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Geraldine Fabery v. Michael J. Astrue

July 9, 2012


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing



Geraldine Fabery ("Plaintiff") brings this action on behalf of her minor daughter ("L.F.") pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying her application for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 -- 1383f ("Act"). This matter comes before the court on cross motions for summary judgment. (ECF Nos. 9, 11). The record has been developed at the administrative level. For the following reasons, Plaintiff's Motion for Summary Judgment is DENIED, and Defendant's Motion for Summary Judgment is GRANTED.


Plaintiff filed for SSI, on behalf of L.F., with the Social Security Administration on December 17, 2007, claiming disability beginning on October 9, 2000 due to limitations stemming primarily from mental impairments. (R. at 128 -- 34)*fn1 . Benefits were initially denied on April 14, 2008. (R. at 82 -- 86). A hearing was scheduled for November 19, 2009, and Plaintiff appeared to testify, represented by counsel. (R. at 29 -- 79). L.F. also appeared, but did not testify. (R. at 29 -- 79). The Administrative Law Judge ("ALJ") issued his decision denying benefits to L.F. on January 12, 2010. (R. at 4 -- 28). Plaintiff filed a request for review of the ALJ's decision by the Appeals Council, which request was denied on March 3, 2011, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 1 -- 3).

Plaintiff filed her Complaint in this Court on May 5, 2011. (ECF No. 4). Defendant filed his Answer on July 11, 2011. (ECF No. 6). Cross motions for summary judgment followed.


General Background

L.F. was born on October 9, 1994, and was fifteen years of age at the time of her administrative hearing. (R. at 38). L.F. was in the ninth grade, and attended Greensburg Salem High School. (R. at 43). She resided with her mother and father, and with an older sister with more serious mental handicaps. (R. at 39). The impairments alleged by Plaintiff to be primarily responsible for L.F.'s disabling limitations were "separation anxiety" and "mental health." (R. at 185).

Plaintiff completed a Function Report on behalf of L.F. on February 14, 2008. (R. at 192 -- 200). In it, Plaintiff indicated that L.F.'s ability to communicate was not limited. (R. at 195). She was alleged to be limited with respect to understanding and using what she had learned. (R. at 196). L.F. was alleged to be incapable of reading and understanding stories in books, magazines, and newspapers. (R. at 196). She was, however, capable of reading and understanding sentences in comics and cartoons, spelling words of more than four letters, telling time, adding, subtracting, multiplying, and dividing numbers over ten, understanding money and making correct change, and understanding, carrying out, and remembering simple instructions.

(R. at 196). Plaintiff stated that L.F.'s physical abilities were not limited. (R. at 106). With the exception of leaving her mother, L.F.'s impairments did not affect her social activities or behavior. (R. at 197). However, Plaintiff claimed that L.F. was not able to cook a meal, take medication, use mass transit, or accept criticism or correction. (R. at 198). L.F.'s attention and focus were limited in terms of completing arts and crafts projects and completing chores. (R. at 199). Yet, L.F. was capable of staying busy on her own, could finish things she started, and completed homework on-time. (R. at 199). At the end of the Function Report, Plaintiff stated that -- generally -- her daughter had a need to be in control. (R. at 199). She had difficulty taking "no" for an answer. (R. at 199). L.F. had difficulty getting along with her sister. (R. at 199). She also had a habit of sleeping with her mother and being overly dependent upon her mother. (R. at 199).

School Records

A Reevaluation Report ("RR") regarding L.F.'s educational needs was completed by educators in the Greensburg Salem School District on November 14, 2005, while L.F. was in the fifth grade. (R. at 142 -- 58). The purpose of the RR was to determine how best to address L.F.'s functional deficits as she progressed with her education. (R. at 142 -- 58). It was noted that L.F. had been receiving speech and language support through an Early Intervention plan initiated prior to L.F.'s entrance into kindergarten. (R. at 142). Despite significant progress, L.F. still exhibited some difficulty with vowel distortion and great difficulty self-monitoring conversational speech. (R. at 142 -- 43). However, she was found by her elementary educators to no longer be in need of speech and language support. (R. at 143).

The RR indicated that L.F.'s "rate of retention" -- how well L.F. retained what was taught and what she had taught herself -- was 100%, and her "rate of acquisition" -- how well L.F. acquired new skills and new knowledge -- was also 100%. (R. at 144). L.F.'s other strengths included being cooperative and easy to manage, being able to retain information with repetition, being honest, exhibiting good computation and spelling skills, being attentive, and respecting others and their property. (R. at 145). Weaknesses included difficulty with reading comprehension, language expression, creative writing, abstract thinking, separation from her mother, speaking clearly to others, understanding directions, ideas, or concepts, being withdrawn and isolated, lacking self-confidence, being poorly coordinated, and exhibiting excessive shyness, timidity, and fearfulness. (R. at 144 -- 45, 151 -- 52).

L.F.'s full scale I.Q. was 72, falling within the borderline range of intelligence. (R. at 148). The confidence interval was 95%. (R. at 148). Additionally, testing indicated that L.F. was functioning at an extremely low cognitive level with respect to non-verbal areas -- evidencing extreme weakness in non-verbal, visual-spatial-organizational development, and working memory. (R. at 148 -- 49). L.F.'s processing speed was average, however. (R. at 149). The RR concluded by finding that L.F. had a "Special Learning Disability" in terms of "pseudoword decoding." (R. at 155). The RR suggested L.F. receive a blend of direct special education services along with accommodations in regular education programs/classes. (R. at 155).

Records from Greensburg Salem School District also include an Individualized Educational Program ("IEP") formulated for L.F. in May 2007, and implemented in August 2007. (R. at 159 -- 74). At the time, L.F. was to enter the seventh grade. (R. at 159). It was noted that L.F. had been successfully engaged in regular education classes, with an aid, three days a week for Language Arts, and five days a week for Math. (R. at 162). L.F. had an adapted curriculum to meet her learning needs in Social Studies and Science. (R. at 162). The IEP stated that L.F. was very pleasant, she tried her best, she consistently completed homework in all classes, she was willing to help her peers, she got along well with others, she was a very good oral reader, she was polite and respectful towards adults and peers, and she was a good speller.

(R. at 162).

The IEP also noted L.F.'s needs requiring accommodation to include: reading comprehension, written comprehension and grammar, difficulty with directions for projects and lengthy assignments, and lack of self-confidence. (R. at 162). However, it was also found that L.F.'s functional performance was appropriate in all areas, and that she could be successful in regular education classes in all subjects with adaptations. (R. at 162). L.F. was considered to be capable of more than she believed, and needed reassurance and positive feedback. (R. at 162).

The IEP stated that when taking the Pennsylvania System of School Assessment ("PSSA"), L.F. would receive extended time and additional guidance with respect to PSSA requirements. (R. at 163). Throughout the academic year, L.F. would receive itinerant learning support, as needed, and would be taught in regular education classes. (R. at 167, 172). She would also have the help of a learning support/inclusion teacher in certain regular education classes (Math, Language Arts, Science, and Social Studies). (R. at 167, 172). Adaptations for certain classes would include alternative test delivery, minimal reliance on independent reading, repetition and practice, structured study guides, incremental presentation of new material, clear/concise directions, primary oral and written directions, frequent checks for understanding, extended time for assignments when necessary, and frequent feedback and positive reinforcement. (R. at 169).

On March 11, 2008, L.F.'s learning support/inclusion teacher completed a Teacher Questionnaire to document those limitations which L.F. was observed to experience. (R. at 206 -- 13). The teacher indicated that she had aided L.F. for six months. (R. at 206). The teacher accompanied L.F. to her science and language classes to provide assistance, as needed. (R. at 206). In terms of acquiring and using information, L.F. was indicated as having anywhere from slight problems to serious problems. (R. at 207). With respect to attending and completing tasks, L.F. had a slight problem working at a reasonable pace, and had an obvious problem carrying out multi-step instructions. (R. at 208). In terms of interacting and relating to others, L.F.'s teacher noted that she had slight problems using language appropriate to the situation and listener, introducing and maintaining relevant and appropriate topics of conversation, and interpreting the meaning of facial expression, body language, hints, and sarcasm. (R. at 209).

L.F. had an obvious problem using adequate vocabulary and grammar to express thoughts/ ideas, and with daily conversation. (R. at 209).

Another IEP was formulated for L.F. in May 2008, and implemented in August 2008, in preparation for her eighth grade academic year. (R. at 242 -- 57). It was noted that diagnostic testing during L.F.'s seventh grade academic year showed that she demonstrated a sixth grade reading level, a fourth grade math level, and third grade level mathematical problem solving. (R. at 244). However, educational staff believed that L.F. could be successful in regular education classes with continued adaptations and modifications, and with the continued assistance of a learning support/inclusion teacher. (R. at 244).

L.F.'s strengths were noted to be her pleasant personality, strong work ethic, oral reading, spelling, appropriate behavior around others, respect of adults and peers, and work completion.

(R. at 244). Plaintiff's weaknesses included reading comprehension and written expression/grammar. (R. at 244). She also lacked confidence, in spite of being "very capable."

(R. at 244).

The IEP stated that L.F. would take the PSSA with accommodations, as before. (R. at 246, 265). L.F.'s curriculum would also focus more intensively on her writing skills, reading comprehension, and mathematics skills -- setting specific benchmarks to gauge a desired success rate. (R. at 248 -- 51). L.F. would still be provided with a learning support/inclusion teacher and other itinerant educational support as needed. (R. at 252, 254). She was to receive frequent feedback, well-defined directions, additional time for questions, notes from the teacher, structured study guides, graphic organizers, preparation for changes in routine, tasks broken into manageable pieces, organizational help, social skills modeling, re-testing as needed, and a daily academic support class. (R. at 271). By November 2008, L.F. was meeting all of her IEP goals, and was making adequate academic, social, and emotional progress. (R. at 273).

Another RR was completed on November 13, 2008 by L.F.'s educators. (R. at 278 -- 285). Generally, it was noted that L.F. had no significant health issues. (R. at 278). She related well to classmates, was kind and respectful, had approximately eight close friends, attended movies and football games with friends, and attended school dances. (R. at 278). Standardized testing in April 2008 showed that L.F. had a 75% success rate in reading, and an 80% success rate in spelling. (R. at 279). In mathematics, L.F. scored well below grade level, although she was noted to be working successfully in her eighth grade-level Algebra class. (R. at 279).

In the RR, L.F.'s teachers felt that she should continue with her most recent IEP adaptations, including: preferential classroom seating, learning support/inclusion for Language Arts and Algebra, frequent feedback for understanding directions, well-defined directions, use of an agenda book, additional time for questions, modified tests, simplified tasks, organizational checks, social skills modeling, hands-on learning opportunities, re-testing as needed, extensions of time for completing tasks, daily academic support classes, study packets for tests, academic monitoring, notes provided by teachers as needed, graphic organizers, word banks for tests, extra preparation for changes in routine, and close contact with a guidance counselor. (R. at 279). However, based upon her consistent performance in middle school, L.F. was no longer believed to be in need of standardized testing to gauge her progress. (R. at 280). L.F.'s academic performance suggested that she would do well in jobs that are social, conventional, and artistic, including: writer, stage director, counselor, case worker, speech therapist, bookkeeper, or tax expert. (R. at 280).

L.F. was still considered to have a learning disability with respect to her reading. (R. at 281). However, her achievement in her Language Arts class was well above that of her peers.

(R. at 284). Her achievement in Algebra was also well above that of her peers. (R. at 284).

L.F.'s achievement in Social Studies and Science was only slightly below that of her peers. (R. at 284). L.F. was capable of maintaining focus, and was willing to seek help when needed. (R. at 284). It was concluded that L.F.'s disability was not due to any visual, hearing, or ...

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