Elam v. Comm Social Security

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Elam v. Comm’r of Social Security No. 03-5315
ELECTRONIC CITATION: 2003 FED App. 0378P (6th Cir.)File Name: 03a0378p.06 ADMINISTRATION, OFFICE OF GENERAL COUNSEL,
Atlanta, Georgia, for Appellee.
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT OPINION
_________________ _________________
PHYLLIS ELAM, for Kamea X BOYCE F. MARTIN, JR., Circuit Judge. Phyllis Elam, on
- behalf of her minor daughter Kamea Golay, appeals a district
Golay, a minor, court judgment affirming the Commissioner’s termination of
Plaintiff-Appellant, -
- No. 03-5315 supplemental security income benefits. The parties have
- waived oral argument and this panel unanimously agrees that
v. > oral argument is not needed. See Fed. R. App. P. 34(a).
,
- Kamea was born on December 4, 1983, and was allegedly
COMMISSIONER OF SOCIAL - disabled due to mental retardation. Kamea was found
SECURITY, - disabled as of August 1, 1991, and was awarded benefits.
Defendant-Appellee. - However, on August 22, 1996, Congress enacted the Personal
- Responsibility and Work Opportunity Reconciliation Act,
N which changed the definition of disability for children seeking
Appeal from the United States District Court benefits. See 42 U.S.C. § 1382c(a)(3)(C). Pursuant to the
for the Western District of Kentucky at Owensboro. Act, the Commissioner reevaluated Kamea’s status and
No. 01-00126—Joseph H. McKinley, Jr., District Judge. determined that she no longer satisfied the new definition of
disability for children. After a hearing, an administrative law
Submitted: June 19, 2003 judge determined that as of August 1, 1997, Kamea was no
longer entitled to benefits. The Appeals Council declined to
Decided and Filed: October 24, 2003 review that decision.
Before: KEITH, MARTIN, and SUTTON, Circuit Judges. Ms. Elam then filed a civil action seeking judicial review
of the administrative law judge’s decision. Upon de novo
_________________ review of a magistrate judge’s report, the district court
affirmed the termination of benefits and granted judgment to
COUNSEL the Commissioner.
ON BRIEF: Mark D. Pierce, Paducah, Kentucky, for Judicial review is limited to determining whether there is
Appellant. Christopher G. Harris, Elyse Sharfman, Dennis R. substantial evidence in the record to support the
Williams, Mary Ann Sloan, SOCIAL SECURITY administrative law judge’s findings of fact and whether the
correct legal standards were applied. See Key v. Callahan,
1
No. 03-5315 Elam v. Comm’r of Social Security 3 4 Elam v. Comm’r of Social Security No. 03-5315
109 F.3d 270, 273 (6th Cir. 1997). The decision must be exceeded the forty point standard, they would be considered
affirmed if the administrative law judge’s findings and current for only two years. Therefore, only those scores
inferences are reasonably drawn from the record or supported obtained within two years prior to the date of the
by substantial evidence, even if that evidence could support administrative hearing in 1999 are valid for purposes of
a contrary decision. See id. determining whether Kamea is disabled under the Act.
There is a three step process in determining whether a child On November 29, 1997, Dr. Spence evaluated Kamea and
is “disabled” under the new definition set forth in the Act. administered the Wechsler Intelligence Test for Children.
First, the child must not be engaged in substantial gainful Kamea obtained a verbal score of fifty-seven, a performance
activity; second, the child must have a severe impairment; and score of seventy-seven, and a full scale score of sixty-four. In
third, the severe impairment must meet, medically equal or his report, Dr. Spence noted that while Kamea’s performance
functionally equal one of the impairments found in 20 C.F.R. score was essentially equivalent to her 1996 score, her verbal
Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 416.924. and full scale scores had dropped by eighteen and nineteen
In order to be found disabled based upon a listed impairment, points, respectively. On the other hand, Kamea’s scores on
the claimant must exhibit all the elements of the listing. See the Wide Range Achievement Test-Revised III were
20 C.F.R. § 416.924(a); Hale v. Sec’y of Health & Human significantly higher than what would be expected given her
Servs., 816 F.2d 1078, 1083 (6th Cir. 1987). It is insufficient verbal score of only fifty-seven. Although the scores
that a claimant comes close to meeting the requirements of a examined in isolation would tend to indicate mental
listed impairment. See Dorton v. Heckler, 789 F.2d 363, 367 retardation, Dr. Spence concluded that Kamea was actually in
(6th Cir. 1986). the borderline range of intelligent functioning, given the score
discrepancies between the 1996 and 1997 tests.
The issue before this Court is whether Kamea has an
impairment that meets, medically equals or functionally Mr. Andrew Jensen, a psychological associate, also
equals the impairment of “mental retardation” listed in performed intelligence tests upon Kamea in September 1998.
sections 112.05 and 12.05 of Appendix 1. We believe that Those test results revealed a verbal score of sixty-six, a
substantial evidence supports the administrative law judge’s performance score of sixty-six, and a full scale score of sixty-
decision that Kamea has no such impairment. four. Mr. Jensen considered the test results to be indicative of
mild mental retardation. Ms. Elam relies on Kamea’s scores
Ms. Elam contends that the administrative law judge on the tests administered by Mr. Jensen in support of her
improperly failed to consider Kamea’s intelligence test scores argument that the Commissioner erred as a matter of law in
that were seventy or below. While Ms. Elam points to failing to find that Kamea’s scores were within the necessary
Kamea’s test scores from March 1991 through September range to meet the criteria of section 112.05.
1998, the regulations provide that intelligence test scores
must be sufficiently current for an accurate assessment under The administrative law judge rejected the scores obtained
section 112.05. See 20 C.F.R. § 404, Subpart P, Appendix 1, by Mr. Jensen, along with his conclusion of mental
§ 112.00D. Intelligence test results obtained between the ages retardation, because Mr. Jensen was not an acceptable source
of seven and sixteen are considered to be current for four of medical evidence. See 20 C.F.R. § 416.913(a). By
years if the score is less than forty, and for two years if the regulation, an acceptable source of medical evidence is
score is forty or above. Because Kamea’s test results all considered to be either a licensed physician, a licensed
No. 03-5315 Elam v. Comm’r of Social Security 5 6 Elam v. Comm’r of Social Security No. 03-5315
osteopath or a licensed or certified psychologist. See 20 impairment is warranted when the child has an extreme
C.F.R. §§ 404.1513(a)(1)-(3); 416.913(a)(1)-(3). Thus, the limitation in one area of functioning or marked limitations in
Commissioner did not err in determining that Mr. Jensen was two areas of functioning. See id. In this case, the
not qualified as an acceptable source of medical evidence. administrative law judge determined that there was no
See 20 C.F.R. § 416.913(a). evidence that Kamea was markedly limited in at least two
categories of functioning. He also determined that there was
The conclusions of Dr. Spence that Kamea was operating no evidence that Kamea was extremely limited in one area of
in the borderline range of intelligent functioning, rather than functioning.
being mentally retarded, are supported by the testimony of Dr.
Dennis Anderson, an educational psychologist who testified Kamea’s Wide Range Achievement Test Results indicated
at the administrative hearing. Dr. Anderson agreed with Dr. that she was reading at the eighth grade level, spelling at the
Spence that Kamea was actually operating within the fifth grade level and had mathematical abilities at the fourth
borderline range of intellectual functioning, although her grade level. At the time of the hearing, Kamea was attending
intelligence test scores, standing alone, would indicate mental regular classes in the ninth grade with one special education
retardation. Dr. Anderson relied, in part, on his observations class in English. Kamea’s teachers provided assessments of
of Kamea during the hearing and her testimony. He her performance that indicated that she was able to
concluded that Kamea’s communicative skills were communicate with her instructors and was able to take notes
inconsistent with those of a person with an intelligence test and accomplish homework at her academic level.
score in the low to mid-sixties.
Kamea submitted no evidence of any marked or extreme
Under section 416.926(a), if a child’s impairment – or functional limitations in her motor skills. To the contrary, she
combination of impairments – does not meet or is not was actively pursuing her desire to participate in her school’s
medically equivalent in severity to a listed impairment, then basketball team. The evidence revealed no significant
the Commissioner will assess all functional limitations caused limitations in social functioning. Ms. Elam conceded that
by the impairment to determine if the child’s impairments are Kamea participated in both school and church activities,
functionally equivalent in severity to any of the listed socialized with her friends and went to church with her
impairments of Appendix 1. The following areas of grandmother. Kamea testified that she had approximately ten
development may be considered in determining whether a girl friends with whom she socialized. One of her teachers
child’s impairments are functionally equivalent to a listed described Kamea as being a typical ninth grade student who
impairment: 1) cognition/communication, which is the ability interacted well with her peers.
or inability to learn, to understand and to solve problems
through reasoning; 2) motor, which includes the ability or Finally, there was no evidence presented of any marked or
inability to use gross and fine motor skills to serve one’s extreme limitation in personal functioning. Kamea’s teachers
physical purposes; 3) social, which includes the ability or noted no difficulties with her self-help skills and observed
inability to form and maintain relationships with other that Kamea was always clean. Additionally, her mother
individuals and groups; and 4) concentration, persistence or reported that Kamea was able to dress herself.
pace, which is the ability or inability to attend to and sustain
concentration on an activity or task. See 20 C.F.R.
§ 416.926a. A finding of functional equivalence to a listed
No. 03-5315 Elam v. Comm’r of Social Security 7
In light of the above, we find that substantial evidence
supports the administrative law judge’s decision.
Accordingly, we affirm the district court’s judgment.