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HALL EX REL. LEE v. APFEL

December 5, 2000

LINDA HALL ON BEHALF OF LEMANDA LEE, PLAINTIFF,
V.
KENNETH APFEL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Keys, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

The Plaintiff, Linda Hall ("Ms.Hall"), on behalf of Lemanda Lee ("Lemanda"), pursuant to 42 U.S.C. § 405(g), 1383(c)(3), moves this Court for summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure reversing the decision of the Commissioner of Social Security ("Commissioner") which denied her application for Supplemental Security Income. In the alternative, Plaintiff moves that the case be remanded to the Commissioner for further proceedings. The Commissioner has filed a Cross-Motion for Summary Judgment in his favor. For the reasons set forth below, the Court grants Plaintiff's Motion in part and denies the Commissioner's Motion. Specifically, the Court remands the case to the Commissioner for further proceedings consistent with this Opinion.

Procedural History

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.

Factual Background

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.)

B. Medical Evidence

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. ...


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