Opinion
Civil Action No. 01-1349 (GK)
August 16, 2002
MEMORANDUM OPINION
Plaintiff, Alesia V. Rice, brings this action seeking judicial review of the final decision of the Social Security Commissioner, Larry G. Massanari, denying her application for Supplemental Security Income benefits. Plaintiff moves this Court for Judgment of Reversal or an Order pursuant to 42 U.S.C. § 405(g) remanding the case for a new administrative hearing. Defendant moves for a Judgment of Affirmance. Upon consideration of the motions, oppositions, replies, and the entire record herein, Defendant's Motion for Affirmance is denied and Plaintiff's motion is granted.
I. BACKGROUND
Plaintiff brings this action to challenge the Administrative Law Judge's ("ALJ") decision of November 9, 1999, denying her application for Supplemental Security Income ("SSI") benefits. Plaintiff, Alesia V. Rice, is an eleven year-old child who suffers from below average intellectual functioning and has been placed in a Special Education program at the District of Columbia public school she attends. See Administrative Record ("Tr.") 204. Plaintiff does not work according to her grade-level; school progress reports indicate that she is unable to master simple tasks that children her age normally achieve, such as writing letters and numbers without reversing them, recognizing basic sight words, and constructing complete sentences with few errors. Tr. 291.Plaintiff had previously received SSI benefits starting in 1990 for mental retardation, obstructive hydronephrosis, and other chronic kidney problems. In 1996, the Social Security Act was amended, resulting in a new definition of childhood disability. See Public Law 104-193. Consequently, Plaintiff's benefits were discontinued in August 1997. Plaintiff challenged the discontinuance for mental retardation that same month and again in October 1997. After being denied benefits by a disability hearing officer in February 1999, Plaintiff requested a hearing before an ALJ.
Obstructive hydronephrosis, a condition consisting of recurring kidney problems, is not a disputed issue in this case, as both parties agree that the situation has been corrected.
The ALJ, in a decision dated November 9, 1999, denied Plaintiff SSI benefits. The ALJ stated that "she does not have an impairment or combination of impairments that meets or medically equals an impairment listed in 20 C.F.R. § 404, Subpart 0, Appendix 1 (Part B)." Tr. 16. Specifically, the ALJ concluded that Plaintiff did not have a "marked impairment" in cognitive or attention functioning, and that she was able to perform tasks appropriate for her age. The ALJ's opinion was affirmed by the Appeals Council on June 6, 2001. Plaintiff filed this action seeking reversal of the Appeals Council affirmation on June 18, 2001.
A marked impairment "is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean." 20 C.F.R. § 416.926a(e)(2)(i).
Cognitive functioning refers to the ability to learn and use information. Attention functioning refers to the ability to maintain concentration.
II. STANDARD OF REVIEW
The Court will review the Commissioner's decision pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), allowing for a complete review of the administrative record in order to determine if substantial evidence exists. The Court is obliged to affirm the Commissioner's decision only "if it is supported by substantial evidence and is not tainted by an error of law." Brown v. Bowen, 794 F.2d 703, 705 (D.C. Cir. 1986); Davis v. Shalala, 862 F. Supp. 1, 4(D.D.C.). The definition of substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Davis v. Heckler, 566 F. Supp. 1193, 1195 (D.D.C. 1983) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Although the Court is unable to review the case de novo or reweigh the evidence before it, Davis v. Heckler, 566 F. Supp. 1193, 1195 (D.D.C. 1983), the Court is required to view the evidence in the light most favorable to the claimant. Champion v. Califano, 440 F. Supp. 1014, 1018 (D.D.C. 1977).
III. ANALYSIS
Plaintiff challenges the ALJ's disability determination as error, alleging that it is not supported by substantial evidence. By way of background, an ALJ's determination of disability benefits proceeds according to the following three steps. 20 C.F.R. § 416.924. The first is to evaluate if the claimant is engaged in "substantial gainful activity". The second step is to assess if the alleged impairments are considered severe, either separately or in combination. 20 C.F.R. § 416.924c. The third step requires the ALJ to determine whether the alleged impairments meet or medically equal the criteria for a disability listing, see 20 C.F.R. § 416.924d, or if the child's limitations are the functional equivalent of any listed impairments pursuant to 20 C.F.R. § 416.926a.
In this case the dispute concerns the ALJ's analysis of the third step, whether Alesia's impairments meet the criteria of a mental disability listing as set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part B or her condition is the functional equivalent of such. As explained below, the Court finds that the ALJ erred because he failed to provide a rationale for his decision that Plaintiff did not meet a listing, ignored critical probative evidence, and relied upon incorrect listing criteria.
The impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix I, Part B consist of child disabilities. The impairments that this case focuses on are the mental disorders located in listing 112.02 and 112.05. Each listing features a brief discussion of the disorder followed by guiding criteria for diagnosis and determination.
A. The ALJ Failed to Provide a Rationale for Why Plaintiff's Impairments Did Not Meet a Listing.
An ALJ must supply a rationale for his or her decision. See Administrative Procedure Act, 5 U.S.C. § 557(c); 20 C.F.R. § 404.953. Specifically an ALJ's decision:
shall contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based.42 U.S.C. § 405(b)(1).
In this case, Plaintiff alleges that her impairments meet the criteria for two specific childhood disability listings, namely mental retardation ( 20 C.F.R. Part 404, Subpart P, Appendix 1, Part B, Listing 112.05) and organic mental disorders ( 20 C.F.R. Part 404, Subpart P, Appendix 1, Part B, Listing 112.02). These listings have detailed criteria that must be evaluated in order to make any sort of determination. Such requirements include determining if there is an impairment of cognitive function with clinically timed standardized testing, assessing disturbances in concentration, and evaluating other physical/mental impairments that might impose other significant limitations. Plaintiff submitted evidence that she met these criteria. See Pl. Mem. Supp. Pl.'s Mot. J. Reversal at 14-18. Despite the numerous criteria the ALJ must consider, and despite evidence submitted by Plaintiff, he offered absolutely no explanation for his denial of disability. The entirety of the ALJ's decision with respect to whether she meets a listing provides that:
For example, Listing 112.02 contains two separate sections. The first section, which concerns the existence of an impairment, delineates ten different symptoms of an organic mental disorder. The second section, which concerns the severity of the impairment, contains four separate categories. See 20 C.F.R. Part 404, Subpart P, Appendix 1, Part B, Listing 112.02.
She does not, however, have an impairment or combination of impairments that meets or medically equals an impairment listed in 20 C.F.R. § 404, Subpart 0, Appendix 1 (Part B). Listed impairments related to mental impairment[s] at Listings 112.02 through 112.12, as well as the adult Listings 12.02 through 12.08, have been considered ( 20 C.F.R. § 416.924(d)).
The evidence shows that the claimant does not have a listed impairment (or combination of impairments which medically meets (sic) equals the severity of a listed impairment.
Tr. 16. These conclusory statements makes it impossible for the Court to exercise its duty of review. SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (stating that "courts cannot exercise its duty of review unless they are advised of the considerations underlying the action under review"); Martin v. Apfel, 118 F. Supp.2d 9, 13 (D.D.C. 2000) (stating that the requirement for explanation facilitates reviewing courts' proper application of their limited scope of review and a reviewing court should not be left to guess as to how the ALJ evaluated evidence); Davis v Shalala, 862 F. Supp. 1 (D.D.C. 1994); Taylor v. Heckler, 595 F. Supp. 489, 492 (D.D.C. 1984) (indicating a need for the ALJ to discuss evidence rejected along with evidence accepted); see also Davis v. Heckler, 566 F. Supp. 1193, 1195 (D.D.C. 1994)
Without any indication of how the ALJ treated evidence submitted by Plaintiff "the reviewing court cannot tell if significant probative evidence was not credited or simply ignored." Taylor v. Heckler, 595 F. Supp. 489, 492 (D.D.C. 1984) (citing Cotter v. Harris, 642 F.2d 700, 705 (C.A. Pa. 1981)). Accordingly, the Court concludes the ALJ erred by failing to provide any rationale whatsoever for his determination that Plaintiff did not meet a disability listing.
B. The AL Erred by Ignoring Probative Evidence and Relying on Incorrect Criteria to Make His Determination with Respect to Functional Equivalency.
After an ALJ determines that an individual has not met a listed impairment, s/he still must consider whether the applicant meets the "functional equivalent" of that listing or any other listing. This involves examining limitations a child faces resulting from his/her impairments, and evaluating those limitations to see if they are essentially equal to the severity of the listings.
Plaintiff argues that her impairments were the functional equivalent of Listings 112.02 and 112.05. Functional equivalency in this case is assessed pursuant to 20 C.F.R. § 416.926a. That section requires the ALJ to check if Plaintiff has marked limitations in two, or an extreme limitation in one, of six possible categories (referred to as "domains") that represent a child's day-to-day functioning. Regulations set forth guideline criteria that must be considered when assessing functional equivalency within each domain. 20 C.F.R. § 416.926a(f)1-3. Furthermore, the ALJ must take into account all relevant information such as medical evidence, descriptions by parents and teachers and standardized testing. See 20 C.F.R. § 416.926a(e)(i).
The six domains are "acquiring and using information," "attending the and completing tasks," "interacting and relating with others," "moving about and manipulating objects," "caring for yourself," and "health and physical well-being." 20 C.F.R. § 416.926a(b)(1) i-iv.
The ALJ's decision found that Plaintiff's limitations were not functionally equivalent in any of the six domains. The two domains that are disputed in this case are the "acquiring and using information" and "attending and completing tasks" domains. The Court finds that there are two main errors in the ALJ's determination denying Plaintiff's functional equivalency claim.
This is referred to as the cognitive/communicative functional domain in the ALJ's decision. Tr. 18.
This is referred to as the concentration, persistence and pace domain in the ALJ's decision. Tr. 19.
The "acquiring and using information" domain refers to activities that show academic growth, such as making change and communicating with increasingly complex language. The "attending and completing tasks" domain refers to the ability to maintain an. attention span, such as staying on task and completing projects.
1. The ALJ Ignored Probative Evidence When Assessing the Acquiring and Using Information Domain.
First, the ALJ ignored key probative evidence when assessing Plaintiff's abilities within the "acquiring and using information domain". In finding that Alesia's impairments were not marked, the ALJ considered only three out of the 58 exhibits in the administrative record, many of which bear directly on her ability to acquire and use information. Tr. 18. For example, the ALJ ignored two assessments of Alesia's language and cognitive capabilities by Georgetown University Medical Center. See Ex. 22, 28. Both of these professional reports emphasize in great detail the difficulties she faces in these areas.
The ALJ also completely ignored school reports in the record that show Alesia having school year goals that are far below what a child her age could normally accomplish. See Ex. 12, 32, 48. Questionnaires completed by Plaintiff's mother detailing her child's impaired abilities were also omitted from the ALJ's discussion. See Ex. 11, 27. Significantly, WIAT test results that indicated scores low enough to necessitate special education are missing from the ALJ's discussion. See Ex. 25.
The Wechsler Individual Achievement Test (WIAT) is a standardized test administered by the school district in order to assess a child's current level of functioning in specific academic areas (reading, mathematics, and language).
In total, nine critical exhibits attesting to serious cognitive and communicative impairments were completely ignored by the ALJ.
The ALJ also discounted key evidence regarding Plaintiff's IQ scores. Standardized test scores play an important role in revealing a marked limitation. 20 C.F.R. § 416.926a(e)(2)(i). A psychiatrist's report stated that Alesia had an IQ score of 70. See Ex. 30. Relying on a single sentence in that psychiatrist's report that there is a possibility that the IQ score underestimates her true ability, the ALJ dismissed this evidence altogether. Upon review of the entire report, it is clear that the psychiatrist found that Alesia had below average functioning and her IQ score of 70 is consistent with this assessment of her abilities.
A child with a score of 100 is considered average. Plaintiff's score of 70 places her not only below average but substantially so-thirty points below an average child. Since a standardized test score considers functioning levels at fifteen point intervals (referred to as standard deviations) a thirty point gap from 100 indicates two standard deviations below an average score. This meets the definition of a marked impairment in functioning. 20 C.F.R. § 416.926a(e)(2)(iii).
2. The ALJ Erred in Assessing the Attending and Completing Tasks Domain Because He Used Incorrect Criteria.
The ALJ also erred in determining that Plaintiff lacked a marked impairment in the second domain at issue in this case, namely the "attending and completing tasks" domain. In determining that Plaintiff did not have a marked impairment the ALJ relied solely on the fact that Plaintiff had not been diagnosed with Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder ("ADD/ADHD") and had not been prescribed medication. Tr. 19-20. Neither the presence of ADD/ADHD or medication is a requirement of the listings at issue. See 20 C.F.R. Part 404, Subpart P, Appendix 1, Part B, Listing 112.02 and 112.05. In fact, the presence of ADD/ADHD pertains to a separate listing altogether and one that is not in dispute in this case.
Listing 112.11 is Attention Deficit Hyperactivity Disorder ("ADHD").
Plaintiff is required to show that she is unable to satisfy guideline criteria set forth in 20 C.F.R. § 416.926a (h)(1)(iv) These guidelines outline tasks that a child of Plaintiff's age should be able to do: focus attention in order to follow directions, remember and organize school materials, complete classroom and homework assignments, participate in group sports, read by herself, and stay on task. 20 C.F.R. § 416.926a(h)(1)(iv). The ALJ failed to undertake any analysis of whether Plaintiff could complete these tasks. In fact, there is considerable evidence in the record that shows Plaintiff is unable to master these tasks, such as school reports (Exhibit 12 and 48), observations made by both doctors (Exhibit 28 and 30) and the Disability Hearing Officer (Exhibit 53), all of which attest to attention/concentration difficulties of Plaintiff. The ALJ's failure to examine this evidence, and instead to rely on the absence of ADD/ADHD and medication, constitutes clear error.
IV. CONCLUSION
After careful consideration of the parties' Motions, the administrative record, and all applicable law, the Court finds that the Government's Motion for Affirmance must be denied. The Secretary's decision is remanded because the ALJ failed to consider significant and probative contrary evidence in the administrative record and used the wrong criteria to assess functional equivalency. The ALJ should determine whether Plaintiff's impairments meet a listing, with reference to the listing criteria, and fully explain his rationale for such determination. If Plaintiff's impairments do not meet a listing, the ALJ should proceed with an assessment of functional equivalency using correct criteria and all of the germane evidence in the administrative record.