Id. at 20-21. The ALJ concluded that “[b]ecause [Plaintiff] does not have
‘extreme’ limitation in one area of functioning or ‘marked’ limitation in two areas/domains, he
does not have an impairment that is functionally equivalent in severity to any listed impairment.”
Id. at 21. Finally, having determined that Plaintiff “does not have an impairment (or
impairments) that meets, medically equals, or functionally equals any of the impairments listed,”
the ALJ concluded that Plaintiff does not have “a ‘disability’ as defined in the Social Security
Act,” and therefore is “not eligible for Supplemental Security Income payments.” Id. at 21-22.
Plaintiff appealed the ALJ’s decision, but the Appeals Council determined there was no
basis for granting review. A.R. at 3-5. Having fully exhausted his administrative remedies,
Plaintiff timely filed suit in this Court.
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B. Evidence Contained in the Administrative Record
The ALJ evaluated Plaintiff’s condition based on evidence including testing by the
District of Columbia Public Schools (“DCPS”), DCPS student records, a Childhood Disability
Evaluation by the Social Security Administration, information provided by Plaintiff’s mother,
and the testimony of Plaintiff and his mother during the administrative hearing. No formal
medical examination is contained in the administrative record, see A.R. at 1-2, and nothing in the
record suggests such an examination was administered, a fact Plaintiff cited in his request for an
ALJ hearing as evidence that the social security determination was flawed, see id. at 38. The
Court recounts below the most relevant portions of the administrative record.
1. DCPS Testing and Record of Academic Achievement
The Administrative Record (“A.R.”) contains Plaintiff’s records from the DCPS for the
period June 6, 2001 to February 3, 2003. A.R. at 115-128, 147-162. According to those records,
Plaintiff was referred for evaluation “to determine his need for special education services” after
twice repeating the first grade. Id. at 122. On June 7, 2001, a DCPS School Psychologist,
Angela Jefferson, evaluated Plaintiff and determined that “[h]is general cognitive ability . . . is
borderline,” and that his “verbal and performance ability scores were also in the borderline
range.” Id. at 124-25. The School Psychologist conducted a series of tests, specifically the
Wechsler Intelligence Scale for Children – Third Edition (“WISC-III”), the Test of Nonverbal
Intelligence – Third Edition (“TONI-3"), and the Wechsler Individual Achievement Test
(“WIAT”), and also consulted with Plaintiff’s teacher. Id. at 122. The WISC-III estimated
Plaintiff’s general cognitive ability as “borderline (FSIQ = 71),” and his verbal and performance
ability “in the normal range (VIQ [Verbal IQ] = 78, and PIQ [Performance IQ] = 70).” Id. at
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124-25. On a “language-free measure of cognitive ability, TONI-3, [Plaintiff] received a
quotient of 89 that placed him just below the average range at the 24th percentile.” Id. at 124.
Plaintiff also performed in the below average range in mathematics, although this is an area of
strength in comparison to his weaker performance areas. Id. at 122-24. The Psycho-Educational
Report created from this examination concluded that Plaintiff did “not appear to meet the criteria
of a student with a specific learning disability or mental retardation. He appears to be more of a
slow learner.” Id. The report recommended tutoring, academic enrichment, and additional
speech and language evaluation. Id.
On a September 24, 2001, a DCPS Speech/Language Pathologist Linda Brown examined
Plaintiff, subsequently creating a “Speech/Language Evaluation Report,” based upon the results
of this examination. Id. at 118. The Receptive One-Word Picture Vocabulary Test
(“ROWPVT”) administered during the exam indicated Plaintiff’s “receptive vocabulary (how
well the child understands)” was “within the normal range of development.” Id. at 119. The
Expressive One-Word Picture Vocabulary Test (“EOWPVT-R”), which measures the “ability to
identify a single object or group of objects on the basis of a single concept,” indicated Plaintiff’s
“expressive vocabulary skills were approximately 2.8 years delayed.” Id. The Clinical
Evaluation of Language Fundamentals (“CELF-3"), which is “designed to identify individuals
who lack the basic foundation of content and form that characterized mature language use,”
indicated Plaintiff’s “ability to process and understand verbal communication” was in the
“severely delayed range of development.” Id. at 119-20. Additionally, Plaintiff’s articulation
skills were “within the ‘mildly’ delayed range.” Id. at 121. The report concluded that Plaintiff’s
“receptive and expressive language skills show severe deficits,” warranting “therapeutic
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intervention.” Id. at 121.
Pursuant to the recommendations in these reports, a DCPS “multidisciplinary team,”
comprised of various educational professionals and Plaintiff’s mother, met on September 28,
2001 and determined a mixed program of “general education and resource classroom” time
would provide the “intensive/individualized instruction” needed given that Plaintiff was
“significantly below grade level.” Id. at 115. An Individualized Education Program (“IEP”) was
created pursuant to these recommendations, noting that while Plaintiff’s “receptive vocabulary
skills are within normal range of development,” his communication disability “affects academic
performance in all areas.” Id. at 67. Under the IEP Plaintiff would spend approximately half his
time outside of the “regular education setting,” fifteen hours per week in specialized instruction
and one hour per week in speech and language therapy. Id. at 66. The IEP also called for testing
accommodations, specifically “extended time,” working in a “small group,” and “repetition of
directions, simplified directions.” Id. at 73.
On February 3, 2003, a smaller version of this multidisciplinary team met and created an
updated Individualized Education Program after determining that Plaintiff “continues to be
eligible for special education services as a student who is speech and language impaired.” Id. at
151. Plaintiff’s “special education teacher reported that [he] continues to show improvement”
and a “willingness to work,” however his “reading skills continues [sic] to be below grade level
but, [sic] he has shown some improvement.” Id. at 160. Under this new IEP Plaintiff was to
continue spending approximately half his time outside the “regular education setting,” with
fifteen hours per week in specialized instruction and one hour per week in speech and language
therapy. Id. at 148. Notes from the IEP review meeting also stated that Plaintiff’s special
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education teacher “feels that [Plaintiff] has made lot’s [sic] of progress and should continue
[special education] services.” Id. at 160. An additional March 31, 2002 letter written by Sharon
M. Beverly-Gomillion, the Special Education Coordinator, discussed Plaintiff’s after-school
tutoring. Id. at 161. The letter noted that Plaintiff “has begun to show improvement but
continues to function signigicantly [sic] below grade level in both reading and mathematics,” and
he “continues to need additional support in order to reach his potential.” Id.
The DCPS records and examinations repeatedly state that Plaintiff was cooperative,
communicative, and attentive throughout all testing. See, e.g., id. at 122.
2. Social Security Administration Childhood Disability Evaluation
On March 7, 2002, Gomma Nachbahr, Ph.D., a Disability Determination Service
Consultant, conducted a disability evaluation of Plaintiff in connection with his application for
SSIB. A.R. at 130-35; Def.’s Aff. Mot. at 3-4. Dr. Nachbahr relied upon prior psycho-
educational testing, DCPS records, and information provided by Plaintiff’s mother in forming
conclusions about Plaintiff’s impairments. Id. Dr. Nachbahr noted the primary concern
motivating this examination was an “allegation of trouble learning in school.” Id. at 133. Based
upon the evidence, Dr. Nachbahr concluded that Plaintiff suffered from a “Receptive-Expressive
Language Delay ” and “Borderline Intellectual Functioning.” Id. at 130.
Dr. Nachbahr’s report examined the evidence in relation to each of the six “domains”
relevant to determining the severity of an impairment. See id. at 132-35. Dr. Nachbahr
determined Plaintiff had a “marked” impairment in the area of “Acquiring and Using
Information,” as evidenced by test results and the mother’s discussion of Plaintiff’s functionality
in this area. Id. at 132. Plaintiff had a “less than marked” impairment in “Attending and
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Completing Tasks,” as evidenced by his requiring extra time on schoolwork, completion of
homework “(not necessarily on time),” completion of household chores, and attention span. Id.
Plaintiff had a similarly “less than marked” impairment in “Interacting and Relating with
Others,” as evidenced by “mildly delayed” articulation skills and his generally getting along well
with others. Id. Dr. Nachbahr found no limitations or impairments in the areas of “Moving
About and Manipulating Objects,” “Caring For Yourself,” and “Health and Physical Well-
Being.” Id. at 135. Because “[a]n impairment functionally equals the listings if it results in
‘marked and severe functional limitations,’ i.e., the impairment(s) causes ‘marked’ limitations in
two domains or an extreme limitation in one domain,” Dr. Nachbahr determined that Plaintiff’s
alleged impairment or combination of impairments did not “functionally equal the listings.” Id.
at 134.
On March 19, 2002, Margaret A. Friel, M.D., of the Office of Disability’s Office of
Medical Evaluation, determined this assessment of Plaintiff’s “Acquiring and Using Information
Domain” to be “medically reasonable.” Dr. Friel’s review of the assessment agreed that
“although [Plaintiff’s] language ability is more poorly developed than his intellectual
functioning, a separate language impairment is not documented.” Id. at 129 (emphasis in
original). On April 17, 2002, Patricia Cott, Ph.D., also reviewed the report and the evidence and
affirmed Dr. Nachbahr’s assessment “as written.” Id. at 130.
3. Transcript of the Administrative Hearing in This Case
Both Plaintiff and his mother testified at the April 1, 2003 administrative hearing in this
case. See id. at 162-81. Plaintiff testified that he was in the third grade, his favorite subject was
math, and music and reading were not his favorite subjects. Id. at 166-67. Plaintiff also testified
9
that he enjoyed playing basketball, had friends in and outside of school, and had disagreements
with his siblings and cousins. Id. at 167-69. He generally completed his chores on time,
sometimes without any reminders. Plaintiff also testified that he had difficulty reading and
received academic support in the form of tutoring. Id. at 171-72.
Plaintiff’s mother testified that Plaintiff puts forth effort in school and has a positive
attitude, however he was approaching age eleven and “he just can’t read a [first] grade book.” Id.
at 176. She also testified that Plaintiff suffered from recurring headaches which she believed
could be related to his learning difficulties, although after several visits to the doctor no condition
had been found, and Plaintiff had never required hospitalization, surgeries, or pediatric
involvement regarding this issue. Id. at 177. Plaintiff’s mother repeatedly emphasized his
difficulty reading. Id. at 175-80.
II. LEGAL STANDARD
“In a disability proceeding, the ALJ ‘has the power and the duty to investigate fully all
matters in issue, and to develop the comprehensive record required for a fair determination of
disability.’” Simms v. Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989) (quoting Diabo v. Sec’y of
HEW, 627 F.2d 278, 281 (D.C. Cir. 1980)). A court will not disturb the determination of the
Commissioner if it is based on substantial evidence in the record and the correct application of
the relevant legal standards. 42 U.S.C. §§ 405(g), 1383(c); Butler v. Barnhart, 353 F.3d 992,
999 (D.C. Cir. 2004). Substantial evidence means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (citation omitted). While a scintilla of evidentiary support is insufficient, the test can be
satisfied by “something less than a preponderance of the evidence.” Fla. Mun. Power Agency v.
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FERC, 315 F.3d 362, 365-66 (D.C. Cir. 2003). In reviewing an administrative decision, a court
may not determine the weight of the evidence, nor substitute its judgment for that of the
Secretary if his decision is based on substantial evidence. Butler, 353 F.3d at 999; Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). While the reviewing court must carefully
scrutinize the entire record, Butler, 353 F.3d at 999, it is not to review the case “de novo” or
reweigh the evidence, Ware v. Barnhart, 357 F. Supp. 2d 134, 138 (D.D.C. 2004) (citing Davis v.
Heckler, 566 F. Supp. 1193, 1195 (D.D.C. 1983)). Instead, the Court determines whether the
ALJ, acting for the Secretary, “has analyzed all the evidence and has sufficiently explained the
weight he has given to obviously probative material.” Simms, 877 F.3d at 1050.4 See also
Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008) (“[s]ubstantial-evidence review is
highly deferential to the agency fact-finder . . . [and] [r]eversal of an agency decision under that
standard is rare”).
III. DISCUSSION
Plaintiff argues that the ALJ’s decision should be reversed, or in the alternative remanded
to the Social Security Administration for a new hearing, and makes three arguments in support of
these requests. First, he argues that the ALJ failed to properly consider whether his condition
met or equalled a listed impairment. Pl.’s Mot. at 3-6. Second, Plaintiff argues the evidence of
4
Generally speaking, because “the broad purposes of the Social Security Act require a
liberal construction in favor of disability, the court must view the evidence in the light most
favorable to the claimant.” Martin v. Apfel, 118 F. Supp. 2d 9, 13 (D.D.C. 2000) (citing Davis v.
Shalala, 862 F. Supp. 1, 4 (D.D.C. 1994)). Nevertheless, the Court notes that in the particular
context at issue here, Congress amended the definition of “disabled” for children seeking SSIB in
1996, and the that “[t]he thrust of [that] legislation was most certainly to tighten eligibility.”
Encarnacion ex rel. George v. Barnhart, 331 F.3d 78, 83 (2d Cir. 2003) (citing Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193 (1996)).
11
record demonstrates that he satisfies Listing 112.05 of the Childhood Listings. Id. at 5-10.
Third, Plaintiff argues that the ALJ erroneously determined his impairment was not functionally
equivalent to any Listing. Id. at 10-11. Defendant disputes Plaintiff’s characterization of the
ALJ’s opinion, asserting that the ALJ’s decision was supported by substantial evidence. See
generally Def.’s Mot.
A. The ALJ Properly Considered the Evidence and Explained Whether Plaintiff’s
Condition Met or Equaled a Listed Impairment
Plaintiff’s first argument is that the ALJ did not properly consider whether Plaintiff’s
condition met or medically equaled a listed impairment because the ALJ “failed in his duty of
explanation . . .fail[ing] in any manner to discuss whether or not the Plaintiff’s condition met or
equaled the requirements of any Listed Impairment,” Pl.’s Mot. at 3-4, and as result “the [ALJ’s]
conclusory statement makes it impossible for the Court to exercise its duty of review,” id. at 5.
This appears to be a procedural, rather than substantive, argument. The ALJ is not required to
specifically address each criteria of a relevant Listing, but rather must provide “a statement of []
findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law,
or discretion presented on the record.” Id. at 4 (citing 5 U.S.C. § 557(c)); see also Ware, 357 F.
Supp. 2d at 139 n.4 (“The plaintiff argues specifically that the ALJ inadequately explained his
decision by failing to reference the particular elements of Listing 112.04 . . . However, the
plaintiff does not cite any case requiring this level of detail.”). Plaintiff does not cite any case
law indicating a different or heightened standard of explanation is required. See generally Pl.’s
Mot. Plaintiff does cite cases where courts found the ALJs’ consideration of whether a plaintiff’s
condition met or medically equaled a listed impairment to be insufficient. However, the ALJs’
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opinions in those cases either failed to consider significant probative evidence without
explanation, see Martin v. Apfel, 118 F. Supp. at 14 (D.D.C. 2000) (“the ALJ's failure to consider
this uncontradicted, probative evidence that goes to the very heart of the case before him dooms
his opinion”); Taylor v. Heckler, 595 F. Supp. 489, 492 (D.D.C. 1984) (“[t]he ALJ's failure to
evaluate probative evidence submitted by plaintiff or to explain why he deemed [the claim] not
credible is ‘good cause’ to reverse”), or offered only a general conclusion that the plaintiff’s
conditions did not meet or medically equal any listed impairment without identifying the relevant
Listings considered, see Davis v. Shalala, 862 F. Supp. 2d at 6 (“neither the ALJ in his written
decision, nor the Appeals Council, appear to have considered Listing 1.12 . . . the ALJ made a
general finding that the evidence failed to establish that the Plaintiff’s impairments meet or equal
any Listing.”). See also Rossello, 529 F.3d at 1186 (reversing decision of the appeals counsel
where it “cited no evidence to undermine the only conclusion that the record permits”).
In contrast, the ALJ in this case specifically identified the relevant Listing – 20 C.F.R.
Part 404, Subpart P, Appx. 1 § 112.05, “Mental Retardation,”5 – and found “the evidence of
record fails to document a listing level impairment.” A.R. at 17-18. The ALJ noted this
conclusion is consistent with the testing results–“no treating or examining physician has
medically supported the [claim] and none is found [in the evidence of record],” A.R. at 18–and
with the recommendations of Social Security and DCPS psychological consultants, A.R. at 20.
In making his determination regarding Plaintiff’s condition, the ALJ acknowledged “per clinical
testing by the [Plaintiff]’s school psychologist (Exhibit 6F), [Plaintiff] has BIF [Borderline
5
Although the ALJ also recognizes Listing 112.02, “Organic Mental Disorders,” the
opinion indicates he appropriately recognized that elements of this Listing are considered within
certain prongs of Listing 112.05, e.g. 112.05(F). See A.R. at 17.
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Intellectual Functioning], with low IQ scores (70 Performance; 78 Verbal; 71 Full-scale).
[Plaintiff] also has had an Individualized Education Plan developed for specialized education
with speech and language therapy (Exhibit 7F).” A.R. at 17.
The ALJ further supported his conclusions by reviewing the six “domains” set forth in 20
C.F.R. § 416.926a and the relevant evidence in the record related to each. A.R. at 20-21.
Reviewing evidence relevant to the domain of “Acquiring and Using Information,” 20 C.F.R. §
416.926a(g), the ALJ referenced Plaintiff’s IEP and the clinical testing performed by the school
psychologist, specifically findings that “[Plaintiff] has BIF, with low IQ scores (70 Performance;
78 verbal; 71 Full-Scale),” from which the ALJ concluded that Plaintiff has a “marked limitation
in this domain.” A.R. at 20. In the domain of “Attending and Completing Tasks,” 20 C.F.R. §
416.926a(h), the ALJ referenced school reports indicating Plaintiff “requires assistance and time
to complete any assignment,” a report by Plaintiff’s mother that he “completes housework (but
not necessarily always on time), completes chores most of the time, and keeps busy on his own,”
as well as Plaintiff’s “appropriate attention span throughout clinical testing,” and his “attention
and concentration at the hearing;” from which the ALJ concluded Plaintiff “has less than marked
limitations in this area.” A.R. at 20. In the domain of “Interacting and Relating with Others,” 20
C.F.R. § 416.926a(i), the ALJ noted that Plaintiff’s articulation skills were “mildly delayed” and
“[his] mother has reported [Plaintiff] has friends his own age and is generally able to get along
with others except school teachers and is not a disciplinary problem,” indicating “less than
marked limitations in this area.” A.R. at 20. In the domains of “Moving and Manipulating
Objects,” 20 C.F.R. § 416.926a(j), “Caring for Oneself,” 20 C.F.R. § 416.926a(k), and “Health
and Well-being,” 20 C.F.R. § 416.926a(l), the ALJ found Plaintiff has “no limitations.” A.R. at
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20-21.
These are not “conclusory statements,” cf. Rice v. Massanari, 2002 U.S. Dist. LEXIS
15250 (D.D.C. Aug. 16, 2002), as asserted by Plaintiff, but rather is evidence cited by the ALJ
supporting his decision and explaining his reasoning. See Conway v. Astrue, 2008 U.S. Dist.
LEXIS 4109 at *22-*24 (D.D.C. May 23, 2008) (Kollar-Kotelly, J.) (holding the ALJ’s use of the
plaintiff’s IQ scores, school records, and educational program to have provided substantial
evidence supporting a determination that plaintiff did not meet or medically equal the relevant
Listing). The ALJ’s opinion demonstrates that he appropriately “weighed positive and negative
facts included in [] different reports about [plaintiff’s] condition against the criteria that must be
examined under each of the six domains.” Ware v. Barnhart, 357 F. Supp. 2d 134, 139 (D.D.C.
2004); see A.R. at 16-22. “By considering this array of evidence [including test scores and
reports from physicians and a school instructor] and listing it as support for his benefits decision,
the ALJ adequately reviewed the plaintiff's claims.” Ware, 357 F. Supp. 2d at 139 (citations
omitted). The Court therefore rejects Plaintiff’s argument that “the Administrative Law Judge
provided no explanation for his determination that the Plaintiff’s impairment did not meet or
equal an impairment listing.” Pl.’s Mot. at 4.
B. The ALJ’s Conclusion That Plaintiff’s Condition Did Not Meet or Medically
Equal a Listed Impairment Is Supported By Substantial Evidence
Plaintiff next argues the ALJ’s opinion is substantively erroneous because “the medical
evidence reveals that the Plaintiff satisfies the criteria of Listings 112.05D, 112.05E, and
112.05F.” Pl.’s Mot. at 6. Listing 112.05, “Mental Retardation,” states that the required level of
severity for an impairment is met when the requirements in section A, B, C, D, E, or F of the
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Listing are satisfied. See 20 C.F.R. Part 404, Subpart P, Appx. 1, § 112.05. Plaintiff argues that
he satisfies the criteria of Listings 112.05(D), 112.05(E), and 112.05(F). Listing 112.05(D) is
satisfied by a “valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other
mental impairment imposing an additional and significant limitation of function.” Id. §
112.05(D). Listing 112.05(E) is satisfied by a “valid verbal, performance or full scale IQ of 60
through 70 and . . . [f]or children (age 3 to attainment of age 18), resulting in at least one of
paragraphs B2b or B2c or B2d of 112.02.” Id. § 112.05(E). In turn, paragraphs B2b, B2c, and
B2d of Listing 112.02 involve:
b. Marked impairment in age-appropriate social functioning, documented by
history and medical findings . . . and including, if necessary, the results of
appropriate standardized tests; or
c. Marked impairment in age-appropriate personal functioning, documented by
history and medical findings . . . and including, if necessary, the results of
appropriate standardized tests; or
d. Marked difficulties in maintaining concentration, persistence, or pace.
Id. § 112.02B2. Finally, Listing 112.05(F) is met by the satisfaction of Listing 112.02B2a, which
involves “[m]arked impairment in age appropriate cognitive/communicative function,
documented by history and medical findings . . . and including, if necessary, the results of
appropriate standardized tests,” id. § 112.02B2a, and “a physical or other mental impairment
imposing an additional and significant limitation of function,” id. § 112.05F2.
In reviewing the ALJ’s decision, “as long as substantial evidence supports the ALJ’s
finding, the ALJ’s ruling must be upheld.” Ware, 357 F. Supp. 2d at 139.
1. Substantial Evidence Supports the Conclusion that Plaintiff Failed the
Threshold Paragraph Requirement of § 112.05
Listing 112.05, which Plaintiff claims his condition satisfies, is governed by 20 C.F.R.
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Part 404, Subpart P, Appx. 1, § 112.00(A): “Listing 112.05 (Mental Retardation) contains six
sets of criteria [A-F]. If an impairment satisfies the diagnostic description in the introductory
paragraph and any one of the six sets of criteria, we will find that the child’s impairment meets
the listing.” Id. (emphasis added). Listing § 112.05 imposes a “dual requirement,” Blakes v.
Barnhart, 331 F.3d 565, 570-71 (7th Cir. 2003), under which the plaintiff may satisfy the criteria
(A-F) but be found not mentally retarded for failing to demonstrate significantly subaverage
general intellectual functioning “in addition to the specific requirements of each Listing,”
Vazquez v. Barnhart, 2005 U.S. Dist. LEXIS 22243, *22 (S.D.N.Y. 2005). The first paragraph
thus serves as “the threshold requirement for listing 112.05 (significantly subaverage general
intellectual functioning with deficits in adaptive functioning).” Jefferson v. Barnhart, 64 Fed.
App’x. 136, 138 (10th Cir. 2003). Plaintiff’s argument that he satisfies any Listing under 112.05
is therefore inadequate if the record indicates Plaintiff failed to demonstrate “significantly
subaverage general intellectual functioning.”
Substantial evidence supports a finding that Plaintiff failed to meet this diagnostic
description of mental retardation. The ALJ found that the IQ scores pointed to by Plaintiff, see
Pl.’s Mot. at 6-8, and cited in the ALJ opinion, see A.R. at 17, did not clearly demonstrate that
Plaintiff was mentally retarded, but rather indicated “borderline” intellectual functioning. The
school psychologist’s report, based upon the same testing cited by the ALJ, id. at 17, concluded
Plaintiff was not mentally retarded, but rather “appears to be more of a slow learner,” id. at 139.
Plaintiff’s most recent IEP, A.R. at 146, also cited by the ALJ, A.R. at 17, and a letter from the
school special education coordinator, A.R. at 161, discussed Plaintiff’s continued academic
improvement and improved communications skills. Use of such evidence by the ALJ is entirely
17
appropriate as “school records are an excellent source of information concerning function and
standardized testing and should always be sought for school-age children.” 20 C.F.R. Part 404,
Subpart P, Appx. 1, § 112.00(C)(3). Accordingly, the Court finds substantial evidence supports a
determination that Plaintiff failed to demonstrate mental retardation under Listing 112.05, even
prior to considering Plaintiff’s arguments concerning Sections (D), (E), and (F) of § 112.05.
2. Substantial Evidence Supports the Conclusion that Plaintiff Failed to Meet
the Specific Requirements of §§ 112.05 D, 112.05 E, and 112.05 F
Although Plaintiff’s failure to demonstrate that he possessed “significantly subaverage
general intellectual functioning” is dispositive of Plaintiff’s argument, Plaintiff’s argument also
fails because there is substantial evidence supporting the ALJ’s decision that he did not satisfy
the specific requirements of §§ 112.05(D), (E), and (F). Plaintiff does not point to evidence
clearly contradicting the ALJ’s decision, but rather asserts his condition satisfied the specific
requirements of Listings §§ 112.05(D), (E), and (F) and therefore the ALJ erred. See generally
Pl.’s Mot. at 5-9. Specifically, Plaintiff claims Listings §§ 112.05(D), (E), and (F) were satisfied
by his Performance IQ score of 70 in combination with claimed additional impairments. See
Pl.’s Mot. at 6-7. While the ALJ acknowledged this score and Plaintiff’s “marked limitation in
[acquiring and using information],” A.R. at 20, he determined that Plaintiff’s condition failed to
meet the requirements of Listings §§ 112.05(D), (E), and (F).
For Listing 112.05(D), Plaintiff claims his “severe receptive and expressive language
delays,” Pl.’s Mot. at 6-7, constituted “a physical or other mental impairment imposing an
additional and significant limitation of function.” 20 C.F.R. Part 404, Subpart P, App’x 1, §
112.05(D); see also id. § 112.00(A). To determine if a condition satisfies the Listing, an ALJ
evaluates the relevant testing results and the impact of the condition on the individual, 20 C.F.R.
18
§ 416.924(a), including the capacity to treat or ameliorate the condition. See, e.g., Pepper v.
Barnhart, 342 F.3d 853, 855 (8th Cir. 2003). Although the ALJ recognized that Plaintiff’s
“speech and language delay[] and BIF are severe,” there is sufficient evidence in the record to
support the distinction that those impairments, while limiting Plaintiff’s academic performance,
did not constitute a significant and additional limitation under the Listing. In particular,
Plaintiff’s most recent IEP, A.R. at 148-60, and the recommendations of the examining
psychologists, id. at 122-46, supported the ALJ’s determination that Plaintiff’s specific language
delays, while severe, “do not meet or medically equal the criteria of any of the listed
impairments,” id. at 17, 22. See, e.g., Briggs v. Callahan, 139 F.3d 606, 609 (8th Cir. 1998)
(“although [plaintiff] undoubtedly has additional impairments, there has been no showing that
the impairments impose a significant limitation on [plaintiff’s] activities”). Plaintiff’s improved
performance in school through specialized instruction and speech and language therapy also
evidences that his condition may not severely limit his performance. See, e.g., Blake v. Barnhart,
28 Fed. Appx. 597, 600 (8th Cir. 2002). The ALJ also found that Plaintiff’s “assertions
concerning the extent and limiting degree of his impairments [were] not found fully credible as to
his meeting the listing level or functional equivalency for disability purposes and the same is not
corroborated by the objective medical evidence.” A.R. 22.
In Conway, this Court held that the ALJ appropriately found that a plaintiff had a severe
“learning disability” and “obesity,” but nevertheless “did not meet or medically equal Section
112.05.” 2008 U.S. Dist. LEXIS 41091 at * 6 (emphasis added). The foregoing record evidence
in this case similarly reflects substantial evidence supporting the ALJ’s finding that Plaintiff’s
claimed additional impairments did not constitute a disability under the Listing. This Court is
19
not permitted to re-weigh the significance of the evidence in the record, but rather to determine
whether the ALJ’s decision is supported by substantial evidence. Based on the foregoing, the
Court holds that substantial evidence supports the ALJ’s finding that Plaintiff’s claim fails under
Listing 112.05(D).
With respect to Listing 112.05(E), plaintiff argues that his “marked difficulties in
maintaining . . . pace,” Pl.’s Mot. at 7-8, evidenced by his benefitting from extra time in school,
A.R. at 105, 151, satisfy the second prong of the Listing. The ALJ, however, properly considered
this evidence in discussing “the domain of attending and completing tasks,” 20 C.F.R. §
416.926a(h), which addresses “how well you are able to focus and maintain your attention, and
how well you begin, carry through, and finish your activities, including the pace at which you
perform activities . . .,” and determined that Plaintiff had “less than marked limitations in this
area.” A.R. at 20. The ALJ noted that in addition to school records highlighted by Plaintiff,
“[his] mother has reported that [he] completes housework (but not necessarily on time),
completes his chores most of the time, and keeps busy on his own. [Plaintiff] also has been
found to have appropriate attention span throughout clinical testing. He demonstrated good
attention and concentration at the hearing.” A.R. at 20. Accordingly, substantial evidence
supports a finding that Plaintiff’s difficulties in maintaining pace did not satisfy §112.02(B)(2)(d)
and therefore his claim fails under Listing 112.05(E).
As to Listing 112.05(F), Plaintiff argues his Performance IQ score in combination with
his “severe expressive and receptive language delays” satisfy 112.02(B)(2)(a) and demonstrate an
impairment imposing an additional and significant limitation of function. Pl.’s Mot. at 9. As an
initial matter, unlike Listings 112.05(D) and 112.05(E), the first prong of Listing 112.05(F) is not
20
an IQ score requirement, but an instruction to consider relevant evidence including “historical
and other information from parents or other individuals who have knowledge of the child.”
112.02(B)(2)(a); see also Neal v. Barnhart, 405 F.3d 685, 689 (8th Cir. 2005) (“while several of
the [112.05] subsections have a specific IQ requirement . . . § 112.05F, does not”). As discussed
above, substantial evidence besides the IQ scores supports the ALJ’s finding that Plaintiff’s
condition did “not medically equal the criteria of the listed impairments,” A.R. at 17, and the
more limited importance placed on IQ scores under this Listing only further supports such
evidence. In addition, the ALJ’s conclusion that Plaintiff’s condition does not meet or medically
equal a listed impairment is consistent with the conclusion reached in a Childhood Disability
Evaluation Form completed by Gomma Nachbahr, Ph. D. on March 7, 2002, judged medically
reasonable by Margaret A. Friel, M.D. on March 19, 2002, and affirmed by Patricia Cott, Ph. D.
on April 17, 2002. See A.R. at 129-135.6
In sum, the Court finds that substantial evidence in the record supports the ALJ’s
conclusion that Plaintiff’s condition does not meet or medically equal Listing 112.05. The Court
therefore rejects Plaintiff’s argument that the ALJ substantively erred in finding that Plaintiff’s
condition does not meet or medically equal Listing 112.05.
C. The ALJ Properly Considered Whether Plaintiff’s Condition Functionally
Equaled a Listed Impairment, and His Conclusion Is Supported by Substantial
Evidence
Plaintiff’s final argument is that the ALJ erroneously determined that Plaintiff did not
6
Plaintiff also claims that the ALJ failed to consider information in the February 3, 2003
IEP regarding his “difficulty maintaining pace . . . was not evaluated by the [ALJ].” Pl.’s Mot. at
8. To the contrary, the ALJ specifically cites that IEP, A.R. at 17 (“Exhibit 7F”) and later
discusses “school reports” indicating that Plaintiff requires assistance and extra time to complete
assignments.
21
suffer a marked impairment in any domain of functioning and that, as a result, his condition did
not functionally equal a listed impairment. Pl.’s Mot. at 9-11. For a condition to “functionally
equal” a listed impairment, 20 C.F.R. § 416.926a(a), a plaintiff “must face ‘extreme’ limitations
in at least one area, or ‘marked’ limitations in two areas.” Ware, 357 F. Supp. 2d at 141 (citing §
416.926a(a)). Functional equivalency is determined from the entire record, including test scores
and performance in daily activities such as school. 20 C.F.R. § 416.926a(e)(4)(iii)(B); see Scales
v. Barnhart, 363 F.3d 699, 704 (8th Cir. 2004). Here, Plaintiff claims a “marked impairment in
the acquiring and using information domain,” and a “marked impairment in the domain of
attending and completing tasks,” which together would satisfy the criteria for functional
equivalence. A.R. at 10. The Court finds Plaintiff’s claim of a “marked impairment in the
domain of attending and completing tasks” unpersuasive. The ALJ correctly detailed the six
domains relevant to functional equivalence, weighed the evidence relevant to each, and
concluded that Plaintiff only had one marked limitation, in the acquiring and using information
domain. A.R. at 18-22.
Regarding the domain of attending and completing tasks, 20 C.F.R. § 416.926a(h),
substantial evidence supports the ALJ’s finding that Plaintiff “has less than marked limitations in
this area.” A.R. at 20. While Plaintiff argues his benefitting from “extra assistance and time” in
school supports his claim, Pl.’s Mot. at 10, this is not the only information in the record relevant
to this determination. In contrast, the ALJ’s opinion reviewed the entire record, citing school
reports, testimony from Plaintiff’s mother, and Plaintiff’s attention span throughout testing and
during the hearing, A.R. at 20. The ALJ “balanced [these] facts,” Ware, 357 F. Supp. 2d at 142,
to determine that Plaintiff’s limitation in this area was not marked. Accordingly, the Court finds
22
substantial evidence supports a determination that Plaintiff had “less than marked limitations in
this area.” A.R. at 20. Additionally, although he disagrees with the ALJ’s conclusion, Plaintiff
fails to identify any specific procedural errors in the ALJ’s evaluation of this domain. See
Conway, 2008 U.S. Dist. LEXIS 41091 at *33-*34. Because Plaintiff claims a marked limitation
in only one other domain, he fails to demonstrate the marked limitations in two domains required
for functional equivalence.7 Therefore, the Court rejects Plaintiff’s argument that the ALJ erred
in determining that Plaintiff’s condition was not functionally equal to a listed impairment.
IV. CONCLUSION
Based on the foregoing review of the relevant law and the administrative record, the
Court finds that the Administrative Law Judge applied the correct legal standards when he denied
Plaintiff’s claim for Supplemental Security Income Benefits, and that his conclusions are
supported by substantial evidence. The Court shall DENY Plaintiff’s [7] Motion for Judgment of
Reversal and GRANT Defendant’s [9] Motion for Judgment of Affirmance. This case shall be
dismissed in its entirety. An appropriate Order accompanies this Memorandum Opinion.
Date: March 31, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
7
It is therefore unnecessary to address Plaintiff’s erroneous argument that the ALJ found
“Plaintiff did not suffer a marked impairment in any domain of function.” Pl.’s Mot. at 9. This
contention is plainly contrary to the record as the ALJ’s opinion clearly states “[Plaintiff] has
marked limitation in this domain” in reference to the domain of acquiring and using information.
A.R. at 20.
23