to and evaluating the testimony of Christopher and his mother.
In reaching its conclusion that there exists substantial evidence to support the Secretary's finding, the Court has taken into account all of the evidence in the record and not only Christopher's performance on IQ and other standardized tests. However, the results of IQ and other standardized tests clearly constitute relevant and important evidence of cognitive ability.
In any case, all of the evidence in the record provides a sufficient basis for the Secretary's determination.
Christopher was referred in January of 1991 for a psycho-educational evaluation because of his slow progress in kindergarten and the first grade; in fact, Christopher had been required to repeat kindergarten. (R. at 128.) Christopher had a great deal of difficulty with basic reading skills and forming letters. (R. at 128.) At that time, Christopher took the Wechsler Intelligence Scale for Children - Revised and scored a 105 in verbal IQ, a 109 in performance IQ and a 107 full scale IQ, placing him in the "average" intelligence range. (R. at 129.) Christopher's score on the Woodcock-Johnson Psychoeducational Battery - Part I Revised showed that his functioning level was "above average." (R. at 129.) On the Kaufman Test of Educational Achievement, Christopher obtained scores of between 1.0 and 1.3. (R. at 130.) The examiner concluded that: "Chris may be experiencing the beginning of visual-perception weaknesses which are impeding his acquisition of reading skills." (R. at 130.)
Consequently, Christopher was referred to Dr. Sogoloff, an eye doctor who examined him and has since recommended eyeglasses and exercises to address Christopher's ocular-motor dysfunction. (R. at 112-13, 126-27.) Significantly, the regulations state that "with adequate treatment or intervention, some children not only have their symptoms and signs reduced, but also return to or achieve a level of functioning that is consistent with the norms for their age." 20 C.F.R. § 416.924c(h) (1994).
Christopher's academic performance has improved following his placement in a small, structured classroom environment; he was placed in a special education class beginning in September of 1992, in the second grade.
When Christopher's individualized education program was reviewed in April of 1993, only seven months after this placement, he had made relatively significant improvement in almost all tested areas of educational functioning (measured in terms of grade equivalency). Most notably, Christopher progressed from a 1.3 score in Math Concepts in June of 1992 to a score of 2.2, from 1.3 to 2.0 in Math Computation and from 1.3 to 2.6 in Math Application. (R. at 144, 161.) While Christopher's reading skills progressed only slightly, Christopher demonstrated improvement in his written expression and spelling, although each of these scores is below his grade level. (R. at 144, 161.) Ms. Baker's testimony is consistent with the conclusion that Christopher's academic performance is improving. At the administrative hearing, she testified that Christopher was doing third grade work, although he had started the fourth grade, (R. at 24), and that he had improved somewhat in reading and in arithmetic, (R. at 27).
The April, 1993 evaluation of Christopher for the Saranac Central School District concluded that Christopher's intellectual functioning was average. (R. at 145.) Also, an October, 1992 speech and language evaluation showed that Christopher's language skills fell within average limits. (R. at 133.)
Thus, there is substantial evidence to support the ALJ's conclusion that: "[Chris is] a basically healthy nine year old who has a visual tracking problem that has affected his academic performance. Nevertheless, he has 20/20 visual acuity and, while he is a bit behind in school, he has been making steady progress. Intelligence testing has indicated that he functions within the average range." (R. at 15.) Reviewing all of the evidence in the administrative record, it is clear that there is substantial evidence to support the ALJ's finding of no limitation in cognitive function.
With respect to Christopher's concentration, persistence and pace, the plaintiff argues that the Secretary's finding that Christopher has a less than moderate limitation is not supported by substantial evidence. This aspect of the assessment measures a child's ability "to engage in an activity, such as playing or reading, and to sustain the activity for a period of time and at a pace appropriate to . . . age." 20 C.F.R. § 416.924d(h)(6) (1994). The plaintiff points to evidence in the record pertaining to Christopher's demonstrated weakness in maintaining his concentration in completing tasks and engaging in activities and his need for individualized monitoring in the classroom. The plaintiff criticizes ALJ Brown's silence in his decision with respect to this evidence.
However, the record demonstrates Christopher's ability to engage in recreational activities, such as swimming, woodworking, walking the dog and participating in the Boy Scouts. (R. at 96, 146.) It also indicates his ability to focus himself on tasks in the classroom and complete some classroom tasks on his own. (R. at 128, 135.) Additionally, Christopher has made progress since his placement in a smaller and more structured classroom environment. Christopher's most recent educational review by the Saranac Central School District, in April of 1993, concluded: "Chris is making slow steady progress. Chris benefits from frequent review." (R. at 163.) It also noted that Christopher requires minimal assistance from support personnel. (R. at 162.)
As the Secretary argues, the record clearly contains relevant evidence that a reasonable person might accept as adequate to support the Secretary's determination that Christopher has a less than moderate limitation in concentration, persistence and pace.
Finally, with respect to Christopher's limitation in personal/behavioral function, the plaintiff argues that the Secretary's determination that Christopher possesses a less than moderate impairment is not supported by substantial evidence. Personal/behavioral function is defined as the "ability to help yourself and to cooperate with others in taking care of your personal needs and safety; to respond appropriately to authority and school rules; to manifest a sense of responsibility for yourself and respect for others; to adapt to your environment; and to learn new skills[.]" 20 C.F.R. § 416.924d(h)(5) (1994). The plaintiff argues that incidents documented in the record demonstrate Christopher's at least moderate limitation in this area. Specifically, the plaintiff notes that Christopher becomes sulky and withdrawn when he is disciplined, that he experiences frustration and withdrawal in school daily, that he was suspended from riding the bus to school in the first grade because of fighting and carrying knives and stones, that he responds inappropriately to authority in class and that he has had some problems with personal hygiene. (R. at 134-36, 145.) Again, the plaintiff complains of the ALJ's failure even to mention this evidence in his decision.
In response, the Secretary correctly argues that its decision is supported by substantial evidence; the Secretary points to evidence that, contrary to that relied on by the plaintiff, shows that Christopher is a well-adjusted, self-confident and happy child who generally behaves well in school. While Christopher was suspended from riding the school bus in the first grade, he has resumed riding the bus since that time without any documented incident that would prevent him from continuing to ride the bus.
Christopher's most recent school review, in April of 1993, noted: "Chris is very confident and determined. Chris tends to play by himself. He works cooperatively in groups. He is often an [sic] negotiator when problems arise. Chris can be stubborn and challenge authority. Chris had [sic] adjusted well to Saranac." (R. at 162.) It also noted that Chris had "age appropriate" self-help skills." (R. at 163.) Additionally, there is evidence in the record that Christopher gets along well with others in class. (R. at 146.) And, Christopher's mother testified that, while Christopher and his older brother fight constantly, Christopher can get along with neighborhood children as long as the other children do not pick on him. (R. at 29.) This is consistent with Ms. Baker's prior statement in a 1991 application that Christopher "plays with kids from neighborhood -- gets along well." (R. at 82.)
The issue is not whether there is conflicting evidence in the record -- which, admittedly, there is -- but rather whether there is substantial evidence to support the ALJ's determination that Christopher has a less than moderate limitation in this functional area. There plainly is such evidence to support that determination.
For all of the reasons explained above, the Court finds that the decision of the Secretary denying Supplemental Security Income benefits to Christopher is supported by substantial evidence. Thus, the defendant's motion for judgment on the pleadings, pursuant to Rule 12(c), is granted and the plaintiff's requests for a reversal of the Secretary's decision, attorney's fees and other appropriate relief are denied.
JOHN G. KOELTL
Dated: New York, New York
January 11, 1995