Phyllis Elam, for Kamea Golay, a minor v. Commissioner of Social Security

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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
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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,

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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
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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 sixty-
four. 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

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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
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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.

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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.

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