The opinion of the court was delivered by: Keys, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
On February 28, 1997, Ms. Hall filed an application for
Supplemental Security Income on behalf of her niece and ward
Lemanda Lee, alleging that Lemanda had been disabled since
January 1, 1993 on the basis of a learning disability. (R. at
98-99.)*fn1 On May 16, 1997, Ms. Hall's application was denied.
(R. at 69-71.) On June 7, 1997, Ms. Hall filed a request for
reconsideration. (R. at 72.) Upon reconsideration, the
application was again denied on August 8, 1997. (R. at 74-76.) On
August 22, 1997, Ms. Hall filed a request for a hearing. (R. at
78.) An expedited hearing was held on February 3, 1998, (R. at
200-09), and a hearing on the merits was held before
Administrative Law Judge ("ALJ") Percival Harmon on April 16,
1998, (R. at 18-65.) On July 27, 1998, the ALJ issued his
decision, finding that Plaintiff was not disabled within the
meaning of the Social Security Act. (R. at 9-17.) On August 5,
1998, Ms. Hall filed a Request for Review of the ALJ's decision
with the Commissioner's Appeals Council. (R. at 8.) On September
2, 1999, the Appeals Council denied Ms. Hall's request,
concluding that there was no basis for review, (R. at 5). This
denial stands as the final decision of the Commissioner and is
the subject of the Motions now before the Court.
A. Testimony of Claimant and her Guardian
Lemanda Lee, the claimant, was born on May 7, 1986. (R. at 27.)
She lives with her aunt, two sisters, and cousin. (Id.) At the
time of the April 16, 1999 hearing, Lemanda was in the sixth
grade at Mount Vernon Elementary School. (R. at 28.) She
testified that she was in a special class, but did not know why.
(Id.) Her favorite subject is math, and her least favorite is
reading. (R. at 30-31.) She testified that she could not
understand the words she reads or remember what she has read. (R.
at 31.) When asked if she could read from her reading textbook,
she testified that she could not do so without help. (R. at 38.)
Lemanda has friends at school. (R. at 29-30.) She sings in a
choir at church, and rehearses every Tuesday. (R. at 34.) She
testified that she memorizes the words to the music. (Id.) She
can tell time and fix herself a snack, but cannot take a
telephone message. (R. at 36-37.)
The claimant's aunt and guardian, Linda Hall, also testified at
the April 16, 1999 hearing. Ms. Hall testified that Lemanda could
recognize words, but could not comprehend their meaning. (R. at
41.) Ms. Hall testified that Lemanda's inability to read causes
her great embarrassment. (R. at 40.) Lemanda enjoys watching
television, but cannot explain what a program was about if asked.
(R. at 51.) Likewise, she cannot take a phone message because she
cannot remember what the person has said, nor can she write it
down because she does not comprehend what she has heard. (Id.)
According to Ms. Hall, Lemanda has to be watched when cooking
because she will forget what she is cooking or leave the stove
on. (R. at 43.) She has trouble crossing the street, and becomes
confused. (R. at 44.)
Lemanda and her two sisters attend counseling sessions to help
them cope with past neglect and abuse. (R. at 42-43, 48-49.) Ms.
Hall testified that Lemanda hides her feelings, and is afraid to
talk about things that bother her, such as her sister's recent
suicide attempt. (R. at 30, 48.)
On March 27, 1997, Dr. William R. Burwell performed an
"evaluation of cognitive abilities," and administered the
Wechsler Intelligence Scale for Children, Third Edition
("WISC-III"). (R. at 174.) The test yielded IQ scores of 71
(verbal), 62 (performance) and 64 (full scale). (R. at 175.) The
verbal score is in the borderline intelligence range, and the
other two scores are in the retarded range. (Id.) Dr. Burwell
concluded that Lemanda functions in the mild range of mental
retardation, and has difficulty with reading, visual-spatial
organization, visual concentration and fund of information. (R.
at 176.) He stated that the results of his examination were
indicative of her present level of functioning. (R. at 176.)
On July 21, 1997, Dr. Harley J. Rubens performed a psychiatric
evaluation of the claimant. (R. at 184.) Prior to the
examination, Dr. Rubens reviewed Dr. Burwell's report. (Id.)
Dr. Rubens diagnosed Lemanda with a "Situational Adjustment
Disorder with Disorder of Mood and Conduct" and a "Developmental
Reading Disorder." (R. at 186.) Dr. Rubens explained that his
report was different from Dr. Burwell's in that it was "not as
detailed in the academic or testing type area, [and] would
include that the patient was having some difficulties of mood."
(R. at 185.) Dr. Rubens made no indication that he disagreed with
Dr. Burwell's diagnosis of mild mental retardation, or that the
IQ scores were invalid.
Dr. Remedios Sales, a family practitioner, submitted a letter
dated January 9, 1998, stating that Lemanda "has a learning
disability with severe short term and long term memory deficiency
and is psychologically and emotionally handicapped due to a past
history of neglect and abuse." (R. at 194.) Dr. Sales' care of
Lemanda has been limited to physical examinations and
immunizations. (Id.) Dr. ...