Opinion
Civil Action No. 00-0042-BH-L.
December 14, 2000
REPORT AND RECOMMENDATION
The Plaintiff brings this action under 42 U.S.C. § 405(g) and § 1383(c)(3) seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits, and a period of disability.
This action was referred to the undersigned for report and recommendation pursuant to 29 U.S.C. § 636(b)(1)(B). Oral argument was held on November 20, 2000. Upon consideration of the administrative record, the memoranda of the parties, and the oral argument, it is recommended that the decision of the Commissioner be affirmed.
I. ISSUES ON APPEAL
The plaintiff presents one issue on appeal:
1. WHETHER THE ALJ ERRED IN FINDING THAT PLAINTIFF'S IMPAIRMENTS DO NOT MEET OR MEDICALLY EQUAL THE REQUIREMENTS OF LISTING 112.05(D) OR 112.05(E).
II. BACKGROUND FACTS
The plaintiff was born on August 17, 1983, and was twelve years old when her mother, Mavis Cash, filed the present application for child supplemental security income on April 4, 1996. (Tr. 111.) The application alleged a disability onset of November 1, 1994, due to ear infections and learning disabilities associated with "Fragile X syndrome". (Tr. 110-112, 158, 163.) The application was denied initially and upon reconsideration. (Tr. 126-136.) Plaintiff timely requested a hearing before an ALJ, and a hearing was held on June 4, 1997, at which plaintiffs mother and Peter S. Bertucci, M.D., testified. (Tr. 137-38, 53.) The ALJ issued a decision denying benefits on December 17, 1997. (Tr. 25.) Plaintiff requested review by the Appeals Council on January 14, 1998. (Tr. 22-24.) The Appeals Council denied review on November 23, 1999, and plaintiff filed the present action on January 14, 2000. (Tr. 7-8, Doc. 1.)
Plaintiffs mother filed a previous application for supplemental security income on plaintiffs behalf on April 27, 1995, which was denied initially and upon reconsideration. (Tr. 85-101.) Plaintiff did not request a hearing before an ALJ.
III. ALJ FINDINGS
The ALJ found as follows (Tr. 37-38):
1. The claimant, who is currently 14 years of age, has not engaged in substantia gainful activity at any time since the date of the alleged onset of disability.
2. The claimant has the following medically determinable severe impairments: low to borderline intellectual functioning. This impairments causes more than a minimal impact on claimant's functioning.
3. The claimant had a history of left ear infections, which is a medically determinable impairment; however, as of her application date for benefits, the claimant's earaches did not have more than a minimal impact on the claimant's functioning, and are therefore not severe.
4. Despite her severe impairment, the undersigned concludes that it does not result in marked and severe functional limitations that would be expected to last twelve months or result in death.
5. The claimant does not have any impairment or combination of impairments which meet or medically equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
6. The claimant's impairment is not functionally equal in severity to any listed impairment.
7. The claimant's mother's allegations of disabling impairments are not fully credible.
8. The claimant has not been under a disability, as defined in the Social Security act, at any time through the date of this decision.
IV. DISCUSSION
A. Standard of Review .
In reviewing claims brought under the Act, this court's role is a limited one. This Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner of Social Security. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1986). Instead, this Court must determine whether the Commissioner's decision to deny Plaintiffs benefits is supported by substantial evidence and correct application of legal principles.
Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Commissioner's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Commissioner. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Also, as set forth in 42 U.S.C. § 405(g). "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive."
Moreover, "[t]he Secretary's failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law for Children
The Personal Responsibility and Work Opportunity Act of 1996 (Welfare Reform Act), which became effective on August 22, 1996, amended the provisions of the Social Security Act which dealt with childhood disability. See, Pub.L. No. 104-193, 110 Stat. 2105 § 211(b)(2)(1996). Although this case was filed prior to the effective date the new provisions apply in this case. "The new statute applies to all child disability applicants who file claims on or after August 22, 1996 and applicants whose claims have not been finally adjudicated by August 22, 1996. A case that is pending upon judicial review is not considered to be finally adjudicated." Wilson v. Callahan, 1997 WL 714863, *2 (W.D.N.Y. 1997).
The Welfare Reform Act defines childhood disability as follows:
An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 1382c(a)(3)(C)(i) (Cum.Supp. 1997).
Additionally, 20 C.F.R. § 416.924(a) (1997) sets forth the sequential evaluation process as it applies to childhood disability:
We follow a set order to determine whether you are disabled. If you are doing substantial gainful activity, we will determine that you are not disabled and not review your claim further. If you are not doing substantial gainful activity, we will consider your physical or mental impairment(s) first to see if you have an impairment or combination of impairments that is severe. If your impairment(s) is not severe, we will determine that you are not disabled and not review your claim further. If your impairment(s) is severe, we will review your claim further to see if you have an impairment(s) that meets, medically equals, or functionally equals in severity any impairment that is listed in appendix 1 of subpart P of part 404 of this chapter. If you have such an impairment(s), and it meets the duration requirement, we will find that you are disabled. If you do not have such an impairment(s), or if it does not meet the duration requirement, we will find that you are not disabled.
The current standard is more stringent than that employed prior to the effective date of the Welfare Reform Act, given Congress' decision, as stated in the House conference report, to confine the definition of childhood disability to the first three steps of the sequential evaluation process. Hart ex rel. Thomas v. Chater, 963 F. Supp. 835, 839 (W.D. Mo. 1997). The report reads in pertinent part as follows:
The conferees intend that only needy children with severe disabilities be eligible for SSI, and the Listing of Impairments and other current disability determination regulations as modified by these provisions properly reflect the severity of disability contemplated by the new statutory definition. . . . The conferees are also aware that SSA uses the term `severe' to often mean `other than minor' in an initial screening procedure for disability determination and in other places. The conferees, however, use the term `severe' in its common sense meaning.Id. (quoting 142 Cong. Rec. H8829-92, 8913 (1996 WL 428614), H.R. Conf. Rep. No. 104-725 (July 30, 1996)). "The new law tightens rather than expands the definition of `disabled' with respect to children under 18, with the result that any child considered not disabled under the old law is necessarily considered not disabled under the new law as well." Wilson v. Apfel, 179 F.3d 1276, 1277-1278 (11th Cir. 1999).
The hearing in this case was held after the effective date of the Welfare Reform Act of 1996, with a decision rendered on December 17, 1997. (Tr. 25, 56.) This case is reviewed under the Welfare Reform Act standard, with no individualized functional assessment required of the ALJ after a determination that plaintiffs impairments were not functionally equivalent to a listed impairment.
C. Evidence
1. HEARING TESTIMONY (Tr. 56-82.)
Plaintiffs mother testified at the hearing and stated the following information regarding the plaintiff. (Tr. 59-72.) The plaintiff has a history of difficulty in school which includes repeating the second grade and fighting with some of her classmates. Plaintiff has attended both public and private schools and was placed by her public school in learning disabled classes for reading and math in the fifth grade. At the time of the hearing before the ALJ, plaintiff was being home schooled through Good Shepherd School. Through Good Shepherd, plaintiff learned materials at home and was periodically tested at the school. Plaintiff does not engage in extracurricular activities. Based on plaintiffs performance, Miss Cash's mother did not know whether plaintiff would advance in school to the seventh grade. Plaintiffs mother described frequent absences from schools, a failure to take care of household chores, and a routine where plaintiff stayed in her bedroom watching television or listening to the radio. Plaintiffs mother stated that Plaintiff was diagnosed by the University of South Alabama "with Fragile X", which affects plaintiffs learning ability. (Tr. 69).
This refers to an April 12, 1995 report by the University of South Alabama department of medical genetics that plaintiff is a "carrier of the gene for Fragile X Syndrome." (Tr. 237.)
According to her mother, plaintiff "likes to fight all the time" with her siblings. However, on examination by the ALJ, plaintiffs mother clarified that none of plaintiffs seventeen, nineteen, or twenty-one year old siblings lived at home with plaintiff. According to her mother, plaintiff also has persistent problems with earaches.
When asked for a specific example, plaintiffs mother related an incident wherein plaintiff continually interrupted the mother's conversation with her brother, getting angry and "walk[ing] out of the house". (Tr. 68.)
Peter S. Bertucci, M.D., a pediatrician, reviewed plaintiffs file and testified at the hearing. Dr. Bertucci concluded that, based upon the medical evidence in the file, plaintiff did not have a medically determinable physical or mental impairment or a limitation which met or equaled any listing. (Tr. 73, 76.) Dr. Bertucci noted that although plaintiff is a carrier of the "fragile X" gene and has a "low borderline IQ range" that these impairments were not severe and would be "less than marked". (T. 75). Dr. Bertucci also stated that plaintiff could get through high school with "tutoring and help" and that she could function in a work place although only at the unskilled level. (Tr. 75-76).
2. MEDICAL EVIDENCE
The medical staff at the University of South Alabama examined plaintiff on April 12, 1995, and found her to be a carrier of the gene for Fragile X Syndrome. The notes indicate that, while female carriers of Fragile X do not usually exhibit the severe mental retardation characterized in Fragile X males, these females sometimes exhibit varying degrees of learning difficulty and mental impairment. (Tr. 237.)
On September 11, 1995, plaintiff underwent psychological testing (Tr. 215-232). The tester, Marva Ludgood, Ed.S., a psychometrist, noted plaintiff had normal vision and hearing. (Tr. 217.) The tester administered the Wechsler Intelligence Scale for Children-III (WISC-III), the Wechsler Individual Achievement Test (WIAT), the Burks' Behavior Rating Scale (BBRS), and the Developmental Test of Visual-Motor Integration (VMI) (Tr. 216). The results indicate plaintiff and a verbal IQ of 74, a performance IQ of 94, and a full scale IQ of 82 (Tr. 217-218). The WIAT showed plaintiff as reading at the second to third grade level, with math skills at the fourth grade level. Her visual-motor integration measured in the 39th percentile (Tr. 219), and the Burks' Behavior Rating Scale, which indentifies problematic outward behavior, showed no significant problems. (Tr. 219-220).
On September 5, 1995, plaintiff underwent a psychological evaluation by Ken Lambert, Ph.D., a clinical psychologist (Tr. 238-240). Plaintiff obtained the following scores upon administration of the WISC-III: a verbal IQ of 73 (borderline range), a performance IQ of 101 (average range), and a full scale IQ of 85 (low average range) (Tr. 239). After testing and interviewing plaintiff, Dr. Lambert opined she did not meet the criteria for any psychiatric diagnosis. He also opined plaintiff was not necessary learning disabled, but was, rather, a slow learner. He noted no deficits in plaintiffs speech, hearing, vision, or psychomotor functions. (Tr. 240.) Dr. Lambert noted that according to the history related by the plaintiff and her mother that plaintiff "gets along as well as most children her age with peers and siblings. (Tr. 238). Dr. Lambert summarized that plaintiff "does not appear to have any significant disabilities". (Tr. 240).
Treatment records from Susan J. Ashbee, M.D., a pediatrician, indicate she had been treating plaintiff since birth (Tr. 241-313, 333-339). Plaintiff sought treatment for a urinary tract infection, abdominal pain, and earaches. Dr. Ashbee diagnosed a probable eustachian tube dysfunction in the left ear on September 21, 1995 (Tr. 263-264, 266). In a letter dated October 25, 1995, Dr. Ashbee advised plaintiffs elementary school principal that plaintiff had a family history of Fragile X syndrome. Dr. Ashbee said she believed plaintiff had Fragile X syndrome and noted the range of mental impairment in females with this condition ranged from minor to profound learning disabilities. Dr. Ashbee "anticipated" that plaintiff would not do very well in school and, although her test scores did not require her to be placed in special education classes, she should be considered for such classes (Tr. 259). In another letter to the principal of plaintiffs elementary school, dated April 29, 1996, Dr. Ashbee noted plaintiff had Fragile X syndrome and she was developing a school phobia. Dr. Ashbee strongly suggested, among other things, a full psychiatric evaluation of plaintiff (Tr. 338-339).
In a psychiatric consultative examination report conducted on June 30, 1997, Charles E. Smith, II, M.D., noted plaintiff made slow progress in school, quite possibly due to a school phobia unwittingly fostered by her family (Tr. 373). Upon examination, Dr. Smith found plaintiff to be fairly neatly dressed with no abnormal movements (Tr. 374). She "related quite pleasantly" and was "well-spoken." Id. Dr. Smith saw no evidence of a thought disorder or depression. Plaintiff could read fairly well, had a good capacity for spelling, and for simple calculations. Plaintiff also performed well on the cognitive exam, i.e. "she appeared well able to understand and remember and carry out instructions" and "recalled all six items of a full name and address after five minutes and again after 10 minutes". (Tr. 374-375). Dr. Smith thought plaintiff might suffer from a learning disability and stated that her family might have had difficulty providing her with the direction and supervision she needed. He also noted that plaintiff might be a "pawn" in the disability process (Tr. 374). He also felt plaintiff was vulnerable since she showed some "avoidant" behavior and was "suggestible". (Tr. 375.) However, Dr. Smith made no diagnosis other than "fragile X syndrome, by history". (Tr. 374).
In a letter to plaintiffs attorney dated August 4, 1997, Dr. Ashbee indicated she had treated plaintiff since birth and the Fragile X syndrome ran quite heavily in her family (Tr. 395). Dr. Ashbee acknowledged that, since females have two X chromosomes, they are less severely affected than males. Dr. Ashbee agreed with Dr. Smith's statement that plaintiffs "school phobia may be unwittingly fostered by family," and opined plaintiffs poor school performance might be due to mental retardation as well as environmental factors (Tr. 395). She indicated plaintiffs presenting complaints were "way out of proportion" to any physical findings (Tr. 395), and opined that plaintiff and her family showed avoidant behavior. Dr. Ashbee further stated that plaintiff would always need special assistance in school in order to succeed. (Tr. 395.)
D. Plaintiff's Argument
The plaintiff argues that the ALJ erred when he concluded that plaintiffs impairments were not functionally equivalent to any listed impairment. This appeal, therefore, focuses on the third step in the sequential evaluation process for children.
Functional equivalence for children is defined at 20 C.F.R. § 416.926a. The regulation states in part:
(b) How we determine functional equivalence. We will compare any functional limitations resulting from your impairment(s) with the disabling functional limitations of any listed impairment in part A or part B of the Listing that includes the same functional limitations. The listing we use for comparison need not be medically related to your impairment(s). In paragraphs (b)(1) though (b)(4) of this section, we explain the methods we may use to decide that your impairment(s) is functionally equivalent in severity to a listing. (c) . . . If you have marked limitations in two areas of development of functioning, or extreme limitations in one area, we will find that your impairment(s) is functionally equivalent in severity to listing 112.12 or listing 112.02, even if your impairment(s) is a physical impairment(s) or a combination of physical and mental impairments.
Plaintiff argues that she suffers marked limitation in two of the listed areas: cognition/communication, and concentration, persistence, or pace. Those areas of functioning are defined as follows:
(b)(4)(i) Cognition/communication: The ability or inability to learn, understand, and solve problems through intuition, perception, verbal and nonverbal reasoning, and the application of acquired knowledge; the ability to retain and recall information, images, events, and procedures during the process of thinking. The ability or inability to comprehend and produce language (e.g., vocabulary and grammar) in order to communicate (e.g., to respond, as in answering questions, following directions, acknowledging the comments of others; to request, as in demanding action, meeting needs, seeking information, requesting clarification, initiating interaction; to comment, as in sharing information, expressing feelings and ideas, providing explanations, describing events, maintaining interaction, using hearing that is adequate for conversation, and using speech (articulation, voice, and fluency) that is intelligible . . . .
(vi) Concentration, persistence, or pace: The ability or inability to attend to, and sustain concentration on, an activity or task, such as playing, reading, or practicing a sport, and the ability to perform the activity or complete the task at a reasonable pace.20 C.F.R. § 416.926a(b).
The plaintiff cites several portions of the record to support the argument that the ALJ erred in not finding marked limitations in two above-cited categories of functional equivalence. Primarily, plaintiff cites Dr. Ashbee's conclusions on functional equivalence listed on a form in the record at 396-398. On the form, Dr. Ashbee checked "Marked" under "cognitive/ communicative function" and "Marked" under "concentration, persistence, or pace function". (Tr. 396, 397.) At oral argument, plaintiffs counsel stated that he had created the form which he submitted to Dr. Ashbee soliciting her opinion on functional limitation. The form which plaintiffs counsel prepared differs from other evaluation forms in the record. Although both the standard form and plaintiffs counsel's form ask for evaluation in the same categories, the standard form provides five categories for the degree of functional limitation:
In addition, plaintiff argues that Dr. Ashbee's letters to plaintiffs counsel and to plaintiffs school principal are "medical evidence." (Doc. 10, at 6.) These letters state, in lay terms, Dr. Ashbee's opinion as to the basis of plaintiffs poor school performance. For example, in two letters to the principal, Dr. Ashbee noted the history of fragile X in plaintiffs family and urged remedial action such as psychological consults or plaintiffs placement in all remedial classes. (Tr. 259, 338.) The undersigned concludes that, because the letters merely restate to a third party information already contained in the record, the letters do not warrant separate analysis as "medical evidence". The ALJ acknowledged the diagnostic letter from the department of medical genetics at the University of South Alabama Medical School in his opinion (Tr. 237), noting Assistant Professor Martinez's statement that "while females carriers of Fragile X do not usually exhibit the severe mental retardation characterized in Fragile X males, these females sometimes exhibit varying degrees of learning difficulty and mental impairment." (Tr. 30.)
DDS consulting physician Francis W. Sullivan, M.D., and psychologist Donald E. Hinton, Ph.D., evaluated the criteria for functional equivalence in plaintiffs case before the initial denial of benefits and determined that the plaintiff had no marked or extreme limitations in any area. (Tr. 115-118, 128-131.)
The standard form lists "cognitive development" and "communicative development" as separate criteria for evaluation, while plaintiffs counsel's form groups them together. (Tr. 115, 395.)
i. No evidence of limitation ii. Less than moderate iii. Moderate iv. Marked v. Extreme.
(Tr. 115.) The standard form also provides a space under each criterion for narrative answers. In contrast, the form which plaintiffs counsel created contained only three categories: "Marked," "Extreme", and "Other". Tr. 396. Plaintiffs counsel has omitted "no evidence of limitation," "less than moderate", and "moderate", from the range of possible choices provided on standard forms for functional limitation.
The ALJ addressed Dr. Ashbee's conclusion's on functional limitation in his opinion, stating,
At the request of claimant's counsel, the claimant's treating physician, Dr. Ashbee, also completed a different questionnaire, assessing the severity of the claimant's limitations in five areas of functioning. Dr. Ashbee found that the claimant had a marked limitation in cognitive/communicative function and a marked limitation in concentration, persistence of pace. (Exhibit 43.) The undersigned does not assign much weight to Dr. Ashbee's ratings. The undersigned notes that the questionnaire that Dr. Ashbee completed only offered her three choice to rate the claimant's limitations — marked, extreme, or other. Dr. Ashbee did not have the choices of "no evidence of limitation" or "less than marked." Thus, the questionnaire appears to weigh the ratings in favor of finding a "marked" limitation where, in reality, the limitation might only be less than marked. The undersigned finds that Dr. Ashbee's assessment of "marked" limitations in this area of functioning as well as in social development is not consistent with the other credible information in the record
(Tr. 35.)
As a general matter, the opinion of a treating physician must be given substantial deference or considerable weight unless "good cause" is shown to the contrary. See 20 C.F.R. § 416.927(d)(2); MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir. 1985); Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). To show good cause, an ALJ must clearly articulate the reasons for giving less weight to the opinions of a treating physician. See Id. Good cause exists where a doctor's opinion is not bolstered by the evidence, or where the evidence supports a contrary finding. See Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987); Sharfarz v. Bowen, 825 F.2d 278, 280-81 (11th Cir. 1987). Good cause also exists where the doctors' opinions are conclusory or inconsistent with their own medical records. See Jones v. Department of Health and Human Services, 941 F.2d 1529, 1532-33 (11th Cir. 1991); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991). Here, the ALJ noted that Dr. Ashbee's conclusions were check-marked on a form weighted toward a finding of marked functional limitation; he concluded that Dr. Ashbee's findings of marked limitations were "not consistent with the other credible information in the record" and "not supported by the record." (Tr. 35.)
In the area of cognitive/communicative function, the ALJ noted Dr. Bertucci's conclusion that plaintiffs had "`less than marked' degree of limitation in cognition and communicative skills (Tr. 35), and Dr. Smith's analysis of the spread between plaintiffs test scores and performance, which Dr. Smith attributed in part to environmental factors. He also cited the teachers' conclusions, based on their observations in class, that plaintiff had no limitations in cognitive and communicative function (Tr. 34).
Plaintiff characterizes it as "fundamentally unfair" that the ALJ assigned little weight to Dr. Ashbee's opinions in the non-standard form prepared by plaintiffs attorney when he mentioned the opinions of several of plaintiffs teachers, who filled out the same non-standard form. (Doc. 10, at 7.) It is worth noting, however, that Dr. Ashbee offered no rationale when she checked "marked limitations" on the plaintiffs counsel's forms. In contrast and without exception, the four teachers who used plaintiffs counsel's "marked/extreme/other" form answered each criterion by checking "other" and providing narrative answers. (Tr. 342, 345, 348, 370.)
In the area of concentration, persistence, and pace, the ALJ noted that one of plaintiffs teachers indicated that plaintiff completed testing in reasonable time (Tr. 344), while another teacher indicated that plaintiff had no problems concentrating on and completing assigned tasks. (Tr. 209.)
Upon review of the record, the undersigned finds that substantial evidence supports the ALJ's decision to assign little weight to Dr. Ashbee's conclusions as to plaintiffs functional limitations on the form created by plaintiffs counsel. See Schnorr v. Bowen, 816 F.2d at 582 (11th Cir. 1987); Sharfarz v. Bowen, 825 F.2d at 280-81 (11th Cir. 1987); Jones v. Department of Health and Human Services, 941 F.2d at 1532-33 (11th Cir. 1991); Edwards v. Sullivan, 937 F.2d at 583 (11th Cir. 1991).
The plaintiff also cites plaintiffs medical records and her treating physician's letters to the Mobile County Public Schools concerning plaintiff as evidence by which the ALJ should have concluded that plaintiff was disabled. The medical records are generally unremarkable, showing treatment for sore throats and earaches. The ALJ addressed plaintiffs history of earaches in his opinion in terms of whether plaintiff suffered a severe medical impairment:
With regard to limitation resulting from chronic illness that is characterized by attacks or exacerbation and remission, the undersigned notes that the only evidence of this type of illness is the claimant's earaches. The medical records indicate that the claimant has been treated for left earaches. However, there is insufficient evidence to establish that the claimant's left earaches are a chronic condition characterized by attacks or exacerbation and remission. (20 C.F.R. § 416.9261(b)(3)) Indeed, the claimant's mother admitted at the hearing that the claimant's earaches were no longer a problem. Accordingly, the Administrative Law Judge finds that the claimant's functioning is not limited as a result of a chronic illness that is characterized by attacks or exacerbation and remission.
(Tr. 34.) Upon review of the medical records cited, and noting the mother's statements in the hearing concerning earaches (Tr. 65), the undersigned finds that substantial evidence supports the ALJ's conclusion that plaintiff had no limitations from chronic illness. Bloodsworth, 703 F.2d at 1239.
Plaintiff also argues that the ALJ's conclusions are contradicted by plaintiffs "history of learning difficulties." Specifically, plaintiff cites a verbal IQ score of 74 on a test administered by the school board (Tr. 215-232), plaintiffs verbal IQ score of 73 on a test administered by psychologist Ken Lambert, Ph.D., as well as plaintiffs erratic attendance in school. (Tr. 317, 332, 351, 356-368, 416-428.) The ALJ noted in his opinion all of the evidence cited by plaintiff, but determined, based on Dr. Lambert's evaluation, Dr. Smith's evaluation and the plaintiffs teachers comments, that the plaintiff did not have any marked limitations.
Upon a review of the evidence as outlined supra, the undersigned finds that substantial evidence supports the ALJ's determination that the plaintiff did not meet or equal any of the listings which would result in a disability.
CONCLUSION
For the reasons set forth, and upon consideration of the administrative record, the hearing decision, and the memoranda of the parties, it is recommended that the decision of the Commissioner of Social Security be affirmed. The attached sheet contains important information regarding objections to this report and recommendation.