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Burden ex rel AA v. Commissioner of Social Security

July 14, 2008

KAREN BURDEN ON BEHALF OF AA, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff filed an application for supplemental security income ("SSI"), on behalf of her daughter AA, on July 11, 2000. See Administrative Transcript ("Tr.") at 84. The application alleged disability on the basis of mild mental retardation, learning disorder, and speech and social functioning impairments. See id. Plaintiff's application was initially denied and, after a hearing, an Administrative Law Judge ("ALJ") also denied the application. Plaintiff requested that the Appeals Council review the ALJ's decision; the Appeals Council did so and remanded the claim so that the ALJ could further compare the severity of AA's impairments to the requirements of the listed impairments at Appendix 1, Subpart P, Regulation No. 4, specifically Section 112.05, and could obtain evidence from a medical expert to clarify the nature and severity of AA's impairments and to assist in determining whether those impairments met or equaled a listed impairment. See id. at 66-67.

ALJ Joseph Medicis held a hearing on remand on August 20, 2003. See id. at 270-97. Subsequently, he held a supplemental hearing on October 21, 2003. See id. at 298-343. On December 5, 2003, the ALJ issued a decision finding AA not disabled. The Appeals Council denied Plaintiff's request for review on June 2, 2005, at which time the ALJ's decision became the Commissioner's final decision. See id.

On July 7, 2005, Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g) to review that final decision. See Dkt. No. 1. In support of her argument that the Court should reverse Defendant's decision and award benefits, Plaintiff asserted (1) that the ALJ erred when he found AA's IQ scores invalid, contrary to Listing 112.00(D)(10), and AA's impairments consequently were of a severity necessary to meet or equal the requirements of Listing 112.05, and (2) that the ALJ's credibility evaluation was improper. See Plaintiff's Brief at 10-16. In response, Defendant contended that there was substantial evidence in the record to support the ALJ's decision and that, therefore, the Court should dismiss Plaintiff's complaint.

II. BACKGROUND

A. Personal History

Plaintiff brings this action on behalf of her daughter AA, who was seven years old at the time of the administrative hearing on August 20, 2003, and eight years old at the time of the supplemental hearing on October 21, 2003. See Tr. at 84, 270-343. Plaintiff alleges disability on the part of AA due to mild mental retardation, learning disorder, and speech and social functioning impairments. See id. at 84; Plaintiff's Brief at 1.

B. Medical and Educational Evidence

AA's pediatrician noted that, as early as ages one and two, AA had developmental delays and referred her to early intervention for evaluation. See Tr. at 216. Early developmental milestones were delayed; AA walked at age two, talked at age three and was toilet trained at age four. See id. at 124. On June 27, 2000, AA scored well below her chronological age of four years, ten months, in all developmental areas, including scores of three years, six months in cubes, copying forms, writing name, naming animals, and overt behaviors. See id. at 124. Her overall mental age was measured at three years, six months. See id. Although her overall speech/language score was considered passing, her vocabulary was weak. See id. at 125. Robert Magee, a school psychologist, considered AA's scores to be of "significant concern" and recommended more comprehensive psycho-educational assessments. See id.

A psycho-educational assessment was conducted on July 17, 2000, and yielded similarly low test scores. See id. at 126. AA scored in the ninth percentile for verbal ability, the sixth percentile for nonverbal ability, and the fifth percentile for general conceptual ability. See id.

Dr. Magee noted that the low percentile in general conceptual ability was misleading because AA had demonstrated a "wide range [of] strengths and weaknesses in both verbal and non-verbal skills," indicating that her level of potential was higher than the scores would indicate. See id. at 127. Dr. Magee opined that AA had significant deficits in the areas of vocabulary and language, expressive vocabulary skills in particular, in some areas of non-verbal reasoning, and in visual-motor integration. See id. at 129, 131. He recommended that AA be classified as a speech-impaired student and that she be placed in special education. See id. at 129.

AA was placed in special education classes and repeated kindergarten when she was transferred to a new school district for the 2001-2002 school year. See id. at 170, 286. Her kindergarten teacher at Hannibal Central Schools stated that, as of AA's second year in kindergarten, she was at grade level in academic areas but had difficulty with listening skills and work habits. See id. at 170. AA showed difficulty listening to stories and directions and had a generally short attention span. See id. In addition, her fine motor skills were not consistently at grade level, and she was unable to tie her own shoes, handled scissors poorly, and had difficulty tracing a line. See id. However, she reportedly made friends easily. See id.

An Individual Education Plan ("IEP"), developed at a June 5, 2002 meeting of the Committee on Special Education, found that AA was at the sixth month of kindergarten level in reading and writing and at the tenth month of kindergarten level in mathematical skills. See id. at 182. Despite these below average levels, measured after two years of kindergarten, it was determined that AA no longer needed special education services or speech therapy, although her attention and impulsivity were flagged for monitoring. See id. at 189. During the 2002-2003 school year, AA's first grade teacher reported that AA worked at grade level. See id. at 173-74.

AA's mother "completely disagree[d]" with this assessment. See id. at 181.

On August 2, 2000, Dr. Kristen Barry, Ph.D., evaluated AA. See id. at 232. Dr. Barry assessed AA with a verbal Intelligence Quotient ("IQ") score of 75, performance IQ of 55, and full scale IQ of 61, which placed AA's cognitive functioning within the deficient range. See id. at 134. AA's verbal scores were in the borderline range, and her nonverbal skills were in the deficient range. See id. at 234. Dr. Barry opined that AA's expressive vocabulary and practical judgment were below average, her visual motor skills were significantly below average to deficient, her ability to scan pictures without missing visual details was significantly below average, and her personal relationships were fair to poor. See id. at 234. Dr. Barry also noted AA's poor attention span, see id. at 235, and her difficulty understanding and following age-appropriate directions, see id. Dr. Barry recommended early intervention services and special education services and gave a guarded prognosis due to significant cognitive delays. See id. Dr. Barry diagnosed learning disorder, not otherwise specified ("NOS") and mild mental retardation. See id.

Dr. Carlos Gieseken evaluated the evidence in this case but did not personally examine AA. See id. at 237. He concluded that AA's impairments were severe but that they did not meet or equal a listing or cause any marked limitations in functioning. See id. at 237-39.

Dr. Barry again examined AA on May 9, 2003, and submitted a psychiatric and intelligence evaluation. See id. at 241-47. Upon mental status examination, AA demonstrated expressive language skills below age expectations, with fair receptive language skills; coherent and goal-directed thought processes; grossly intact attention and concentration; fairly intact recent and remote memory; fair insight and judgment; and deficient intellectual functioning with a limited general fund of information. See id. at 242-43. AA was able to groom and dress herself at an age-appropriate level. See id. at 243. Dr. Barry opined that, as of that date, AA was able to attend to tasks and follow and understand simple instructions but had difficulty completing age-appropriate tasks. See id. She noted that AA was "quite limited" in intellectual functioning, with a poor frustration tolerance. See id. Dr. Barry recommended that the school system evaluate AA for alternative educational placement due to her learning delays and possible speech delays. See id. Dr. Barry gave a guarded prognosis and a diagnosis of learning disorder, NOS, ruling out ...


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