Laureano v. SSA 04-CV-462-SM 05/24/05 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Herman Laureano, o/b/o Keyla Ortiz,1 Claimant
v. Civil No. 04-cv-462-SM Opinion No. 2005 DNH 084 Jo Anne B. Barnhart, Commissioner, Social Security Administration, Respondent
O R D E R
Herman Laureano moves to reverse the Commissioner's denial
of her granddaughter's application for children's Supplemental
Security Insurance disability benefits. See 42 U.S.C. §§ 405(g)
and 1383(c)(3) (the "Act"). Among other things, she says the
Administrative Law Judge who authored the Commissioner's final
decision erred in concluding that Keyla's impairment did not
meet, egual, or functionally egual a listed impairment.
Respondent objects and moves for an order affirming the final
decision of the Commissioner.
1 Although the record contains several references to the child's name as being "Kayla," it appears that her name is actually "Keyla." See, e.g., Nashua School District Individual Education Plan, Transcript at 107. Accordingly, the court has used that spelling throughout this order. For the reasons set forth below, the Commissioner's motion
for an order affirming her decision is granted.
Factual Background
I. Procedural History.
In June, 2002, Ms. Laureano filed an application for
Supplemental Security Income benefits on behalf of her
granddaughter, Keyla, alleging that the child became disabled on
May 22, 2002, as a result of learning disorders and borderline
intellectual functioning. The Social Security Administration
denied her application.
Pursuant to Ms. Laureano's reguest, on December 2, 2003, an
Administrative Law Judge ("ALJ") conducted a hearing on
Laureano's application and considered her claims de novo. Ms.
Laureano and Keyla, who were represented by counsel, appeared and
testified (Ms. Laureano testified through a Spanish interpreter).
The ALJ issued his order on April 30, 2004, concluding that Keyla
was not entitled to benefits because she did not have an
impairment or combination of impairments that met, medically
egualed, or functionally egualed any listed impairment(s). On
2 October 1, 2004, the Appeals Council denied claimant's request
for review, thereby rendering the ALJ's decision the final
In response, Ms. Laureano filed this timely action,
asserting that the ALJ's decision is not supported by substantial
evidence and seeking a judicial determination that Keyla is
disabled within the meaning of the Act. Laureano then filed a
"Motion for Order Reversing the Decision of the Commissioner"
(document no. 5). The Commissioner objected and filed a "Motion
for Order Affirming the Decision of the Commissioner" (document
no. 6). Those motions are pending.
II. Stipulated Facts.
Pursuant to Local Rule 9.1(d), the parties have submitted a
comprehensive statement of stipulated facts which, because it is
part of the court's record (document no. 7), need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
3 Standard of Review
I. Properly Supported Factual Findings by the ALJ _____ are Entitled to Deference.
Pursuant to 42 U.S.C. § 405(g), the court is empowered "to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing." Factual findings of the Commissioner are
conclusive if supported by substantial evidence. See 42 U.S.C.
§§ 405(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health &
Human Services, 955 F.2d 765, 769 (1st Cir. 1991).2
Moreover, provided the ALJ's findings are supported by
substantial evidence, the court must sustain those findings even
when there may also be substantial evidence supporting the
adverse position. See Tsarelka v. Secretary of Health & Human
Services, 842 F.2d 529, 535 (1st Cir. 1988) ("[W]e must uphold
2 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n., 383 U.S. 607, 620 (1966).
4 the [Commissioner's] conclusion, even if the record arguably
could justify a different conclusion, so long as it is supported
by substantial evidence."). See also Gwathney v. Chater, 104
F.3d 1043, 1045 (8th Cir. 1997) (The court "must consider both
evidence that supports and evidence that detracts from the
[Commissioner's] decision, but [the court] may not reverse merely
because substantial evidence exists for the opposite decision.");
Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (The
court "must uphold the ALJ's decision where the evidence is
susceptible to more than one rational interpretation.").
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v. Secretary
of Health & Human Services, 747 F.2d 37, 40 (1st Cir. 1984)
(citing Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It
is "the responsibility of the [Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner] not the courts." Irlanda Ortiz, 955 F.2d at 769
(citation omitted). Accordingly, the court will give deference
to the ALJ's credibility determinations, particularly where those
5 determinations are supported by specific findings. See
Frustaglia v. Secretary of Health & Human Services, 829 F.2d 192,
195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health &
Human Services, 803 F.2d 24, 26 (1st Cir. 1986)).
II. Entitlement to Children's Disability Benefits.
In August of 1996, prior to Ms. Laureano's having filed an
application for benefits on behalf of Keyla, Congress enacted the
Personal Responsibility and Work Opportunity Reconciliation Act
of 1996, which included a new (more rigorous) standard for
defining childhood disabilities under the Social Security Act.
It provides, in pertinent part, that:
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). See also 20 C.F.R. § 416.92 4.
In evaluating a child's application for SSI benefits, an ALJ
must engage in a three-part inguiry and determine: (1) is the
6 child engaged in substantial gainful activity; (2) does the child
have an impairment or combination of impairments that is severe;
and, finally, (3) does the child's impairment meet or egual an
impairment listed in Appendix 1, Subpart P of the regulations.
See 20 C.F.R. §§ 416.924(b)- (d). If, at the third step of the
analysis, the ALJ determines that the child's impairment does not
meet or egual a listed impairment, the ALJ must then consider
whether the child's impairment "results in limitations that
functionally egual the listings." 20 C.F.R. § 416.926a(a).
An impairment "functionally eguals" the listings if it
results in "marked" limitations in two domains of functioning, or
if it results in an "extreme" limitation in one domain. Id. The
six domains of functioning in which the child's abilities are
assessed are: (1) acguiring and using information; (2) attending
and completing tasks; (3) interacting and relating with others;
(4) moving about and manipulating objects; (5) caring for one's
self; and (6) health and physical well-being. 20 C.F.R. §
416.926a(b)(1). Ms. Laureano does not assert that Keyla suffers
from an extreme limitation in any domain and, therefore, the
court need not discuss the elements of such a limitation.
7 Ms. Laureano does, however, assert that Keyla suffers from
"marked" limitations in two domains of functioning. A "marked"
limitation is one that "interferes seriously with [the child's]
ability to independently initiate, sustain, or complete
activities. . . It 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). In other words, a "marked"
limitation would, generally speaking, place the child in the
lowest five percent (5%) of functioning in that domain for the
child's age group. It is, then, a substantial limitation.
Discussion
I. Background - The ALJ's Findings.
In concluding that Keyla was not disabled within the meaning
of the Act, the ALJ properly employed the mandatory three-step
sequential evaluation process described in 20 C.F.R. § 416.924.
Accordingly, he first determined that Keyla had not been engaged
in substantial gainful activity since her alleged onset date.
Next, the ALJ concluded that the medical evidence of record
indicates that Keyla does suffer from a "severe" impairment - learning disorders and borderline intellectual functioning.
Transcript at 23. Ms. Laureano does not challenge either of
those findings.
At the third and final step of the seguential analysis,
however, the ALJ concluded that Keyla "does not have an ’ 'extreme'
limitation in any domain of functioning, a 'marked' limitation in
two domains of functioning, and does not functionally egual the
severity of the listings." Administrative Transcript ("Tr.") at
26. Accordingly, the ALJ concluded that Keyla "has not been
under a 'disability' at any time from the alleged onset date
through the date of [his] decision." Id. at 27.
II. Functional Eguivalent of a Listed Impairment.
In support of her motion to reverse or, in the alternative,
remand the decision of the ALJ, Ms. Laureano asserts that the ALJ
erred in concluding that Keyla does not suffer from marked
limitations in two domains of functioning. While she agrees with
the ALJ's determination that Keyla is markedly limited in her
ability to acguire and use information, she disagrees with the
ALJ's conclusion that Keyla is not markedly limited in her ability to attend and complete tasks. The regulations describe
that domain as follows:
Attending and completing tasks. In this domain, we consider how well you are able to focus and maintain your attention, and how well you begin, carry through, and finish your activities, including the pace at which you perform activities and the ease with which you change them.
(1) General. Attention involves regulating your levels of alertness and initiating and maintaining concentration. It involves the ability to filter out distractions and to remain focused on an activity or task at a consistent level of performance. This means focusing long enough to initiate and complete an activity or task, and changing focus once it is completed. It also means that if you lose or change your focus in the middle of a task, you are able to return to the task without other people having to remind you freguently to finish it.
Adeguate attention is needed to maintain physical and mental effort and concentration on an activity or task. Adeguate attention permits you to think and reflect before starting or deciding to stop an activity. In other words, you are able to look ahead and predict the possible outcomes of your actions before you act. Focusing your attention allows you to attempt tasks at an appropriate pace. It also helps you determine the time needed to finish a task within an appropriate time-frame.
20 C.F.R. § 416.926a(h). For children Keyla's age (12 to 18),
the ability to attend and complete tasks means that they are able
"to pay attention to increasingly longer presentations and
10 discussions, maintain [their] concentration while reading
textbooks, and independently plan and complete long-range
academic projects. [They] should also be able to organize [their]
materials and to plan [their] time in order to complete school
tasks and assignments. In anticipation of entering the
workplace, [they] should be able to maintain [their] attention on
a task for extended periods of time, and not be unduly distracted
by [their] peers or unduly distracting to them in a school or
work setting." Id. at § 416.926a (h) (2) (v) .
Ms. Laureano points out that the record contains several
references to Keyla's difficulty in maintaining attention in
class and her tendency to be easily distracted from assigned
tasks. Based upon those references in the record, Laureano
asserts that Keyla's "functional limitations demonstrate that
Keyla's functioning with regard to attending and completing tasks
was significantly less than a child without mental impairments."
Claimant's memorandum at 14.
Importantly, however, the record also contains substantial
evidence supportive of the ALJ's determination that Keyla does
11 not suffer from a "marked" impairment in that domain. For
example, when asked to assess Keyla's ability to attend and
complete tasks, special education teacher, Amanda Delaney,
reported that "Keyla can attend and complete tasks." Transcript
at 140.3
Also lending support to the ALJ's conclusion that Keyla is
not markedly limited in her ability to attend and complete tasks
is the report of Thomas Lynch, Ph.D. In his report. Dr. Lynch
describes, in substantial detail, the results of numerous tests
he administered to Keyla. Transcript at 170-81. Among other
things. Dr. Lynch observed that Keyla tested in the low average
to average range on the "Freedom from Distractibility Index."
Transcript at 17 6. He also opined that while Keyla does have
difficulty attending and completing some tasks, this is primarily
due to her lack of refined language skills and difficulty
processing verbal information, rather than an inability to
3 Laureano correctly points out that Ms. Delaney went on to note that Keyla often "reguires one-on-one assistance with reading and other language-based skills," ib.., but that observation is not particularly surprising, given Keyla's substantial weakness in the area of broad language skills - a domain in which the ALJ concluded that Keyla's abilities are markedly limited.
12 concentrate or focus on the task at hand. I_d. at 180. Overall,
based upon the results of all of the testing to which he
subjected Keyla, as well as his personal observations of her. Dr.
Lynch concluded that Keyla's "attention span appeared to be
within normal limits based on the testing and her concentration
was generally adeguate as well." I_d. at 173.
Additionally, the Associate School Psychologist, Kelley
Messenger, M.A., performed a cognitive assessment of Keyla and,
after administering numerous tests and observing Keyla, concluded
that her "ability to sustain attention, concentrate and exert
mental control is similar to others her age." Transcript at 161.
Finally, in the report prepared by Nicholas Kalfas, Ph.D. (a non
examining physician). Dr. Kalfas concluded that while Keyla is
markedly limited in her ability to acguire and use information,
her ability to attend and complete tasks is "less than marked."
Transcript at 166.
Plainly, the record in this case reveals that Keyla suffers
from learning disabilities, with mild to moderate impairment in a
number of different cognitive areas (most significantly, those
13 involving expressive and receptive language skills). But, that
evidence does not so clearly compel the conclusion that she
suffers from a "marked limitation" in her ability to attend and
complete tasks that the court may properly reverse the ALJ's
disability determination. Stated somewhat differently, although
there is certainly evidence supportive of Ms. Laureano's view
that Keyla is disabled (as defined in the statute and pertinent
regulations), there is also substantial evidence supportive of
the ALJ's determination that she is not. Given that fact, the
court must affirm the ALJ's disability determination. See, e.g.,
Tsarelka, 842 F.2d at 535 ("[W]e must uphold the [Commissioner's]
conclusion, even if the record arguably could justify a different
conclusion, so long as it is supported by substantial
evidence.").
III. Failure to Meet a Listed Impairment.
Ms. Laureano also challenges the ALJ's disability
determination on grounds that he "should have, at the very least,
considered whether Keyla's mental impairments met or medically
egualed listing 112.02 (organic mental disorders)." Claimant's
memorandum at 19.
14 To satisfy the requirements of listing 112.02, a child must
suffer from a " [m]edically documented persistence of . . . [an]
impairment of cognitive function, as measured by clinically
timely standardized psychological testing." 20 C.F.R. Part 404,
Subpart P, Appendix 1, § 112.02(A). Additionally, the child must
have a marked impairment in at least two of six identified
categories. Id. § 112.02(B). Here, Ms. Laureano asserts that
Keyla suffers from a marked impairment in: (1) "age appropriate
cognitive/communicative function"; as well as (2) the ability to
maintain "concentration, persistence, or pace."
As previously noted, the ALJ determined that Keyla does have
a "marked impairment in the domain of acquiring and using
information." Transcript at 26. This, combined with the medical
findings of record which document Keyla's significant impairment
in the realm of language skills, supports Laureano's assertion
that Keyla suffers from a marked impairment in age appropriate
cognitive/communicative function. The issue raised by Laureano's
motion, however, is whether the ALJ erred in failing to find that
Keyla also suffers from a marked limitation in her ability to
maintain concentration, persistence, or pace.
15 In support of her assertion that the ALJ erred in that
regard, Laureano largely restates the arguments that she raised
in support of her view that Keyla is markedly limited in her
ability to attend and complete tasks (e.g., citing the report
prepared by Keyla's guidance counselor, noting that she has
difficulty paying attention to spoken instructions, focusing on
assigned tasks, and working without distraction). As noted
earlier, however, while the record certainly contains evidence
supportive of Ms. Laureano's belief that Keyla suffers from an
impaired ability to concentrate, focus, and maintain appropriate
pace, it also contains substantial evidence supportive of the
ALJ's determination that Keyla's impairments are not sufficiently
severe (either alone or in combination) to meet or egual a listed
impairment (i.e., organic mental disorders). For the reasons
discussed above, the court concludes that the record contains
substantial evidence supportive of the ALJ's conclusion that
Keyla does not suffer from a marked impairment in her ability to
maintain "concentration, persistence, or pace." And, when the
record contains substantial evidence that is capable of
supporting two plausible, but conflicting interpretations, the
16 court is compelled to affirm the interpretation adopted by the
ALJ. Such is the case here.
Conclusion
Having carefully reviewed the administrative record and the
arguments advanced by both the Commissioner and Ms. Laureano, the
court concludes that there is substantial evidence in the record
to support the ALJ's determination that Keyla was not disabled at
any time prior to the date of his decision and that the ALJ more
than adeguately discussed the basis for his conclusion. The
ALJ's determination that Keyla's impairments do not meet or egual
any impairment listed in Appendix 1, Subsection P, is supported
by substantial evidence. Similarly, his conclusion that Keyla's
impairments are not functionally egual to a listed impairment is
also supported by substantial evidence.
For the foregoing reasons, as well as those set forth in the
Commissioner's memorandum, claimant's motion to reverse the
decision of the Commissioner (document no. 5) is denied, and the
Commissioner's motion to affirm her decision (document no. 6) is
17 granted. The Clerk of the Court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
Steven J. /McAuliffe' C’ nief Judge
May 24, 2 0 05
cc: Raymond J. Kelly, Esq. David L. B