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holding that an ALJ may discount an IQ test result if it is not consistent with the other evidence including daily activities and behavior
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No. 99-0758-AH-L
September 13, 2000
JUDGMENT
In accordance with the order entered on this date, it is hereby ORDERED, ADJUDGED, and DECREED that the decision of the Commissioner of Social Security denying claimant benefits be affirmed.
ORDER
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated this the 28th day of August, 2000 is ADOPTED as the opinion of this Court.
REPORT AND RECOMMENDATION
Cheryl Harper brings this action on behalf of her son, Jeremy Harper, 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 son's claim for Supplemental Security Income.
This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Oral argument was held on July 12, 2000. Upon consideration of the administrative record, oral argument, and the memoranda of the parties, it is recommended that the decision of the Commissioner be affirmed.
I. Issue on Appeal .
Plaintiff asserts that the Administrative Law Judge committed reversible error in failing to find that his impairment meets the requirements of Listing 112.05D, 20 C.F.R. § 404, Subpt. P, App. 1-Listing of Impairments (hereinafter the Listing). Specifically, Plaintiff asserts that the ALJ erred in finding Plaintiff did not have mental retardation despite overwhelming evidence to support the Plaintiffs mental retardation. (Doc. 11 at page 3).
II. Background Facts .
Jeremy Harper was born February 17, 1988 (Tr. 65). He was nine years old and in the third grade in special education classes at the time of the last administrative hearing (Tr. 89). He has no past relevant work. Cheryl Harper filed an application for Supplemental Security Income benefits on behalf of her son on February 10, 1992 (Tr. 96-100). His application alleged an onset of disability due to asthma on February 17, 1989 (Tr. 97-100, 137-142). He was denied both initially (Tr. 101-106) and on reconsideration (Tr. 109-112). The initial hearing before the Administrative Law Judge was held on October 13, 1993 and present were the Plaintiffs mother and his attorney (Tr. 61-72). The ALJ reached a decision on December 1, 1994 wherein the Plaintiff was found not disabled (Tr. 240-257).
The Appeals Council (AC) remanded the case for further proceedings based upon new evidence which suggested that the Plaintiff might meet § 112.05D of the Listings (Tr. 271-272). The AC found that "additional evidence [was] needed to accurately delineate the severity of Plaintiffs mental impairment" and to obtain a consultative evaluation in that regard (Tr. 272). A supplemental hearing was held on July 18, 1996 (Tr. 73-85) and present were the Plaintiffs mother and his attorney (Tr. 73).
However, before the ALJ entered his decision Public Law 104-193 which became effective on August 22, 1996 changed the method for evaluating disability for child plaintiffs. A second supplemental hearing was held on May 16, 1997 (Tr. 86-95). Present were the Plaintiff, his mother and his attorney (Tr. 87-88). On January 13, 1998, the ALJ rendered an unfavorable decision and the Plaintiff was again found not disabled (Tr. 13-33). The ALJ found that the Plaintiff had severe asthma controlled with medication, and severe attention deficit hyperactivity disorder (ADHD) controlled with medication, but his impairments did not meet, medically equal or functionally equal, any impairment in the Listings. Plaintiffs request for review of the hearing decision by the Appeals Council was denied on June 25, 1999 (Tr. 6-7) and the decision of the ALJ became the final decision of the Commissioner. See 20 C.F.R. § 416.1481 (1999).
III. ALJ Findings
The ALJ made the following findings pertinent to Plaintiff's claim (Tr. 30-31).
2. The claimant has severe asthma that is controlled with medications and severe attention deficit hyperactivity disorder that is controlled with medications. Although controlled with medications, these impairments cause more than a minimal impact on the claimant's functioning.
3. Despite severe impairments, the claimant does not have an impairment that meets or medically equals the criteria of any impairment listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's impairments are not functionally equal in severity to any impairment listed in Appendix I, Subpart P, Regulations No. 4.
5. The claimant's allegations of disability are not credible in light of his history of medical treatment, in light of the non-compliance with therapy noted in the record, are not credible in light of the specific and timely made notes from his treating source for his hyperactivity or from any information from sources treating him for asthma, and are not credible in light of the specific functional evaluations submitted by Dr. Mancao, one of the claimant's treating physicians, and from Dr. McCleary, the consulting psychologist.IV. Discussion A. Standard of Review
In reviewing claims brought under the Act, this Court's role is a limited one. The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991), citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th" Cir. 1983). 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 Secretary'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 Secretary. 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). Further, it has been held that the Commissioner'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
The Personal Responsibility and Work Opportunity Act of 1996 became effective on August 22, 1996. See Pub.L. No. 104-193, 110 Stat. 2105 § 211(b)(2) (1996). This legislation 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.
At step one, the claimant's age and work activity are identified. At step two, the impairment(s) are identified. At step three, the impairment(s) are compared to the childhood listings in Appendix 1, of 20 C.F.R. Pt. 404, Subpt. P. If the impairment(s) met or equaled a listing, then the child is disabled. If not, then the ALJ must find the Plaintiff not disabled.
The current standard is more stringent than that employed prior to the effective date of Pub.L. No. 104-193, 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)).
Under the current regulation a severe impairment is one that is more than "a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations." 20 C.F.R. § 416.924(c) (1997). Prior to the 1996 statutory amendment, a severe impairment was defined, as one causing "more than a minimal limitation in [the child's] ability to function independently, appropriately, and effectively in an age-appropriate manner." See 62 Fed. Reg. 6408, 6411-12 (1997).
As stated in the definition, the Plaintiff must establish that he has "a medically determinable physical or mental impairment, which results in marked and severe functional limitations." 42 U.S.C. § 1382c(a)(3)(C)(i) (Cum.Supp. 1997). "Marked and severe" has been construed by the Commissioner to mean that the "impairment or combination of impairments must meet, medically equal or functionally equal, the severity of a listed impairment." See Interim Final Rules, 62 Fed. Reg. 6408, 6410 (Feb. 11, 1997); See also 20 C.F.R. § 416.924 (1997) ("An impairment(s) causes marked and severe functional limitations if it meets or medically equals in severity the set of criteria for an impairment listed in the Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter, or if it is functionally equal in severity to a listed impairment.")
If the impairment(s) does not meet or medically equal any listing, then the Commissioner must determine whether the impairment or combination of impairments is functionally equivalent to any listed impairment. 20 C.F.R. § 416.926a(a), (b). To do so, the Commissioner follows four methods which address the following: 1) limitation of specific functions, 2) broad areas of development or functioning, 3) episodic impairments, and 4) limitations related to treatment or medication effects. 20 C.F.R. § 416.926a(b)(1)-(4). The first, third, and fourth require functional equivalence to a specific listed impairment. 20 C.F.R. § 416.926a(b)(1),(3),(4). The second method requires evaluation of the effect of the child's impairment on broad areas of development or functioning to determine whether the child's functional limitations are equivalent in severity to the disabling functional limitations of Listing § 112.02 or 112.12. 20 C.F.R. § 416.926a (b)(2). The broad areas of development or functioning considered when evaluating a child of Plaintiff's age are cognition/communication, motor, social, personal, and concentration, persistence, and pace. 20 C.F.R. § 416.926a(c)(4),(5)(iii)(A)-(E). If the child has extreme limitations in one area of functioning, or marked limitations in two areas of functioning, a finding of functional equivalence will be made. Id.
An "extreme" limitation is present when standardized tests contained in the record are used as the measure of functional abilities and contain a valid score three standard deviations or more below the norm for the test, or when a child from age three to attainment of age eighteen has no meaningful function in a given area. 20 C.F.R. § 416.926a(c)(3)(ii)(A),(C).
A "marked" limitation is present when the standardized tests contained in the record are used as the measure of functional abilities and contain a valid score two standard deviations or more (but less than three) below the norm for the test, or in a child from age three to attainment of age eighteen, when the degree of limitation "seriously" interferes with the child's ability to function. 20 C.F.R. § 416.926a(c)(3)(i)(A),(C).
Additionally, the ALJ must assess such factors as age, effects of chronic illness, effects of medication, effects of structured or highly supportive settings, adaptations, time spent in therapy, school attendance, and treatment and intervention. See 20 C.F.R. § 416.924c (1997).
C. Medical Evidence
On September 15, 1993, an IFA form and case summary for a child age 3 to attainment of age 16 was completed by Mary Y. Mancao, M.D.(Tr. 184-186). At this time the Plaintiff was five years and four months old. Dr. Mancao indicated Plaintiff had chronic asthma but noted no evidence of limitation with respect to the developmental domains. She marked his functional abilities in regard to his cognitive, communicative, motor, social, and personal/behavioral development as having no evidence of limitation (Tr. 184-185). She also found no evidence of limitation of Plaintiffs concentration, persistence or pace, although she indicated if Plaintiff had acute asthma attacks he might be unable to concentrate and keep pace in school. Dr. Mancao noted Plaintiffs asthma was chronic and that recurrent bouts of asthma may cause Plaintiff to miss school (Tr. 186).
On March 31, 1994, Plaintiff was first examined by doctors at the Department of Psychiatry of the University of South Alabama (Tr. 280-286). His diagnosis after the initial consultation was ADHD) and asthma and he was started on a trial of Ritalin. A return appointment was set for March 28, 1994. However, Plaintiff did not return until April 7, 1994. Ritalin at 5 mg twice a day with a 60 day supply was prescribed. There are no further treatment notes until October 12-13, 1994. On November 2, 1994, the examiner noted that the educational testing results had shown a Full Scale IQ of 65 and the examiner's assessment was ADHD, borderline intellectual functioning and asthma. His Ritalin was increased to 10 mg in the morning and 5 mg noon. (Tr. 282). At his visit for December 1994, his Ritalin was increased to 15 mg in the morning and 5 mg at noon and the same prescription was continued in February (Tr. 280-281). On April 26, 1995, Plaintiffs Ritalin was increased to 20 mg in the morning and 10 mg at noon (Tr. 348). From this point until the last entry, the Plaintiffs Ritalin continued; however, there are frequent notations of non-compliance with appointments and lapse of prescriptions (Tr. 342-349).
The Plaintiff was given the Wechsler Intelligence Scale for Children-III (WISC-III) by Kim Al-Greene, M.Ed., psychometrist for his county school board, on July 27, 1994 when he was six years and two months old (Tr. 273-277). He was given the Wechsler Intelligence Scale for Children-Revised (WISC-R) by Patricia U. McCleary, Ph.D. on April 13, 1996 when he was seven years and eleven months old (Tr. 316). His results were as follows:
Date Verbal Performance Full Scale July 27, 1994 69 68 65 April 13, 1996 82 70 74
Al-Greene noted that the Plaintiffs score was in the average range in basic reading and borderline range in mathematics (Tr. 276). The psychometrist also noted that the "results [were] a reliable and valid estimate of [Plaintiffs] current level of intellectual functioning at the time of testing." (Tr. 274). Al-Greene also administered the Wechsler Individual Achievement Test (WIAT) which assesses a child's individual achievement in specific areas and assigns a Standard Score which is an IQ equivalent and "may be directly compared to the individual's Full Scale IQ" score under the WISC-III and also a Grade Equivalent (Tr. 276). His scores were as follows:
Subtest Standard Score Grade Equivalent Basic Reading 93 K:4 Mathematics Reasoning 78 K:0 Spelling 78 K:0 Numerical Operations 81 K:0 Listening Comprehension 79 K:0 Mathematics Composite 76 K:0
(Tr. 276).
On examination, Dr. McCleary noted that the Plaintiff was attentive, alert and cooperative and his motivation was adequate. She considered the evaluation to be a "valid and reliable estimate of his current level of functioning" (Tr. 317). In regard to his test results, she noted as follows:
Administration of the [WISC-R] resulted in a Verbal IQ of 82, a Performance IQ of 70, and a Full Scale IQ of 74, which places his level of intellectual functioning in the average range. The twelve point difference between his verbal and performance scores is significant. . . . Significant verbal and performance strengths and weaknesses are shown. He has a significant verbal strength in the ability to think abstractly and in his word knowledge, while a significant verbal weakness was indicated in his fund of information learned through educational and cultural experiences. A significant performance strength was indicated in his ability to distinguish essential from non-essential details and in his ability to perceptually organize the whole from its component parts.
(Tr. 317-318). She noted her impression of "Learning Disorder NOS" and "[ADHD] under fair control" on medication (Tr. 318). She found he had the functional ability to "perform both simple and complex motor tasks, the ability to ambulate, and the ability to follow simple and complex directions" (Tr. 318). She found that his cognitive functioning was in the borderline range but that he had significant strengths and weaknesses such that his functioning was not equal in all functional domains (Tr. 318).
She noted that he rode a bicycle and played football, though his physical activity was restricted due to his asthma. He helped at home by picking up paper in the yard, making his bed, cleaning the bathroom and washing off the table. She noted a history of mental slowness, but found that with control of his ADHD and an appropriate educational experience, he should improve over time (Tr. 316-318).
The Plaintiff did improve his intelligence test scores from 1994. His Verbal IQ improved 13 points, his Performance IQ improved 2 points and his Full Scale IQ improved 9 points.
Dr. McCleary completed an evaluation of Plaintiff's domains of functioning and described no impairment of his communicative functioning, a less than moderate impairment of his cognitive functioning, and motor functioning and commented that asthma restricted Plaintiffs ability to participate in football, but not otherwise (Tr. 320). Dr. McCleary noted a less than moderate impairment of his social functioning through reports from his teacher, and a less than moderate impairment of personal/behavioral functioning again through reports of his teacher (Tr. 321). She saw a less than moderate impairment of his concentration, persistence, and pace, and stated Plaintiff had mild attentional and concentrational deficits indicated on the IQ testing (Tr. 316-322).
The record includes additional reports from the local school system which confirm Plaintiff continues in a special educational program requiring individual or small group instructions for all subjects. His school records show Plaintiff has been suspended for fighting and not following rules, and he had his bus privileges suspended because of behavioral problems.
Plaintiffs Individualized Education Plan (IEP) dated May 28, 1996 stated as follows:
Based upon all current records Jeremy is functioning below grade level. His needs can be best met in the MR classroom so that he can receive one-on-one and for small group instructions on his functional level. He will be mainstreamed into a regular classroom as appropriate.
(Tr. 367). The IEP committee meeting minutes of that same date noted "Mainstreaming" under the section labeled "Prior Options Attempted" and under the section labeled "Concerns" the committee noted "Behavior." Also, under the section labeled "Recommendations," the committee noted "Possible EC [emotionally conflicted] placement." (Tr. 376). The documents indicate that he should attend special education classes for at least 21 hours per week (Tr. 367) and regular classes for 10 hours per week (Tr. 379).
For the 1996-1997 school year, the grade reports through April 4, 1997, show Plaintiff was graded satisfactory in physical education for the first three grading quarters. For the first three quarters, he attained a "D" in language arts and an "E" in spelling. However, in reading, Plaintiff attained an "E" in the first quarter, "D" in the second quarter, and improved to an average of "C" for the third quarter. Plaintiff attained an average grade of"C" in math for all three quarters. In science, Plaintiffs first grade was "D" which improved to "C" for the second and-third quarters. In social studies, Plaintiff was graded "D" in the first and second quarters, and improved to a "C" in the third quarter. Plaintiffs attained an "E" in conduct for the first quarter, and was described as needing improvement in the second and third quarters (Tr. 287-315, 325-341, 366-388, 394-397, 398-399). On May 9, 1997, his teacher noted the following behavior and lack of academic progress:
1. He does not respect authority. 2. He makes inappropriate noises when he shouldn't. 3. He has temper outbursts and unpredictable behavior. 4. He tells lies. 5. He disturbs other children. 6. He seems to enjoy fighting. 7. He does not do assigned class work. 8. He does not turn in homework assignments. 9. He does not remain on task. 10. He does not stay focused on his class work. 11. He speaks sarcastically to adults. 12. He does not obey. 13. He does not follow the school rules. 14. He has made very little progress academically.
(Tr. 399). There are other references to the Plaintiffs behavior which reflect similar or additional negative behavioral actions, including the initial Student Referral Form for testing for special education (Tr. 386). These documents imply that the Plaintiffs difficulty in functioning in a regular classroom, i.e., "mainstreaming'" was based more upon behavior than his mental functioning ability.
Additionally, this form indicated that Plaintiff had missed 16 out of 76 school days for the 1993-1994 school year and noted that during December 1993, January 1994 and February 1994, several letters were sent and conference dates scheduled but his mother "did not show" (Tr. 386).
D. Plaintiff's Argument .
The Plaintiff argues that the Commissioner of Social Security committed reversible error by failing to find that he meets Listing 112.05D He asserts that the first prong of Listing 112.05D has been met because Plaintiffs two I.Q. tests establish a valid, verbal, performance or full scale I. Q. score between 60 and 70, and that the case should be remanded for a determination as to whether the Plaintiffs asthma and ADHD meet the second prong.
112.05 Mental Retardation: Characterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning. The required level of severity for this disorder is met when the requirements in A, B, C, D, E, or F are satisfied. . . . D. 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. Pt. 404, Subpt. P, App. 1.
Plaintiff argues that there is substantial evidence to support a finding of mental retardation. He references the results of the evaluation by his school psychometrist, the results of which enabled him to attend special education classes and revealed a valid, verbal, performance and full scale IQ between 60 and 70. Plaintiff also points out that attempts to mainstream were unsuccessful and that his teacher evaluations indicated he was making very little progress. Plaintiff argues that the ALJ erroneously relied upon the consultative psychological evaluation wherein Dr. McCleary noted that the Plaintiff should improve with an appropriate educational setting and that his intelligence testing scores had improved. He also argues that the ALJ erroneously relied upon the absence of a diagnosis of mental retardation from Plaintiffs treating psychiatrists.
Plaintiff also argues that the ALJ incorrectly found that Plaintiffs special education grades demonstrate an ability to learn because the learning that occurs in a special education setting is not indicative of his abilities outside of the special education classroom. Plaintiff asserts that special education placement does not expose him to the normal pressures of school because of lowered expectations. The Plaintiff argues that Bowie v. Chater, 1996 U.S. Dist. LEXIS 19548 applies and that the ALJ should have considered how Plaintiff would function outside of the special education setting and not relied upon Plaintiffs placement in special education. In Bowie, the Court noted that a special education classroom is a "structured or highly supportive setting" that does not truly test the Plaintiffs "ability to function independently, appropriately and effectively in an age-appropriate manner outside of this highly structure setting." 20 C.F.R. § 416.924c(d). Bowie was remanded for further proceedings at which evidence of the Plaintiffs abilities to function outside of the special education classroom would be obtained.
The Eleventh Circuit has held that when a Plaintiff claims that he or she meets a listed impairment, the Plaintiff "must present specific medical findings that meet the various tests listed under the description of the applicable impairment or, if in the alternative he [or she] contends that he [or she] has an impairment which is equal to one of the listed impairments, the claimant must present medical evidence which described how the impairment has such an equivalency." Bell v. Bowen, 796 F.2d 1350, 1353 (11th Cir. 1986).
In the present case, the ALJ found that the Plaintiff was not mentally retarded and that he did not meet the IQ requirement of Listing 112.05D. In reaching his decision, the ALJ noted Dr. Mancao's 1993 evaluation which indicated no limitations of communicative, motor, social, and personal/behavioral functions or concentration, persistence or pace (Tr. 22). He also noted Dr. Mancao's statement that the Plaintiff may have difficulty concentrating and keeping pace in school if he had recurrent bouts of asthma which might cause him to miss school (Tr. 22). The ALJ discussed the results of the evaluation performed by the psychometrist which indicated IQ scores between 60 and 70, average skills in basic reading and borderline in mathematics (Tr. 27). The ALJ discussed the treatment notes from the University of South Alabama Department of Psychiatry and noted their assessment and treatment of ADHD and their assessment of borderline intellectual functioning (Tr. 27-29). The ALJ summarized the results of Dr. McCleary's consultative evaluation (Tr. 29). He reviewed the Plaintiffs records from his school, including his placement in special education for the mentally retarded, teacher's reports, reprimands, suspensions, and grade reports (Tr. 23-25, 29-30). He summarized the testimony of the Plaintiffs mother in regard to the medical treatment of the Plaintiff, her responses to the child development questionnaire, and her assessment of his activities of daily living (Tr. 17-19, 22-23).
The ALJ found as follows:
The evidence of record refers to IQ scores of 70 or less. If these scores result from mental retardation, or a life long history of sub-average general intellectual functioning, the impairment would be considered under Section 112.05 of Appendix 1. However, none of the evidence of record describes mental retardation and Dr. McCleary noted that the claimant should improve with an appropriate educational setting. Dr. McCleary diagnosed a learning disorder. Although the claimant has been placed in a specialized class setting for the mentally retarded, his grades show that he is capable of learning and the absence of any diagnosis of mental retardation which, combined with the improvement expected as noted by Dr. McCleary and as demonstrated by the claimant's grade reports, and the absence of any suggestion of true mental retardation being noted by the University of South Alabama Department of Psychiatry, is convincing to the Administrative Law Judge that the claimant does not have mental retardation. . . .
Of the medical record that refers to the applicable age-appropriate domains, Dr. Mancao indicated no limitations in any functional domain except for the concentration, persistence and pace domain that could be affected during bouts of asthma. Dr. McCleary noted the claimant would have a less than moderate impairment of every domain except communicative functioning, in which he would have no restrictions. The claimant's grades do show that, notwithstanding his educational setting, he does progress in academic subjects.
With respect to the issue of functional equivalence, the record refers to a less than moderate impairment of all age-appropriate areas of functioning. The record shows that the claimant has asthma, a chronic illness or impairment, but his asthma is not characterized by frequent illness or attacks. The record does not demonstrate severe limitations resulting from the treatment required for the claimant's asthma or for his hyperactivity, nor does the record describe any adverse effects of medications. The record does not describe any marked or extreme functional limitations relevant to any area of functioning. The Administrative Law Judge is convinced by the absence of frequent asthma attacks, by the questionnaires by Dr. Mancao and Dr. McCleary, and by the reports from the school system documenting the claimant's academic grades that he does not have an impairment or combination of impairments functionally equivalent to any impairment in Appendix 1.
(Tr. 30-31). In regard to whether the Plaintiffs impairments were the functional equivalent to a listing, the ALJ found that "the record refers to a less than moderate impairment of all age-appropriate areas of functioning" (Tr. 31).
The undersigned finds that the ALJ did not err in finding that the Plaintiff did not meet Listing 112.05 or functionally equal any listed impairment and substantial evidence supports the ALJ's decision. The ALJ properly rejected the finding of a Performance IQ of 70 as conclusive of mental retardation. An ALJ may properly discount an IQ test result if it is not consistent with other evidence of record including the daily activities and behavior of the Plaintiff. Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986); Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992). The ALJ noted that Dr. McCleary did not diagnose the Plaintiff with mental retardation. Instead, she diagnosed the Plaintiff as having "average" intelligence and a "learning disorder NOS." It is true that a Performance IQ score of 70, if valid, would qualify him for meeting the first prong of section 112.05D. However, even though Plaintiff had such a score, Dr. McCleary sufficiently distinguished and clarified her test results when she found Plaintiffs intellectual functioning in the average range, and noted that there was a twelve point discrepancy between his Verbal IQ score and the Performance IQ score. Dr. McCleary found Plaintiff functioned in the borderline range cognitively and diagnosed him as learning disabled. Also, on November 2, 1994, the USA Department of Psychiatry diagnosed the Plaintiff with borderline intellectual functioning (Tr. 282).
"Administration of the [WISC-R] resulted in a Verbal IQ of 82, a Performance IQ of 70, and a Full Scale IQ of 74, which places his level of intellectual functioning in the average range." (Tr. 318).
Further, the undersigned finds that the Plaintiff failed to meet his burden of establishing that his mental impairment was the functional equivalent of Listing 112.02 or 112.12. 20 C.F.R. § 416.926a(b), (c)(4),(c)(5)(iv)(A-E). No marked or extreme limitations of function were established by the evidence. Dr. Mancao found no limitations in the functional domains but for those that might be affected by his asthma and Dr. McCleary found no impairment of his communicative functioning, and a less than moderate impairment of his cognitive functioning, motor functioning, social and personal/behavioral functioning (Tr. 321). She found a less than moderate impairment of his concentration, persistence, and pace, and stated Plaintiff had mild attentional and concentrational deficits indicated on the IQ testing (Tr. 316-322).
Additionally, the Plaintiff has referenced Bowie. However, there is sufficient evidence in the record to show that Plaintiffs functioning outside of the special education setting were considered in reaching the decision. The ALJ considered the testimony of his mother and her responses on the child developmental questionnaire which address the Plaintiffs ability to function outside of the structured school setting (Tr. 17-19, 22-23). Also, the ALJ reviewed and considered the records from the USA Department of Psychiatry which included observations of the Plaintiff during examinations (Tr. 27-29). Further, as discussed herein, there is evidence of record to indicate that any problems the Plaintiff may experience in a regular classroom outside of the structured setting of special education, would be caused by his inability to behave properly rather than on his alleged mental retardation.
Plaintiff has also referenced the 1994 intelligence test scores as support for his argument. However, these scores were no longer current at the time of the final administrative hearing. The regulations state that "IQ test results must also be sufficiently current for accurate assessment. . . . IQ test results obtained between ages 7 and 16 should be considered current for . . . for 2 years when the IQ is 40 or above. IQ test results obtained before age 7 are current for . . . 1 year if at 40 or above." 20 C.F.R. Pt. 404, Subpt. P., App. I, § 112.00D.
Plaintiff was tested by Dr. McCleary in April 1996 and the ALJ rendered his decision in January 1998, within the two-year time frame.
Plaintiff also argues that Wechsler Intelligence Scale for Children Revised (WISC-R) which was used by the consultative examiner is an older test with "outdated normative values" when compared to the Wechsler Intelligence Scale for Children III (WISC-III) and that the use of the WISC-R instead of the WISC-III by the consultative psychological examiner was inappropriate. In support thereof, the Plaintiff references a portion of an article entitled Assessing Adolescent and Adult Intelligence, by Alan S. Kaufman at page 95-97 and 117. However, the article is not persuasive. Upon review, the undersigned notes that pages 95-97 discuss the Wechsler Adult Intelligence Scale (WAIS) and the WAIS-Revised. Page 117 discusses the WAIS-R as compared to the WISC-R, and the soon to be released WISC-III, in regard to their reliability for testing sixteen year old patients at the age of overlap between adult testing with the WAIS and child testing with the WISC. The author does opine that when the WISC-III becomes available in the 1990's, it will "assuredly become the test of choice because of its newer set of norms." However, the article did not compare the WISC-R to the WISC-III, and appears to be at least ten years old. There is no merit to this argument.
VI. Conclusion
From review of the record and the ALJ's decision, the undersigned finds that the ALJ's finding that the Plaintiff does not meet Listing 112.05D or equal a listing is supported by proper application of law and is based upon "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401.
For the reasons set forth, and upon consideration of the administrative record, the hearing decision, oral argument, and memoranda of the parties, it is recommended that the decision of the Commissioner denying the Plaintiff's claim for Supplemental Security Income be affirmed.
The attached sheet contains important information regarding objections to this report and recommendation.