Borgens ex rel. Borgens v. Halter

• Decision Date: 28 March 2001
• Docket Number: No. 6:99CV1414ORL19JGG.,6:99CV1414ORL19JGG.
• Citation: 164 F.Supp.2d 1309
• Parties: Michael BORGENS o/b/o, Lisa BORGENS, Plaintiff, v. William A. HALTER, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Middle District of Florida

164 F.Supp.2d 1309

Michael BORGENS o/b/o, Lisa BORGENS, Plaintiff, v. William A. HALTER, Commissioner of the Social Security Administration, Defendant.

No. 6:99CV1414ORL19JGG.

United States District Court, M.D. Florida, Orlando Division.

March 28, 2001.

Richard Allen Culbertson, Law Office of Richard A. Culbertson, Orlando, FL, for Michael Borgens, Lisa Borgens.

Susan R. Waldron, U.S. Attorney's Office, Middle District of Florida, Tampa, FL, Roberto H. Rodriguez, Jr., U.S. Attorney's Office, Middle District of Florida, Orlando, FL, for William A. Halter.

ORDER

FAWSETT, District Judge.

This cause came before the Court on the following matters:

(1) The Plaintiff's Memorandum in Support of Petition for Judicial Review (Doc. No. 16, filed May 1, 2000); the Defendant's Memorandum in Support of the Commissioner's Decision (Doc. No. 17, filed June 12, 2000);

(2) The Report and Recommendation of United States Magistrate Judge James G. Glazebrook Recommending that the Commissioner's Decision Be Affirmed (Doc. No. 23, filed January 19, 2001); the Plaintiff's Objections to the Report and Recommendation (Doc. No. 24, filed January 29, 2001); and the Defendant's Response to Plaintiff's Objections to Magistrate Judge's Report and Recommendation (Doc. No. 25, filed February 15, 2001).

BACKGROUND

Plaintiff, Michael Borgens acting on behalf of his minor daughter, Lisa Borgens, applied for Supplemental Security Income Benefits on November 21, 1995. A hearing concerning the Plaintiff's claim was held before Administrative Law Judge Kevin F. Foley (the "ALJ"), and the testimony of Michael Borgens and behavioral tutor Maria McQuade was taken. Based on the testimony and Lisa Borgen's medical and school records, the ALJ determined that Plaintiff was not entitled to benefits. The ALJ's decision was reviewed and affirmed by the Appeals Council.

The Plaintiff made timely application to this Court for review of the Commissioner's decisions. Pursuant to Local Rule 6.01, the matter was referred to United States Magistrate Judge James G. Glazebrook, and in a well-reasoned Report and Recommendation, Magistrate Judge Glazebrook recommended that the Commissioner's decision be affirmed. See (Doc. No. 23). The Plaintiff timely objected to the Report and Recommendation. See (Doc. No. 24).

The Plaintiff contends that the Report is flawed because: (1) the case should be remanded for the purpose of complying with 20 C.F.R. §§ 416.926a(e)(1)(ii), 416.926a(e)(4)(ii), 416.926a(e)(4)(ii)(B), and 416.926a(f);¹ (2) the Commissioner's decision is not supported by substantial evidence; and (3) the Appeals Council failed to issue a final decision based on a full consideration of all the evidence currently on the record. See (Doc. No. 24). In the thirty-three page Report, Magistrate Judge Glazebrook thoroughly addressed the issues on which the Plaintiff bases his objections. See (Doc. No. 23). In this regard, after considering the Record before the Court and the applicable law, the Court finds that Magistrate Judge Glazebrook correctly states the facts and law applicable in this case with one modification. See (Doc. No. 23).²

STANDARD OF REVIEW

If supported by substantial evidence, the Commissioner's decision cannot be reversed "[e]ven if [this Court would] find that the evidence preponderates against the secretary's decision." MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). "Substantial evidence is more than a scintilla. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. Although findings of fact are given deference, the courts must not presume that the Commissioner followed the appropriate legal standards "or that the legal conclusions reached were valid." Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir.1996) (stating that the courts are to "conduct `an exacting examination' of [the legal] factors").

ANALYSIS

As noted in the Report, a child establishes her right to SSI benefits by demonstrating that, of the six areas of functioning, the child has an "`extreme' limitation in one area ... [or a] `marked' limitation in two areas...." (Doc. No. 23, at 11 (citing 20 C.F.R. § 416.926a(b))). The six areas of functioning are: "cognition/communication ability; motor ability; social ability; responsiveness to stimuli (birth to age one only); personal ability (age three to age eighteen only); and concentration, persistence, or pace (age three to eighteen only)." Id.; 20 C.F.R. § 416.926a(e)(4). Here, the Commissioner made the following findings with regard to Lisa's functioning: (1) Lisa has a "marked" limitation in the area of concentration, persistence, or pace; (2) Lisa has a slight to moderate limitation in cognitive/communicative functioning, social functioning, and personal functioning; and (3) Lisa has no deficiencies in the motor development functional domain.

The Court finds that the ALJ did not follow the law in determining that Lisa had only a slight to moderate limitation in cognitive/communicative functioning. Specifically, the Court finds that the ALJ erred in failing to properly consider Lisa's results on the Comprehensive Test of Basic Skills (the "CTBS"). As a result, this case should be remanded under sentence four of Title 42, United States Code, section 405(g) for proper development of the record. See Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir.1996).

Lisa took the CTBS in April of 1997. The results indicated that of all of the children in the United States who took the CTBS, Lisa was in the bottom two percent in math total, the bottom one percent in math comprehension, and the bottom five percent in math concepts. See Record, at 297. Lisa was also in the bottom six percent in reading total, the bottom four percent in vocabulary, and the bottom seven percent in comprehension. Id. Pursuant to 20 C.F.R. § 416.926a, the Commissioner is required to consider such formal testing in evaluating an applicant's functioning. The pertinent regulations provide:

(ii) The medical evidence may include formal testing that provides information about your development or functioning in terms of percentiles, percentages of delay, or age or grade equivalents. Standard scores (e.g., percentiles) can be converted to standard deviations. When you have such scores, we will consider them together with the information we have about your functioning to determine whether you have a "marked" or "extreme" limitation in a domain.

* * * * * *

(iii) If you are a child of any age (birth to the attainment of age 18), we will find that you have a `marked' limitation when you have a valid score that is two standard deviations or more below the mean, but less than three standard deviations, on a comprehensive standardized test designed to measure ability or functioning in that domain, and your day-to-day functioning in domain-related activities is consistent with that score.

* * * * * *

(iii) If you are a child of any age (birth to the attainment of age 18), we will find that you have an `extreme' limitation when you have a valid score that is three standard deviations or more below the mean, but less than three standard deviations, on a comprehensive standardized test designed to measure ability or functioning in that domain, and your day-to-day functioning in domain-related activities is consistent with that score.

* * * * * *

(4) How we will consider your test scores.

(i) [W]e will not rely on any test score alone. No single piece of information taken in isolation can establish whether you have a `marked' or an `extreme' limitation in a domain.

(ii) We will consider your test scores together with the other information we have about your functioning, including reports of classroom performance and the observations of school personnel and others.

* * * * * *

(iii) If there is a material inconsistency between your test scores and other information in your case record, we will try to resolve it. The interpretation of the test is primarily the responsibility of the psychologist or other professional who administered the test. But it is also our responsibility to ensure that the evidence in your case is complete and consistent or that material inconsistencies have been resolved. Therefore, we will use the following guidelines when we resolve concerns about your test scores:

(A) We may be able to resolve the inconsistency with the information we have. We may need to obtain additional information; e.g., by recontact with your medical source(s), by purchase of a consultative examination to provide further medical information, by recontact with a medical source who provided a consultative examination, or by questioning individuals familiar with your day-to-day functioning.

(B) Generally, we will not rely on a test score as a measurement of your functioning within a domain when the information we have about your functioning is the kind of information typically used by medical professionals to determine that the test results are not the best measure of your day-to-day functioning. When we do not rely on test scores, we will explain our reasons for doing so in your case record or in our decision.

20 C.F.R. §§ 416.926a(e)(1)(ii), .926a(e)(2)(iii); .926a(e)(3)(iii), and .926(e)(4) (emphasis added).

Despite the importance of standardized testing such as the CTBS, the ALJ did not make a determination as to the significance of Lisa's obviously low scores. The ALJ's failure in this regard was contrary to the above regulations and to his basic duty to fully develop the record. See Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981) (explaining that "[b]ecause a hearing before an ALJ is not an adversary proceeding, the ALJ has a basic obligation to develop a full and fair record.... This duty requires the ALJ to `scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts'").

Rather than determine the significance of Lisa's CTBS scores, i.e. the number of standard...