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Guthrie v. Astrue

March 31, 2009

TANETA GUTHRIE, ON BEHALF OF JEMAL POWE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

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.*fn1

I. BACKGROUND

A. Legal Framework and Procedural History On January 9, 2002, Taneta Guthrie filed an application for SSIB on behalf of her son, 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.*fn2 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).*fn3 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 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).

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.

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 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 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 ...


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