The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole
The plaintiff, Cathy Girondi, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her minor daughter, Anna Girondi's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1383(c)(3). Ms. Girondi asks the court to reverse and remand the Commissioner's decision or remand for consideration of additional evidence, while the Commissioner seeks an order affirming the decision.
Ms. Girondi applied for SSI on behalf of her daughter, Anna, on May 26, 2006. (Administrative Record ("R.") 101-03). She claimed she had been disabled since May 23, 2006 (R. 101), due a learning disability. (R. 120). The application was denied initially and upon reconsideration. (R. 48-53, 60-65). Ms. Girondi continued pursuit of the claim by filing a timely request for hearing on January 10, 2007. (R. 67).
An administrative law judge ("ALJ") convened a hearing on October 3, 2008, at which Ms. Girondi and her daughter, represented by counsel, appeared and testified. (R. 22-47). On November 25, 2008 , the ALJ issued a decision denying the application for SSI, because Anna did not have an impairment or combination of impairments that met, equaled or functionally met the Listings. (R. 9-21). Ms. Girondi sought a review of the decision from the Appeals Council and submitted evidence of educational and intellectual testing performed between November and December of 2008. (Plaintiff's Motion to Remand, ¶¶ 2-3). The Appeals Council denied the request for review without mentioning the additional evidence, and the ALJ's decision became the final decision of the Commissioner on April 17, 2009. (R. 2-3). See 20 C.F.R. §§ 404.955; 404.981. Thereafter, Ms. Girondi filed another application and, based on the additional evidence she had provided the Appeals Council earlier, Anna was found disabled as of November 26, 2008. (Plaintiff's Motion to Remand, Ex. E). This was the earliest date that Anna could be found disabled given the previous ALJ's decision on November 25th. Ms. Girondi has appealed that previous decision to the federal district court under 42 U.S.C. § 405(g) and has asked that the case be remanded for the consideration of new and material evidence, mainly that evidence that she had submitted to the Appeals Council and which formed the basis of the later favorable decision. The parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Evidence the ALJ Considered Anna was born on July 25, 1994, and was fourteen years old at the time of the ALJ's decision. She has a long history of struggles in school, beginning with kindergarten, which she had to repeat. (R. 185). By the third grade, she was placed in a learning disabilities resource program due to "extreme academic difficulties." (R. 185). These additional resources were increased in fourth grade, and she began to have language therapy as well. (R. 185). She continued to struggle, however, and in sixth grade, she had to make a great deal of effort to get "C's" in her special classes -- she was mainstreamed only in music, art, and gym, and took regular social studies with the help of a teaching aid. (R. 185). She was two grades behind in reading decoding (in the bottom 18% of children her age) and three behind in reading comprehension (bottom 9%), working at the mid-third-grade level in reading composite (bottom 12%), math computation (bottom 5%), and battery composite (bottom 5%), and her math application skills were at the mid-first-grade level (bottom 1%). (R. 185). She was a pleasant student and a hard-worker. (R. 187). It was recommended that Anna be placed in a learning disabilities program. (R. 188).
Further evaluation revealed that, although twelve-and-a-half years old, Anna had the single-word comprehension level of an eight year old. (R. 189). Her speech rhythm was disrupted, and she exhibited garbled productions. (R. 189). She would need Speech and Language services at school. (R. 189). Anna's social worker at her school reported that she had Anna for thirty minutes of individual counseling and ninety minutes of group counseling per week. (R. 169). This was the maximum amount available. (R. 170). She had both a speech and language impairment and a learning disability. (R. 169). The social worker said that Anna struggled emotionally and with social skills. (R. 170).
The Agency arranged for a Weschler Intelligence Scale for Children test for Anna in connection with her mother's application for SSI in June 2006. Her verbal comprehension score was 71, perceptual reasoning score was 69, working memory score was 77, processing speed score was 85, and full scale IQ was 70. (R. 279). Psychologist Jeffrey Karr said Anna was pleasant and eager to cooperate -- her scores were valid. (R. 281). He diagnosed borderline intellectual functioning. (R. 281).
The Agency also arranged for a speech and Language evaluation in July of 2006. The speech pathologist, Eileen Donnelly, remarked that Anna was friendly and cooperative. (R. 284). Anna spoke quickly and had difficulty finding words. (R. 284). Her speech was generally intelligible, less so when the topic of conversation was unfamiliar to her. (R. 285). She fared better when instructed to slow down. (R. 285). In terms of listening comprehension, although she was twelve, Anna exhibited the skills of six year old. (R. 285). In terms of oral expression, she was the equivalent of a seven-and-a-half year old. (R. 286). Ms. Donnelly said these skills were severely and moderately delayed, respectively. (R. 286). Anna's total language score was in the bottom 1%, meaning she was operating at the level of a child aged six years and nine months. (R. 287).
In August 2006, Dr. Glen Pittman and speech pathologist Carol Varney reviewed these two reports on behalf of the Agency. They determined that Anna did not have an impairment that met, equaled, or was functionally equivalent to the Listing. (R. 288). They found she was markedly limited in the ability to acquire and use information, and less than markedly limited in terms of interacting and relating with others. (R. 290).
Anna underwent a psychological evaluation at school in October of 2006, when she had just begun the sixth grade. (R. 191). Psychologist Allan Lang administered a Weschler Intelligence Scale for Children. Anna scored in the bottom 6% of children her age in verbal comprehension (score of 77 -- higher than the June 2006 score), the bottom 18% in perceptual reasoning (66 -- lower), the bottom 21% in working memory (88-- higher), the bottom 13% in full scale IQ (83 -- higher). (R. 192). She was in the fiftieth percentile terms of processing speed (100). (R. 192). She was in the bottom 5% in reading (76), bottom 12% in written expression (82), bottom 0.5% in mathematics (61), and bottom 1% in reading comprehension (65). (R. 193). Dr. Lang commented that Anna did not have any strengths in academic achievement, but had made progress in numerical operations since 2003. (R. 195). She had regressed in math reasoning, however. (R. 195). She seemed to be "successful in her self-contained cross-categorical special education placement. (R. 195). He recommended that "appropriate intervention" be considered. (R. 195).
In December 2006, Leon Jackson, Ph.D., and speech pathologist Michelle Curran reviewed the record with the same reports as Dr. Pittman and Ms. Varney had six months earlier and arrived at the same conclusion. (R. 303-308). They didn't consider Dr. Lang's report. (R. 308).
In December of 2006, Anna's teacher, Susan Szubert, completed a checklist regarding Anna's limitations. Ms. Szubert noted that, while Anna was in the sixth grade, she was reading and performing math computations at a fourth grade level, doing math applications at a second or third grade level, and writing at a third grade level. (R. 173). Anna received special educational services for about 70% of the day. (R. 173). Ms. Szubert indicated that Anna had a problem acquiring and using information, which included obvious problems in comprehending oral instructions, reading and comprehending written material, comprehending and doing math problems, providing oral explanations, expressing ideas in writing, learning new material, recalling and applying previously learned material, and applying problem-solving skills. (R. 174). There was also a problem in the area of caring for oneself, including slight problems with personal hygiene, identifying and asserting emotional needs, and using coping skills in the school environment. (R. 178). Ms. Szubert did not note any limitations in attending and completing tasks, interacting and relating with others, or moving about and manipulating objects.
On her fall report card from 2008, Anna got B in Language and Literature, B in Science, C's in Academic Supplement, Physical Education, and Social Studies, and D in Math. (R. 313). She was having trouble preparing for classes and completing assignments on time. (R. ...