JACKON v. ASTRUE

Filing 11

MEMORANDUM AND/OR OPINION RE: PLAINTIFF'S MOTION IN SUPPORT OF REVIEW. SIGNED BY HONORABLE LOUIS H. POLLAK ON 8/12/2010. 8/16/2010 ENTERED AND COPIES MAILED, E-MAILED.(kk, )

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA

D E B R A JACKSON o/b/o A.R., P la in tif f , v. M IC H A E L J. ASTRUE, Commissioner o f Social Security, D e f e n d a n t. C iv il Action No. 09-3847

M EM ORANDUM A u g u s t 12, 2010 Pollak, J.

O n May 10, 2010, United States Magistrate Judge Jacob P. Hart filed a Report and R e c o m m e n d a tio n ("R&R") (docket no. 10) recommending that the request for review m a d e by Debra Jackson, on behalf of her son, A.R., in this social security appeal be d e n ie d . R&R at 12. Claimant has filed no objections to the R&R. I. F a c tu a l and Procedural Background T h e R&R sets out the background of the case in detail. A.R was eleven years old a t the time that his mother filed an application for SSI benefits. Id. In the application, s h e alleged that he had suffered from attention-deficit hyperactive disorder (ADHD) and a le a rn in g disorder since birth. Id. When the agency denied Jackson's disability request,

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A.R. was fifteen years old. Id. Jackson then requested a de novo hearing before an ALJ. Id. The ALJ issued his decision finding that A.R. was not entitled to benefits on D e c e m b e r 18, 2008. Id. at 2. The Appeals Council denied claimant's request for review. Id. II. Legal Standards The ALJ was asked to determine whether A.R. was disabled under § 1614(a)(3)(C) o f the Social Security Act.1 The ALJ followed the three-step process outlined in 20 C .F .R . § 416.924(a) to determine whether claimant was entitled to benefits. In order to be a w a rd e d benefits, first, the claimant must be found to not be engaged in any "substantial g a in f u l activity." 20 C.F.R. § 416.924(b). Second, the claimant must suffer an im p a irm e n t or combination of impairments which are severe. 20 C.F.R. § 416.924(c). Third, the claimant's impairment "must meet, medically equal, or functionally equal in s e v e rity a listed impairment" as defined in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C .F .R . § 416.924(d). If a child does not meet or equal a listed impairment, he can be f o u n d functionally equivalent to a listed impairment when he suffers marked limitations in two of six areas of functioning, or an extreme limitation in one of the six areas of f u n c tio n in g . 20 C.F.R. § 416.926a. T h e ALJ determined that A.R. suffered impairments due to his ADHD and a
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An individual is disabled under § 1614(a)(3)(C) of the Social Security Act if he is under the age of eighteen and suffers from a medically determinable physical or mental impairment which results in severe and marked limitations which last continually over a time span of not less than twelve months. 2

learning disorder. However, he found that these impairments or combination of im p a irm e n ts, did not meet or medically equal a listed impairment in 20 C.F.R. Part 404, S u b p a rt P, Appendix 1. Record at 66. The ALJ determined that A.R. has less than a m a rk e d limitation in four areas of functioning and no limitations in the remaining two a re a s . Record at 73. Accordingly the ALJ found that A.R. was not disabled. Jackson asserts that the ALJ erred in failing to: (1) discuss that A.R.'s hours of s p e c ia l education instruction increased during eighth-grade; (2) discuss the global a s s e s sm e n t of functioning (GAF) score awarded to A.R; (3) acknowledge the re c o m m e n d a tio n made by A.R.'s pediatrician that he receive a one-on-one aide; and (4) e x p la in A.R.'s performance evaluation on the Brown ADD scales. R&R at 3. III. Discussion T h is court in reviewing the R&R and ALJ's decision must determine whether the C o m m is s io n e r's decision is supported by substantial evidence. Fagnoli v. Massanari, 247 F .3 d 34, 38 (3d Cir. 2001). The Third Circuit has stated that "[s]ubstantial evidence . . . m e a n s such relevant evidence as a reasonable mind might accept as adequate." Id. (in te rn a l citations and quotations omitted). J u d g e Hart found that the ALJ did fail to discuss some of the evidence referenced b y Jackson. R&R at 12. However, Judge Hart concluded that the ALJ's errors would not h a v e changed the Commissioner's decision, and that Jackson's motion for review should th e re f o re be denied.

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The R&R is correct that the arguments raised by Jackson, even if valid, do not s h o w the ALJ's decision lacked substantial evidence. The increase in special education in s tru c tio n was not determinative, as A.R. was found not to have a marked limitation in a n area of functioning. R&R at 8. Second, "the evidence clearly fails to support a f in d in g that A.R. had mental-health related behavioral problems to the degree indicated b y a GAF score of 40." R&R at 9. As the R&R explains, Jackson's statements to the p e rs o n conducting the GAF test that A.R. had been suspended five times during sixthg ra d e , or four times during seventh-grade, were without support. R&R at 9. Rather, A .R .'s special needs evaluation at the end of sixth-grade did not mention any behavioral is su e s, besides distractibility, and his IEPs for April, 2006 and for the 2007-2008 schoolye a r did not set any behavioral goal. R&R at 9-10. Third, the ALJ did, in fact, mention the letter written by A.R.'s treating physician, D r. Selbst, recommending that he receive one-on-one assistance. R&R at 11. The ALJ f o u n d that the fact he did not receive such services was significant, given that "no one at h is school seemed to feel he needed any behavioral assistance." R&R 11. Finally, Jackson asserts that the ALJ erred in failing to mention the results of the B ro w n ADD Scale used as part of A.R.'s behavioral evaluation. The evaluation does not a d d re s s the severity of his limitations. The most relevant parts of this evaluation state, " [ A .R .] appears to be having some difficulty with his attending, memory, and auditory p ro c e s s in g skills. [A.R.] will require accommodations and support in order to assist him

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with these skills in the classroom." R&R at 11. However, another evaluation showed his p ro b le m s in this domain were "obvious," but not "serious" or "very serious." R&R at 12. Judge Hart, therefore, concluded "[t]here is nothing in the Brown ADD Scales . . . which w o u ld appear to require a different result; they simply confirm that A.R. has these lim ita tio n s ." The parties have not presented any objections. After reviewing the record, having g iv e n "reasoned consideration to the magistrate's report before adopting it as the decision o f the court," this court approves and adopts Judge Hart's R&R. Henderson v. Carlson, 8 1 2 F.2d 874, 878 (3d Cir. 1987).

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