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Sabo v. Berryhill

United States District Court, D. Idaho

March 28, 2017

JENNIFER L. SABO, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, [1]Respondent.


          Honorable Candy W. Dale United States Magistrate Judge.


         Pending before the Court for its consideration is the Petition for Review of Respondent's denial of Disability Insurance Benefits (DIB) and child's Supplemental Security Income (SSI) filed by Petitioner Jennifer L. Sabo on November 11, 2015. (Dkt. 2.) Pursuant to 28 U.S.C. § 636(c), the parties consented to the exercise of jurisdiction over this matter by the undersigned United States Magistrate Judge. (Dkt. 19.) The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record (AR), and for the reasons that follow, will remand the decision of the Commissioner.


         At the beginning of the administrative process for benefits, Jennifer Sabo was seventeen years of age. Due to her status as a minor, Sabo's mother, Kimberly Sabo, protectively filed an application for child insurance benefits based on disability on April 23, 2010. On October 18, 2011, Mrs. Sabo filed an application for both adult supplemental security income and childhood benefits for her daughter. In both applications, Sabo alleged disability beginning January 1, 1998, due to a learning disability and memory difficulties. Sabo's claims were denied initially and on reconsideration, and a hearing was held on November 19, 2013, in Orange, California before Administrative Law Judge (ALJ) Kyle E. Andeer. (AR 52.) After hearing testimony from Sabo, her mother, and a vocational expert, ALJ Andeer issued a decision finding Sabo not disabled on December 13, 2013. (AR 22.)

         Sabo requested review by the Appeals Council, submitting additional evidence for consideration: evidence from the school district covering the period from 2004 through 2012; a 2015 neuropsychological evaluation; and physical medical evidence. (AR 7.) On September 15, 2015, the Appeals Council stated that it considered the additional evidence submitted by Sabo, [2] but found no reason under SSA rules to review the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. (AR 1.) Petitioner appealed this final decision to the Court. The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         Sabo was born on December 6, 1993, and was nineteen years of age at the time of the November 19, 2013 hearing. Sabo is currently twenty-three years of age, has no past relevant work experience, and graduated from high school in June of 2012.

         Sabo's medical record is sparse; rather, her condition is documented through school progress reports and scores from standardized tests. Sabo was home schooled or in a combined home school/public school program from the third grade through high school graduation. According to school records, prior to beginning her home school program, Sabo's academic performance was approximately two years below grade level and she scored average to low-average on standardized achievement tests.

         On November 5, 2010, school psychologist Desiree Sanchez performed an assessment as required by law under the Individuals with Disabilities Education Act to determine whether Sabo was eligible to continue to receive special education services. (AR 218.) At the time, Sabo was in the eleventh grade and just shy of her seventeenth birthday. Sanchez noted Sabo “historically evidenced a deficit in long term memory which has an adverse impact on her basic reading skills, spelling, written expression, and math skills.” (Id.) She noted Sabo was “making steady academic gains, ” and referenced Sabo's progress report, which indicated Sabo was earning A's and B's in her classes, [3]and had a 3.04 G.P.A. (Id.)

         Sanchez administered several psychological tests, including the Woodcock Johnson III test, which measured cognitive abilities. Sabo scored in the low average to delayed range for the following tests: verbal ability (85); thinking ability (83); cognitive efficiency (73); and working memory (62). (AR 222.) Sabo's overall intellectual ability was in the low range, and her average score placed her in the 5th percentile when compared with students her age. (AR 222.) Sabo's test scores translated to the following grade equivalencies: 6.2 in basic reading skills and grade 6.2 in broad math.[4] (AR 408.) Sanchez concluded Sabo's performance on the tests indicated a deficit in the area of short term and working memory that would have an adverse impact on her educational performance, and that Sabo was benefitting from her current educational program and placement. (AR 226.) Sabo therefore qualified for continued placement in special education classes. (Id.)

         On January 12, 2012, Charlene K. Krieg, Ph.D., evaluated Sabo at the request of the Department of Social Services to assess Sabo's eligibility for disability benefits. (AR 450.) At the time, Sabo was a senior in high school and eighteen years of age. Dr. Krieg administered several psychological and intelligence tests. On the Wechsler Adult Intelligence Scale (WAIS-IV), Dr. Krieg assessed a full scale IQ of 82 (low average), verbal comprehension of 89 (low average), perceptual reasoning of 81 (low average), working memory of 95 (average), and processing speed of 81 (low average). (AR 453.) On the Wechsler Memory Scale (WMS-IV), Sabo scored in the “borderline range” for auditory immediate memory and immediate memory. Sabo scored in the “low-average range” in visual immediate memory and working memory. (Id.)

         Dr. Krieg opined there was no evidence of any disorder on mental status examination, and that Sabo's “current level of intellectual functioning [was] in the low-average range.” (AR 453-54.) Dr. Krieg opined Sabo was capable of understanding clear instructions, following simple directions, and completing tasks. She indicated Sabo was capable of sustaining performance on detailed and complex tasks and that she appeared to be able to accept instructions from supervisors and interact with coworkers and the public. Dr. Krieg stated that there was “no mental impairment that would limit [Sabo's] ability to engage in work activities and complete a normal workday or workweek.

         During the 11th grade, Sabo injured her left knee walking across the street. (AR 68.) At the hearing, Sabo complained of some difficulty with her ankle and recurrent torn fascia, and testified she could not stand for longer than fifteen minutes before she needed to sit down. (AR 68-69.) At the time of the hearing, there was no medical evidence in the record related to this injury, as Sabo was still in the process of having her condition evaluated.


         Born on December 6, 1993, Sabo was a 17-year-old high school student at the time her mother protectively filed for disability benefits on her behalf. Because Sabo had not reached 18 years of age by the alleged onset date, the ALJ assessed Sabo's disability using both the child and adult standard of review.

         I. Childhood

         For child disability benefits, the Social Security Administration established a three-step sequential process to determine whether the minor claimant is disabled. 20 C.F.R. 416.924(a). The first step of the test, which is similar to the familiar five-step process utilized in adult disability cases, requires the ALJ to determine whether the claimant has engaged in substantial gainful activity. 20 C.F.R. 416.924(b). If so, “then both statutorily and by regulation the child is ineligible for SSI benefits.” New ex rel. JNJ v. Colvin, 31 F.Supp.3d 1120, 1124 (E.D. Wash. 2014); 42 U.S.C. § 1382c(a)(3)(C)(ii); 20 C.F.R. § 416.924(b). Here, the ALJ found Sabo had not engaged in substantial gainful activity (there was no evidence she had ever worked) since the date the application was filed. (AR 28.)

         If the ALJ determines the claimant has not engaged in substantial gainful activity, then he must determine, at step two, whether the claimant suffers from a medically determinable severe impairment or a combination of impairments that is severe. 20 C.F.R. 416.924(c). If the ALJ determines the claimant does not have a medically determinable impairment, or that her impairment is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations, then the claimant is not disabled, and thus, not entitled to benefits. Id. The ALJ found Sabo's learning disability and memory problems were not severe medically determinable impairments, nor constituted a ...

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