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Elder v. Commissioner of Social Security

July 31, 2008

CHRISTINA ELDER, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM OPINION

On January 29, 2007, plaintiff Christina Elder ("plaintiff") filed her complaint in this case against Michael J. Astrue, the Commissioner of Social Security ("Commissioner" or "defendant"). (Docket No. 3.) This case was referred to a magistrate judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. §§ 636(b)(1)(A) and (B), and Rules 72.1.3 and 72.1.4 of the Local Rules of Court. Cross-motions for summary judgment were filed by plaintiff and defendant. (Docket Nos. 8, 10.)

The magistrate judge's report and recommendation ("R&R") was filed on March 10, 2008. (Docket No. 15.) The R&R recommended that plaintiff's motion for summary judgment be denied, that defendant's motion for summary judgment be granted, and that the decision of the Commissioner be affirmed. On March 17, 2008, plaintiff filed objections to the R&R. (Docket No. 16.) Defendant did not respond to plaintiff's objections but during oral argument held on April 23, 2008, supported the rationale and recommendations made in the R&R. (Docket No. 25.)

Plaintiff asserts that the R&R should be rejected or, at the very least, remanded for reconsideration because the decision of the Commissioner is not supported by substantial evidence. Plaintiff's objections are based on two arguments: (1) the R&R improperly disregarded two valid verbal IQ scores below the requisite score of 70 which satisfied the first requirement set forth in 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C (the "12.05C Listing"); and (2) the R&R imposed a mental retardation requirement by default, which the 12.05C Listing does not require.

The court declines to adopt the R&R and concludes that the decision of the Commissioner must be reversed because it is not supported by substantial evidence. The evidence of record shows that plaintiff meets the requirements of the 12.05C Listing. Summary judgment will be granted in favor of plaintiff and the case will be remanded for the calculation and award of benefits.

Procedural History

On February 8, 1996, Rosanna Elder, plaintiff's mother, filed an application on behalf of plaintiff for Childhood Supplemental Security Income ("CSSI") benefits under Title XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 1381-1383f. (R. at 27.) The social security agency determined that plaintiff, who was born on April 16, 1981, qualified for CSSI, stating that her disability commenced on January 1, 1996. (R. at 27, 49.)

On April 16, 1999, when plaintiff turned eighteen years old, a Continuing Disability Review was performed to determine if she was still disabled. (R. at 27.) The agency determined that plaintiff's disability ceased on January 2, 2001. (R. at 27.) Plaintiff appealed the agency's determination and an administrative law judge held a hearing on March 19, 2002. (R. at 27.) The administrative law judge in a decision dated August 9, 2002 found plaintiff not disabled. In reaching that conclusion he considered whether plaintiff met the requirements of the 12.05C Listing. He found that plaintiff had: some IQ scores . . . clearly in the 60-70 range, 12.05, but the only other area of concern is a social impairment. According to Listing 12.05 of Appendix 1 of Subpart P of Part 404, in order to be found disabled pursuant to this listing an individual must also have another physical or other mental impairment imposing an additional and significant work related limitation of functioning. The undersigned finds that the claimant does not have this additional limitation and consequently does not meet the listing.

(R. at 28)(emphasis added.)

On April 25, 2003 (protective filing date), plaintiff filed an application for supplemental security income ("SSI") benefits. (R. at 17, 50-66.) She claimed a learning disability that began on January 1, 1996. (R. at 49-50.) On August 4, 2003, the agency denied her claim because plaintiff's "condition [was] not severe enough to keep [her] from working." (R. at 35.) On September 23, 2003, plaintiff requested a hearing before an administrative law judge. (R. at 39.)

On June 29, 2004, the administrative law judge (the "ALJ") -- a different administrative law judge than the one who in 2002 found plaintiff not disabled -- conducted a hearing during which plaintiff and a vocational expert both testified. (R. at 154-75.) In a decision dated December 17, 2004, the ALJ held, among other things, that the findings of the administrative law judge in 2002 were "final and binding," plaintiff had "not engaged in substantial gainful activity since she applied for supplemental security income on April 25, 2003 (protective filing date)", and that "[t]he medical evidence establishes that [plaintiff] has borderline intellectual functioning and a depressive disorder [and] [t]hese impairments are severe. . . ." (R. at 17.) The ALJ found plaintiff did not meet the 12.05C Listing requirements, noting that "the numeric indicators of IQ reported in the record cannot be viewed in a vacuum." (R. at 14, 18.) Specifically, the ALJ found that plaintiff did "not have a valid verbal, performance, or full scale IQ of 70 or less, as contemplated by Appendix I Listing 12.05," (R. at 14) and that the 12.05C Listing was not applicable because "the necessary IQ threshold is not satisfied. . . ." (R. at 15.) Plaintiff requested review of the ALJ's decision, but the Appeals Council denied her request. (R. at 4-7.) As a result, the ALJ's decision became the final decision of the Commissioner in plaintiff's case. (R. at 4.) After all administrative remedies were exhausted, plaintiff commenced the instant case seeking judicial review pursuant to 42 U.S.C. §§ 405(g), 1383(c).

Both parties filed cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The R&R recommended that this court deny plaintiff's summary judgment motion and grant the Commissioner's summary judgment motion. Plaintiff filed objections to the R&R. Oral argument was heard by this court on April 23, 2008.

Supplemental Facts and Procedural History

The R&R contains a detailed review of plaintiff's medical history beginning with her October 2000 psychological evaluation. The court adopts the factual background provided in the R&R, but will briefly supplement that background.

Plaintiff was found to be disabled in her childhood. She qualified for CSSI in 1996 "due to mental retardation and a conduct disorder." (R. at 27.) Plaintiff could not sustain employment because of her oppositional behavior and mood swings. (R. at 122.) In 1999, plaintiff took an IQ test and her scores were as follows: "a verbal IQ of 66, a performance IQ of 83, and a full scale IQ of 71." (R. at 28 (emphasis added).) During high school, plaintiff was in a learning support program, i.e. special education classes. (R. at 28.)

Plaintiff was evaluated on June 6, 2001 by Dr. Frank Mrus, Ed.D., (R. at 148) and testing showed she had IQ scores as follows: "a verbal IQ of 68, a performance IQ of 79, and a full scale IQ of 71"(R. at 29, 149 (emphasis added)). While Dr. Mrus noted that plaintiff had a severe cold which may have affected her test results, he also remarked that her familiarity with the testing process may have "influenced the test results in a mild inflationary manner." (R. at 150.) The doctor characterized plaintiff's IQ scores as "reasonably accurate." (R. at 149.) ...


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