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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0378P (6th Cir.)

File Name: 03a0378p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

PHYLLIS ELAM, for Kamea

Golay, a minor,

Plaintiff-Appellant,

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant-Appellee.

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No. 03-5315

Appeal from the United States District Court

for the Western District of Kentucky at Owensboro.

No. 01-00126—Joseph H. McKinley, Jr., District Judge.

Submitted: June 19, 2003

Decided and Filed: October 24, 2003 

Before: KEITH, MARTIN, and SUTTON, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Mark D. Pierce, Paducah, Kentucky, for

Appellant. Christopher G. Harris, Elyse Sharfman, Dennis R.

Williams, Mary Ann Sloan, SOCIAL SECURITY

2 Elam v. Comm’r of Social Security No. 03-5315

ADMINISTRATION, OFFICE OF GENERAL COUNSEL,

Atlanta, Georgia, for Appellee.

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OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. Phyllis Elam, on

behalf of her minor daughter Kamea Golay, appeals a district

court judgment affirming the Commissioner’s termination of

supplemental security income benefits. The parties have

waived oral argument and this panel unanimously agrees that

oral argument is not needed. See Fed. R. App. P. 34(a).

Kamea was born on December 4, 1983, and was allegedly

disabled due to mental retardation. Kamea was found

disabled as of August 1, 1991, and was awarded benefits.

However, on August 22, 1996, Congress enacted the Personal

Responsibility and Work Opportunity Reconciliation Act,

which changed the definition of disability for children seeking

benefits. See 42 U.S.C. § 1382c(a)(3)(C). Pursuant to the

Act, the Commissioner reevaluated Kamea’s status and

determined that she no longer satisfied the new definition of

disability for children. After a hearing, an administrative law

judge determined that as of August 1, 1997, Kamea was no

longer entitled to benefits. The Appeals Council declined to

review that decision. 

Ms. Elam then filed a civil action seeking judicial review

of the administrative law judge’s decision. Upon de novo

review of a magistrate judge’s report, the district court

affirmed the termination of benefits and granted judgment to

the Commissioner. 

Judicial review is limited to determining whether there is

substantial evidence in the record to support the

administrative law judge’s findings of fact and whether the

correct legal standards were applied. See Key v. Callahan,
No. 03-5315 Elam v. Comm’r of Social Security 3

109 F.3d 270, 273 (6th Cir. 1997). The decision must be

affirmed if the administrative law judge’s findings and

inferences are reasonably drawn from the record or supported

by substantial evidence, even if that evidence could support

a contrary decision. See id.

There is a three step process in determining whether a child

is “disabled” under the new definition set forth in the Act.

First, the child must not be engaged in substantial gainful

activity; second, the child must have a severe impairment; and

third, the severe impairment must meet, medically equal or

functionally equal one of the impairments found in 20 C.F.R.

Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 416.924.

In order to be found disabled based upon a listed impairment,

the claimant must exhibit all the elements of the listing. See

20 C.F.R. § 416.924(a); Hale v. Sec’y of Health & Human

Servs., 816 F.2d 1078, 1083 (6th Cir. 1987). It is insufficient

that a claimant comes close to meeting the requirements of a

listed impairment. See Dorton v. Heckler, 789 F.2d 363, 367

(6th Cir. 1986).

The issue before this Court is whether Kamea has an

impairment that meets, medically equals or functionally

equals the impairment of “mental retardation” listed in

sections 112.05 and 12.05 of Appendix 1. We believe that

substantial evidence supports the administrative law judge’s

decision that Kamea has no such impairment. 

Ms. Elam contends that the administrative law judge

improperly failed to consider Kamea’s intelligence test scores

that were seventy or below. While Ms. Elam points to

Kamea’s test scores from March 1991 through September

1998, the regulations provide that intelligence test scores

must be sufficiently current for an accurate assessment under

section 112.05. See 20 C.F.R. § 404, Subpart P, Appendix 1,

§ 112.00D. Intelligence test results obtained between the ages

of seven and sixteen are considered to be current for four

years if the score is less than forty, and for two years if the

score is forty or above. Because Kamea’s test results all

4 Elam v. Comm’r of Social Security No. 03-5315

exceeded the forty point standard, they would be considered

current for only two years. Therefore, only those scores

obtained within two years prior to the date of the

administrative hearing in 1999 are valid for purposes of

determining whether Kamea is disabled under the Act. 

On November 29, 1997, Dr. Spence evaluated Kamea and

administered the Wechsler Intelligence Test for Children.

Kamea obtained a verbal score of fifty-seven, a performance

score of seventy-seven, and a full scale score of sixty-four. In

his report, Dr. Spence noted that while Kamea’s performance

score was essentially equivalent to her 1996 score, her verbal

and full scale scores had dropped by eighteen and nineteen

points, respectively. On the other hand, Kamea’s scores on

the Wide Range Achievement Test-Revised III were

significantly higher than what would be expected given her

verbal score of only fifty-seven. Although the scores

examined in isolation would tend to indicate mental

retardation, Dr. Spence concluded that Kamea was actually in

the borderline range of intelligent functioning, given the score

discrepancies between the 1996 and 1997 tests.

Mr. Andrew Jensen, a psychological associate, also

performed intelligence tests upon Kamea in September 1998.

Those test results revealed a verbal score of sixty-six, a

performance score of sixty-six, and a full scale score of sixtyfour. Mr. Jensen considered the test results to be indicative of

mild mental retardation. Ms. Elam relies on Kamea’s scores

on the tests administered by Mr. Jensen in support of her

argument that the Commissioner erred as a matter of law in

failing to find that Kamea’s scores were within the necessary

range to meet the criteria of section 112.05.

The administrative law judge rejected the scores obtained

by Mr. Jensen, along with his conclusion of mental

retardation, because Mr. Jensen was not an acceptable source

of medical evidence. See 20 C.F.R. § 416.913(a). By

regulation, an acceptable source of medical evidence is

considered to be either a licensed physician, a licensed
No. 03-5315 Elam v. Comm’r of Social Security 5

osteopath or a licensed or certified psychologist. See 20

C.F.R. §§ 404.1513(a)(1)-(3); 416.913(a)(1)-(3). Thus, the

Commissioner did not err in determining that Mr. Jensen was

not qualified as an acceptable source of medical evidence.

See 20 C.F.R. § 416.913(a). 

The conclusions of Dr. Spence that Kamea was operating

in the borderline range of intelligent functioning, rather than

being mentally retarded, are supported by the testimony of Dr.

Dennis Anderson, an educational psychologist who testified

at the administrative hearing. Dr. Anderson agreed with Dr.

Spence that Kamea was actually operating within the

borderline range of intellectual functioning, although her

intelligence test scores, standing alone, would indicate mental

retardation. Dr. Anderson relied, in part, on his observations

of Kamea during the hearing and her testimony. He

concluded that Kamea’s communicative skills were

inconsistent with those of a person with an intelligence test

score in the low to mid-sixties.

Under section 416.926(a), if a child’s impairment – or

combination of impairments – does not meet or is not

medically equivalent in severity to a listed impairment, then

the Commissioner will assess all functional limitations caused

by the impairment to determine if the child’s impairments are

functionally equivalent in severity to any of the listed

impairments of Appendix 1. The following areas of

development may be considered in determining whether a

child’s impairments are functionally equivalent to a listed

impairment: 1) cognition/communication, which is the ability

or inability to learn, to understand and to solve problems

through reasoning; 2) motor, which includes the ability or

inability to use gross and fine motor skills to serve one’s

physical purposes; 3) social, which includes the ability or

inability to form and maintain relationships with other

individuals and groups; and 4) concentration, persistence or

pace, which is the ability or inability to attend to and sustain

concentration on an activity or task. See 20 C.F.R.

§ 416.926a. A finding of functional equivalence to a listed

6 Elam v. Comm’r of Social Security No. 03-5315

impairment is warranted when the child has an extreme

limitation in one area of functioning or marked limitations in

two areas of functioning. See id. In this case, the

administrative law judge determined that there was no

evidence that Kamea was markedly limited in at least two

categories of functioning. He also determined that there was

no evidence that Kamea was extremely limited in one area of

functioning.

Kamea’s Wide Range Achievement Test Results indicated

that she was reading at the eighth grade level, spelling at the

fifth grade level and had mathematical abilities at the fourth

grade level. At the time of the hearing, Kamea was attending

regular classes in the ninth grade with one special education

class in English. Kamea’s teachers provided assessments of

her performance that indicated that she was able to

communicate with her instructors and was able to take notes

and accomplish homework at her academic level. 

Kamea submitted no evidence of any marked or extreme

functional limitations in her motor skills. To the contrary, she

was actively pursuing her desire to participate in her school’s

basketball team. The evidence revealed no significant

limitations in social functioning. Ms. Elam conceded that

Kamea participated in both school and church activities,

socialized with her friends and went to church with her

grandmother. Kamea testified that she had approximately ten

girl friends with whom she socialized. One of her teachers

described Kamea as being a typical ninth grade student who

interacted well with her peers. 

Finally, there was no evidence presented of any marked or

extreme limitation in personal functioning. Kamea’s teachers

noted no difficulties with her self-help skills and observed

that Kamea was always clean. Additionally, her mother

reported that Kamea was able to dress herself. 
No. 03-5315 Elam v. Comm’r of Social Security 7

In light of the above, we find that substantial evidence

supports the administrative law judge’s decision.

Accordingly, we affirm the district court’s judgment.