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ELSTER v. BARNHART

January 9, 2003

RICHARD ELSTER, PLAINTIFF,
v.
JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Nan R. Nolan, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Richard Elster ("Elster") seeks judicial review of the final decision of the Commissioner of the Social Security Administration denying his claim for Disabled Adult Child's Insurance Benefits ("DCIB") and Supplemental Security Income ("SSI") under the Social Security Act. Elster seeks summary judgment reversing the Commissioner's decision to deny him benefits, or in the alternative, a remand of the case to the Commissioner for further proceedings. The Commissioner has filed a cross-motion for summary judgment to affirm the ALJ's decision denying Social Security disability benefits. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (c). For the reasons stated below, the Court grants in part and denies in part Elster's Motion for Summary Judgment and grants in part and denies in part the Commissioner's Motion for Summary Judgment. This matter is remanded to the Commissioner for further proceedings consistent with this opinion.

I. BACKGROUND

Elster filed applications for DCIB and SSI benefits in March 1997, alleging that he had been disabled since 1981 due to a learning disability. The Agency denied his applications initially and upon reconsideration. R. 378-86. Elster requested a hearing before an Administrative Law Judge. R. 70-71. On September 9, 1998, ALJ Irving Stillerman held an administrative hearing at which Elster and his father, Kenneth Elster, appeared and testified. R. 22-58. The ALJ issued a written decision dated December 23, 1998 in which he found that Elster was not disabled. R. 13-21. The Appeals Council denied Elster's request for review of the ALJ's decision. R. 6-9. Elster then filed this action for judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3).

II. STATEMENT OF FACTS

At the age of three, Elster was found to have multiple developmental disabilities in his speech, motor, and emotional areas. R. 157. During his primary grades, Elster attended a self-contained learning disability classroom at Riley School. R. 231. In the sixth grade, Elster moved to a special education combined junior high/high school. R. 231.

Elster's intelligence has been tested numerous times. His IQ scores are as follows:

Date Verbal IQ Performance IQ Full Scale IQ

9/86 88 64 74

9/89 95 63 __

7/92 89 58 __

11/96 81 68 74

R. 166, 233, 296.

A psychological re-evaluation performed by Maureen Daly, a school psychologist, in September 1989 included the following ...


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