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Israel Flores v. Michael Astrue

September 22, 2011


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Israel Flores, proceeding in forma pauperis, by his attorneys, Law Office of Henry Reynolds, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI") pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. Following a review of the complete record and applicable law, this Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based on proper legal standards. Accordingly, this Court denies Plaintiff's appeal.

I. Administrative Record

A. Procedural History

On October 17, 2006, Plaintiff filed a SSI application, alleging disability beginning October 1, 1990. His claims were denied initially and upon reconsideration. On June 18, 2007, Plaintiff filed a timely request for a hearing. Plaintiff appeared and testified at the hearing on May 14, 2008. On September 25, 2008, Administrative Law Judge William C. Thompson, Jr., denied Plaintiff's application. The Appeals Council denied review on April 20, 2010. On May 19, 2010, Plaintiff filed a complaint seeking this Court's review.

B. Factual Record

Beginning in fourth grade, Plaintiff (born October 17, 1988) attended special education classes. He had received early intervention services since he was three years old. After entering high school, Plaintiff's excessive absences led to his assignment to an alternative school intended to increase Plaintiff's attendance and social skills. Nonetheless, Plaintiff dropped out of school without completing the eleventh grade. Plaintiff's mother testified that he had been diagnosed with ADHD and often became impatient, angry, or frustrated.

Plaintiff testified that he could not work because he was anxious around other people. Similarly, although he had friends, anxiety prevented him from going to the movies or other activities with them. He did not think he could clean offices or work at McDonald's since he would have to do that in the presence of others.

Plaintiff did not drive but was able to walk five or six miles. He had no trouble standing for a couple of hours without sitting down. He thought his ability to lift was unlimited.

Plaintiff vacuumed his home according to his mother's directions but did not think he was good at cleaning. He testified that he could read but that math was too hard. His mother testified that, although Plaintiff pretended to read the newspaper, he did not seem to understand it and could not talk about what he claimed to have read.

In his adult function report, Plaintiff reported that on a typical day, he woke up and washed, then ate and watched television at home or at a friend's home. He did not cook or shop. His household chores were throwing out the garbage, vacuuming, and mowing the lawn. Plaintiff reported that he could count change but had not learned to perform other financial tasks.

Mother's testimony. Plaintiff's mother testified that Plaintiff tended to have friends who took advantage of him. He had previously fallen in with a bad crowd, getting in legal trouble and using cigarettes, alcohol, and drugs. Plaintiff also liked to socialize with much younger children of approximately twelve or thirteen years.

In a third party disability report, Plaintiff's mother reported that he needed encouragement to do his chores and sometimes needed help in performing them. She felt that Plaintiff was not capable of learning to drive or to perform financial tasks other than counting change.

Unintelligible speech. Both the ALJ and Plaintiff's attorney had difficulty understanding Plaintiff's speech at the hearing. Plaintiff mother testified that, although he had received speech therapy as a child, he continued to speak too quickly and confuse the word sounds. Consequently, he was often difficult to understand.

School records. In March 1999, school psychologist Greg Bird conducted a three-year psycho-educational evaluation to determine Plaintiff's (1) continuing need for special education;

(2) least restrictive environment; (3) responsiveness to appropriate interventions; and (4) processing deficit and handicapping condition. On the WISC-III, Plaintiff received a verbal IQ score of 59, and a performance IQ score of 62, yielding a full scale IQ of 56 (below the first percentile). Bird diagnosed Plaintiff as mildly mentally retarded.

Bird reported that Plaintiff had an inadequate verbal knowledge base that restricted his development of oral and written language skills, reasoning, problem solving, and thought processes. He had very poor ability to recognize and organize complex nonverbal relations between the simple elements of a problem. His rate of information processing was slow, possibly as a result of difficulties in visual tracking and short-term memory. His communication abilities were deficient.

In September 2006, school psychologist William M. O'Brien, Ph.D., referred Plaintiff for evaluation by Valley Mountain Regional Center (VMRC) to determine his suitability for adult programming. On August 26, 2007, O'Brien opined that Plaintiff's functional abilities were poor in nearly all areas except for fair ability to interact with supervisors and to understand, remember, and carry out simple job instructions.

O'Brien appended Plaintiff's school records. Plaintiff's 2006 individualized education program (IEP) reflected that Plaintiff had an unspecified specific learning disability (SLD) and required additional instructional support due to processing errors and memory delays. An individualized transition plan noted that Plaintiff would like to work at Wendy's after completing school. The year's objectives included to learn how to do a job interview and how to figure out pay and banking; to explore various job options; and to attend school daily.

VMRC. In an August 2003 psychological report, educational psychologist Richard Burgess, Ph.D., reported on his psycho-educational evaluation to determine Plaintiff's eligibility for services from Valley Mountain Regional Center (VMRC). Burgess opined that Plaintiff had worked as well as possible on all presented test items, suggesting that the test results were a valid measure of his functioning level. On the WISC-III, Plaintiff scored a verbal IQ of 58, a performance IQ of 53, and a full scale IQ of 52, indicating performance at the .086 percentile, or in the mentally deficient range. Burgess opined that Plaintiff "will find it difficult to function at a level comparable to that of others his age for most life activities." AR237.

In Fall 2003, Valley Mountain Regional Center (VMRC) determined that Plaintiff was not eligible for regional center services for people with developmental disabilities, finding that Plaintiff's behavioral and academic concerns related to psychiatric and expressive language difficulties, not to mental retardation or any similar impairment eligible for VMRC services. Communication skills were the area of Plaintiff's greatest relative deficit, reflecting both stuttering and word retrieval problems. Psychologist Arnold E. Herrera, Ph.D., suggested that, although Plaintiff's intellectual capacities were in the borderline to low average range, the inconsistent results of Plaintiff's intelligence and achievements tests reflected the combination of his learning dysfunction (auditory processing) and his inattention. Plaintiff also demonstrated borderline social skills, characterized by restiveness, defying authority, impatience, low frustration tolerance, easy anger, disruptiveness, fighting, truancy, and school suspension. Herrera diagnosed:

Axis I (314.9) Attention Deficit Disorder, NOS (313.81) Oppositional Defiant Disorder with features of Conduct Disorder (315.9) Learning Disorder, NOS, with auditory processing deficits (315.31) Expressive Language Disorder Axis II (V71.09) No diagnosis; retains at least low average intelligence, correcting for inattention and auditory processing deficits

Axis III No known conditions

AR 234.

Agency consulting psychologist. On December 14, 2006, clinical psychologist Philip M. Cushman, Ph.D., evaluated Plaintiff on behalf of the agency. Cushman noted that Plaintiff was taking no medication. He expressed himself more slowly than normal, using short phrases. He was cooperative and agreeable, and only mildly anxious.

Plaintiff's results on the WAIS-III, indicated verbal IQ of 69, performance IQ of 67, and full scale IQ of 74. Although Plaintiff had no specific learning disability, he had few cognitive problem solving skills. His results on Trails A indicated mildly impaired functioning due to slowness; his slowness and errors on Trails B indicated severely impaired functioning. He read at a sixth grade level, comprehended sentences at a second grade level, spelled at the fifth grade level, and demonstrated math computational skills at the fourth grade level. Cushman diagnosed:

Axis I 315.00 Reading Disorder ...

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