Opinion
Civil Action 00-0724-CB-M
March 19, 2001.
REPORT AND RECOMMENDATION
In this action under 42 U.S.C. § 1383 (c)(3), Plaintiff seeks judicial review of an adverse social security ruling which denied a claim for Supplemental Security Income for Children (SSI) The action was referred for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Oral argument was heard on March 19, 2001. Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is recommended that the decision of the Commissioner be affirmed, that this action be dismissed, and that judgment be entered in favor of Defendant William A. Halter and against Plaintiff Sara Daw on behalf of Candida Daw.
Even though this action is being prosecuted by Candida's mother on her behalf, the Court will refer to Candida as the Plaintiff.
This Court is not free to reweigh the evidence or substitute its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported by evidence sufficient to justify a reasoning mind in accepting it; it is more than a scintilla, but less than a preponderance." Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting Jones v. Schweiker, 551 F. Supp. 205 (D. Md. 1982).
Plaintiff was born March 13, 1983. At the time of the administrative hearing, Daw was fifteen years old, had completed eight years of classes in special education (Tr. 92), and had no previous work. In claiming benefits, Plaintiff alleges disability due to mental retardation, an adjustment disorder, and depression (Doc. 8).
The Plaintiff filed a protective application for SSI for children on October 20, 1993 (Tr. 114-16). Benefits were denied following a hearing by an Administrative Law Judge (ALJ) who determined that although Daw had marked limitation in her cognitive functioning, she neither met nor equaled the requirements for any disability listing (Tr. 22-37). Plaintiff requested review of the hearing decision (Tr. 18) by the Appeals Council, but it was denied (Tr. 6-8).
Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, Daw alleges that she meets the requirements of Listing 112.05D (Doc. 8). That listing requires "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant limitation of function." 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 112.05D (2000).
The Court notes that Plaintiff has not urged this Court to find her disabled under Listing 112.05C which requires "[a] valid verbal, performance, or full scale IQ of 59 or less." 20 C.F.R. Part 404, Subpart P. Appendix 1, Listing 112.05C (2000). Daw had argued for such a finding at the administrative level (see Tr. 350). The Court finds this to be a tacit admission that the IQ tests administered by Elizabeth Thames on October 2, 1996 (Tr. 316-18) and Robert DeFrancisco on November 5, 1997 (Tr. 321-23) reflected Daw's failure to put forth her best effort.
The Court will first address the evidence regarding Plaintiff's IQ. It is noted that Daw underwent a WISC exam on which she scored a verbal IQ of 79, a performance IQ of 60, and a full scale IQ of 64 (Tr. 178-82). The ALJ noted these scores and concluded that Plaintiff was "markedly impaired in the domain of cognitive functioning" (Tr. 276, 28). It is apparent to the Court, though not stated by the ALJ, that Plaintiff meets the first requirement of § 112.05D.
The Court rejects Defendant's argument that these scores were given lesser weight by the ALJ than other medical evidence of record when it was this very evidence that led to the ALJ's conclusion that Daw had marked limitation in cognitive functioning (Doc. 9, pp. 7-11). Even though the ALJ relied on other medical evidence in his second opinion, he specifically incorporated by reference the findings from his first opinion (Tr. 28). The ALJ also stated that "claimant has a borderline IQ based on the testimony of Dr. Davis and prior IQ scores at school" (Tr. 31). John Davis, the medical expert at the hearing, estimated that Plaintiff was functioning at an IQ level of 70 (Tr. 108).Dr. Davis's guess satisfies the first requirement of Listing 112.05D.
Daw must next prove that she has "a physical or other mental impairment imposing additional and significant limitation of function." Listing 112.05D. Plaintiff's brief points to the evidence from Southwest Alabama Mental Health which indicates a diagnosis of an adjustment disorder (Doc. 8, pp. 8-9; Tr. 357); the ALJ, however, specifically noted that "maladaptive behavior is not an impairment under the amended statute" (Tr. 30), a conclusion unrefuted by Daw. Plaintiff also points to a notation dated August 20, 1998 of "major depression since 1995" which could have been penned by Dr. Dan Becker, a psychiatrist (Doc. 8, p. 9; Tr. 354). The Court notes, however, that Becker's scribble appears nowhere else in the evidence coming from Southwest Alabama Mental Health, evidence which covers the dates of June 26, 1998 through August 28, 1998 (Tr. 352-64); even if the notation is Becker's, there is no evidence to support his diagnosis or the year to which it dates. The Court further notes that there is no other evidence of record to support a finding of "a physical or other mental impairment imposing additional and significant limitation of function." Plaintiff's claim that she has satisfied the requirements of Listing 112.05D is without merit. The Court finds that the ALJ's decision is supported by substantial evidence.
In this action, Daw has raised one claim. That claim is without merit. Upon consideration of the entire record, the Magistrate Judge finds "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401. Therefore, it is recommended that the Secretary's decision be affirmed, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), that this action be dismissed, and that judgment be entered in favor of Defendant William A. Halter and against Plaintiff Sarah Daw on behalf of Candida Daw.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection. Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636 (b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA UR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636 (b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.