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Swanson v. Astrue

May 13, 2009

VICKI J. SWANSON, FOR/ON BEHALF OF J.M.C.S., A MINOR CHILD, PLAINTIFF,
v.
MICHAEL J. ASTRUE,*FN1 COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff*fn2 filed for SSI benefits when he was six years old based on an alleged learning disability and a speech and language delay. The application was denied; and, following a hearing, an Administrative Law Judge ("ALJ") found that Plaintiff was not eligible for SSI payments. The Appeals Council denied a request for review, and Plaintiff filed this action making the following claims: (1) his impairments meet or equal Listing 112.05(D) and/or Listing 112.05(F); (2) the Court should remand this case for development of the record; and (3) his impairments functionally equal the listings with marked limitations in the domains of acquiring and using information and attending and completing tasks. Magistrate Judge DiBianco issued a Report-Recommendation, in which he recommended that the Court affirm the Commissioner's decision and dismiss Plaintiff's complaint. See Dkt. No. 12.

Plaintiff filed the following objections to the Report-Recommendation: (1) Magistrate Judge DiBianco improperly concluded that the ALJ's failure to consider IQ scores was harmless error rather than legal error precluding review; (2) Magistrate Judge DiBianco improperly evaluated the evidence to determine that substantial evidence supported the finding that Plaintiff's impairments did not meet or equal Listing 112.05; and (3) Magistrate Judge DiBianco improperly evaluated the evidence to determine that substantial evidence supported the ALJ's finding that Plaintiff's impairments did not functionally equal the listings. See Dkt. No. 13. Defendant replied to Plaintiff's objections. See Dkt. No. 16.

II. DISCUSSION

A. Standard of Review

In reviewing the Commissioner's final decision, a court reviews that decision to determine whether the ALJ applied the correct legal standards and whether substantial evidence supports the decision. See Charlton v. Comm'r of Soc. Sec., No. 08-CV-142, 2009 WL 838118, *2 (N.D.N.Y. Mar. 26, 2009) (citation omitted). Substantial evidence means relevant evidence a reasonable mind might find sufficient to support a conclusion. See id. (citation omitted). "'In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision.'" Id. (quoting Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y. 2005)).

Where a party makes specific objections to a magistrate judge's report, district courts engage in de novo review of the issues raised in the objections. See Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). "'If, however, the party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.'" Id. at 306 (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007)).

B. Listing 112.50 and Plaintiff's IQ tests*fn3

The ALJ made the following finding: "Independent intellectual testing performed coincident with the claimant's educational plan has placed the claimant's mental capacity in the borderline level of cognitive ability, well above the minimum requirements in Section 112.05A, B, C, D, E or F. See Administrative Record ("AR") at 13.In discussing Plaintiff's counsel's argument that Plaintiff's verbal IQ score was 69, Magistrate Judge DiBianco noted that "the ALJ states in her decision that the 'standardized tests' placed plaintiff in the 'borderline level of cognitive ability, well above the minimum requirements' in the Listings." See Dkt. No. 10 at 19 n.11.He indicated, however, that "[i]t [was] unclear to what the ALJ [was] referring" in this statement. See id. After further discussing the IQ tests,*fn4 Magistrate Judge DiBianco stated that the ALJ might have been referring to the minimum requirements for the Listings. See id. Magistrate Judge DiBianco finally stated that, because "the ALJ did not mention the IQ scores themselves," it was unclear whether the ALJ made an error; but, assuming an error, he concluded that the error did not affect the court's decision because substantial evidence supported the ALJ's ultimate conclusion. See id.

Plaintiff argues that the law does not allow for this type of harmless error analysis and that the Court may not affirm the Commissioner's decision where there is reasonable doubt that the Commissioner applied the appropriate legal standards.Plaintiff also objects to Magistrate Judge DiBianco's findings that substantial evidence supported the ALJ's determination that Plaintiff's impairments did not meet the requirements of Listings 112.05(D) and (F).

On the other hand, Defendant asserts that whether Plaintiff is able to meet the requirements of sections A through Fis irrelevant because Plaintiff cannot meet the introductory language of Listing 112.05.Furthermore, Defendant contends that, although it is a moot point, Magistrate Judge DiBianco incorrectly found that a marked limitation in acquiring and using information is equivalent to a marked limitation in cognitive/communicative function.

The regulation notes that

[t]he structure of the listing[] for Mental Retardation (112.05)*fn5 . . . isdifferent from that of the other mental disorders. Listing 112.05 (Mental Retardation) contains six sets of criteria. If an impairment satisfies the diagnostic description in the introductory paragraph and any one of the six ...


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