Opinion
Case No. 6:00-cv-264-Orl-28JGG
March 29, 2002
ORDER
This cause is before the Court on review of the final decision of the Commissioner of the Social Security Administration terminating the SSI disability insurance benefits of Jennifer Fontanez effective August 1, 1997.
The United States Magistrate Judge has submitted a Report and Recommendation (Doc. 21) recommending that the administrative decision be reversed and remanded for further proceedings under Sentence Four of 42 U.S.C. § 405 (g). Defendant Commissioner has filed an Objection (Doc. 22) to the Report. Plaintiff has not responded to the objection. As more specifically set forth below, after a review of the record in this matter, including the Objection by Defendant Commissioner, the Court agrees with the findings and conclusions in the Report and Recommendation of the Magistrate Judge. Accordingly, this cause will be remanded to the Commission for further proceedings.
In her Memorandum in Opposition to the Commissioner's Decision (Doc. 12), Plaintiff assigned five points of error: (1) that the ALJ improperly determined that Jennifer "has moderate limitation of cognitive/communicative functioning and slight limitation of concentration"; (2) that the ALJ erred in failing to find that Jennifer had a severe impairment; (3) that the ALJ erred in "failing to consider and evaluate the combined effect of the claimant's impairments in determining severity"; (4) that the ALJ erred in "failing to consider the combined effect of the claimant's impairment in determining whether her impairment equaled a listing;" and (5) that the ALJ's decision was not based on substantial evidence. (Doc. 12, at 2).
In the Report and Recommendation, the United States Magistrate Judge noted that the ALJ actually did conclude that Jennifer had a "moderate" rather than "slight" limitation in concentration and ultimately concluded that Jennifer's impairments were "severe." The Magistrate Judge also found that the ALJ indeed considered the combined effect of all of Jennifer's impairments and considered the impairments in combination in determining whether Jennifer's condition met or equaled the listings. However, the Magistrate also concluded that remand was required because the ALJ failed to fully develop the record and failed "to determine the significance of Jennifer's low [test] scores." (Doc. 21 at 33). In reaching this conclusion, the Magistrate Judge stated:
The ALJ had a duty to fully and fairly develop the record as to Jennifer's Impairments so that he could determine whether they functionally equal a Listing. Here, the ALJ had a special duty to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts and to be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited. The record does not contain sufficient information from Jennifer's medical sources to determine whether Jennifer functionally equaled a Listing.
The record contains limited evidence of formal testing. On May 18, 1993, Michael F. Kirschner, Ph.D., administered to Jennifer a We[chs]ler Intelligence Scale for children. On November 11, 1997, Frank A. Lopez, M.D. at the Children's Developmental Center performed a Visual Motor Integration Test, an Auditory Analysis Skills test, and a Kaufman Brief Intelligence Test R. 241-43. This formal testing, however, did not provide the ALJ (and the district court) with adequate information about Jennifer's functioning in terms of percentiles, percentages of delay, or age or grade equivalents. Her standard scores were not converted to standard deviations so as to be useful in determining whether Jennifer had a "marked" or "extreme" limitation in a domain. Absent standardized tests that measure functional abilities in terms of standard deviations, a judge cannot usually determine the presence or absence of an "extreme" or "marked" limitation. Contrary to his duty to fully develop the record, the ALJ failed to determine the significance of Jennifer's low scores. This requires remand.
(Doc. 21 at 32-33) (footnotes omitted).
In the Objection to the Magistrate Judge's Report, the Commissioner argues that the record in this case is not incomplete and that the adequately developed record supports the ALJ's determination that Jennifer is not disabled. The Commissioner particularly takes issue with the premise in the Report that "[a]bsent standardized tests that measure functional abilities in terms of standard deviations, a judge cannot usually determine the presence or absence of an `extreme' or `marked' limitation." (Doc. 21 at 33, quoted in Doc. 22 at 2). The Commissioner argues that "not all functional criteria can be tested in terms of quantitative tests with standard deviations" and that "not all tests or scales which measure the ability to function can be equated in terms of scores with standard deviations." (Doc. 22 at 4, 5). Although the Commissioner acknowledges that reported standard deviations for Jennifer's test results are absent from the record, the Commissioner contends that the ALJ nevertheless had sufficient evidence available to make the determination whether Jennifer's limitations were marked or extreme.
The Court agrees with the conclusion of the Magistrate Judge that the ALJ erred in not fully developing the record with standard deviation information. The pertinent regulations provide that there are two alternative methods — standardized tests or "other medical findings" — for documenting the severity of most functional areas but that "[t]he use of standardized tests is the preferred method of documentation if such tests are available." 20 C.F.R. Part 404, Subpt. P, App. 1, 112.00(C): "Assessment of Severity." Here, standardized tests had been administered to Jennifer and were therefore available. Considering that "marked" and "extreme" limitations are, in the context of standardized testing, defined in terms of standard deviations, the record should have been developed so that this very meaningful information was included in order that the ALJ could have appropriately considered the significance of Jennifer's test scores in making the determination as to disability. Cf, Borgens v. Halter 164 F. Supp.2d 1309, 1313 (M.D. Fla. 2001) (remanding for further development of the record so that standardized test results could be considered).
A "marked" limitation "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)(i). An "extreme" limitation "is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean." 20 C.F.R. § 416.926a(e)(3)(i).
In accordance on the foregoing, it is ORDERED as follows:
1. The Report and Recommendation (Doc. 21) is ADOPTED and CONFIRMED and made a part of this Order.
2. The decision of the Commissioner is hereby REVERSED under sentence four of 42 U.S.C. § 405 (g), and this case is hereby REMANDED to the Commissioner of Social Security for further proceedings consistent with the Report and Recommendation and this Order.
3. The Clerk is directed to enter a separate judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure and thereafter to close the file.