United States District Court, D. Kansas
ANTONIO LOVATO, o/b/o A.J.L. Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying childhood
disability and Supplemental Security Income (SSI) benefits
under section 1614(a)(3)(C) of the Social Security Act, 42
U.S.C. § 1382c(a)(3)(C) (hereinafter the Act). Finding
no error as alleged by Plaintiff in the Commissioner's
final decision, the court ORDERS that judgment shall be
entered pursuant to the fourth sentence of 42 U.S.C. §
405(g) AFFIRMING that decision.
application for SSI benefits was protectively filed for the
minor claimant, A.J.L., alleging disability beginning January
1, 2011. (R. 23, 152)). The claimant exhausted administrative
proceedings, and his father (hereinafter Plaintiff) filed
this action on his behalf seeking judicial review of the
Commissioner's decision. (R. 1, 67, 77); (Doc. 1).
Plaintiff argues that the Administrative Law Judge (ALJ)
erred in evaluating two of six domains which are “broad
areas of functioning intended to capture all of what a child
can or cannot do.” 20 C.F.R. § 416.926a(b)(1).
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section
405(g) of the Act provides that in judicial review
“[t]he findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must
determine whether the ALJ's factual findings are
supported by substantial evidence in the record and whether
she applied the correct legal standard. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007);
accord, White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001). Substantial evidence is more than a
scintilla, but it is less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
court may “neither reweigh the evidence nor substitute
[its] judgment for that of the agency.” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec'y of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). Nonetheless, the determination whether substantial
evidence supports the Commissioner's decision is not
simply a quantitative exercise, for evidence is not
substantial if it is overwhelmed by other evidence or if it
constitutes mere conclusion. Gossett, 862 F.2d at
804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.
A child under eighteen years of age is “disabled”
if the child “has a medically determinable physical or
mental impairment, which results in marked and severe
functional limitations, and which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42
U.S.C. § 1382c(a)(3)(C)(i). A sequential three-step
process guides the Commissioner's determination of
whether a child meets this criteria. The administrative law
judge (“ALJ”) must determine, in this order, (1)
that the child is not engaged in substantial gainful
activity, (2) that the child has an impairment or combination
of impairments that is severe, and (3) that the child's
impairment meets or equals an impairment listed in Appendix
1, Subpart P of 20 C.F.R. Pt. 404. 20 C.F.R. §
In making the third determination-whether a child's
impairment meets or equals a listed impairment-the ALJ must
consider whether the impairment, alone or in combination with
another impairment, “medically equals, or functionally
equals the listings.” Id. The ALJ assesses all
relevant factors, including (1) how well the child initiates
and sustains activities, how much extra help he needs, and
the effects of structured or supportive settings; (2) how the
child functions in school; and (3) how the child is affected
by his medications or other treatment. Id. §
416.926a(a)(1). The ALJ considers how a child functions in
his activities “in terms of six domains”:
“(i) Acquiring and using information; (ii) Attending
and completing tasks; (iii) Interacting and relating with
others; (iv) Moving about and manipulating objects; (v)
Caring for yourself; and, (vi) Health and physical
well-being.” Id. §
Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235,
1237-38 (10th Cir. 2001).
equivalence will be found only if a child has
“marked” limitations in two domains of
functioning, or an “extreme” limitation in one
domain. Id. § 416.926a(a). A
“marked” limitation is “a limitation that
is more than moderate but less than extreme.”
Id. To constitute a “marked” limitation,
the claimant's impairment must interfere seriously with
his ability to independently initiate, sustain or complete
activities. Id. § 416.926a(e)(2)(i). This may
mean serious limitation exists in only one activity, or in
several activities. Id.
is the rating given the worst limitations, and occurs when a
claimant's impairment interferes very seriously with his
or her ability to independently initiate, sustain, or
complete activities. Id. § 416.926a(e)(3)(i).
An “extreme” limitation does not necessarily mean
a total lack or loss of ability to function, but is more than
“marked.” Id.; see also,
Briggs, 248 F.3d at 1238, n.1 (stating definition of
“functional equivalency, ” and
“marked” and “extreme” limitations).
does not allege error in the legal standard applied; his only
argument of error is that the ALJ erred in evaluating two of
the six domains used in determining whether the
claimant's condition is functionally equivalent to a
Listed Impairment- (ii) Attending and completing tasks, and
(iii) Interacting and relating with others. He argues that,
contrary to the ALJ's findings, the claimant has at least
“marked” limitations in both domains and his
condition should have been found functionally equivalent to a
Listed Impairment. Therefore, the court addresses only the
ALJ's consideration of these two domains.
Discussion and Analysis
argues that the ALJ erred in evaluating these two domains
because “she assigned significant weight” to the
opinion of the claimant's 6th grade teacher, Ms. Gandy,
“but assessed limitations inconsistent with the
opinion.” (Pl. Br. 8). In the domain of attending and
completing tasks he argues that Ms. Gandy “noted
‘a very serious' problem on a daily basis
completing classwork and working at a reasonable pace or
finishing on time.” (Pl. Br. 10). He points out that
Ms. Gandy noted the claimant failed to complete his
assignments, and she spent one-on-one time with the claimant,
redirecting him and keeping him from distracting the class.
Id. He argues that Ms. Walker, the claimant's
5th grade teacher, also opined that the claimant had “a
very serious” problem completing classwork and working
at a reasonable pace or finishing on time on a daily basis.
Id. Regarding the domain of interacting and relating
with others, Plaintiff points out that Ms. Gandy opined that
the claimant “had a ‘very serious problem'
seeking attention appropriately and interpreting meaning of
facial expressions, body language, hints, and sarcasm,
” and “a ‘serious problem' expressing
anger appropriately and following rules.” Id.
at 9. He argues that “a serious problem, ” or
“a very serious problem” are the most extreme
categories of behavior on the forms used by the
claimant's teachers to express their opinions, and are