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.

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

(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

decision of the Commissioner.

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

(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

(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health &

Human Services,

(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,

(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,

(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.,

(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,

, 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,

(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,

(1st Cir. 1984)

(citing Sitar v. Schweiker,

(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,

(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,

(1st Cir. 1987) (citing Da Rosa v. Secretary of Health &

Human Services,

(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

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

(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."

.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.

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.

.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."

.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

.

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.

.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."

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,

("[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

18