Scales v. Barnhart, 03-2064.

• Decision Date: 08 April 2004
• Docket Number: No. 03-2064.,03-2064.
• Citation: 363 F.3d 699
• Parties: Shirley SCALES, on behalf of Natashia LaGrone, Plaintiff — Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant — Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

363 F.3d 699

Shirley SCALES, on behalf of Natashia LaGrone, Plaintiff — Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant — Appellee.

No. 03-2064.

United States Court of Appeals, Eighth Circuit.

Submitted: November 19, 2003.

Filed: April 8, 2004.

E. Gregory Wallace, argued, Buies Creek, North Carolina (Anthony W. Bartels on the brief), for appellant.

Keith D. Simonson, argued, Dallas, Texas (H.E. (Bud) Cummins, Stacey E. McCord, Tina M. Waddell, and Michael McGaughran on the brief), for appellee.

Before MELLOY, RICHARD S. ARNOLD, and SMITH, Circuit Judges.

MELLOY, Circuit Judge.

Upon a continuing disability review, the Social Security Administration (the "Administration") determined that Natashia LaGrone, a hearing-impaired minor, no longer qualified for disability benefits. The district court agreed.¹ Because substantial evidence supports the finding that Natashia was not disabled, we affirm.

I.

Natashia was born on November 22, 1987, with impaired hearing. In May of 1988, Ms. Scales applied for supplemental security income on Natashia's behalf. The Administration determined that Natashia was disabled as of May 1, 1988, because she had sensorineural hearing loss and met the listing for hearing impairment.

In March of 1999, the Administration determined that Natashia's hearing had improved, and she was no longer disabled. Natashia's benefits ceased as of May 1, 1999. At the time, she was eleven years old and in the fourth grade. In a 2001 hearing before an administrative law judge, Ms. Scales argued alternatively that Natashia met the listings for hearing impairment and/or mental retardation or that her combined impairments were functionally equal to the listing for mental retardation. On July 27, 2001, following the hearing, an administrative law judge determined that Natashia no longer met, and neither medically nor functionally equaled, a listed impairment. At the time of the hearing, Natashia was thirteen years old and in the sixth grade.

The Administration's Appeals Council denied further review, making the administrative law judge's determination the final decision of the Administration. Ms. Scales then brought this action in the district court. The district court determined that the Administration's final decision was supported by substantial evidence and affirmed the denial of benefits.

Evidence before the Administration was extensive. Ms. Scales testified that Natashia required close supervision. However, she also testified that Natashia attended both regular and special education classes; wore two hearing aids; rode the bus to school; took no medications; and enjoyed playing basketball. Ms. Scales testified that Natashia's hearing aids were broken, but that she did not have the three hundred dollars necessary to fix them. Natashia stated that the hearing aids helped "a lot."

In a 1998 functional report that Ms. Scales completed for the Administration, Ms. Scales checked boxes to indicate whether Natashia's impairment interfered with various areas of learning and daily life. Ms. Scales indicated Natashia could deliver telephone messages; repeat stories she had heard; tell jokes or riddles accurately; use sentences with "because," "what if," or "should have been"; talk with family and friends; read capital and small letters; read simple words; read and understand stories in books or magazines; print some letters; print her name; spell most three to four letter words; add and subtract numbers over ten; understand days of the week and months of the year; and understand money well enough to make correct change. Ms. Scales also indicated that Natashia could not tell time; explain why she did things; write in script; read and understand simple sentences nor write a simple story with six to seven sentences. Finally, Ms. Scales indicated that Natashia's physical abilities were not limited and that Natashia's impairment did not affect her behavior with other people, limit her ability to help herself and take care of her personal needs, nor limit her ability to pay attention and stick with a limited task.

School records indicated that Natashia performed at grade level in math but had difficulty with language skills. In February of 1999, a teacher stated that Natashia (then eleven) was in the fourth grade, functioned at the fourth grade level in math, functioned at the third grade level for reading, had no significant problems with articulation or language, attended regular classes for some subjects, and attended special education classes for reading and speech. For the following school year, her teachers recommended that she attend regular classes at the fifth grade level for reading, math, science, social studies, physical education, music and library, but that she attend special education classes for language and spelling and receive 30 minutes of speech therapy each week.

In November and December of 1999, when Natashia turned twelve and was in the fifth grade, her teachers stated that she had no significant problem with articulation. One teacher stated that her language impairment interfered with her progress, but another teacher said Natashia had no significant problem with language. On balance, Natashia's teachers painted a more favorable picture of Natashia's abilities than did Ms. Scales and described improvement in Natashia's language skills.

In the spring of 1998, when Natashia was ten years old, she received an age equivalency rating of five years, seven months in the area of receptive language skills on a speech and language evaluation. Based on this rating, and other test results, the examiner recommended that Natashia continue with speech therapy. In a June 1998 speech and language evaluation, Natashia received an age equivalency rating of four years, nine months on the Peabody Picture Vocabulary Test. Natashia's scores in other areas of speech and language were not as poor. The examiner for the June evaluation stated, "Natasha [sic] was considered to have a severe language disorder in receptive and expressive language areas. She did not have an articulation problem. These problems related to her hearing impairment which negatively affects language skills."

Medical evidence demonstrated an improvement in hearing between 1988 and 1998. In 1988, Natashia heard at the 50 decibel (db) level. In 1998, she could hear at the 31 db level with 80% speech discrimination in the left ear and 76% speech discrimination in the right. The examiner at the time said Natashia had normal speech volume, had a severe language disorder in the receptive and expressive areas, but did not have an articulation problem. In 1999 an audiologist measured Natashia's unaided hearing in the left ear at the 33 db level.

In January of 2000, a psychological examination revealed that Natashia's verbal IQ score was 54, her performance IQ score was 77, and her full-scale IQ score was 62. A valid verbal IQ score of 54, standing alone, may be sufficient to meet listing 112.05 for mental retardation. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.05 (defining the listing of mental retardation as being "[c]haracterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning. The required level of severity for this disorder is met when the requirements in A, B, C, D, E, or F are satisfied.... C. A valid verbal, performance, or full scale IQ of 59 or less; D. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant limitation on function."). Notwithstanding these scores, the psychologist who administered the IQ test and conducted a psychological examination of Natashia determined that Natashia was not mildly mentally retarded because the discrepancy between the verbal and quantitative scores demonstrated that Natashia's hearing impairments interfered with her verbal reasoning ability. The psychologist suggested a learning disorder rather than mental retardation as the diagnosis:

Natashia La Grone is a 12 years 1 month old African-American female, whose overall intellectual functioning was found to be within the mildly deficient range. However, it should be noted that the test results reflect a wide discrepancy between verbal and performance ability, with deficits in the verbal area of ability compromising her overall functioning. It is believed, that deficits in her ability to hear, interfere with her verbal reasoning ability, as well as her ability to communicate effectively. Current test results are suggestive of a learning disability, as supposed [sic] to mental retardation. While severe deficits in the area of communication were noted, only mild deficits in adaptive behaviors in the area of concentration, persistence and pace, as well as social and interpersonal skills (inappropriate behavior in the classroom) were revealed....