1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2003 FED App . 0378P (6th C ir.) File Name: 03a03 78p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ P HYLLIS E LAM , for Kamea Golay, a minor,

Plaintiff- Appellant
,

v.
C OMM ISSIONER OF S OCIA L S ECUR ITY , Defendant-Appellee. X

- - - -> , - - - - - N 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
Befor e: KEI TH, MARTI

N, and SUT TON, Circ

uit Judges

.

_________________ COUNSEL
ON BRIE F: Mark D. Pierce, Paducah, Kentuck y, f or Appellan t. Christophe

r G. Har ris, Ely se Sharf

man, Den nis R. Williams, Mary

Ann Sl oan , S OCIA L SE CUR IT Y 2 Elam v. Co mm’r of So cial Sec urity No. 03-5315

ADM INIST RAT ION, OFF ICE O F GE NER AL CO UNS EL, Atlanta, Georgia, for Appellee.

_________________ OPINION

_________________ BOYCE F. MARTIN, JR., Circuit Judge. Phyllis Elam, on behalf of her minor daughter

Kamea G olay , appea

ls a district court judgment affirming the Commissioner’s termination of supplemental security

income be

nefits. T he parti es h av e waived oral argument

and this panel unanimously ag rees that oral argument is not needed. See Fed. R. App. P. 34(a).
Kamea was born on December 4, 1983, and was alle gedly disable d due to mental retardation. Kamea was found disabled as of August 1, 1991, a nd was awa

rded benefits. However, on Augu st

22, 1996, C ongre ss enacted the Personal Responsib ility

andWork Oppor

tunity Reconci liation Act, which change d the definition of disability for children se eking benefit s. See 42 U.S.C. § 1382c(a)(3)(C). Pur sua nt to the Act, the Commissioner reevaluated Kamea’s sta tus and determined that she no longer satisfied the new definition of disability for children. After a

hearing, an administrative law judge det ermined that as of August 1, 1997, Kamea was no longer entitled to benefits. The Appe als Counc il decline d to review that decision.
Ms. Elam then

filed a c ivil action seeking judicial review of the admin

istrative law ju dge ’s decision. Upon de novo review of a mag is trate judge’s report, the district court affirmed the termination of benefits and granted judgme ntto the Commissioner.
Judicial review is li mite d to d eterm inin g w hethe r there is subst antial evidence in the record to support the administrative law judge’s findings of fact a nd w hethe r the correct legal standards were app lie d. See Key v. Callahan ,No. 03-5315 Elam v. Co mm’r of So cial Sec urity 3

109 F.3d 270, 273 (6th Cir. 1997). The decision must be a ffirmed if the ad

ministrati ve law jud

ge’s f indings a n d inferences are re asonably

drawn from the record or supported by substantial evide nce, 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 t he A ct. First, t he child must not be engaged in substantial gainful ac ti vi ty; second, the child must have a severe impairment; and third, the s evere impairment must meet, medically equa l or functionally

equal one

of the impa

irments f ound in 20 C. F.R. Part 404, Subpart P, Appendix 1. See 20 C. F.R. § 416.924. Inorder to

be found disabled based upon a listed impairme

nt, the claimant

must exhibit all the elements of the listing. See 20 C.F.R. § 41 6.924(a

); Ha le v. S

ec’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 listedimpairment. See Dorton v. Heckler , 789 F.2d 363, 367 (6th Cir. 1986).
Th e issue before this Court is whether Kamea has an impairme nt t hat meets , medica

lly e quals or f

unctiona lly equalsthe impair

ment of “

mental re

tardation” listed i

n sections 112.05 and 12.05 of Appe ndix 1. We believe that substantial evidence supports the administrative law judge’s decision that Kamea has no such impairment.
Ms. Elam cont

ends that the admin

istrati ve law judge improper ly failed to consider Kamea’s intelligence test scores that were seventy

or below. While Ms. Ela m points to Kamea’s test scores fro m March 1991 through September 1998, the regulations provide that intelligence tes t scores must be sufficie

ntly curren t for an a ccurat e assessment under section112.05. See 20 C.F.R. § 404, Subpa rt P, Appe ndix 1, § 112.00D. Intelligence

test results obtained between the ages of seve n a nd sixteen are considered to be current for four years if the score is less than forty , and for two ye ars if the score is forty or above . Because Ka mea’s te st results all 4 Elam v. Co mm’r of So cial Sec urity No. 03-5315
exceeded the forty

point standard, they

would be considered c urrentfor only two y

ears. Therefore, only

those scores obtained within two ye ars prior to the date of the admi n istrative hearing in 1999 are valid for purposes of determining whether Kamea is disabled under the Act.
OnNovember

29, 1997, Dr. Spence evaluated Kamea and administered

the Wechsler In telligence Test for Children. Kamea obtained a

verbal score of fifty

-seven, a performance score of seventy-se

ven, 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 h and , Kamea’s scores on the Wide Range Achievement Test-Revised I II were signific antly

higher than wha t would be

expecte d giv en her verbal score of

only fifty-seve

n. Although the scores e xam ined in isolation would tend to indicate mental retardation, Dr. Spence concluded that Kamea w as actua

lly i n the borderline range of intelligent functioning, g iven the score discrep ancies b etween

the 1996 a

nd 1997 te sts.
Mr. Andrew Jensen, a psy cholog ical asso ciate, a

lso performed

intelligence tests upon Kamea in September 1998. Thosetest resu

lts revea led a verbal score of sixty-six, a performancesc or e o f s ix ty- si x, an d a fu ll sc al e s co re of si xt yfour. Mr. Jensen considered the test results to be indicative of mild mental retardation. Ms. Elam relies on Kamea’s scores onthe tests administered by Mr. Jensen in support of her argument that the Commissioner

erred a s a matter

of law in failing to find

that Kame a’s scor

es were within the necessary range to meet the criteria of se ction 112.05.
The admin istrat ive law judge rejected the score s obtained by Mr. Jensen, along with his conclusion of mental retardation, because Mr. Jensen was not an ac ceptabl e source of medical e

vidence

. See 20 C.F.R. § 416.913(a). By regulation, an acceptable s ource of medic al evide nce is considered

to be either a licensed phy sic ian, a licensedNo. 03-5315 Elam v. Co mm’r of So cial Sec urity 5

oste opath or a licensed or certified psy chologist. See 2 0 C.F.R. §§ 404.1513(a)(1)-(3); 416.913(a)(1)- (3). Thus, the Commissionerdid not err in determining that Mr. Jensen was notqualifie d as an acceptable source of me dical evidence. See 20 C.F.R. § 416.913(a).
The conclusions of Dr. Spence tha t Kamea was operating in the borderline range of intellige nt functioning, rather than being mentally retar

ded, 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 Kame a was actually operating within the borderline range of intellectual functioning, a lthough her intelligence test scores, standing alone, would indicate mental retardation. Dr. Ande

rson rel ied, in pa

rt, on his observations of Kamea during the h ea ring and her testimony . He concluded

that Kamea’s communicative skills were inconsistentwith those of a person with an intelligence te st score in the low to m

id-sixties.
Under section 416.926(a), if a ch ild’s impairment – or combinationof impairments – does not mee t or is not medicall y e quivalen

t in severity to a listed

impairme

nt, then the Commissione

r will asse ss all func

tional limitations cause d by the impairment

to determine if the child’s impairments are functionally

equivalent in severity to a ny of the listed impairme nts of Appendi x 1. The following areas of development

may be consider

ed in de termi ning whether a child’s impa irment s are functionally equivalent to a listed impairme nt: 1) cog nition/com

munication, which i s the abili ty or inability to learn, to understand and to solve pro blems throu gh reasoning; 2) motor, which inclu des the ability or ina bili ty to use gross and fine motor skills to serve one’s physical purposes ; 3) socia

l, which in

cludes the abi lity or inability to form and maintain relationships with other individua ls and gr oups; and 4 ) conce

ntration, persi st ence or pace, which is the ability

or inabili ty to attend to and susta in concentration

on an activity or task. See 20 C.F.R. § 416.926a. A finding of functional equivalence to a lis ted 6 Elam v. Co mm’r of So cial Sec urity No. 03-5315
impairment

i s w arrant

ed when t

he child has an extr

eme limitation inone area of functioning or marke d limitations in two areas of functioning. See id. In this case, the ad ministrative law judge determined that there was n o evidence that Kame a was mar kedly limited in a

t le ast two categories of functioning. He also determined that there was no evidence that Kamea

was extre mely limited in one area of funct ioni ng. Kamea’s Wide Range Achievement Test Results indicated that she was reading at the eighth g rade le vel, spelling at the fifth gradelevel an

d had mathematica

l abilities at the fo urth grade level. At the time of the hearing, Kamea was attending regular classes in the ninth gra de with one special education class in English. Kamea’s teachers provided assessments of her per formanc e that ind icated that she wa s able to communic ate with her

instructors and was able to take notes and accomplish homework at her academic le vel.
Kamea submitted no evi dence o f 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 basketba ll team. The evi dence revealed no significa nt limitations in social functioning . Ms . Elam conceded that Kamea particip ated in bo th school a nd churc h activiti es, socialized with her friends and went to church with her grandmother. Kamea

testified that she had approximately ten girl friends

with whom sh e socia lized. One of her teachers described Kamea as being a ty

pical ninth grade student who interacted well with her peers.
Fi na ll y, there was no evidence presented of any marked or extreme limitation in personal functioning. Kamea’s teachers noted no diffic ult ies with her self-help skills and observed that Kamea w as alway

s clean. Addit ionall y, her mother reported that Kamea was able to dress he rself.No. 03-5315 Elam v. Co mm’r of So cial Sec urity 7

Inlight of the above, we find that substantial evidence supports the admin is trative law judge’s deci sion

. Accord ingly, we aff

irm the dis trict cou

rt’s judg ment.