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Lowe v. Astrue

November 12, 2010


The opinion of the court was delivered by: Magistrate Judge Sheila Finnegan


Plaintiff Quann Lowe brings this action under 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge ("ALJ")'s decision denying Plaintiff's application for Supplemental Security Income ("SSI"). The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff moved for summary judgment, seeking reversal of the ALJ's decision and an award of benefits. The Commissioner of Social Security ("Commissioner") then filed a motion to remand the case for further proceedings, which Plaintiff opposed, insisting instead on an outright award of benefits.*fn1 The Court denied the Commissioner's motion for remand because it did not address all of the grounds for reversal raised by Plaintiff in his motion for summary judgment, and set a schedule for further briefing on Plaintiff's motion. After careful review of the parties' briefs and the record, the Court now denies Plaintiff's request for an outright award of benefits but remands the case for further proceedings consistent with this ruling.


Plaintiff received SSI as a child due to an impairment called bilateral internal tibial torsion.*fn2 In 2002, when he was 18 years old, the Social Security Administration reviewed his case and determined that he was no longer disabled. (R. 17.) After a hearing before ALJ Dan Dadabo on February 8, 2005, his benefits were terminated. (R. 15-17; Pl.'s Mem. 3.)

Plaintiff did not appeal that decision. Instead, on October 19, 2006, he filed a new application for SSI, alleging he was disabled since his birth on May 16, 1984. (R. 175.) His application was denied initially on January 23, 2007 and again on reconsideration on May 24, 2007. (R. 87-91, 95-98.) Pursuant to Plaintiff's request, ALJ Michael McGuire held an administrative hearing on August 5, 2008 and a supplemental hearing on September 2, 2008. (R. 41, 60, 99.) Plaintiff, who appeared at the hearings with counsel, and a vocational expert testified before the ALJ.

On December 18, 2008, ALJ McGuire found that Plaintiff was not disabled based on the Medical-Vocational Guidelines (the "Grid"). (R. 14.) The Appeals Council denied Plaintiff's request for review. (R. 1.) Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. In support of his request for reversal and an award of benefits, Plaintiff argues the ALJ erred by: (1) applying the Grid to determine that Plaintiff was not disabled; and (2) failing to call a medical expert to determine whether Plaintiff's impairments meet or equal Listing 1.02 for major dysfunction of joint(s) or Listing 1.13 for muscular dystrophy. If his impairments met one of the listings, he would be considered disabled.


Plaintiff was born on May 16, 1984 and was 24 years old at the time of his most recent hearing before the ALJ. (R. 48, 208.) He has been diagnosed with achondroplasia dwarfism, possible muscular dystrophy of the lower extremities, muscular atrophy of the lower extremities, arthralgia (joint pain) of the knees and lower back, and a learning disability affecting his reading. (R. 272, 302-04.) He attended high school through the eleventh grade, but he received special education services and reads at only a first grade level. (R. 253, 260-61.) He has never been employed. (R. 48-49.)

A. Medical History

1. Physical Condition

The earliest medical records provided to the Court are from Reymar Clinic, where Plaintiff was seen on August 17, 2001, when he was 17 years old, and again on June 13, 2002, when he was 18. The clinic's records indicate that he was diagnosed with achondroplasia dwarfism and muscle atrophy in both legs. (R. 302-03.)

On November 21, 2006, Dr. Norma Villanueva performed a consultative examination of Plaintiff for the Bureau of Disability Determination Services ("DDS"). (R. 270-75.) Plaintiff, who was 22 at the time, told Dr. Villanueva that he had problems with his lower extremities since he was little, that he had daily pain in his knees and lower back, and that the pain had been worsening since 2000. He said he experienced increased pain after walking two blocks, climbing one flight of stairs, or standing for thirty minutes, and his lower back hurt on bending. He also told Dr. Villanueva that he had been seen by a doctor the year before, who told him to rub alcohol on his knees and back when they hurt. (R. 270.)

Dr. Villanueva observed that Plaintiff's lower extremities from the distal third of both thighs to the feet were atrophied and that his range of motion in both knees and the lumbar spine were limited. She noted that there was tenderness in the knees and spine but no swelling. (R. 271.) An x-ray of the right knee taken on November 21, 2006 showed no significant abnormality. (R. 276.) Plaintiff's gait was slow but stable. His lower extremity strength was 5/5 bilaterally. His sensation was intact. His deep tendon reflexes were 1 in the lower extremities and 2 in the upper extremities and hips. (R. 271.) Dr. Villanueva reported that Plaintiff had (1) possible muscular dystrophy in the lower extremities from the distal third of the thigh down to the foot and that the lower extremities were atrophied; (2) a history of a learning disability; and (3) arthralgia of the knees and lower back, which was possibly arthritis. (R. 272.)

On December 8, 2006, Dr. Marion Panepinto completed a Physical Residual Functional Capacity Assessment of Plaintiff for DDS. (R. 294-301.) Dr. Panepinto found that Plaintiff could occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds, and his ability to push/pull was "unlimited, other than as shown for [his ability to] lift and/or carry." (R. 295.) He could stand, walk or sit with normal breaks for about 6 hours in an 8 hour workday. He could occasionally climb a ramp or stairs, balance, stoop, kneel, crouch and crawl, but he could not climb a ladder, rope or scaffolds. Dr. Panepinto indicated that Plaintiff had no other physical limitations. (R. 294-301.)

Dr. Frank Jimenez completed another Physical Residual Functional Capacity Assessment of Plaintiff for DDS on May 11, 2007. Dr. Jimenez determined that Plaintiff could occasionally lift/carry only 10 pounds, and he could frequently lift/carry less than that. He could stand and walk at least 2 hours in an 8 hour workday, and he could sit for about 6 hours. Dr. Jimenez found that Plaintiff's ability to push and pull was limited in his lower extremities. He found that Plaintiff could occasionally climb ramps and stairs, but not a ladder, rope or scaffold, and he was able to occasionally balance, stoop, kneel, crouch and crawl. (R. 329-36.)

2. Learning Disability and Mental Condition

In September 2003, when Plaintiff was 19 years old, he was evaluated by school officials to determine his eligibility for special education services. (R. 260-62.) The report indicates that he had a history of receiving special services to address learning disabilities.

(R. 261.) Although he was in eleventh grade, his reading ability was measured at a first grade level and his math ability was measured at a fifth grade level. (R. 260.) A psychological evaluation revealed that he had extreme difficulty in pronouncing both simple and more complex words, and that he appeared to have suppressed long term memory.

(R. 266-67.)

Plaintiff was evaluated again by school officials in November 2004. They concluded that he was able to be in regular classes provided that he received supplementary aides and services, including: (1) extended time for class assignments and homework; (2) explanations of directions with concrete examples and simplification; (3) testing on one concept at a time; ...

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