Bass

Filing 25

ORDER granting 17 Motion for Judgment on the Pleadings; denying 21 Motion for Judgment on the Pleadings;and, adopting Report and Recommendations re 23 Memorandum and Recommendations. Signed by Chief Judge Louise Wood Flanagan on 02/11/2010. Copies served electronically. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No.7:09-CV-72-FL
CHERYL BASS as Guardian ad Litem for ANHB, Plaintiff,
v.
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)
) ) ) ) ) ) ) )

ORDER

MICHAEL 1. ASTRUE, Commissioner of Social Security, Defendant.

This matter comes before the court on the parties' cross-motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) (DE ## 17,21). Pursuant to 28 U.S.c.

§ 636(b)(I), United States Magistrate Robert B. Jones, Jr. entered a memorandum and
recommendation ("M&R") wherein he recommended that the court grant plaintiffs motion, deny defendant's motion, and remand the case to the Commissioner for further proceedings (DE # 23). Defendant timely filed an objection to the M&R (DE # 24), to which no response was made. In this posture, the matter is ripe for ruling. For the reasons that follow, the court adopts the M&R, grants plaintiff s motion, denies defendant's motion, and remands to the Commissioner. STATEMENT OF THE CASE On October 2 7 , 2 0 0 5 , plaintifffiled an application for Supplemental Security Income ("881") payments on b e h a l f of claimant ANHB, her daughter. The application alleged disability as a result of attention deficit hyperactivity disorder ("ADHD") and borderline intellectual functioning. The claim was denied initially and upon reconsideration. On February 27,2007, plaintiff and claimant appeared before an administrative law judge ("ALJ"). At this hearing, claimant was represented by

counsel. On December 11, 2007, the ALJ issued a decision denying plaintiff s application. The Appeals Council denied plaintiffs request for review on February 26, 2009. On May 4,2009, plaintiff moved for leave to proceed in forma pauperis, with copy of the complaint attached, and requested to be appointed guardian ad litem to represent the interests of ANHB before this court. The magistrate judge granted these motions on May 5, 2009. Defendant answered on July 9, 2009, and filed the administrative copy with this court shortly thereafter. On August 26, 2009, plaintiff moved for judgment on the pleadings, and defendant followed suit on November 19, 2009. In her motion, plaintiff argues that the ALl erred in finding that claimant's limitations did not functionally equal the listings, while defendant argues that the ALl's finding was supported by the record. I The specific finding challenged byplaintiffis that claimant had a marked limitation only in "acquiring and using information."z Plaintiff contends that claimant has marked functional limitations in two additional domains, specifically "attending and completing tasks" and "interacting and relating with others." Defendant argues that the ALl's finding that claimant had less than marked limitations in these two domains is supported by substantial evidence.

I To functionally equal the listings, an individual must have an extreme functional limitation in one domain of functioning o r marked functional limitations in at least t w o domains. 20 C.F.R. § 4 1 6 . 9 2 6 a . The d o m a i n s of functioning listed by the regulations are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for yourself; and (6) health and physical well being. Id. § 416. 9 2 6 a ( b ) ( 1 ) .

2 A "marked" limitation is defined in part as: [Y]our impairment(s) interferes seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day functioning may be seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects ofyour impairment(s) limit several activities. "Marked" limitation also means a limitation that is "more than moderate" but "less than extreme." It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean. 20 C.F.R. § 416.926a(e)(2).

2

The motions were referred to the