The opinion of the court was delivered by: Clifford J. Proud United States Magistrate Judge
Report and Recommendation
This Report and Recommendation is respectfully submitted to United States District Judge William D. Stiehl pursuant to 28 U.S.C. § 636(b)(1)(B).
Danny W. Eubanks seeks judicial review under 42 U.S.C. § 405(g) of a final agency decision denying him Supplemental Security Benefits (SSI). The decision is two-fold. First, the decision terminates SSI benefits received by him as a minor. Secondly, the decision finds that he is not disabled and denies him SSI benefits as an adult. Plaintiff contends that he met the listing for mental retardation as a child (Listing 112.05) and that he continues to meet the listing for mental retardation as an adult (Listing 12.05). Administrative remedies have been exhausted, and the request for judicial review was timely filed in this court.
Eubanks was born on March 20, 1982. (Tr. 49). An application for SSI benefits was filed on his behalf in 1995, and he was found to be disabled and eligible for benefits as of September 1, 1995. (Tr. 286). The disability determination was based on a primary diagnosis of attention deficit hyperactivity disorder, with a secondary diagnosis of history of oppositional defiant disorder. (Tr. 134).
In 1996, Congress amended the standard for disability for children seeking SSI benefits.
42 U.S.C. §1382c(a)(3)(C). Congress also mandated that the Social Security Administration make a redetermination of disability using the revised standard. Pub. L. 104-193, §211(d)(2) [set out as a note to 42U.S.C. §1382c.]
The agency conducted a redetermination review, which included a hearing. (Tr. 33-59). On September 23, 1999, the ALJ determined that plaintiff was not entitled to benefits under the new standard. (Tr. 283-291). Plaintiff, who was represented by counsel, requested review by the Appeals Council. On March 14, 2002, the Appeals Council vacated the ALJ's decision and remanded for further proceedings, including a determination of whether Eubanks met the adult standard for disability, as he turned eighteen on March 20, 2000. (Tr. 296-298).
A second hearing was held on November 20, 2002, before ALJ Anne C. Thomas. (Tr. 60-87). On January 28, 2003, ALJ Thomas issued a decision finding that Eubanks' entitlement to childhood disability benefits ceased as of July 1, 1997, and that he was not entitled to SSI benefits as an adult. (Tr. 302-311). Plaintiff's request for review was denied, and the January 28, 2003, decision became the final agency decision. (Tr. 298).
Plaintiff filed a timely action for review in this court. The Commissioner moved for remand because the agency was unable to locate the claim file or the tape of the November 20, 2002, hearing. That motion was granted on May 5, 2004. See, Docs. 9 & 14. The January 28, 2003, decision was vacated. (Tr. 387).
A third hearing was held on February 21, 2006, before ALJ George A. Mills, III. (Tr. 88-133). ALJ Mills issued a decision on July 6, 2006, finding that Eubanks was not disabled as a child, and that he was not disabled as an adult. (T. 8-29). The July 6, 2006, decision became the final agency decision and is now before the court. (Tr. 417).
Plaintiff contends that the decision of the Commissioner was erroneous because he met Listing 112.05, which is the childhood listing for mental retardation. Plaintiff's IQ tested at 67 in 1999, and at 86 in 2006. Plaintiff argues that he met Listing 112.05 on the basis of the 1999 IQ score of 67. He asserts that the ALJ erred in finding that he had medical improvement, and in evaluating the validity of the 1999 IQ testing.
Standard for Determining Child Disability
The Personal Responsibility and Work Opportunity Act, passed by Congress in 1996, revised the standard for disability in a child under the age of 18. Prior to that change, the standard for childhood disability was whether the child had a medically determinable physical or mental impairment, which has lasted or is expected to last for more than 12 months, that was "of comparable severity" to an impairment that would be considered disabling in an adult. The revised standard for childhood disability abandons the "comparable severity" analysis. The revised standard is whether the child has a medically determinable physical or mental impairment "which results in marked and severe functional limitations" and which has lasted or is expected to last for more than 12 months. The new standard is considered to be more restrictive than the old comparable severity standard. See, Williams v. Apfel, 79 F. 3d 1066, footnote 3 (7th Cir. 1999).
The agency published interim final rules implementing the new standard on February 11, 1997, and final agency rules on September 11, 2000. The final rules became effective on January 2, 2001, at which time plaintiff's case was pending before the Appeals Council.
Plaintiff's brief refers only to the five -step analysis that is used to determine adult disability. However, the analysis of childhood disability is different. The determination of childhood disability proceeds by way of a three-step sequential analysis set forth in 20 CFR §416.924(a). The three- step analysis is as follows:
1. Is the child claimant engaged in substantial gainful activity?
2. Does the child have an impairment or combination of impairments that is "severe?"
3. Does the impairment or combination of impairments meet, medically equal, or functionally equal the severity of a listed impairment?
An answer of "yes" to the first question, or "no" to the second or third questions, means that the child is not disabled.
Both the interim final rules and the final rules define the statutory standard of "marked and severe functional limitation" with reference to severity of a ...