Rogers v. Astrue

Filing 18

Order entered that that the decision of the Commissioner of Social Security, denying Plaintiffs claim for supplemental security income, be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/25/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LAKISHA ROGERS, o/b/o J.R.,

*
*
Plaintiff,
*
*
vs.
*
*
MICHAEL J. ASTRUE,
*
Commissioner of Social Security, *
*
Defendant.
*

CIVIL ACTION 11-00396-B

ORDER
Plaintiff Lakisha Rogers (“Plaintiff”) brings this action
on behalf of her minor child, J.R.1, seeking judicial review of a
final decision of the Commissioner of Social Security denying
her claim for child supplemental security income under Title XVI
of the Social Security Act, 42 U.S.C. § 1381, et seq. (“SSI”).
On June 20, 2012, the parties consented to have the undersigned
conduct any and all proceedings in this case.
this

case

was

proceedings
U.S.C.

§

referred

through

636(c)

and

to

the

undersigned

entry

of

judgment

in

Fed.

R.

Civ.

73.

1

(Doc. 14).

P.

to

conduct

accordance
(Doc.

Thus,
all

with

17).

28

Oral

Pursuant to the E-Government Act of 2002, as amended on
August 2, 2002, the Court has redacted the minor child’s name
throughout this opinion and refers to him only by his initials,
“J.R.”

1

argument

was

waived.

Upon

careful

consideration

of

the

administrative record and the memoranda of the parties, it is
hereby

ORDERED

that

the

decision

of

the

Commissioner

be

AFFIRMED.
I.

Procedural History
Plaintiff

protectively

filed

an

application

for

supplemental security income benefits on behalf of her son J.R.
on June 10, 2009.

(Tr. 104).

Plaintiff alleges that J.R. has

been disabled since January 1, 2007, due to attention deficit
hyperactivity

disorder,

combined

type

(“ADHD”),

disruptive

behavior disorder, NOS, psychotic disorder, NOS, and depressive
disorder, NOS.

(Id. at 37, 45, 104).

Plaintiff’s application

was denied at the initial stage on September 11, 2009, and she
filed a timely Request for Hearing before an Administrative Law
Judge

(“ALJ”).

(Id.

at

54-59).

On

October

1,

2010,

the

Administrative Law Judge held an administrative hearing, which
was

attended

by

Plaintiff,

attorney, Brooke Thomas.

her

son

(Id. at 35).

J.R.,

and

On October 8, 2010, the

ALJ issued an unfavorable decision finding that
disabled.

(Id. at 16-31).

Plaintiff’s

J.R. is not

Plaintiff’s request for review was

denied by the Appeals Council (“AC”) on May 23, 2011.

(Id. at

1).
The case is now ripe for judicial review and is properly
before this Court pursuant to 42 U.S.C. § 1383(c)(3).
2

II.

Issues on Appeal
A.

Whether the ALJ erred in failing to find that J.R.’s
psychotic disorder is a severe impairment?

B.

Whether the ALJ erroneously evaluated J.R.’s mental
impairments by failing to evaluate J.R. under listing
112.03 (psychotic disorders), in light of J.R.’s
diagnosis of psychotic disorder, NOS, and his marked
limitation in the domain of interacting and relating
to others?

C.

Whether the ALJ erred in finding that J.R. has a “less
than marked” limitation in the domain of attending and
completing tasks?

III. Factual Background
J.R. was born on December 25, 1998, and was eleven years
old and in the fifth grade at the LeMoyne School2 at the time of
the ALJ’s decision.
J.R.’s

mother

(Id. at 16, 39, 104).

testified

that

J.R.

had

At the hearing,

attended

George

Hall

Elementary School before being entering the LeMoyne School for
treatment of behavioral issues which included fighting, cursing,
and disrespect for authority figures.

(Id. at 39).

According

to his mother, J.R.’s grades are “okay,” but he “has a hard time
focusing” and “can’t sit still long enough to really get his
work.”

(Id. at 41).

However, J.R. takes medication on a daily

2

As discussed in greater detail herein, the LeMoyne School
is a day treatment program operated by AltaPointe Health Systems
(“AltaPointe”) in collaboration with the Mobile County Public
Schools System.

3

basis, and, according to his mother,
pretty good.”
J.R.’s
certain

his behavior is

“doing

(Id. at 42-43).

mother

extent”

also

with

neighborhood kids.

testified

his

that

siblings,

(Id. at 44).

he

but

plays

he

well

fights

“to

with

a

the

He likes to go to school on

some occasions, and he does household chores, but she has to
instruct him numerous times to get them done.
J.R.’s

mother

also

testified

that

he

(Id. at 41, 43).
has

had

behavior

problems while at the LeMoyne School, including fighting on the
bus.

(Id. at 43).

She also stated that he was hospitalized for

evaluation in May, 2010, after a violent outburst at school in
which he fought staff and other students.

(Id. at 45).

At the

time of the hearing, J.R. was still attending the LeMoyne School
and receiving therapy and medication management.
IV.

(Id. at 45).

Analysis
A.

Standard Of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.3

Martin v. Sullivan, 894 F.2d

3

This Court’s review of the Commissioner’s application of
legal principles is plenary. See Walker v. Bowen, 826 F.2d 996,
999 (11th Cir. 1987).

4

1520, 1529 (11th Cir. 1990).

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th

of the Commissioner.
Cir.

1986).

The

Commissioner’s

findings

of

fact

must

affirmed if they are based upon substantial evidence.

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. 1999).
B. Childhood Disability Law
The

Personal

Responsibility

and

Work

Opportunity

Act

of

1996, which amended the statutory standard for children seeking
supplemental

security

income

benefits

became effective on August 22, 1996.
110

Stat.

1382c).

2105

§

211(b)(2)

(1996)

based

on

disability,

See Pub. L. No. 104-193,
(codified

at

42

The definition of “disabled” for children is:

5

U.S.C.

§

An individual under the age of 18 shall
be considered disabled . . . if that
individual 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.
See 42 U.S.C. § 1382c(a)(3)(C)(i), 20 C.F.R. § 416.906.4

The

regulations provide a three-step sequential evaluation process
for

determining

childhood

disability

claims.

20

C.F.R.

if

any,

§

416.924(a).
At

step

one,

a

child’s

age/work

activity,

are

identified to determine if he has engaged in substantial gainful
activity.

At step two, the child’s physical/mental impairments

are examined to see if he has an impairment or combination of
impairments that is severe.

Under the regulations, a severe

impairment is one that is more than “a slight abnormality or a
combination of slight abnormalities that causes no more than
minimal functional limitations.”

20 C.F.R. § 416.924(c).

To

the extent the child is determined to have a severe impairment,
at step three, the Commissioner must then determine whether the
impairment or combination of impairments meets or is medically
4

On September 11, 2000, the Commissioner published Final
Rules for determining disability for a child under the age of
18. See 65 Fed. Reg. 54,747, corrected by 65 Fed. Reg. 80,307.
These rules became effective on January 2, 2001, and apply to
Plaintiff's claim. See 65 Fed. Reg. at 54,751.

6

or functionally equal to an impairment listed in Appendix 1 of
20

C.F.R.

part

404,

duration requirement.

subpart

P,

and

otherwise

satisfies

the

20 CFR § 416.924.

A child’s impairment(s) meets the listings’ limitations if
he actually suffers from limitations specified in the listings
for his severe impairment.

Shinn ex rel. Shinn v. Commissioner

of Soc. Sec., 391 F.3d 1276, 1279 (11th Cir. 2004).

A child’s

impairment(s) medically equals the listings if his limitations
are

at

least

of

equal

severity

and

duration

impairment(s).

Id. (citing 20 CFR § 416.926).

impairment

combination

medically

or

equal

any

of

impairments

listing,

then

the

to

the

listed

Where a child’s

does

not

meet

Commissioner

or

must

determine whether the impairment or combination of impairments
results in limitations that functionally equal the listings.5
CFR § 416.926a.

20

To establish functional equivalence in step 3,

the claimant must have a medically determinable impairment or
combination of impairments that results in marked limitations in
two functional domains or an extreme limitation in one domain.
20 CFR § 416.926a(a).

The six domains are: (1) acquiring and

5

In making this assessment, the reports of the State Agency
medical consultants, reports of other treating, examining, and
non-examining medical sources, and the claimant’s symptoms,
including pain and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical
evidence and other evidence, are all taken into consideration.
20 C.F.R. §§ 416.927, 416.929; and SSR 96-5, 96-6p and 96-7p.

7

using

information;

interacting

and

(2)

attending

relating

to

and

others;

completing
(4)

tasks;

(3)

about

and

moving

manipulating objects; (5) caring for oneself; and (6) health and
physical well-being.
C.

20 CFR 416.926a.

Discussion
1. ALJ’s Decision

In this action, the ALJ issued an unfavorable decision on
October 8, 2010.

(Tr. 16).

After setting forth the sequential

evaluation process for evaluating child disability claims, the
ALJ determined that J.R. has not engaged in substantial gainful
activity

and

attention

that,

deficit

while

he

has

hyperactivity

the

severe

disorder,

impairments

combined

type,

of
and

disruptive behavior disorder, they do not meet, medically equal,
or functionally equal the criteria for any of the impairments
listed in 20 CFR Part 404, Subpart P, Appendix 1.6

(Id. at 19).

With respect to the functional equivalence domains, the ALJ
found

that

J.R.

has

a

“marked”

limitation

interacting and relating with others.
he

found

that

J.R.

has

“no

in

the

(Id. at 26-27).

limitation”

in

moving

domain

of

However,
about

and

manipulating objects and “less than marked” limitations in the

6

The ALJ also considered the cumulative effects of all of
J.R.’s impairments, including his non-severe diagnoses of
psychotic disorder, NOS, depressive disorder, NOS, and parentchild relational problems. (Tr. at 20, 23, 30).

8

domains

of

acquiring

and

using

information,

attending

and

completing tasks, caring for oneself, and health and physical
well-being.
that,

because

(Id. at 24-30).
J.R.

does

not

Accordingly, the ALJ concluded
meet

or

medically

equal

any

of

listings set forth in 20 CFR Part 404, Subpart P, Appendix 1,
nor

does

he

functionally

equal

the

listings

by

having

an

impairment or combination of impairments that results in either
“marked” limitations in two domains of functioning or “extreme”
limitation in one domain of functioning, he is not disabled
under the Act.

(Id. at 30).

2. Record Evidence
a. Academic Evidence
In March 2009, when J.R. was ten years old and in the third
grade at George Hall Elementary School, he was placed in special
education classes because of behavioral issues.7
15).

(Id. at 109-

At that time, an Individualized Education Program (“IEP”)

team evaluated J.R. and found him eligible for special education
services based on his behavior.

(Id. at 109-115, 124).

J.R.’s

testing revealed that he had a non-verbal I.Q. of 95 and was
“functioning in the average range on a standardized measure of
intelligence (CTONI).”

(Tr. 123).

7

His achievement scores at

J.R.’s application for SSI benefits was filed three months
later, in June, 2009. (Tr. 104).

9

that time indicated overall reading and math skills within the
low average range and overall writing skills within the average
range.8

(Id. at 123).

Behavioral tests conducted at that same

time rated J.R.’s overall behavior as “clinically significant.”
(Id. at 124).

Narratives of J.R.’s behavior provided to the

examiner by J.R.’s teachers and principals included instances of
J.R.

having

concentrate,
difficulty
defiance.

difficulty
lack

getting

of

following
respect

along

with

directions,

for

persons

fellow

inability
in

classmates,

to

authority,
anger,

and

(Id. at 122-23).

In the fall of 2009, J.R. began the fourth grade at George
Hall Elementary School.
a

(Id. at 151-58). His teacher completed

questionnaire on September 30, 2009.

She noted that J.R. was

still having behavioral problems, and those problems correlated
with whether he took his medication.

(Id. at 152).

With regard

to the area of acquiring and using information, the
stated

that,

when

J.R.

does

not

take

his

teacher

medication,

his

comprehension of material is slow, and he usually becomes angry.
(Id.).

However, “[a]s long as he’s on his medicine there’s no

problem in this area.”

(Id.).

In the area of interacting and

8

Additional results from J.R.’s testing performed in
February, 2009, reveal a score of 85 on the Woodcock-Johnson
Tests of Achievement III (WJIII) (Id. at 119), which is
considered “low average.” See http://faculty.virgina.edu/
PullenLab/WJIIIDRBModule/WJIIIDRBModule_print.html.

10

relating with others, J.R.’s teacher reported that, “due to lack
of

medication

from

parent,”

a

behavioral

plan

had

to

be

developed to remove J.R. from the general classroom to a selfcontained

class.

(Id.

at

154).

The

teacher

indicated

no

problems in the area of moving about and manipulating objects.
(Id. at 155).

With respect to the area of caring for oneself,

the teacher stated that, when J.R. was not on his medication,
there was a “vast change” in his appearance, i.e., sometimes he
would not comb his hair or brush his teeth.

(Id. at 156).

The

teacher also noted some “obvious” problems in the domains of
attending and completing tasks with respect to organizing his
things and completing assignments.

(Id. at 153-56).

However,

in this area, as well as all others, she indicated that none of
the problems were “serious” or “very serious.”

(Id.).

In February, 2010, J.R. was transferred from the fourth
grade at George Hall Elementary School to the LeMoyne School9
because of his temper and other behavioral issues that were
9

The LeMoyne School is a “day treatment program operated by
AltaPointe Health Systems in collaboration with the Mobile
County Public Schools System [which] provides a therapeutic
classroom environment and structured day treatment setting for
kindergarten through eighth grade students who are unable to
maintain their behaviors in a public school setting.” See
http://careers.altapointe.org/baypointe_LeMoyne.asp.
Upon
completion of the program, each child transitions back into the
public school setting “with improved coping skills and social
skills.”
(Id.).
“The Mobile County Public Schools System
provides qualified teachers and funds the program.” (Id.).

11

interfering with his ability to learn in a regular classroom
setting.

(Id.

at

381).

At

the

LeMoyne

School,

a

special

education teacher provided all of J.R.’s academic instruction.10
(Id. at 166).

Despite behavioral issues, J.R.’s March 2010 IEP

indicated that he had achieved all grade level standards in
reading, language arts, math, science, and Alabama history for
the 2009-2010 school year.

(Id.).

J.R.

from

required

redirection

The IEP report stated that

his

teacher

“only

when

his

behavior is out of control” and that “[w]hen he’s calm, he’s
great to work with and will work independently.”

(Id.).

At the time of October 1, 2010, hearing before the ALJ,
J.R. was eleven years old and in the fifth grade at the LeMoyne
School.
are

(Id. at 39).

still

instances

J.R.’s mother testified that, while there
of

behavioral

problems,

particularly

fighting, his grades are “okay” and, “on this medication, [his
behavior is] doing pretty good. . . .
bad.”

His behavior is not real

(Id. at 41, 43).

10

Because J.R.’s behavioral issues at the LeMoyne School
from February, 2010, to September, 2010, are discussed at length
herein in relation to the medical evidence in this case, those
records will not be detailed here. The records from the LeMoyne
School span from February, 2010, to September, 2010 (Tr. 382),
and the ALJ issued his decision the following month, on October
8, 2010. (Tr. 16).

12

b. Medical Evidence
The relevant medical evidence of record shows that J.R.
began

receiving

Systems

in

outpatient

November

2007,

therapy
when

from

he

was

attending George Hall Elementary School.11
treatment

through

instances

of

rules,

and

AltaPointe

acting

not

out

doing

in

his

was
class,

in

AltaPointe

eight

old

(Id. at 224).
response

and

J.R.’s

(Id.).

to

repeated

not

following

Dr.

aggression,

classwork.

years

Health

Elizabeth

Dolgos participated in J.R.’s initial psychiatric evaluation and
concluded

that

disturbance
problem.
40-50.

12

of

J.R.
mood

suffered
and

(Id. at 226).
(Id.).

from

conduct

and

adjustment
parent

disorder

child

with

relational

Dr. Dolgos assigned J.R. a GAF score of

During the evaluation by Dr. Dolgos and her

11

It is unclear from the record whether J.R. was in the
first or second grade when he began receiving services from
AltaPointe.
Although his records from November 2007, indicate
that he was in the first grade, this is inconsistent with later
records establishing his grade level. (Tr. 224, 205).
12

The Global Assessment of Functioning (GAF) is a numeric
scale (0 through 100) used by mental health clinicians that
measures a patient’s overall level of psychological, social, and
occupational functioning on a hypothetical continuum. A GAF
score of 41-50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or
serious social dysfunction (e.g., no friends, unable to keep a
job).
A GAF score of 51-60 suggests moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or coworkers). A GAF score of 61-70 is indicative of mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty in
(Continued)
13

staff on November 27, 2007, J.R. reported that, at times in the
past, he had heard voices telling him to kill someone, although
he indicated that he was not hearing voices at that time.
at 224).
was

He also stated that he was having trouble sleeping; he

scared

at

night;

he

was

sleeping with the lights on.
calm

and

cooperative

hyperactivity.
As

(Id.

part

having

(Id.).

during

nightmares;

and

he

was

It was noted that J.R. was
the

interview,

with

no

(Id.).
of

the

interviewed, and she

evaluation,

J.R.’s

mother

was

also

reported that J.R. had been acting out

since his father had moved back into the home.

(Id.).

She

reported that J.R.’s father had been violent before he moved out
and had been using drugs.

(Id.).

According to J.R.’s mother,

when she and J.R.’s father would fight, J.R. would stand by her
to protect her from his father.

(Id.).

It was noted that

J.R.’s father had a history of physically abusing his mother in
front of J.R., and, at the time of the interview, the mother and
father

were

evaluation,

arguing
the

daily.

medical

(Id.).

staff

at

After

AltaPointe

concluding

the

recommended

no

social, occupational, or school functioning (e.g., occasional
truancy,
or
theft
within
the
household),
but
generally
functioning pretty well, has some meaningful interpersonal
relationships. See http://www.gafscore. com/.
(Last visited
September 24, 2012).

14

medication for J.R. “until the parenting piece is in place.”
(Id. at 227).

The record reflects that the mother was counseled

regarding good parenting.

(Id.).

On March 26, 2009, when J.R. was ten years old and in the
third grade at George Hall Elementary School, he was diagnosed
by Dr. Shakeel Raza at AltaPointe with psychotic disorder, NOS,
depressive disorder, NOS, parent child relational problem, and
disruptive behavior disorder, NOS.

(Id. at 276).

Two months

later, in May, 2009, J.R. was admitted to Baypointe Hospital, a
facility operated by AltaPointe, where he received in-patient
treatment for one week from Dr. Adeel Rabbani, who diagnosed him
with attention deficit hyperactivity disorder, combined type,
disruptive behavior disorder, NOS, and sibling and parent child
relational problems.13

(Id. at 200-06).

In his initial evaluation, Dr. Rabbani noted that J.R. was
a ten-year-old male living with his mother and six siblings
ranging from age one to eleven.

(Id. at 203-04).

J.R. told Dr.

Rabbani that he was in the third grade and that he enjoyed math
and reading books.

(Id. at 205-06).

J.R. reported that he had

recently been suspended from school for fighting,14 that he also
13

Dr.
disorder.

Rabbani

did

not

diagnose

14

J.R.

with

psychotic

J.R. told Dr. Rabbani that he had been suspended from
school four times that year for fighting. (Tr. 203).

15

had fights at home with his older sister, and that he and his
sister

both

knife.

had

threatened

(Id. at 203).

to

cut

each

other

with

a

butter

J.R. also told Dr. Rabbani that he had

heard voices telling him to get a knife and kill his sister and
burn the house down.

(Id.).

According to J.R., the voice was

very loud and that of an adult male.

(Id.).

He also reported

having nightmares in which someone was trying to kill him.
at 204).

(Id.

Dr. Rabbani noted that J.R.’s father had moved out of

the house around the time that the nightmares began and that
J.R. and his family had moved to a new house.

(Id.).

During the May, 2009, evaluation, J.R.’s mother reported to
Dr. Rabbani that she was having problems with J.R. being defiant
and aggressive.

(Id. at 201).

She stated that “he learned

these behaviors from his father,” and reported that, at that
time, she had a restraining order against J.R.’s father for
domestic violence.

(Id.).

She also reported that J.R. had

threatened to kill his father when he got older and “big enough”
to do so.

(Id.).

Dr. Rabbani discussed with J.R.’s mother the

cycle of abuse and the need to intervene with the patient at an
early age.

(Id.).

Dr. Rabbani’s discharge notes reflect that

throughout J.R.’s stay, he participated actively in all group
activities
Although

and

there

interacted
were

well

several

with

other

incidents

of

patients.
redirection

(Id.).
due

to

hyperactivity or disrespect toward staff, Dr. Rabbani noted that
16

these incidents decreased in frequency during the length of the
hospital stay.

(Id.).

After one week of in-patient treatment,

Dr. Rabbani discharged J.R. and recommended that a social worker
provide

in-home

services,

that

J.R.

follow

up

with

a

psychiatrist or pediatrician regarding his medication, that J.R.
receive individual therapy, that the family receive counseling,
and that they seek a psychiatric evaluation should J.R. become
suicidal, homicidal, manic, psychotic, or severely depressed.
(Id.

at

201-02).

discharge.15

Dr.

Rabbani

prescribed

Adderall

upon

(Id. at 200).

In June and July 2009, J.R. received counseling services
from the LeMoyne School via a summer camp program.
209).

(Id. at

During a meeting with J.R.’s therapist, J.R.’s mother

discussed his anger issues and the fact that she was having
problems with J.R. shoplifting.

(Id.).

J.R.’s treatment notes

reflect concern by the therapist that the father was back in the
home

and

being

a

negative

influence.

(Id.

at

217).

The

therapist noted that the father had shown J.R. his gun, had
threatened to kill the mother in front of J.R., had taken J.R.

15

Dr. Rabbani rated J.R.’s GAF score at that time as 55-60
(Tr. 200), which suggests moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers). See footnote
12, supra.

17

with him to go shoplifting, and had an outstanding warrant for
his arrest.16
summer

camp

anger,

(Id.).
program

defiance,

stealing.

J.R.’s records from the LeMoyne School

(Id.

reflect

use
at

of

211,

continuing
profanity,

223,

235,

problems
lying,

240).

with

J.R.’s

fighting,

The

and

records

also

indicate, however, that when redirected, J.R. was able to cease
inappropriate behavior, follow instructions, and make positive
choices.

(Id. at 211, 213-14, 223, 235, 238).

Specifically,

J.R.’s therapists reported that that he was doing well on his
medication,17 that he was not having any hallucinations, that he
had

shown

improvement

with

his

anger,

that

he

expressed

an

understanding of consequences, that he accepted responsibility
when

he

made

poor

choices,

that

he

was

cheerful,

calm,

respectful, and cooperative, and that he had made a friend.
(Id.).
In the fall of 2009, J.R. began the fourth grade at George
Hall Elementary School.

In September, 2009, a State Agency

consultant,

Simpson,

William

H.

Ph.D.

(hereinafter

“Dr.

16

The therapist also noted that J.R.’s mother was expecting
another child with J.R.’s father and that she appeared to be
suffering from depression. (Tr. 217). The therapist expressed
concern that, when the father was in the home, the mother was
not allowed to have contact with her family or friends. (Id.).
17

Prozac.

In July, 2009, J.R. was taking Seroquel, Adderall, and
(Tr. 213).

18

Simpson”),

performed

a

Childhood

Disability

Evaluation

and

determined that J.R.’s impairment or combination of impairments
(ADHD,

disruptive

behavior

disorder,

and

sibling

relational

problems) were severe but did not meet, medically equal, or
functionally equal the listings.

(Id. at 241-44).

Dr. Simpson

opined that J.R. has a “marked” limitation in interacting and
relating with others (noting that J.R. was taking Prozac and
Seroquel),

a

“less

completing

tasks

than

marked”

(noting

that

limitation

J.R.

was

in

attending

taking

and

Adderall

for

impaired concentration), and “no limitation” in acquiring and
using information (based on his IEP and test scores), moving
about and manipulating objects, caring for oneself, and health
and physical well-being.
From

August

2009,

(Id.).
through

January

2010,

J.R.’s

medical

records show that he continued to experience frequent anger and
defiance problems at school and that he had threatened to beat
up the teacher.

(Id. at 256, 258, 263, 265).

reflect no hallucinations during this time.
273).

The records

(Id. at 251, 270,

J.R.’s therapists documented that he was upset that his

father had moved back into the home.

One therapist noted in

January 2010, that J.R.’s parents “have

[a] long history of

arguing to [the] point of father saying he was going to kill
[the] mother.”

(Id. at 250).

The therapist expressed “concern

about the welfare of the children and what the future plans
19

are.”

(Id. at 259).

The therapist also noted that J.R. “was

off his medications for 1 and 1/2 month[s] due to mother letting
Medicaid lapse.”

(Id. at 262, 264-65).

A second therapist noted in December 2009, that J.R. “does
not like Dad returning.
(Id. at 252).

He is still angry at Dad for the past.”

J.R.’s therapists noted that he was performing

poorly in school, was not sleeping, and was worried about his
mother.

(Id. at 252, 273).

In August 2009, J.R. ran away from

daycare to go home because he was afraid that his Mom would be
killed.

(Id. at 274).

Notwithstanding these problems, J.R.’s

therapists reported some progress.
that

J.R.

himself

to

had

given

be

used

helpful
by

In January 2010, they noted

advice

others

and

to
that

a

peer

he

was

engaged during his session. (Id. at 250-51).
plan

at

that

time

included

family

regimen of Seroquel and Prozac.

therapy

to

not

allow

pleasant

and

J.R.’s treatment
and

a

medication

(Id. at 253).

As discussed above, in February 2010, J.R. was transferred
from the fourth grade at George Hall Elementary School to the
LeMoyne School for additional behavioral therapy and was still
attending the LeMoyne School at the time of the administrative
hearing on October 1, 2010.

(Id. at 39, 381).

J.R.’s records

at the LeMoyne School from February 2010 until September 2010
show that he continued to have behavioral problems including

20

incidents of fighting,18 being disrespectful, bullying peers into
bringing money to him, stealing, lying, blaming others, using
profanity,
trouble

threatening

or

if

they

to

kill

peers

refused

to

if

they

bring

him

manipulative, and refusing to do his work.

got

him

money,

into
being

(Id. at 191, 281,

286, 312, 314, 323, 325, 360, 368, 375, 377).

On April 22,

2010, his therapist reported on a staff meeting which included
J.R.’s special education teacher.

During the meeting, the staff

described

smart”

becomes

J.R.
very

immediately.

as

“academically

frustrated
(Id. at 336).

when

he

but

does

stated

not

that

receive

he

help

The therapist further reported that

J.R. “will pick on the weak kids,” threaten them, and deny it.
(Id.).

The therapist described J.R. as manipulative, stating

that he “will split [the] staff to get what he wants.”
Despite
School

also

these

document

redirection,19

upon

problems,

J.R.’s

repeated

records

instances

including

following

of

at

(Id.).

the

positive

LeMoyne
behavior

directions,

being

respectful, being polite, being cooperative, having a positive
18

In September, 2010, when J.R. was eleven years old and in
the fifth grade at the LeMoyne School, the bus driver requested
that his mother ride the bus with him one or two days a week
until his behavior improved because he had threatened to beat up
a peer and had used profanity. (Tr. 191).
19

On July 14, 2010, J.R.’s therapist, Jennifer Paloma,
stated: “most of the time [J.R.] will respond positively when
staff redirects him on a one-to-one basis.” (Tr. 281).

21

attitude,

taking

responsibility

empathy,

demonstrating

focused,

controlling

others,

completing

good
his

his

for

his

insight,

being

behavior,

work,

actions,
smart,

participating

exhibiting

good

showing

quick,

and

well

with

sportsmanship,

exhibiting good social skills, and using good manners.20

(Id. at

281, 284, 288, 292, 294, 298, 303, 333, 342, 346, 370, 407, 419,
422).
In February 2010, Dr. Raza noted that while J.R. has a
history

of

nightmares

and

hearing

voices,

according

to

his

mother, he “has not had these nightmares or heard voices for the
past

two

years.”

(Id. at 276).

On April

5,

2010,

J.R.’s

therapist noted that, while he continued to have defiance issues
in

the

classroom

and

at

home,

his

aggressive

behavior

decreased, and he was doing more work in the classroom.
346).

J.R.’s

therapists

and

special

education

had

(Id. at

teacher

also

noted a correlation between J.R.’s behavior and the consistency
with which he takes his medication.
399-400).

(Id. at 322, 324, 388-90,

They noted that J.R. “does well in his classwork once

he takes his medication.”

(Id. at 400).

In August 2010, one of J.R.’s therapists, Jennifer Paloma,
wrote

20

a

letter

These
August, 2010.

at

record

the

request

references

22

of

J.R.’s

span

mother

February,

summarizing

2010,

through

J.R.’s treatment at the LeMoyne School.
letter,

Ms.

Paloma

described

including

difficulty

outbursts

in

others,

class,

threatening

J.R.’s

controlling
refusing

to

to

his

kill

(Id. at 381).
behavioral

his

temper,

follow

cursing, arguing, and fighting.

(Id.).

in

education

of

these

classes

behavioral
and

was

frequent

physical

issues,

light

problems

directions,

peers,

In the
as

anger

provoking

aggression,

Ms. Paloma stated that
J.R.

receiving

was

in

bi-weekly

special

individual

therapy, weekly group therapy, family therapy as needed, and
seeing a child psychiatrist at least once every three months.
(Id.).
psychotic

She listed his diagnoses as disruptive disorder NOS,
disorder

NOS,

depressive

disorder

NOS,

and

parent

child relational problem and noted that he was taking Seroquel,
Ritalin, Adderall, Prozac, and Risperdal.

(Id.).

Ms. Paloma

stated, “on his good days [J.R.] will be polite, offer to help,
cooperate

and

is

willing

to

do

his

school

work.

On

many

occasions [J.R. has verbally expressed . . . his love for his
mother and younger siblings.”

(Id.).

Ms. Paloma stated that

the length of the stay at the LeMoyne School depends on the
progress made by the child and that an average stay was twelve
to eighteen months.
J.R.

had

been

(Id.).

attending

At the time of Ms. Paloma’s letter,

the

LeMoyne

(Id.).

23

School

for

six

months.

At the hearing on October 1, 2010, J.R.’s mother testified
that J.R. was still having behavioral problems, particularly in
the area of fighting.

(Id. at 43).

However, she stated that,

with his medication, his behavior is “pretty good . . . . His
behavior is not real bad.”
3.

(Id. at 42-43).

Analysis

Plaintiff argues that the ALJ committed reversible error
by: (1) failing to find that J.R.’s psychotic disorder is a
severe impairment; (2) failing to evaluate J.R. under Listing
112.03 in light of Plaintiff’s diagnosis of psychotic disorder
and the ALJ’s finding that the Plaintiff has a marked limitation
in the domain of interacting and relating with others; and (3)
finding that J.R. has a “less than marked” limitation in the
domain of attending and completing tasks.

(Doc. 11 at 1-2).

For

Court

the

reasons

set

forth

herein,

the

finds

that

Plaintiff’s arguments are without merit.
a. Whether the ALJ committed reversible error by
failing to find that J.R.’s psychotic disorder
is a severe impairment?
Plaintiff argues that the ALJ erred at step two of his
analysis by failing to find that J.R.’s psychotic disorder is a
severe impairment.

Plaintiff argues that, under Social Security

Ruling 96-3p, the evaluation of whether an impairment

of an

individual under the age of eighteen is “severe” requires an
assessment

of

the

“functionally
24

limiting

effects”

of

an

impairment on the individual’s ability “to do age-appropriate
activities.”

(Doc. 11 at 2).

impairment(s)

is

considered

As Plaintiff points out, “an

‘not

severe’

if

it

is

a

slight

abnormality(ies) that causes no more than minimal limitation in
the

individual’s

ability

to

function

independently,

appropriately, and effectively in an age-appropriate manner.”
SSR 96-3p, 1996 SSR Lexis 10.
In

this

case,

the

ALJ

deemed

two

of

J.R.’s

mental

impairments to be severe (ADHD and disruptive behavior disorder)
and then proceeded with the sequential inquiry to step three
where

he

medically

considered
determinable

the

combined

impairments,

considered to be severe.

effect
even

of

those

all
that

of

J.R.’s

were

not

(Tr. 19-30) (applying 20 C.F.R. §§

416.924, 416.925, and 416.926.

Although the ALJ did not discuss

the severity of J.R.’s psychotic disorder (nor of his depressive
disorder or parent child relational problem) at step two of the
analysis, his failure to do so does not constitute error.
Assuming,

arguendo,

that

J.R.’s

psychotic

disorder

were

severe, the ALJ’s failure to make that finding at step two is
not error because the ALJ had already found that the ADHD and
disruptive behavior disorders were severe.

The Eleventh Circuit

has recognized that any severe impairment, regardless of whether
the impairment resulted from a single impairment or combination
of impairments, which qualifies as severe, satisfies step two.
25

See Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir.1987) (“[S]tep
[two] acts as a filter; if no severe impairment is shown the
claim

is

denied,

but

the

finding

of

any

severe

impairment,

whether or not it qualifies as a disability and whether or not
it results from a single severe impairment or a combination of
impairments

that

together

qualify

as

satisfy the requirement of step two.”).

severe,

is

enough

to

Thus, because a severe

impairment at step two of the evaluation existed, the

ALJ's

failure to consider any other impairment at that stage was not
error.

See Johnson v. Astrue, 2009 U.S. Dist. LEXIS 111826, *10

(M.D. Fla. November 13, 2009,) (finding “no error” in ALJ’s
failure to find “additional severe impairments” at step two of
the analysis where ALJ had already found that Plaintiff suffered
from

other

severe

impairments.).

Therefore,

Plaintiff’s

argument that the ALJ erred at step two of his analysis by
failing

to

find

that

J.R.’s

psychotic

disorder

is

a

severe

impairment is without merit.
b. Whether the ALJ committed reversible error by
failing to evaluate J.R. under Listing 112.03
in light of J.R.’s diagnosis of psychotic
disorder and his marked limitation in the
domain
of
interacting
and
relating
with
others?
Next, Plaintiff asserts that the ALJ erred in failing to
evaluate
J.R.

has

J.R.’s
been

impairments
diagnosed

under

with

Listing

psychotic

26

112.03,
disorder

given
and

that

has

a

“marked” limitation in the domain of interacting and relating
with others.

(Doc. 11 at 4).

Defendant responds that the ALJ’s

consideration of Listing 112.03 is implied inasmuch as the ALJ
considered all of J.R.’s mental impairments (including psychotic
disorder) and found that those impairments, in combination, did
not meet any listing, which impliedly includes Listing 112.03.
(Doc. 12 at 9).
The

Eleventh

Circuit

has

explained

the

purpose

and

application of the Listing of Impairments, as follows:
The Listings include medical criteria
for specified disorders of thirteen major
body systems.
These impairments are so
severe that an individual who has a listed
impairment is generally considered unable to
work
based
upon
medical
considerations
alone. 20 C.F.R. § 416.925(a). A claimant
may prove that he is disabled by either (1)
meeting the Listings or (2) equaling the
Listings.
In order to meet a Listing, the
claimant must (1) have a diagnosed condition
that is included in the Listing and (2)
provide
objective
medical
reports
documenting that this condition meets the
specific criteria of the applicable Listing
and the duration requirement.
A diagnosis
alone
is
insufficient.
20
C.F.R.
§
416.925(c)-(d).
In order to
equal a
Listing, the medical findings must be at
least equal in severity and duration to the
listed findings.
Wilkinson on behalf of Wilkinson v. Bowen, 847 F.2d 660, 662
(11th

Cir.

1987)

(emphasis

in

original).

See

also

Bell

v.

Bowen, 796 F.2d 1350, 1353 (11th Cir. 1986) (finding that “when

27

a claimant contends that he has an impairment meeting the listed
impairments . . . he must present specific medical findings that
meet

the

various

tests

listed

under

the

description

of

the

applicable impairment. . . .”); Carnes v. Sullivan, 936 F.2d
1215, 1218 (11th Cir. 1991) (providing that a “[d]iagnosis of a
listed

impairment

is

not

alone

sufficient;

the

record

must

contain corroborative medical evidence supported by clinical and
laboratory

findings.”).

Moreover,

the

United

States

Supreme

Court has found:
Each impairment [in the Listings] is defined
in terms of several specific medical signs,
symptoms, or laboratory test results. For a
claimant to show that his impairment matches
a listing, it must meet all of the specified
medical
criteria.
An
impairment
that
manifests only some of those criteria, no
matter how severely, does not qualify.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in
original).
In order to prove equivalency to a listed impairment, a
plaintiff must provide objective medical findings that support
each of the criteria for the impairment under which he claims
equivalency.

Bell, 796 F.2d at 1353 (providing that “if in the

alternative [claimant] contends that he has an impairment which
is equal to one of the listed impairments, the claimant must
present medical evidence which describes how the impairment has
such

an

equivalency.”).

A

claimant

28

must

show

that

the

impairments

produce

equivalent
Objective

to

those

tests

equivalence.

functional
required

must

be

limitations
under

present

to

the

or

restrictions

particular

support

a

listing.

finding

of

See 20 C.F.R. § 416.926(a); see also Sullivan, 493

U.S. at 531; Foster v. Astrue, 2009 U.S. Dist. LEXIS 41208, *25
(S.D. Ala. May 15, 2009).

Also, the medical findings must be at

least equal in severity and duration to the listed findings.
Wilkinson,

847

F.2d

at

662.

Plaintiff

has

the

burden

of

producing medical evidence that establishes all of the required
medical findings.

See, e.g., Bowen v. Yuckert, 482 U.S. 137,

146 & n.5 (1987).

See also 20 C.F.R. § 416.926 (determining

medical

equivalence

for

adults

and

children);

20

C.F.R.

§

416.926a (determining functional equivalence for children).
Contrary to Plaintiff's assertion that the ALJ erred in
failing to specifically state which listing he considered, the
ALJ's finding that J.R.’s impairment did not meet a particular
listing

can

be

implied.

Keane

v.

Commissioner

of

Social

Security, 205 Fed. Appx. 748, 750 (llth Cir. 2006); Hutchison v.
Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986) (“While the ALJ did
not explicitly state that the appellant's impairments were not
contained in the listings, such a determination was implicit in
the ALJ's decision . . . While Appendix 1 must be considered in
making a disability determination, it is not required that the
Secretary

mechanically

recite

the
29

evidence

leading

to

[his]

determination.

There may be an implied finding that a claimant

does not meet a listing.”); Barron v. Sullivan, 924 F.2d 227,
230 n.3 (11th Cir. 1991)

(noting that “it would be helpful to

appellate courts if the ALJ would specifically tie his findings
to particular listings that the claimant has argued,” but it is
not error to fail to do so where “the evidence supports the
conclusions

of

the

ALJ,

despite

the

lack

of

any

particular

discussion of [Plaintiff’s] impairment as it relates to [the
claimed] Listing.”); Foster, 2009 U.S. Dist. LEXIS 41208, *26-28
(S.D. Ala. May 15, 2009) (ALJ’s failure to specifically state
which listing he considered was not error, and his finding that
claimant did not meet, medically equal, or functionally equal a
particular listing was implied, where the substantial evidence
did

not

establish

the

criteria

under

the

listing).

Cf.,

Ellington v. Astrue, 2008 U.S. Dist. LEXIS 32254, *23 (M.D. Ala.
April 18, 2008) (Where the ALJ's decision is not supported by
substantial

evidence

or

it

cannot

be

determined

whether

the

ALJ’s decision is supported by substantial evidence, the ALJ’s
failure to consider applicable listings warranted a reversal).
In his decision, the ALJ found that J.R. had the severe
impairments

of

ADHD,

combined

type,

and

disruptive

behavior

disorder, and he found that J.R.’s impairment, or combination of
impairments, both severe and non-severe, did not meet, medically
equal or functionally equal any of the listed impairments in 20
30

CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925,
and 416.926).

(Tr. 19-20).

the

not

ALJ

did

While the Plaintiff is correct that

explicitly

reference

Listing

112.03,

the

undersigned finds, based upon a thorough review of the record,
that

the

ALJ

implicitly

found

that

J.R.’s

impairment,

or

combination of impairments, does not meet or medically equal
Listing

112.03,

and

the

substantial

evidence

in

the

record

supports that finding.
Section 112.03 of the Listings, “Schizophrenic, Delusional
(Paranoid),

Schizoaffective,

and

Other

Psychotic

Disorders,”

requires a showing of both the A-criteria and the B-criteria of
that Listing.

The A-criteria of Listing 112.03 requires:

Medically documented persistence, for at
least
6
months,
either
continuous
or
intermittent,
of
one
or
more
of
the
following:
1. Delusions or hallucinations; or
2. Catatonic, bizarre, or other grossly
disorganized behavior; or
3. Incoherence, loosening of
associations, illogical thinking, or
poverty of content of speech; or
4. Flat, blunt, or inappropriate
affect; or
5. Emotional withdrawal, apathy, or
isolation.
20 CFR Pt. 404, Subpt. P, App. 1, § 112.03(A).
of

Listing

112.03

requires

that
31

the

The B-criteria

claimant’s

mental

impairment(s) results in “marked” impairment in two or more of
the following areas:
a. Marked impairment in age-appropriate
cognitive/communicative function, documented
by medical findings (including consideration
of historical and other information from
parents
or
other
individuals
who
have
knowledge
of
the
child,
when
such
information is needed and available) and
including, if necessary, the results of
appropriate
standardized
psychological
tests, or for children under age 6, by
appropriate
tests
of
language
and
communication; or
b. Marked impairment in age-appropriate
social functioning, documented by history
and
medical
findings
(including
consideration of information from parents or
other individuals who have knowledge of the
child, when such information is needed and
available) and including, if necessary, the
results of appropriate standardized tests;
or
c. Marked impairment in age-appropriate
personal functioning, documented by history
and
medical
findings
(including
consideration of information from parents or
other individuals who have knowledge of the
child, when such information is needed and
available) and including, if necessary,
appropriate standardized tests; or
d.
Marked
difficulties
in
maintaining
concentration, persistence, or pace.
20

CFR

Pt.

112.02(B)(2).

404,
A

Subpt.
review

P,
of

App.
the

1,

§

evidence

112.03(B)
shows

impairments did not meet or equal this Listing.

32

that

(citing
J.R.’s

The only evidence in the record relating to the A-Criteria
of Listing 112.03 consists of reports by J.R. in November, 2007,
and

May,

2009,

that

he

heard

somebody.

(Tr. 203-04, 224).

the

told him

voice

sister.
indicates

(Id.

at

that

hallucinations.

to

burn

203-04).
J.R.

no

voices

telling

him

to

kill

In May, 2009, J.R. reported that
the
As

house
of

longer

down

July,
heard

and

to

2009,

the

voices

(Id. at 238, 250-51, 273).

kill

his

record

or

had

The Court finds

that the A-Criteria is met by this evidence.21
Turning to the B-Criteria, the Court finds that J.R. meets
the criteria of subparagraph (b), “marked impairment in ageappropriate social functioning,” based on the well-documented
issues with J.R.’s behavior that have been set forth in detail
in this opinion.

However, the Court finds that the remaining

criteria in subparagraphs (a), (c), and (d) are not met.
First, with respect to subparagraph (a) of the B-criteria,
cognitive

and

communicative

functioning,

the

evidence

shows

that, despite J.R.’s behavioral issues, he has a non-verbal I.Q.
of 95 and functions “in the average range on a standardized
measure of intelligence” (Tr. 123); his achievement scores in
21

The Court rejects Plaintiff’s implication (Doc. 11 at 56) that isolated record references to J.R. staring off into
space and refusing to eat, walk, or speak are evidence of
catatonic behavior, as there is no medical evidence in the
record to support such a finding.

33

March, 2009, indicate overall reading and math skills within the
low average range and overall writing skills within the average
range (Id.); in September, 2009, J.R.’s teacher reported that
his

problems

concentration

with
are

acquiring
resolved

as

and

using

long

as

information

he

is

taking

and
his

medication (Id. at 152-56); the March, 2010, IEP indicated that
J.R. had achieved all grade level standards in reading, language
arts,

math,

science,

and

Alabama

history

for

the

2009-2010

school year (Id. at 166); J.R.’s mother testified at the hearing
on October 1, 2010, that, while there were still instances of
behavioral

problems,

J.R’s

grades

were

“okay”

medication, his behavior was “doing pretty good.”

and,

on

his

(Id. at 41,

43); and J.R.’s mother indicated in her application that J.R.
could speak and be understood, most of the time, even by people
who do not know him well and that his ability to communicate was
not limited.22

(Id. at 132-33).

This evidence indicates that

any limitation that J.R. may have in the area of cognitive and
communicative functioning does not rise to the “marked” level.
Next, with respect to subparagraph (c) of the B-criteria,
marked

impairment

in

age-appropriate

22

personal

functioning,

J.R.’s mother contradicted this statement at the hearing
on October 1, 2010, when she testified that she “really can’t
understand what [J.R.] is trying to say.”
(Tr. 44).
Notably,
none of J.R.’s teachers or therapists indicated any problems
understanding J.R. when he spoke.

34

J.R.’s mother stated in her application that his impairments do
not affect his ability to help himself or to cooperate with
others in taking care of his personal needs.

(Id. at 137).

She

further testified at the hearing that J.R. performs chores such
as

cleaning

his

room

and

sweeping.

(Id.

at

43-44).

This

evidence indicates that J.R. has no limitation in the area of
personal

functioning,

and

Plaintiff

has

not

presented

any

evidence to the contrary.
Finally,
criteria,

marked

persistence,
following:
stated,

with

or

J.R.

J.R.

respect

to

subparagraph

difficulties
pace,
does

the

well

achieved

all

on

in

maintaining

record
his

grade

(d)

evidence

the

B-

concentration,
indicates

medication;23
level

of

as

standards

the

previously

in

reading,

language arts, math, science, and Alabama history for the 20092010 school year24 (Id. at 166); according to Dr. Simpson, the
State Agency consultant who evaluated J.R.’s limitations, J.R.
does not have a “marked” limitation in the area of attending and
completing tasks (noting that J.R. takes Adderall for impaired
concentration)

(Id.

at

243-44);

23

As discussed above, J.R.
concentration. (Tr. 200, 213).
24

while

attending

takes

Adderall

the
for

LeMoyne
impaired

The March, 2010, IEP indicated that “when [J.R. is] calm,
he’s great to work with and will work independently.”
(Tr.
166).
He requires support from his teacher “only when his
behavior is out of control.” (Id.).

35

School

from

exhibited

February

2010

positive

to

the

behaviors

following

directions,

attitude,

being

behavior,

participating

smart,

being

upon

of

and

with

the

hearing,

redirection,

cooperative,

quick,
well

date

having

focused,

others,

and

J.R.

including
a

positive

controlling

his

completing

his

work (Id. at 281, 284, 288, 292, 294, 298, 303, 333, 342, 346,
370, 407, 419, 422); in April, 2010, J.R.’s aggressive behavior
had

decreased,

and

he

was

doing

more

work

(Id.

at

346);

according to J.R.’s special education teacher and therapist, he
“does well in his classwork once he takes his medication.” (Id.
at 400).

This evidence indicates that J.R. does not have marked

difficulties in maintaining concentration, persistence, or pace.
Based on the foregoing, Plaintiff failed to establish the
criteria of Listing 112.03, and, therefore, the ALJ's failure to
find that J.R. met Listing 112.03 was not erroneous.

See Keane,

205 Fed. Appx. at 750-51 (11th Cir. 2006) (court affirmed ALJ’s
implied finding that Plaintiff’s impairments did not meet or
equal the listing at issue where the substantial evidence did
not establish the criteria under the listing.).
assuming

error

in

the

ALJ’s

Listing 112.03, any error

failure

to

Moreover, even

specifically

discuss

was harmless given the absence of

substantial evidence that J.R.’s impairments met or equaled the
Listing.

36

In his decision, the ALJ also found that J.R.’s impairments
did not functionally equal any Listing, which impliedly included
Listing 112.03.

In reaching that decision, the ALJ stated that

he considered all of the relevant evidence in the case record,
as required by 20 CFR 416.924a(a) and SSR 09-2p; he evaluated
the “whole child,” as provided in 20 CFR 416.926a(b) and (c) and
SSR 09-1p; he assessed the interactive and cumulative effects of
all of J.R.’s medically determinable impairments whether severe
or non-severe; and he considered the degree of limitation in
each of the six functional equivalence domains.

(Tr. 20).

With respect to the six functional equivalence domains, the
ALJ

found

that

J.R.

had

a

“marked”

limitation

found

“no

limitation”

in

the

domain

of

only

one

(Id. at 26).

domain, interacting and relating with others.

in

He

“moving

about

and

manipulating objects” and “less than marked” limitations in the
remaining four domains.

(Id. at 24-30).

He concluded that J.R.

“does not have an impairment or combination of impairments that
result

in

either

functioning
functioning.”

or

‘marked’
‘extreme’

(Id. at 30).

limitations
limitation

in
in

two

domains

of

one

domain

of

Therefore, J.R. is not disabled.

(Id.).
Plaintiff challenges only one of the ALJ’s findings related
to the six functional equivalence domains, arguing that the ALJ
erred in his determination that J.R. has a “less than marked”
37

limitation

in

the

(Doc. 11 at 6).

domain

of

attending

and

completing

tasks.

The Court turns now to that issue.

c. Whether the ALJ erred in finding that J.R. had
a “less than marked” limitation in the domain
of attending and completing tasks?
Plaintiff argues that the ALJ should have found that J.R.
has

an

extreme

completing tasks.

limitation

in

the

(Doc. 11 at 6).

domain

of

attending

and

Plaintiff argues that J.R.

exhibited “extreme behaviors both in public school and in an
extensive day treatment program.” (Id.).

Plaintiff specifically

refers to a letter that was written by the bus driver at the
LeMoyne School on September 20, 2010, in which the bus driver
requested that J.R.’s mother ride the bus with J.R. for a few
days until his behavior improved, after he was involved in a
fight with a peer on the bus.

(Tr. 191).

Plaintiff states that

J.R. has been described as “physically violent and threatening
to his peers” and “required in-patient mental health treatment
because he threated to kill his classmates.”
According

to

Plaintiff,

these

incidents,

(Doc. 11 at 6).
“along

with

the

additional behavior and social issues discussed in Issues 1 and
2[,] support a finding of an extreme limitation in the domain of
attending and completing tasks.”

(Id.).

The Court disagrees.

The ALJ’s finding that J.R. did not have a “marked” or
“extreme” degree of limitation in the domain of attending and
completing tasks is well supported by the record.
38

As the ALJ

found, the August 2010 treatment records from J.R.’s therapist
and his special education teacher show that J.R. “does well in
his classwork [when] he takes his medication.”

(Tr. 25, 400).

LeMoyne School records show that from late July to mid-September
2010, J.R.’s perceptions were generally within normal limits;
his thoughts were logical and coherent and within normal limits;
and he had fair or good insight, fair judgment, and no anxiety.
(Id. at 25, 385, 392, 406, 408, 410, 413-414, 420, 423, 430).
J.R.’s teacher reported no more than slight to obvious problems
within this domain (the only two “obvious” problems were with
organizing and completing class and homework assignments), and
she indicated that none of the problems were “serious” or “very
serious.”

(Id.

at

25-26,

153-56).

J.R.’s

teacher

also

described him as having only “slight” problems on a monthly
basis with paying attention when spoken to directly, and no
problems

carrying

without

distracting

out

single-step

himself

or

instructions

others.

(Id.

and
at

working

26,

153).

Additionally, J.R.’s special education teacher noted that J.R.
completed

standardized

testing

according

to

directions

worked the entire time that she was in the room.
112).

and

(Id. at 26,

In light of this evidence, it was reasonable for the ALJ

to find that J.R. had “less than marked” limitations in the
domain of attending and completing tasks.

39

(Id. at 25-26).

Accordingly, based on the totality of the evidence before
the ALJ, the undersigned finds that the ALJ did not err in
concluding

that

specifically

J.R.

Listing

does

not

112.03,

meet
and

or

equal

does

not

a

listing,

have

marked

limitations in at least two domains or an extreme limitation in
one domain such that he functionally meets a listing.25
ALJ’s

opinion

testing

in

results,

observations

by

this

case

is

school

records,

J.R.’s

teachers

consistent
medical
and

with

standardized

opinions,

mother.

The

and

other

Accordingly,

viewing the record in its entirety, the undersigned is satisfied
that the ALJ’s decision finding that J.R. is not disabled is
supported by substantial evidence.
V.

Conclusion
For the reasons set forth, and upon careful consideration

of the administrative record and memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner of Social
Security, denying Plaintiff’s claim for supplemental security
income, be AFFIRMED.
DONE this 25thth day of September, 2012.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
25

Although Plaintiff only challenged the ALJ’s findings
with respect to one functional equivalence domain, the Court
finds, after thoroughly reviewing the record, that the ALJ’s
determinations with respect to all six functional equivalence
domains are supported by substantial evidence in the record.
40