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Veal v. Astrue

September 29, 2008

ANTIONETTE VEAL FOR RMJ PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Clifford J. Proud, Magistrate Judge

ORDER

Before the Court is Antionette Veal, on behalf of her daughter, "RMJ," seeking review of the final decision of the Social Security Administration denying RMJ children's Supplemental Security Income (SSI) benefits pursuant to 42 U.S.C. § 1382.*fn2

(Doc. 2). Both Veal and the defendant agency commissioner have fully briefed their positions (Docs. 13 and 16),and the administrative record ("R.") has been produced. In accordance with 42 U.S.C. § 405(g), this Court reviews the decision denying benefits to ensure that the Administrative Law Judge's decision is supported by substantial evidence and that no mistakes of law were made.

Relevant Procedural History

On July 22, 2004, Antionette Veal, on behalf of her daughter, RMJ, filed an application for children's SSI under Title XVI of the Social Security Act, alleging disability since RMJ's birth in January 1993. (R. 39-40).

Veal and RMJ, represented by counsel, appeared at a hearing in December 2006 before Administrative Law Judge (ALJ) Mitchell F. Stevens; RMJ testified. (R. 301-312). In his decision dated January 9, 2007, ALJ Stevens found that RMJ was not disabled as defined under the Social Security Act. (R. 11-16). The ALJ determined RMJ had a virtual total loss of visual acuity and function of the right eye due to congenital strabismus, aphakia, and secondary glaucoma, but no other credible, medically established physical or mental impairments. (R. 15).

The ALJ found that RMJ may have less than marked limitations related to acquiring and using information, moving about and manipulating objects, and health and physical well-being. (R. 15). However, the ALJ did not find any marked or extreme limitations, despite RMJ and her mother's assertions. (R. 15). No medical impairment, singly or in combination, was found to be presumptively disabling or medically equivalent to the presumptively disabling impairments listed in Part B (or A) of Appendix 1, Subpart P, Regulation No. 4 (20 C.F.R. §§ 416.924(d), 416.924(d) and 416.926a). (R. 15). The ALJ also concluded RMJ did not have a medically determinable physical or mental impairment which resulted in marked or severe functional limitations. (R. 15). The ALJ relied primarily on Dr. Mark A. Nekola's April 2005 evaluation. (R. 13-14). The ALJ noted that RMJ "never had an unusual number of absences [from school] or tardiness between 1998 and 2004." ALJ Stevens also considered check-off form Child Functioning Questionnaires submitted from five of RMJ's teachers, and the teachers' narrative comments. (R. 14). Although the ALJ took note of many "moderate" limitations and some "marked limitations' on those questionnaires, he observed that RMJ was in "regular" classes, getting good grades, and that there was no indication of mental illness, emotional disturbance or learning disorder, and no credible, long-term or untreatable limitations, aside from her right eye problem.

(R. 14-15). Therefore, the ALJ ultimately concluded RMJ was not "disabled" for purposes of receiving SSI. (R. 15).

The Appeals Council denied a request for review on April 13, 2007, making the ALJ's decision the final decision of the Commissioner of Social Security. (R.3-5). Consequently, this matter is subject to review by the District Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

Arguments Presented

Plaintiff Veal argues:

1. The ALJ failed to consult a medical expert to determine if RMJ's impairments medically equaled a presumptively disabling ailment-- a "Listing;"

2. The ALJ mischaracterized the evidence regarding RMJ's school attendance and sensitivity to light;

3. The ALJ failed to explain why RMJ and her mother were found not credible regarding RMJ's ...


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