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Payton v. Commissioner of Social Security

September 27, 2010


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 17) and defendant's cross-motion for summary judgment (Doc. 22).


Plaintiff applied for social security benefits on February 28, 2005. In the application, plaintiff claims that disability began on December 27, 1988, at age three. Plaintiff claims that disability is caused by a combination of Asperger's Syndrome, learning disorder, and morbid obesity. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on January 29, 2008, before Administrative Law Judge ("ALJ") Peter F. Belli. In an April 25, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: learning disorder and obesity;

2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. The claimant has the residual functional capacity to perform medium work except that she is limited to lifting and carrying 50 pounds occasionally and 25 pounds frequently; she can sit for 8 hours, and stand and walk for 8 hours, in an 8 hour day; the claimant's ability to understand, remember, and carry out short, simple instructions and make judgments on simple work-related decisions is slightly limited; her ability to understand, remember, and carry out detailed instructions, and make judgments on detailed work-related decisions is slightly to moderately limited; she can perform work which requires occasional exposure to the public; her ability to interact appropriately with supervisors and co-workers is slightly limited; the claimant's ability to respond appropriately to work pressures and usual work setting, and to respond appropriately to changes in a routine work setting is slightly to moderately impaired;

4. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

After the Appeals Council declined review on January 30, 2009, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

June 3, 1989 -- The record contains a report from Kimberly Weber, M.A., who is a behavioral specialist. Ms. Weber states:

Rebecca Payton is a 3 year old girl who has been diagnosed as having aphasia. While working with Mrs. Payton in her home, since Nov. 1, 1980, concerning the behavioral issues of her son, the Behavioral Specialist was able to observe Rebecca in a variety of situations.

Rebecca emits a high rate of masturbation for a child of her age. During a 2 hour time period while the Behavioral Specialist was in the home Rebecca engaged in masturbation at least 50% of the time.

Rebecca's verbal behavior is also limited. Rebecca is able to repeat whatever has just been said, using 3 to 4 word phrases or sentences, yet does not initiate conversation. Rebecca frequently repeats phrases from the television like, Johnson and Johnson or fly American. Rebecca rarely is able to request exactly what she wants. Frequently, when Rebecca wants something and is unable to express her needs she will tantrum, cry, or hit others. If there is a toy or object that Rebecca wants to play with, she will go take the toy from who ever has it.

The Behavioral Specialist believes that these limiting abilities impede her progress a great deal and that a reconsideration of SSI funding should be considered.

October 24, 1989 -- The record contains a letter report from Jeffrey Miller, Ph.D. Dr. Miller states:

In response to your letter dated October 20, 1989, the following is my response to your question posed by me regarding the nature and extent of Rebecca's communication impairment. As I indicated in my psychological evaluation of her on 7-25-89, she has a significant communication impairment which affects the clarity and content of her speech. More specifically, she is delayed by about one year in her general language development. Her language is most likely associated with a neurological disorder. Furthermore it is likely that she will continue to have significant deficits in her receptive and expressive language skills over the next few years at least. Additional psychological testing would be necessary in about two years to determine whether or not she has the capacity to overcome these deficits at some point.

As I also indicated in my previous report, research studies on children with similar delays in expressive delays often fall farther behind their age group as they become older if their language skills do not improve significantly by about five years of age.

June 11, 2003 -- The record contains an Individualized Education Program ("IEP") report. For strengths, the report indicates that plaintiff is a "good student, works hard." The report also indicates that plaintiff's communication skills had improved with work in the school attendance office. The document indicates a severe discrepancy between ability and achievement in math skills only. No discrepancies were noted in other areas, such as reading and writing.

March 29, 2004 -- The record contains an IEP report prepared when plaintiff was in 12th grade. The document indicates that severe discrepancies existed between plaintiff's ability and actual achievement in basic reading and auditory processing. No discrepancies were noted as to math skills.

February 28, 2005 -- In her application, plaintiff stated that she became disabled in 1988 at age three. She also stated that she does not need any help in personal care, hygiene, or upkeep of a home. In an accompanying disability report, plaintiff indicated that she completed 12th grade and never took any special education classes.

August 8, 2005 -- Plaintiff submitted a "Function Report -- Adult." She stated that, on a typical day, she attends school from 7:30 a.m. until 3:15 p.m. She also stated that she cares for family pets with the assistance of her family. As to house chores, she stated that she washes the dishes and helps put away groceries. Plaintiff stated that it takes her 40 minutes to wash the dishes. She stated that she goes shopping twice a month, does not drive a car, and cannot pay bills. For social activities, she stated that she goes to school three to five days a week and that this is her primary social outlet. As to getting along with others, she stated: "My little sister is a pain sometimes." As to her physical and mental abilities, plaintiff stated that she has difficulty with memory, completing tasks, understanding, and concentration. She did not report any physical limitations. She stated she could walk four blocks without rest and could pay attention "awhile, I guess." She stated that she finishes what she starts and can follow spoken and written instructions "most of the time with help." She stated that she gets along with authority figures "o.k." She also stated that she can handle changes in routine.

August 10, 2005 -- Plaintiff's mother -- Andrea Payton -- submitted a third-party function report. Ms. Payton confirmed plaintiff's statement that she needs no assistance with personal care. She stated that plaintiff does not cook and explained that plaintiff "knows she needs to lean how to cook." She stated that plaintiff washes dishes and her own clothes. She stated that plaintiff has difficulty with completing tasks, concentration, understanding, and following instructions, but not with memory. Plaintiff's mother stated that plaintiff could only pay attention for five minutes at a time. Plaintiff's mother also completed a work history report on behalf of plaintiff. This report indicates that plaintiff has held only one job between June 2003 and June 2004 as a clerk. In this position, plaintiff worked four hours per day stuffing envelopes with folded newsletters.

August 25, 2005 -- Agency examining doctor Sanford Selcon, M.D., submitted a report following a complete medical evaluation. Dr. Selcon reported the following history:

The claimant has had a history of learning disability and according to the mother stating aphasic since birth. The claimant was questioned and the claimant appeared not to be aphasic. However, the mother insists that this was and remains part of problem. The claimant, however, has been throughout her grade school and high school career in special education. She is currently in a special class of teaching of learning at Sacramento City College she is an art major. [sic]. She is able to read and to write and appears to understand quite well and appears not be of aphasic. [sic]. She had been a slow learner in grade school and high school. However, she seems to be doing quite well in college. She has had no medical problems and takes no medication for the condition.

Following an objective examination, the doctor reported the following functional assessment:

The number of hours that the claimant could sit in an 8-hour work period is without limitations. The number of hours that the claimant could stand/walk in an 8-hour work period is without limitations. The amount of weight that the claimant could lift/carry is without limitations. There are no postural, manipulative, visual, communicative, or workplace environmental limitations.

August 30, 2005 -- Agency examining psychiatrist Timothy Canty, M.D., reported following a psychiatric evaluation. Dr. Canty reported the following history:

She was in special education and describes difficulty in this area. When I asked about her mood she said "It's OK unless somebody says something hurtful to me." Thankfully, this does not often happen. She becomes nervous if she has to talk in front of crowds but normally has little anxiety. She has no mental health treatment, has never been psychiatrically hospitalized, and does not take psychiatric medications.

Following an objective examination, Dr. Canty diagnosed "Probable intellectual difficulties" and assigned a GAF score of "70?" The doctor offered the following ...

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