Michael GONZALES, Plaintiff-Appellant, v. NATIONAL BOARD OF MEDICAL EXAMINERS, Defendant-Appellee, 225 F.3d 620

SUHRHEINRICH, J., delivered the opinion of the court, in which NELSON, J., joined. GILMAN, J. (pp. 632-37), delivered a separate dissenting opinion. SUHRHEINRICH, Circuit Judge. Plaintiff Michael Gonzales (“Gonzales” or “Plaintiff’) appeals the district court’s denial of his request for preliminary in-junctive relief under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”).

Plaintiff requested that Defendant National Board of Medical Examiners (“NBME” or “Defendant”) be ordered to allow him extended time to take the United States Medical Licensing Examination Step 1 (“Step 1 Examination”) because of an alleged disability. I. BACKGROUND In 1998, after successfully completing two years of medical school at the University of Michigan Medical School (“UMMS”), Gonzales applied to take the Step 1 Examination a prerequisite to proceeding with the third year of medical school.

The Step 1 Examination is the first of three United States Medical Licensing Examinations (“USMLE”) required for medical licensure in all states. The NBME administers the USMLE. Before taking the Step 1 Examination on June 9-10, 1998, Gonzales asserted a learning disability and requested the NBME to allow him extended time, one and a half times the standard time, on the examination. He supported his request for test accommodations (which was endorsed by UMMS) with a psychological evaluation which Gordon L.

Ulrey (“Ul-rey”), Ph.D., prepared in 1994 when Gonzales was an undergraduate student at the University of California at Davis (“UCD”). In 1994, Ulrey interviewed Gonzales and reported that Gonzales’s main concern was low scores on multiple-choice tests, especially the Medical College Aptitude Test (“MCAT”). In addition to the interview, Ulrey based his evaluation of Gonzales on a battery of tests: 1) Wechsler Adult Intelligence Scale — Revised; 2) Wide Range Achieve Test — Revised, Level II; 3) Learning Efficiency Test, 2nd Edition; 4) Nelson-Denny Reading Test, Form E.

Ul-rey diagnosed Gonzales as having a learning disability. Ulrey concluded that Gonzales “showed significant difficulty with the auditory sequential processing of information as seen by his performance on the arithmetic and digit span test as well as on both the visual and auditory memory tests for the Learning Efficiency Exam.” Ulrey found it appropriate that Gonzales be given 50% more time for standardized testing, and he suggested that Gonzales record lectures and review written lecture notes.

Ulrey also found that on the Wechsler Scale, Gonzales’s verbal and performance skills ranged “from the average to superior range with verbal IQ 109, performance IQ 120 and full scale IQ 115.” Ulrey concluded that Gonzales has “significant strengths both in verbal conceptual ability as well as perceptual organization.” UCD had arranged accommodations for Gonzales during his third and fourth years of study based on Ulrey’s report.

Also on the basis of Ulrey’s report, the UMMS provided Gonzales with basically the same accommodations he received during his third and fourth years at UCD: extended time on tests, assistance with note-taking, and permission to tape classroom lectures. UMMS allowed Gonzales double time on examinations. The NBME referred Gonzales’s request and documentation for extended time on the June 1998 Step 1 Examination to Dawn Flanagan, Ph.D., an expert in the field of learning disabilities.

Flanagan opined that Gonzales does not have a learning disability in reading and that the data in the area of written language is insufficient to diagnose a written language disorder. The NBME denied Gonzales’s request for extended time, stating his impairment did not significantly impair a major life activity within the framework of the ADA. In June 1998, when (Ronzales took the Step 1 Examination without accommodations, he failed the examination. Following its usual practice, the UMMS allowed Gonzales to begin his third-year clinical rotations before he learned the results of his June 1998 Step 1 Examination.

When Gonzales learned that he had failed the examination, he had completed one month of a three-month surgical rotation. Gonzales chose to take a leave of absence to prepare to retake the Step 1 Examination. Before submitting a request for extended time on the October 1998 Step 1 Examination, Gonzales consulted Bruno Giordani (“Giordani”), Ph.D. Giordani diagnosed Gonzales as having a learning disability. Giordani based his diagnosis on Gonzales’s history and on formal testing and concluded that Gonzales met the criteria for Reading Disorder (315.00) and for Disorder of Written Expression (315.2).

Giordani also found strengths in Gonzales’s abilities. Giordani reported that Gonzales “scored within the average to superior ranges” on the intelligence test “with a marked difference between the Verbal and Performance subscales of 21 points (Verbal IQ = 100, Performance IQ = 121, Full Scale IQ = 109).” Giordani compared Gonzales’s reading scores to^those of fourth year college students and to college graduates. On reading comprehension tests where Gonzales’s scores were compared to those of the general population, Giordani reported that Gonzales scored within the average range.

Nonetheless, Giordani supported the medical school’s decision to grant Gonzales extra time on exams and additional accommodations and recommended that “this accommodation be extended to other settings.” Gonzales presented Giordani’s report with his request for extended time on the October 1998 Step 1 Examination. The NBME did not meet with or interview Gonzales. Rather, it sent the documentation Gonzales submitted with his request for accommodations to an expert in the field of learning disabilities, George Litch-ford, Ph.D., who reviewed the materials and issued a report.

Again, the NBME denied Gonzales’s request for accommodations. In October 1998, Gonzales took the examination without accommodations and failed. Gonzales applied to take the Step 1 Examination a third time and documented his request for accommodations. At the request of the NBME, Litchford reviewed the material and issued a report. The NBME denied his request for accommodations.

Before taking the Step 1 Examination a third time without accommodations, Gonzales filed an action in federal court under the ADA, alleging that the NBME illegally refused to accommodate his disability by failing to provide him with additional time to take the USMLE Step 1. Gonzales sought, inter alia, injunctive relief requiring the NBME to allow extended time on the Step 1 Examination.

After a four-day evidentiary hearing, the district court denied Gonzales’s request for injunctive relief, finding that there was no substantial likelihood that Gonzales would succeed on his ADA claim because Gonzales is not disabled under the ADA. The district court rejected Gonzales’s claim that he is disabled in the major life activities of reading and writing.

The district court credited the NBME’s experts, who opined that Gonzales “does not have a documented history of academic achievement below expectations that would support a diagnosis of a learning disability.” Based on their testimony, the district court found that “Plaintiffs performance in both reading and writing tests fell within the average to superior range when compared to most people.” The district court also held that he was not disabled in the major life activity of working.

Gonzales appeals, arguing that the district court erred in holding that he has no likelihood of success of establishing that he has a reading disability under the ADA. Second, he claims that the district court failed to address his writing disability. Third, Gonzales faults the district court’s holding that he does not have a disability that affects the major life activity of working. II. DISCUSSION A. Standard of Review The ADA includes injunctive relief as an appropriate remedy in disability discrimination.

See 42 U.S.C.A. § 12188(a)(1) (West 1995) (incorporating the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3). We review a denial of a preliminary injunction for abuse of discretion and afford great deference to the district court’s decision. See Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross and Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1997). We will reverse a district court’s denial of injunctive relief only if “the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Id.

District courts assess four factors in analyzing a preliminary injunction issue: (1) whether the plaintiff has a strong likelihood of succeeding on the merits; (2) whether the plaintiff will suffer irreparable injury absent the injunction; (3) whether issuing the injunction will cause substantial harm to others; and (4) whether the public interest will be furthered by the issuance of the injunction. See id. Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal. See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir.1997). B.

Merits Title III of the ADA prohibits discrimination against persons with disabilities in professional examinations such as the USMLE Step 1: Any person that offers examinations ... related to applications, licensing, certification, or credentialing for ... professional, or trade purposes shall offer such examinations ... in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals. 42 U.S.C.A. § 12189 (West 1995). The DOJ regulations provide that an examination covered by this

section be selected and administered to accurately reflect the individual’s aptitude or achievement level, rather than his impairment. A covered entity discriminates against a disabled individual when it fails to make “reasonable accommodations to known physical or mental limitations.” 42 U.S.C. § 12112(b)(5)(A). The regulations implementing Title III of the ADA further clarify that such accommodations “may include changes in the length of time permitted for completion of the examination.” 28 C.F.R. § 36.309(b)(2) (1999). The NBME does not dispute that it is a “covered entity” under Subsection III of the ADA.

The NBME also does not contest its obligation to provide reasonable accommodations, including extra time to take the Step 1, if a person has a disability. In fact, the NBME’s own procedures clearly contemplate the accommodation of individuals with learning disabilities. Thus, the only question in this case is whether Gonzales is disabled within the meaning of the ADA. A person is disabled within the meaning of the ADA if that individual suffers from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C.A. § 12102(2)(A) (West 1995).

The ADA does not define the terms “physical or mental impairment,” “substantially limits,” or “major life activities,” and no agency has been given authority to issue regulations implementing the generally applicable provisions of the ADA. See 42 U.S.C. §§ 12101-12102; Sutton v. United Air Lines, Inc., 527 U.S. 471, 478-80, 119 S.Ct. 2139, 2145, 144 L.Ed.2d 450 (1999). However, the Department of Justice (“DOJ”), which Congress assigned to write the regulations for Subchapter III of the ADA, defines “physical or mental impairment” as including “specific learning disabilities.” 28 C.F.R. § 36.104 (1999).

The NBME does not appear to dispute that Gonzales has a mental impairment. The DOJ’s regulations further define “major life activities” as including “walking, seeing, hearing, speaking, breathing, learning, and working.” Id., § 36.104(2) (emphasis added). The list is merely illustrative, not exhaustive, however, cf. Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 780-81 (6th Cir.1998) (Title I context); and courts have included reading and writing as major life activities under the ADA. See, e.g., Bartlett v.

New York State Bd. of Law Examiners, 970 F.Supp. 1094, aff'd, 156 F.3d 321 (2d Cir.1998), vacated, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999) (reading and writing); see generally Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 155 (1st Cir.1998) (learning). In any event, the NBME does not dispute that reading and writing are substantial life activities. Rather, this case turns on the key phrase “substantially limits.” “Substantially limits” is defined in terms of a general population.

The DOJ regulation states that an individual is substantially limited “when the individual’s important life activities are restricted as to the condition, manner, or duration under which they can be performed in comparison to most people.” 28 C.F.R., pt. 36, App.

B; see also 29 C.F.R. § 1630.2(j) (EEOC definition under Title I of “substantially limits”; defining an individual as substantially limited, for most purposes, if he is “[u]nable to perform a major life activity that the average person in the general population can perform” or “[significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity”).

Thus, the ADA compares the performance of an individual who alleges a restriction in a major life activity to that of “most people.” Gonzales claims that his mental impairments substantially limit him in the major life activities of reading, writing and working. 1. Reading On appeal Gonzales claims that all the credible evidence established that his reading is restricted when compared to the “average” person. Gonzales points to his own testimony regarding his history of reading problems as well as the clinical evidence. He notes that Dr.

Ulrey’s report contains specific information detailing Gonzales’s reading and other processing deficits, as well as his diagnosis, based on those deficits. Furthermore, Dr. Giordani, who testified at the hearing, concluded that Gonzales met the DSM-TV criteria for Reading Disorder after conducting a full neuropsychological evaluation of Gonzales. Regarding Gonzales’s reading impairment, the district court found that [wjhen compared to pooled norms, plaintiff[’]s scores are squarely in the average to superior range. Of the more than twelve tests administered by Dr.

Giorda-ni in 1998, plaintiff scored significantly below average in only one, the Digit Span. In the Digit Span test administered by Dr. Giordani in 1998, plaintiff received a score of five, which is significantly below average and borderline impaired. However, plaintiffs score on the 1998 Digit Span test is clearly suspect. In 1994, plaintiff took another Digit Span test with Dr. Ulrey in which he received a ten, well within the average range.... Dr. Flanagan and Dr.

Litchford testified at the hearing that because of the wide discrepancy between the two scores, the Digit Span test is an unreliable indicator of plaintiffs ability. The lower court recognized Dr. Giordani as a “competent and accomplished” psychologist, but ultimately found the testimony of Drs. Litchford and Flanagan “more persuasive,” and agreed with their conclusion that based on Gonzales’s IQ scores, his performance fell within the average to superior range when compared to most people.

Given these findings, the district court concluded that had not demonstrated that he suffered from “an ADA-defined disability” that substantially affects a major life activity. Upon review of the record, we cannot say that the district court’s findings or credibility assessments are clearly erroneous. Flanagan, Defendant’s expert witness, testified at the evidentiary hearing that Ulrey’s report did not support a diagnosis of Plaintiff having a reading disorder. She stated that the data she reviewed in terms of Gonzales’s cognitive processes and reading achievement provided absolutely no evidence of an impairment.

She presented a table of cognitive processes closely associated with reading achievement as assessed by Ulrey and Giordani and concluded that in “all areas that were assessed, all cognitive processes that were assessed that are found to underlie or help us explain or understand reading achievement, he performed in the average to superior range.” Also, she stated that in nine subtests of verbal ability, verbal expression, and verbal comprehension that “his performance was in the average to superior range across a variety of those tasks.” She further testified that in phonological processing, his score was in the average range; in visual auditory learning, he performed in the very superior range; and on an inductive reading task, he performed in the superior range.

Flanagan also addressed the one area, memory span, on which Gonzales scored in the impaired range on Giordani’s evaluation. She noted that on Ulrey’s evaluation Gonzales scored within the average range on the same test and that on another memory span test in Giordani’s evaluation Gonzales’s performance was average. She stated that the discrepancies in his scores suggest “a very unusual pattern of performance but one that is explained quite simply by possibly unreliability or a chance occurrence.” She concluded that Gonzales clearly demonstrated average ability in memory span.

Litchford, Defendant’s other expert witness, testified that: the reading test scores that were submitted were in the average to above average range on the Wide Range Achievement Test, the Woodcock [sic] Reading Mastery Test and the Woodcock-Johnson Broad Reading. In addition, the Woodcock Reading Mastery Test ... placed his reading total reading score, reading skill score and reading comprehension score in the average range. The scores were almost exactly equivalent to his full scale IQ. And all of his performances on that test were at a college graduate grade level, sixteen point nine.

Litchford also explained that the “age level norms” used on the Woodcock test do not approximate the average person as well as pooled norms do.

On the Woodcock Reading Mastery, Gonzales scored in the average range even though these tests compared his performance to that of college graduates, his age peers, which is “a statistically driven standard of an average person at his age level.” Litchford explained that “pooled norms,” used on the Nelson-Denny Reading Test, “sample from the ninth, tenth, eleventh, twelfth, freshman college, second, third, and fourth year of college” and thus better approximate the average person.

Finally, it should be noted that, consistent with the NBME’s experts, Giordani reported that Gonzales scored within the average range on reading comprehension tests, as compared to the general population. Thus, Gonzales’s own expert undermines Gonzales’s assertion “that despite his best efforts to work around his problem, he is still not able to read nearly as well as the average person.” (Dissenting Op. at 634.) In short, Gonzales’s impairment simply does not meet the DOJ’s definition of “substantially limits,” because he can read as well as the average person. In Pazer v.

New York State Bd. of Law Examiners, 849 F.Supp. 284 (S.D.N.Y. 1994), the court found “some merit to the argument that a disparity between inherent capacity and performance on a test may, in some circumstances, permit the inference that an individual has a learning disability, even though that individual’s performance has met the standard of the ordinary person.” Id. at 287.

However, the Pazer court rejected the idea that “such a disparity compels that conclusion as a matter of law,” stating “to hold otherwise would compel the conclusion that any underachiever would by definition be learning disabled as a matter of law.” Id. It gave credence to the defendant’s expert who concluded that the plaintiffs “performance level on tests at issue was not consistent with a learning disability.” Id. Likewise, in the instant case, Defendant’s expert, whom the district court credited, did not find a disparity between Plaintiffs ability and actual achievement.

Flanagan testified that “[o]ne of the major indicators of just about every definition of a learning disability is a significant ability achievement discrepancy” but that Gonzales “is achieving commensurate with what is expected given his IQ.” In other words, Gonzales’s achievements are not terribly inconsistent with his IQ scores. Neither does Plaintiff fit within Congress’s vision of the disabled population. In the introductory

section to the ADA, “Findings and Purpose,” Congress describes the disabled population it seeks to protect. It presents the disabled as isolated and segregated individuals; as individuals who often have “no legal recourse to redress ... discrimination”; and as those who “as a group occupy an inferior status in our society and are severely disadvantaged socially, vocationally, economically, and educationally.” 42 U.S.C.A. § 12101(a). In high school, Plaintiff qualified for advanced placement classes and graduated with a grade point average of 4.3/5.0.

He had no formal accommodations for learning disabilities during high school. Plaintiff scored 1050, an average score, on the SAT. He took the test without accommodations. Plaintiff earned a grade point average of 3.15/4.0 at Davis where he majored in physiology. He had accommodations during his third and fourth years at UCD. He took the MCAT twice without accommodations, improving his score on his second attempt by using skills suggested by counselors at Davis. His second MCAT score was high enough that the UMMS admitted him to its program.

In short, Gonzales is not a member of the severely disadvantaged group Congress envisioned when it enacted the ADA. See Bercovitch, 133 F.3d at 155-56 (holding that the plaintiff, who was diagnosed with ADHD, was not “disabled” under the ADA because his learning disability did not affect his academic success, which did not fall below the average student of his age). Even if self-accommodations enhanced Plaintiffs performance to that of most people, he is not disabled under the ADA.

Recently, the Supreme Court ruled that in determining whether individuals are disabled under the ADA they should be examined in their corrected state. See Sutton, 119 S.Ct. at 2146; see also Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-22, 119 S.Ct. 2133, 2137, 144 L.Ed.2d 484 (1999). In addition, in Albertson’s, the Supreme Court held that an individual whose body developed coping mechanisms was not disabled within the framework of the ADA. See Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 2169, 144 L.Ed.2d 518 (1999).

In short, there is record evidence to support the district court’s conclusion that Gonzales does not have a reading disability for purposes of the ADA. 2. Writing The district court did not separately address Gonzales’s alleged writing disability. Gonzales correctly notes that the NBME acknowledged that his “diagnosis of a writing disorder is supported by the test data.” The NBME also stated that “writing is not a construct that is measured by the USMLE, so that weak performance in this area would not impact your access to the USMLE program.” Gonzales offered no evidence to refute this.

In any event, for the reasons discussed above, Gonzales has failed to establish that he is substantially limited by any alleged writing impairment when compared to the average person. 3. Working Alternatively, Gonzales’s claim that he is disabled in the major life activity of working. He further alleges that the district court misunderstood that he was alleging an employment discrimination claim under Title I of the ADA, which governs employment, when in fact he is only alleging a claim under Title III. The district court appears to have mistakenly analyzed Gonzales’s argument as a claim under Title I.

Notwithstanding, Gonzales’s claim, properly understood, still fails for precisely the same reason that Plaintiffs allegations that he has a learning disability fails: when compared to “most people,” his impairments do not substantially limit his ability to work. See 28 C.F.R. pt. 36, App. B (DOJ interpretative guidelines, Title III).

To get around this problem, Plaintiff contends that we should look to the EEOC’s definition of “substantially limited” as it relates to the “major life activity of working ”, a definition that differs sharply from the definition applicable in every other context: The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.

The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.2(j)(3)(i) (1999) (emphasis added). Gonzales claims that under this test, he must be compared with other persons who have completed their second year of medical school; and that when he is compared to this reference group, his difficulty with reading and writing is unquestionably an impairment. We decline to transplant this definition from the Title I regulations into the Title III regulations.

Like the EEOC in Title I, the DOJ in Title III also included “working” in its list of “major life activities,” and its definition of “substantially limits,” is otherwise identical to the EEOC’s “general population” definition of the same term in 29 C.F.R. § 1630.2(j)(

l) for major life activities other than working. Thus, we must presume that if the DOJ wanted to modify the definition of “substantially limits” regarding the “major life activity of working” it would have expressly done so. In other words, the DOJ’s silence is dispositive here. See Price v. National Bd. of Med. Examin’rs, 966 F.Supp. 419, 425 (S.D.W.Va.1997) (holding that, because Congress authorized the DOJ to make issue regulations for Subchapter III, courts must give their decisions controlling weight unless arbitrary or manifestly contrary to the statute); see generally Bragdon v.

Abbott, 524 U.S. 624, 642, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). But see Bartlett, 970 F.Supp. at 1099 (adopting EEOC test with respect to the major life activity of working), and 2 F.Supp.2d 388, 389-91 (S.D.N.Y.1997) (denying motion for reconsideration; explaining that use of the major life activity of working standard from Title I is consistent with the spirit and letter of the ADA and DOJ “rule of

interpretation” which sanctions the use of regulations from a different title to assist in interpreting a concept that is not addressed in its own regulations), aff'd, 156 F.3d 321 (2d Cir.1998), vacated, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999). In any event, as previously noted, Congress did not confer authority on the EEOC (or the DOJ for that matter) to issue regulations regarding the proper

interpretation of the term “disability.” See Sutton, 119 S.Ct. at 2145 (declining to decide the validity of or what deference is due the EEOC’s regulations defining “disability” under the ADA because the parties accepted the regulations as valid). Moreover, Plaintiffs claim to a disability in the major life activity of working is itself problematic.

Albeit in dictum, the Supreme Court recently questioned whether working can be deemed a “major life activity” under the ADA: We note ... that there may be some conceptual difficulty in defining “major life activities” to include work, for it seems “to argue in a circle to say that if one is excluded, for instance, by reason of [an impairment, from working with others] ... then that exclusion constitutes an impairment, when the question you’re asking is, whether the exclusion itself is by reason of handicap.” Sutton, 119 S.Ct. at 2151 (quoting Tr. of Oral Arg. in School Bd. of Nassau County v.

Arline, 475 U.S. 1118, 106 S.Ct. 1633, 90 L.Ed.2d 179 (1986), p. 15 (argument of Solicitor General)). It further noted that even the EEOC has reservations about including working as a major life activity and “has suggested that working be viewed as a residual life activity, considered, as a last resort, only ‘[i]f an individual is not substantially limited with respect to any other major life activity.’ ” Id. (quoting 29 CFR pt. 1630, App. § 1630.2©). Finally, there is no support in the legislative history for Gonzales’s position.

Rather, the legislative history suggests simply that Congress intended “substantially limits” to be interpreted as significantly restricted in a major life activity in relation to the average person within the population. The Senate Report from the Committee on Labor and Human Resources, submitted by Senator Kennedy, states as follows: Persons with minor, trivial impairments, such as a simple infected finger are not impaired in a major life activity.

A person is considered an individual with a disability for purposes of the first prong of the definition when the individual’s important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people. S.Rep. 101-116, *23 (1989). Given such scant support for Gonzales’s proposed definition of substantially limited in the major life activity of working, we decline to adopt his view. The district court did not err in finding that Plaintiff is not disabled in the major life activity of working. III.

CONCLUSION Because we conclude that Plaintiff has no likelihood of success on the merits, we need not consider whether he would otherwise be entitled to a preliminary injunction. For the foregoing reasons, the district court’s order denying injunctive relief is AFFIRMED. . Ulrey is an Associate Clinical Professor of Psychology at the UCD. .

Ulrey wrote that the pattern of errors on Gonzales’s tests "strongly suggests an underlying processing disorder”; that "[b]oth Michael’s problems with the sequential processing of information visually and auditorily as well as discrepancies between his cognitive level and his reading rate and reading comprehension suggest an underlying learning disability related to slowness in language processing”; and that "the pattern of cognitive skills as well as his ability to improve his performance significantly with increasing 50% time document both his learning disability and the need for the accommodation of increased time for tests.” .

Ulrey reported that on the verbal test Gonzales revealed "significant strength in verbal conceptual ability on the vocabulary, comprehension and similarities verbal tests.” He showed "excellent judgement and abstract reasoning on both comprehension and similarities.” On the performance test, he exhibited "significant strength in perceptual organization as seen on both block design and object assembly,” and he demonstrated “effective problem solving strategies on both block design and object assembly where he was able to solve even the most abstract designs with a high level of efficiency.” On the achievement test, he had a "reading decoding standard score of 114, equivalent to the 82nd percentile and a written language or spelling standard score of 102, equivalent to the 58th percentile.

Performance on the arithmetic calculation with standard time resulted in a score of 108 equivalent to the 70th percentile and with 50% more time improved his performance to a standard score of 138, equivalent to the 98th percentile.” . .Flanagan is a member of the American Psychological Association and the National Association of School Psychologists. . Giordani is an Associate Professor of Psychology in Psychiatry, Director of the Neurop-sychology Clinic and Associate Director of the Neuropsychology Division, University of Michigan.

Giordani is not board certified in neuropsychology by the American Psychological Association. .

The Neuropsychology Division administered the following assessment procedures to Gonzales: Wechsler Adult Intelligence Scale— Third Edition (WAIS-III); Woodcock-Johnson Tests of Achievement — Revised (WJ-R); Woodcock Reading Mastery Tests — Revised, Form G (WRMT-R/NU); Nelson-Denny Reading Test (N-D); Halstead-Reitan Neu-ropsychological Test Battery and Allied Procedures; Wechsler Memory Scale — Revised (WMS-R); Test of Variables of Attention (TOVA); Attentional Capacity Tests (ACT); Digit Vigilance Test; Minnesota Multiphasic Personality Inventory — w (MMPI-2); Patient History; Interview.

The tests were administered by Lisa Provost, a Master's Level license psychologist. .

Giordani reported that Gonzales’s scores on the Wechsler subtests ranged from “borderline impaired to superior.” On academic achievement tests, Gonzales scored "within the above average to superior range” in mathematics “when solving basic written calculations, though his performance with word problems and related tasks fell somewhat lower and in the average to above average ranges.” In cognitive skills, Gonzales demonstrated "excellent performance on a conceptual problem solving task requiring general mental flexibility and efficiently [sic] in adapting one's responses based on feedback from the environment (Category Test).” .

Litchford is a clinical psychologist. He is a diplomat in clinical psychology in the State of New York and is a certified school psychologist in the Sate of New York. Dr. Litchford is also an approved neuropsychological examiner who performs certain certification reviews for the Office of Disabilities at New York State. He holds a Directorship of Psychological Services in the Psychology Department at the State University of New York. . After the district court denied his request for injunctive relief, Gonzales took the Step 1 Examination a third time without accommodation and again failed. .

The relevant implementing regulation promulgated by the DOJ under Title III states that: [A]n examination covered by this

section must assure that (

i) The examination is selected and administered so as to best ensure that, when the examination is administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect the individual's aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills (except where those skills are the factors that the examination purports to measure)!.] 28 C.F.R. § 36.309(b)(l)(i) (1999). .

The Second Circuit's opinion in Bartlett was vacated, not reversed, and the case was sent back for further consideration in light of the Supreme Court’s recent decisions in Sutton v. United Air Lines, Inc., 526 U.S. 1109, 119 S.Ct. 1752, 143 L.Ed.2d 785 (1999); Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999); and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). Significantly, the Second Circuit had reversed the district court’s holding that the plaintiff's ability to self-accommodate foreclosed a finding of disability.

See Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321, 327 (2d Cir.1998), vacated, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999). This holding is called into question in light of the cited Supreme Court authority. .

The Supreme Court recently noted that "substantially" suggest "considerable,” "specified to a large degree,” and "in a substantial manner” and that "substantial” means "considerable in amount, value, or worth,” "being that specified to a large degree or in the main,” "relating to or proceeding from the essence of a thing; essential,” and "of ample or considerable amount, quantity or dimensions.” Sutton, 119 S.Ct. at 2145. The Supreme Court’s review of these

definitions confirms that the ADA addresses impairments that limit an individual, not in a trivial or even moderate manner, but in a major way, to a considerable amount, or to a large degree. Under this standard, Gonzales is clearly not disabled under the ADA. . Gonzales testified that throughout his life he has had difficulty reading both in and out of school. He also testified that he has trouble reading street signs and completing consumer transactions because of his reading problems.

The dissent would credit Gonzales's testimony that "he feels compelled to sign credit card receipts blindly because reading them would take him so long that it would make other customers angry, and that one of his attorneys had to read to him line by line the complaint they prepared on his behalf in the present case so that he could understand it.” Although the district court did not specifically make the finding, we think Gonzales's verbal representation of his impairment is inconsistent with his success on the SAT and MCAT. Both tests are timed, and Gonzales took these exams without accommodation. .

The dissent criticizes Dr. Flanagan for relying on tests that measure Gonzales's cognitive skills, skills which predict reading ability. It should be noted that Dr. Flanagan also took into account the results of tests that reflected Gonzales's actual reading achievement level. . The dissent faults Dr. Flanagan because she did not examine Gonzales. The dissent also attacks her conclusions because her methodology for assessing whether persons have learning disabilities involved a theoretical model that had not been empirically analyzed for purposes of treatment and diagnosis.

The dissent therefore intimates that Flanagan’s testimony might not satisfy the "gatekeeper” requirements of Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The dissent's reasoning is flawed. Although as an academic psychologist, Dr. Flanagan is not qualified to diagnose a reading disorder, she is qualified to analyze Gonzales’s test results and express an opinion as to how his reading ability compares with that of the average person. Dr. Flanagan focused "on whether Mr.

Gonzales has a reading disorder that rises to the level of a disability, that represents an impairment.” The dissent goes too far in interpreting Dr. Flanagan’s testimony as second-guessing the clinical diagnoses of Drs. Ulrey and Giordani. Similarly, the fact that Dr. Flanagan relied on a theoretical model that had not been empirically analyzed for purposes of diagnosis and treatment does not preclude her from addressing the substantial limitation question. Dr.

Flanagan did not purport to made a diagnosis or suggest treatment; she only determined whether Gonzales’s test results were consistent with a substantial impairment in his reading ability. This she was qualified to do under the gatekeeper requirements of Kumho and Daubert. . Plaintiff urges this Court to rely upon Doe v. NBME, Case No. C-99-3124 WHO (ND Ca 1999), an unpublished decision. Doe has a factual similarity to the instant case in that its subject, a medical student, alleges a reading disability and seeks double time on the Step 1 Examination.

In Doe, however, the court credited plaintiff's expert witnesses and the district court in the instant case credited Defendant’s witnesses. . The limitation claimed by Gonzales is in reality a limitation on his ability to read, not his ability to work — and he maintains that his impairments do not restrict his ability to do the work of a doctor. . As an example, the report states that a person who can walk ten miles continuously but experiences pain on the eleventh mile is not substantially limited in walking because most people are unable to walk eleven miles without suffering some discomfort. See S.

Rep. 101-116, *23 (1989).