Turner et al v. Commissioner of Social Security

Filing 24

MEMORANDUM OF DECISION: The final decision of the Commissioner is AFFIRMED. The Clerk is directed to enter judgment in favor of the Commissioner and close the case. Signed by Magistrate Judge Gregory J. Kelly on 3/26/2012. (PAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KELLY TURNER on behalf of BDT, a
minor,
Plaintiff,
-vs-

Case No. 6:10-cv-1497-Orl-GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
______________________________________

ORDER
Kelly Turner (“Ms. Turner”), on behalf of B.D.T., a minor child (the “Claimant”) appeals
to the District Court from a final decision of the Commissioner of Social Security (the
“Commissioner”) denying Claimant’s application for benefits. See Doc. No. 1. Claimant was
born on July 4, 2000, and was nine years old at the time of the Administrative Law Judge’s (the
“ALJ”) decision. R. 9, 111. Ms. Turner maintains that Claimant is disabled due to attention
deficit hyperactivity disorder (“ADHD”), asthma, and vision problems. R. 91, 97.1
Claimant argues that the final decision of the Commissioner should be reversed for
further proceedings because: 1) the ALJ’s finding at step-three of the sequential evaluation
process that Claimant’s impairments do not meet or equal Listing 112.11 for ADHD is not
supported by substantial evidence; 2) substantial evidence supports a finding that Claimant meets
Listing 112.11; 3) the ALJ’s failure to discuss the evidence at step-three of the sequential

1

On appeal, Claimant does not raise any issues related to Claimant’s physical impairments. Doc. No. 16.

evaluation process warrants reversal because the Court is without a sufficient basis to determine
that the proper legal principles have been followed (citing Ellington v. Astrue, 2008 WL 1805435
(M.D. Ala. Apr. 18, 2008) and Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)); 4) at
step-four the ALJ erred by failing to explain how he gave “great weight” to the opinion of two
non-examining physicians, Drs. Prather and Weber, but did not ultimately adopt their opinion
that Claimant has marked limitations in the domain of attending and completing tasks; 5) at stepfour substantial evidence supports a finding that Claimant is at least markedly limited in the
domains of acquiring and using information; interacting and relating with others; and caring for
himself; and 6) the Appeals Council erred by not remanding the case to the ALJ based upon the
new evidence submitted to it because there is a “strong possibility” that those “opinions would
change the administrative outcome.” Doc. No. 16 at 12-24. For the reasons set forth below, the
Commissioner’s decision is AFFIRMED.
I.

BACKGROUND.
The Claimant is school-age child, who was seven years old on the date the application for

benefits was filed and was nine years old on the date of the ALJ’s decision and about to enter the
third grade. R. 30, 111, 174, 359-360.

Claimant repeated kindergarten and records from

Pediatrics of Brevard show that Claimant has displayed behavioral issues in school as early as
five years of age. R. 266, 359. In October of 2007, Claimant was diagnosed with ADHD. R.
286. The record shows that during the relevant time period, Claimant moved from Florida to
Kentucky and back again during kindergarten and the first grade. R. 285, 359. No treating,
examining, or non-examining physician has opined that Claimant meets, equals, or functionally

-2-

equals any listing. R. 285-91, 292-97, 298-302, 329-34. Thus, the record contains no medical
opinion that Claimant is disabled.
On November 9, 2007, Dr. Robin S. Engel, a psychologist, completed a psychological
assessment of Claimant due to Claimant’s “difficulties with overall academic performance and
inattention concerns in the classroom.” R. 285. Dr. Engel observed Claimant in the classroom
setting and noted that Claimant: did not appear to be listening; interrupted other students; yelled
out comments to other students; totally ignored directions from his teacher; did not follow
classroom rules; was in continuous motion; and “appeared to say and do whatever came to his
mind whenever it came to his mind.” R. 286. Dr. Engel performed a series of functioning tests
on Claimant. R. 286-90. Claimant scored within the average range on the Reynolds Intellectual
Assessment Scales and the Odd-Item Out test, which measure cognitive functioning. R. 286. On
the Guess-What test, Claimant scored in the high average range of intellectual functioning. R.
286. On the Behavior Assessment System for Children-Second Edition, which identifies
emotional and behavioral symptoms, Claimant scored in the clinically significant range. R. 287.
Dr. Engel stated that this indicated Claimant may warrant more formal treatment. R. 287.
Dr. Engel’s summary and recommendations were as follows:
[Claimant] is a seven-year old student . . . who has received special
education services in the past at various locations. The current
assessment reveals an estimated cognitive ability within the
average range with a standard score of 104. He exhibits strength in
verbal skills, estimated in the high average range. Behavior rating
scales . . . reveal several areas of concern. Adaptive skills appear
to be in the at-risk to average range at home and at school. . . .
In conclusion, it appears [Claimant] does exhibit weaknesses in the
areas of behavior or social emotional skills as well as
academically. His current diagnosis of ADHD could be impacting
his performance and day to day functioning in the classroom. It is
-3-

recommended that the information presented in this report be used
in combinations with information provided by other school
personnel and parents for the determination of the most appropriate
educational program for [Claimant]. . . .
[Claimant] appears to do well verbally and is easily engaged in
verbal tasks. He may benefit from having the opportunity to
exhibit his knowledge verbally or orally rather than writing them
or completing projects. In addition, [Claimant’s] social-emotional
functioning may benefit from having structured opportunities to
practice social skills. . . . [Claimant’s] hyperactive behavior in the
classroom needs to be addressed through various intervention
strategies. A behavior chart may be helpful as well as a picture
schedule. He may need opportunities throughout the day to stretch
and gain the movement his body craves. For example, if you see
that he is having difficulty sitting still, you may need to stop and
have a stretch break or send [Claimant] to another room or office
carrying something slightly heavy.
R. 290-91. Thus, Dr. Engel opined that, while Claimant has average cognitive functioning, his
ADHD causes behavioral/social-emotional issues, which may require certain academic
accommodations. R. 290-91.
Claimant’s first grade teacher, Ms. Pruett, completed an undated Teacher’s
Questionnaire. R. 166-73.2 The Teacher’s Questionnaire provides that Claimant is largely in a
self-contained special education classroom with a student teacher ratio of 11 to 3. R. 166.
Although Claimant is in the first grade, Claimant’s reading and written language levels were said
to be between kindergarten and first grade. R. 166. Claimant’s math levels were on a first grade
level. R. 166. The Teacher’s Questionnaire asked Ms. Pruett to rate Claimant’s functioning
within five domains, including: acquiring and using information; attending and completing tasks;

2

The Teacher’s Questionnaire is also unsigned, but it clearly states that it was completed by Claimant’s first grade
teacher at Sea Park Elementary School. R. 166. Claimant’s first grade teacher at Sea Park Elementary School was
Ms. Pruett. R. 183. Accordingly, the Court concludes that the Teacher’s Questionnaire was completed by Ms.
Pruett.

-4-

interacting and relating with others; moving about and manipulating objects; and caring for
himself. R. 167-171.
In the domain of acquiring and using information, Ms. Pruett opined that Claimant has
obvious problems, serious problems, or very serious problems throughout all ten separate areas
of functioning within the domain. R. 167.3 Ms. Pruett stated:
[Claimant] is in a self-contained VE classroom [with a] ratio of 11
students to 3 teachers on a daily basis. He goes into the regular
[education] classroom for [ninety] minutes in the morning . . . and
then the rest of the day in the [special education] classroom.
R. 167. Regarding the domain of attending and completing tasks, Ms. Pruett opined that
Claimant has serious problems or a very serious problem in all thirteen separate areas of
functioning within the domain. R. 168.4 As to the domain of interacting and relating with
others, Ms. Pruett opined that Claimant has slight, obvious, serious, or very serious problems
throughout thirteen separate areas of functioning within the domain.5 Ms. Pruett stated that

3

The areas of functioning within the domain of acquiring and using information include: comprehending oral
instructions (very serious problem); understanding school and content vocabulary (serious problem); reading and
comprehending written material (serious problem); comprehending and doing math problems (obvious problem);
understanding and participating in class discussions (obvious problem); providing organized oral explanations and
adequate descriptions (serious problem); expressing ideas in written form (serious problem); learning new material
(serious problem); recalling and applying previously learned material (obvious problem); and applying problem
solving skills in class discussions (serious problem). R. 167.
4

The areas of functioning within the domain of attending and completing tasks include: paying attention when
spoken to directly (very serious problem); sustaining attention during play/sports activities (serious problem);
focusing long enough to finish assigned activity or task (very serious problem); refocusing to task when necessary
(very serious problem); carrying out single-step instructions (very serious problem); carrying out multi-step
instructions (very serious problem); waiting to take turns (serious problem); changing from one activity to another
without being disruptive (very serious problem); organizing own things or school materials (very serious problem);
completing class/homework assignments (very serious problem); completing work accurately without careless
mistakes (very serious problem); working without distracting self or others (very serious problem); and working at
reasonable pace/finishing one time (very serious problem). R. 168.
5

The areas of functioning within the domain of interacting and relating with others include: playing cooperatively
with other children (serious problem); making and keeping friends (serious problem); seeking attention
appropriately (very serious problem); expressing anger appropriately (not reported); asking permission appropriately
(very serious problem); following rules (very serious problem); respecting/obeying adults in authority (very serious

-5-

Claimant was changed from a full-time regular class to a self-contained special education class
where a behavioral plan is used. R. 169. Ms. Pruett opined that Claimant has no problems in the
domain of moving about and manipulating objects. R. 170. In the domain of caring for himself,
Ms. Pruett opined that Claimant has serious or very serious problems in six of the ten separate
areas of functioning within the domain. R. 171.6 Ms. Pruett also opined that “with medication
we see an ability to focus to tasks, complete work, [and] get along better with others. He still has
difficulties, but it is lessened.” R. 172.7 Thus, although Claimant displayed serious or very
serious problems within numerous areas amongst most domains, Ms. Pruett noted that
Claimant’s difficulties were reduced by medication. R. 172.
On May 15, 2008, an Individual Education Plan (the “IEP”) was adopted for Claimant at
Sea Park Elementary. R. 275-84. In the area of reading, Claimant scored below average on the
Woodcock Johnson test. R. 277. The IEP stated that although Claimant is able to “accurately
read many words through mid 1st grade level,” he “is often unable to focus and therefore unable
to work at grade level on many reading activities.” R. 277. The IEP set an annual goal for
Claimant of correctly reading and understanding a passage with 80% accuracy. R. 277. In the
area of mathematics, Claimant scored in the average range on the Woodcock Johnson III test. R.
problem); relating experiences and telling stories (serious problem); using language appropriate to the situation and
listener (slight problem); introducing and maintaining relevant and appropriate topics of conversation (serious
problem); taking turns in a conversation (very serious problem); interpreting meaning of facial expression, body
language, hints, and sarcasm (serious problem); and using adequate vocabulary and grammar to express
thoughts/ideas in general, everyday conversation (slight problem). R. 169.
6

The areas of functioning in the domain of caring for himself include: handling frustration appropriately (very
serious problem); being patient when necessary (very serious problem); taking care of personal hygiene (no
problem); caring for physical needs (no problem); cooperating in, or being responsible for, taking needed
medications (no problem); using good judgment regarding personal safety and dangerous circumstances (obvious
problem); identifying and appropriately asserting emotional needs (very serious problem); responding appropriately
to changes in own mood (very serious problem); using appropriate coping skills to meet daily demands of school
environment (very serious problem); and knowing when to ask for help (serious problem). R. 171.
7

On or about April 2, 2008, Claimant was prescribed Adderal to treat his ADHD by Pediatrics of Brevard. R. 268.

-6-

279. The IEP noted that Claimant is capable of performing single-digit addition and subtraction
problems, but he “has more difficulty with word problems that do not provide a visual clue.” R.
279. The IEP set an annual goal for Claimant of correctly solving math problems involving
addition and subtraction with 80% accuracy. R. 279.
In the area of writing, Claimant scored in the low average to below average range on the
Woodcock Johnson III test.

R. 280.

The IEP noted that Claimant can “easily complete

sentences that are begun for him,” but he “has difficulty generating writing on his own.” R. 280.
The IEP set an annual goal for Claimant of writing two or more sentences with 80% accuracy.
R. 280. In the area of social/emotional behavior, the IEP noted that Claimant had difficulty
staying on task, talking out often, touching other peoples’ things, participating in activities, and
staying in his seat. R. 281. The IEP set an annual goal for Claimant of using appropriate
behaviors for learning and interacting with others 80% of the time. R. 281. As part of the IEP,
claimant was provided with the following accommodations in the classroom: extended test time;
breaks during tests; verbatim reading of the entire test; extra response and processing time; and
extra time to complete class assignments. R. 283.
On June 13, 2008, Drs. Ira Pinnelas and Bruce Hertz offered a non-examining opinion
based upon a records review. R. 292-97. Drs. Pinnelas and Hertz opined that Claimant’s ADHD
is a severe impairment, but it does not meet, medically equal, or functionally equal any listing.
R. 292. Drs. Pinnelas and Hertz opined that Claimant’s impairments cause less than marked
limitations in the domains of acquiring and using information, attending and completing tasks,
and interacting and relating with others. R. 294.

In the domains of moving about and

manipulating objects, and caring for oneself, Drs. Pinnelas and Hertz opined that Claimant’s

-7-

impairments cause no limitations. R. 295. Drs. Pinnelas and Hertz note that Claimant is in a self
contained classroom and with medication he has demonstrated “an ability to focus on tasks,
complete work, and get along better with others.” R. 297. Nevertheless, the doctors note that he
still has difficulties in those areas. R. 297.
On September 15, 2008, Claimant presented to Dr. Barbara M. Paulillo, a psychologist,
for a consultative mental evaluation. R. 298-301. Claimant was eight years old at the time of the
evaluation, and attending second grade. R. 298. Claimant was dressed appropriately and
displayed adequate hygiene. R. 298. Claimant was extremely cooperative during the evaluation
and a good rapport was developed. R. 298. Claimant left his seat constantly and demonstrated
difficulty sitting still. R. 298. Dr. Paulillo reported that Claimant’s overall pace was normal, but
he “was not capable of focusing and concentrating during our interaction, and was frequently
redirected.” R. 298. Claimant stated that he had only one “true friend,” who lived in Tennessee.
R. 299.
Regarding Claimant’s mental status, Dr. Paulillo stated that his behavior was friendly and
cooperative, although he could be easily distracted.

R. 300. Claimant would often interrupt

when his mother was speaking with Dr. Paulillo. R. 300. Claimant’s concentration was limited
and it took him three times to correctly spell his name backwards. R. 300. Dr. Paulillo noted no
deficits in immediate memory, and his intelligence and fund of information appeared to be
average. R. 300. Dr. Paulillo also reported that Claimant’s judgment and insight were within
normal limits. R. 300. Dr. Paulillo assigned a Global Assessment of Functioning Score of 75
and opined that Claimant’s “prognosis is good, as his symptoms of [ADHD] have been managed
more effectively by medication.” R. 301.

-8-

On October 1, 2008, Claimant’s Adderal was increased to 20 mg by Pediatrics of
Brevard.

R. 340.

On October 7, 2008, Claimant’s second grade teacher, Claire Richter,

completed a Teacher Questionnaire. R. 195-202. Ms. Richer states that Claimant is in second
grade, reading on a first grade level, doing math on a second grade level, and writing on a first
grade level. R. 195. Claimant is in special education classes on a full time basis with student
teacher ratio of 6 to 1. R. 195. The Teacher’s Questionnaire, like the one completed by Ms.
Pruett above, asked Ms. Richter to rate Claimant’s functioning within five domains, including:
acquiring and using information; attending and completing tasks; interacting and relating with
others; moving about and manipulating objects; and caring for himself. R. 196-202.
In the domain of acquiring and using information, Ms. Richter opined that Claimant only
had an obvious problem in two of the ten areas. R. 196.8 In the remaining eight areas, Claimant
either displayed no problem or a slight problem. R. 196. Ms. Richter stated:
[Claimant] leans math skills quickly. He enjoys science and does
not have significant difficulty with social studies concepts. He has
difficulty with decoding written material. His comprehension of
material read to him is adequate to good depending on his interest
level.
R. 196.

Thus, Ms. Richter found no “serious” or “very serious problems” in any area of the

domain of acquiring or using information. R. 196.
In the domain of attending and completing tasks, Ms. Richter opined that Claimant has
serious or very serious problems in seven of the thirteen areas. R. 197.9 In the remaining six
areas, Claimant displayed obvious, slight, or no problems. R. 197. Ms. Richter stated:

8

Those areas were reading and comprehending written material, and expressing ideas in written form. R. 196.

9

Those areas include: focusing long enough to finish assignments (serious); refocusing to task when necessary
(serious); carrying out single-step instructions (serious); carrying out multi-step instructions (very serious);

-9-

[Claimant] receives a great deal of additional help where reading is
required. His comprehension is good but spelling in his written
assignments and decoding are very difficult for him. He is capable
of doing math independently and sometimes does. Sometimes he
will do anything but the assignment given until he realizes he will
lose something he wants like computer time.
R. 197.

In the domain of interacting and relating to others, Ms. Richter opined that Claimant

has no “very serious problems” in any of the thirteen areas, and a “serious problem” only in the
area of making and keeping friends. R. 198. Ms. Richter stated:
On occasion [Claimant] has been given a ‘gift of time’ (like time
out but the student decides when to leave). He needed more
frequently at the beginning of the year. [Claimant] has a great deal
of difficulty making friends and sometimes tries to do favors to get
children to like him. He can be ‘bossy.’ When he doesn’t want to
do something, he digs in and quietly won’t. He will not back down
when he is angry. . . . [Claimant] is easily frustrated in some
activities, especially those involving reading. He can be impatient
if he doesn’t get help as quickly as he would like.
R. 198, 200. Ms. Richter opined that Claimant had no problems in the domain of moving about
and manipulating objects. R. 199. In the domain of caring for himself, Ms. Richter opined that
Claimant had no “serious” or “very serious problems” in any of the ten areas. R. 200.
On October 13, 2008, Drs. William Prather and Theodore Weber offered a nonexamining medical opinion based upon a records review. R. 329-334. Drs. Prather and Weber
opined that Claimant’s ADHD is a severe impairment, but it does not meet, medically equal, or
functionally equal any listing.

R. 329.

Drs. Prather and Weber opined that Claimant’s

impairments cause less than marked limitations in the domains of acquiring and using
information, interacting and relating with others, moving about and manipulating objects, and
caring for himself. R. 331-32. In the domain of attending and completing tasks, Drs. Prather and
completing class assignments (serious); working without distracting self or others (very serious); and working at
reasonable pace (very serious). R. 197.

-10-

Weber opined that Claimant’s impairments result in marked limitations. R. 331. Drs. Prather
and Weber based their opinion on Ms. Richter’s Teacher’s Questionnaire, Claimant’s scores on
the Woodcock Johnson testing, Dr. Paulillo’s consultative examination and findings, and
Claimant’s medication history. R. 334. Drs. Prather and Weber state that Claimant:
is of average ability with lesser developed reading and writing
skills. The [C]laimant is currently in the [special education
program] for ADHD. The teacher is mainly noting problems in
[concentration, persistence, and pace] functioning despite
treatment. There does not appear to be any discipline referrals.
Overall, the [C]laimant does not appear to meet or equal a listing.
R. 334. Thus, Drs. Prather and Weber opine that Claimant’s impairments do not meet or equal a
listing. R. 334.
On May 7, 2009, Claimant’s IEP was updated. R. 341-53. As to Claimant’s annual goal
of correctly reading and understanding a passage with 80% accuracy, Claimant was making
satisfactory progress and was expected to master the goal during the duration of the IEP. R. 352.
Regarding Claimant’s annual goal of correctly solving math problems involving addition and
subtraction with 80% accuracy, Claimant mastered the goal by January 20, 2009. R. 352. As to
Claimant’s annual goal of writing two or more sentences with 80% accuracy, by February 19,
2009, Claimant was making satisfactory progress and was expected to master the goal during the
duration of the IEP. R. 353. As to the goal of using appropriate behaviors for learning and
interacting with others 80% of the time, by February 19, 2009, Claimant was making satisfactory
progress and was expected to master the goal during the duration of the IEP. R. 353. New
annual goals were added to Claimant’s IEP for the following school year. R. 344-50. On June
19, 2009, the principal of Claimant’s school, Cindy Wilson, wrote a letter stating that based upon
Claimant’s second grade performance, “our plans are to mainstream him part of the day into an

-11-

inclusion class, which includes basic education and exceptional education students.” R. 359.
Thus, as Claimant entered the third grade, he was integrated into some basic education classes.
R. 359-60.
On August 24, 2009, Ms. Richter completed another Teacher’s Questionnaire. R. 37380. The second questionnaire took place after the hearing before the ALJ and it was submitted
for the first time to the Appeals Council. R. 373-80. In the domain of acquiring and using
information, Ms. Richter opined that Claimant has a “serious problem” in the area of expressing
ideas in written form. R. 374. Otherwise, she opined the Claimant displayed a slight or obvious
problem in all other nine areas. R. 374. Ms. Richter stated:
[Claimant] needs to be frequently redirected. His decoding skills
are poor making his reading slow and labored. His comprehension
of what he has read is good. If he is on his medication he is able to
attend to his work with redirection. If he is not it is extremely
difficult for him to focus even with one on one support.
R. 374. Thus, Ms. Richter opines that Claimant has poor decoding skills, but when he is
properly medicated he is capable of attending to his work with redirection. R. 374.
In the domain of attending and completing tasks, Ms. Richter opined that Claimant has
“serious” or “very serious” problems in six of the thirteen areas. R. 375.10 In the other seven
areas, Claimant displayed obvious or slight problems. R. 375. Ms. Richter stated:
[Claimant] is redirected when off task. He frequently verbalizes
when working (talking, humming, singing). [Claimant] is much
more in control of his off task behavior and distract ability when
on medication. When he is off medication it is extremely difficult
for him to focus or stay in his seat or not talk. When appropriate,
written directions, etc. are read to him.

10

Those areas include: carrying out multi-step instructions (very serious); waiting to take turns (very serious);
changing from one activity to another without being disruptive (very serious); organizing own things or school
materials (very serious); and completing class assignments (serious). R. 375.

-12-

R. 375. Thus, Ms. Richter opined that it is extremely difficult to keep Claimant on pace when he
is not taking his medication. R. 375.
In the domain of interacting and relating with others, Ms. Richter opined that Claimant is
has no “very serious problems,” and displayed “serious problems” only in the area of seeking
attention appropriately. R. 376. In the remaining eleven areas, Claimant displayed either slight
or obvious problems. R. 376. Ms. Richter stated:
[Claimant] sometimes has time out and sometimes he needs to
move or those around him move so they can concentrate.
[Claimant] is very articulate. He runs into trouble when he argues
with and questions adult authority. He frequently will not comply
with directions unless he understands and agrees with them. This
behavior is worsened by not being on his medication.
R. 376. Thus, Ms. Richter opined that Claimant’s conflicts with adult authority worsen when he
does not take his medication. R. 376.
In the domain of manipulating and moving objects, Ms. Richter opined that Claimant has
no “serious” or “very serious” problems in any area. R. 377. In the domain of caring for
himself, Ms. Richter opined that Claimant has no “serious” or “very serious” problems in any of
the ten areas. R. 378. Ms. Richter stated:
He has difficulty handling frustrations. He wants questions
answered and his issues handled immediately regardless of
whether there is something else going on. I think this is in part due
to the impulsiveness; he doesn’t stop to realize you are for example
giving a student a timed exam. Again these are worse when he is
not on his medication.
R. 378.

Overall, Ms. Richter opined that Claimant “functions much more appropriately” when

taking his medications. R. 379. In summation, Ms. Richter states:
At the beginning of the year last year, [Claimant’s] behavior was
impulsive, but he redirected well. He found it difficult to not talk,
-13-

hum or sing but could manage it for short periods of time. Toward
the end of the year, his behavior became more impulsive and it was
extremely difficult to direct him back to task. The first couple of
weeks of this year were difficult as well. His medication was
adjusted the end of last week. He seems to be better able to control
his impulsivity and distract ability; however he does still need
redirecting.
R. 380. Thus, although Claimant’s impulsivity worsened over the past year, after adjusting his
medication, Ms. Richter opined that Claimant is better able to manage his impulsivity, but still
needs redirecting. R. 380.
II.

ALJ’s DECISION.
On July 24, 2009, the ALJ issued a decision finding that Claimant is not disabled. R. 12-

30. The ALJ made the following significant findings:
1. The [C]laimant was born on July 4, 2000. Therefore, he . . . is a schoolage child;
2. The [C]laimant has not engaged in substantial gainful activity at any time
relevant to this decision;
3. The [C]laimant has the following severe impairments: [ADHD], history
of strabismus, and estoropia;
4. The [C]laimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments;
5. The [C]laimant does not have an impairment or combination of
impairments that functionally equals the listings;
6. The [C]laimant has not been disabled, as defined in the Social Security
Act, since January 23, 2008, the date the application was filed.
R. 15-16, 30. At step-two, the ALJ discussed: Claimant’s diagnosis of ADHD, Dr. Engel’s
evaluation, Ms. Pruett’s questionnaire, Ms. Richter’s first questionnaire, and Dr. Paulillo’s
consultative examination. R. 15-16. At step-three, in determining that Claimant’s impairments,

-14-

singly or in combination, do not meet or medically equally a listing, the ALJ did not discuss any
of the evidence of record.

R. 16.

At step-four, in determining whether the Claimant’s

impairments functionally equal the listings, the ALJ thoroughly discussed: Ms. Tuner’s
testimony at the June 19, 2009 hearing before the ALJ (R. 31-69); Dr. Engel’s report; Ms.
Pruett’s questionnaire; Ms. Richter’s first questionnaire; Dr. Paulillo’s consultative evaluation;
the opinions of Drs. Pinnelas and Hertz; and the opinions of Drs. Prather and Weber. R. 16-20.11
As to the opinion evidence, the ALJ gave “great weight” to: the opinions of Drs. Pinnelas
and Hertz that Claimant’s impairments result in less than marked limitations in all domains of
functioning; Dr Paulillo’s opinion that Claimant’s prognosis was good and his ADHD symptoms
are effectively managed with medication; and Drs. Prather and Weber’s opinion that Claimant
did not meet or medically equal a listing. R. 20-21. The ALJ noted that Drs. Prather and Weber
found that Claimant had marked limitations in the domain of attending and completing tasks, but
the ALJ did not specifically state whether or not he agreed with that finding. R. 20-21.
At step-four, the ALJ made findings in terms of the following six domains of functioning:
acquiring and using information; attending and completing tasks; interacting and relating with
others; moving about and manipulating objects; caring for oneself; and health and physical wellbeing. R. 21-30. The ALJ found that Claimant’s severe impairments result in less than marked
limitations in all six domains.

R. 21-30. Regarding the domain of acquiring and using

information, the ALJ stated that Claimant’s limitations are less than marked because:



11

Robin Engel, Psy. S. reported that the [C]laimant had strength
in verbal skills, he had weakness in broad written language,
and the [C]laimant was average in broad math skills;
Claire Richter, the [C]laimant’s teacher, reported that the

The ALJ also discussed the treatment records regarding Claimant’s eye problems. R. 19.

-15-

[C]laimant was able to decode many unknown words. Ms.
Richter reported that the [C]laimant mastered rhyming and
segmenting words, hearing initial and final consonant sounds,
auditory blending, naming capital and lower case letters,
matching letters and words, writing words, consonant sounds
and blends, the rule of the silent E, vowel diagraphs, and
vowels with the letter R. Ms. Richter indicated that the
[C]laimant had not mastered diphthongs, two-syllabic words,
and polysyllabic words. . . .;


[C]laimant was reported to know his name and complete four
to five word sentences;



Dr. Paulillo reported that the [C]laimant was orientated in all
spheres, his attention was adequate, he correctly repeated all
three objects, his concentration was limited, he had no deficits
in immediate memory, his intelligence and fund of information
was average, and judgment and insight were within normal
limits;



Ms. Richter reported in [the first] teacher’s questionnaire that
the [C]laimant had no problem with comprehending oral
instructions, understanding school and content vocabulary,
understanding and participating in class discussions, providing
organized oral explanations and adequate descriptions, and
applying problem solving skills in class discussions. Ms.
Richter indicated that the [C]laimant had a slight problem with
comprehending and doing math problems, learning new
material, and recalling and applying previously learned
material; and the [C]laimant had an obvious problem with
reading and comprehending written material and expressing
ideas in written form. . . .

R. 22. Thus, the ALJ found that Claimant has less than marked limitations in the domain of
acquiring and using information based upon Dr. Engel’s report, Ms. Richter’s statements and
questionnaire, and Dr. Paulillo’s consultative evaluation. R. 22.12
In the domain of attending and completing tasks, the ALJ found that Claimant’s
impairments cause less than marked limitations. R. 23-25. The ALJ relied upon the following
12

The ALJ also mentioned Claimant’s physical treating physician and Ms. Turner’s testimony at the hearing. R. 2223.

-16-

evidence for his determination:


[Claimant’s] special education teacher reported that the
[C]laimant was easily distracted, he did not do any of his work
independently, and the [C]laimant had to be reminded
repeatedly to pay attention; however, the [C]laimant did
reading assignments she made one on one in another class;



[Ms. Pruett] reported that the [C]laimant was unable to focus
and therefore, unable to work at grade level on many reading
activities; however, the [C]laimant was able to accurately read
many words through the mid first grade level. Ms. Pruett
reported that the [C]laimant had more difficulty with word
problems that did not provide a visual cue; however, the
[C]laimant was able to perform single-digit addition and
subtraction problems. Ms. Pruett reported that the [C]laimant
had difficulty generating writing on his own; however, he
easily completed sentences started for him. Ms. Pruett
indicated that the [C]laimant was unable to stay on task for
very long, he had a hard time following directions, and the
[C]laimant could not get his work completed;



Dr. Engel reported that [C]laimant appeared to do well verbally
and was able to engaged easily in verbal tasks;



Ms. Richter reported that the [C]laimant was unable to focus
and work at grade level activities, and he had difficulty with
multi-step problems which required him to remember or figure
out what steps to perform and what order; however, the
[C]laimant was able to perform double digit addition and
subtraction problems. Ms. Richter reported that the [C]laimant
had difficulty with correct spelling and sentence structure;
however, the [C]laimant was creative in his subject matter for
writing. Ms. Richter indicated that the [C]laimant was often
unable to stay on task for very long, he had a hard time
following directions, and he often could not get his work
completed;



Dr. Paulillo reported that the [C]laimant had to be redirected
several times during the examination;
Ms. Richter reported in a teacher’s questionnaire that the
[C]laimant did not have a problem with completing work
accurately; he had a slight problem with sustaining attention
during play and sports, waiting to take turns, and changing



-17-

from one activity to another without being disruptive; and the
[C]laimant had an obvious problem with paying attention when
spoken to directly and organizing his own things or school
materials. Ms. Richter indicated that the [C]laimant had a
serious problem with focusing long enough to finish assigned
activities or tasks, refocusing to task when necessary, carrying
out single-step instructions, and completing class work
assignments; and the [C]laimant had a very serious problem
with carrying out multi-step instructions, working without
distracting others or self, and working at a reasonable pace; and


Ms. Turner [testified] that [C]laimant kept himself busy on his
own, worked on arts and crafts projects, and completed his
chores on time; however, the [C]laimant did not finish what he
started and he did not complete his homework. Ms. Turner
testified that [C]laimant had problems with sitting still and
keeping focused.

R. 24-25. Thus, the ALJ found that Claimant had less than marked limitations in the domain of
attending and completing tasks based upon Ms. Pruett’s questionnaire, Dr. Engel’s report, Ms.
Richter’s first questionnaire, Dr. Paulillo’s evaluation, and Ms. Turner’s testimony. R. 24-25.
In the domain of interacting and relating to others, the ALJ found that Claimant’s
impairments result in less than marked limitations based upon the following:


Ms. Pruett’s report that the [C]laimant was a very fun-loving
child and he enjoyed playing with others;



Dr. Engel reported that the [C]laimant was disruptive,
impulsive, uncontrollable, argumentative, defiant, threatening
to others, and the [C]laimant had difficulty making and keeping
friends. Dr. Engel indicated that the [C]laimant was unwilling
to joint [sic] group activities at times and his behavior was
adversely affecting the other children. Dr. Engel indicated that
the [C]laimant’s performance in areas of articulation, language,
voice, and fluency were within normal limits and he had
weakness in the areas of behavior and social emotional skills as
well as academically;



Ms. Richter reported that the [C]laimant was intelligent,
outgoing with the other students, and he was willing to make
-18-

friends with anyone in the class;


[Claimant] was reported to be one hundred percent
understandable;



Dr. Paulillo reported that the [C]laimant was friendly and
cooperative, his impulse control was adequate, there were no
difficulties with form of thought or thought content, his manner
of speech was normal, and the [C]laimant’s speech content was
logical. Dr. Paulillo indicated that the [C]laimant had a happy
mood; however, he became upset easily;



Ms. Richter reported that the [C]laimant had no problems with
relating experience and telling stories, and using adequate
vocabulary and grammar to express thoughts and ideas in
general everyday conversation. Ms. Richter indicated that the
[C]laimant had a slight problem with playing cooperatively
with other children, asking permission appropriately, following
rules, using language appropriate to the situation and listener,
introducing and maintaining relevant and appropriate topics of
conversation, taking turns in conversation, and interpreting the
meaning of facial expressions, body language, hints, and
sarcasm. Ms. Richter reported that the [C]laimant had an
obvious problem with seeking attention and expressing anger
appropriately, and respecting and obeying adults in authority;
and the [C]laimant had a serious problem with making and
keeping friends; and



Ms. Turner reported that the [C]laimant could not deliver
telephone messages; however, the [C]laimant could repeat
stories he had heard, tell jokes or riddles accurately, explain
why he did something, use sentences with “because,” “what
if,” or “should have been,” and did talked with family and
friends. Ms. Turner reported that the [C]laimant generally got
along with adults; however, the [C]laimant had no friends his
age, he could not make new friends, and he did not get along
with teachers. Ms. Turner testified that the [C]laimant had a
hard time making and keeping friends and he had a problem
getting along with his brother.

R. 26-27. Thus, the ALJ relied upon Ms Pruett’s questionnaire, Dr. Engel’s report, Ms. Richter’s
questionnaire, Dr. Paulillo’s evaluation, and Ms. Turner’s testimony to determine that Claimant’s
-19-

impairments cause less that marked limitations in the domain of interacting and relating with
others. R. 26-27.
In the domain of caring for himself, the ALJ found that Claimant’s impairments result in
less than marked limitations based on the following:


The [C]laimant reported to be able to dress and undress with
supervision and have night time bladder control;



Ms. Richter reported that the [C]laimant had no problems with
taking care of his personal hygiene, caring for his physical
needs, cooperating or being responsible for taking his
medication, identifying and appropriately asserting emotional
needs, and knowing when to ask for help. Ms. Richter
indicated that the [C]laimant had a slight problem with using
good judgment regarding personal safety and dangerous
circumstances, and the [C]laimant had an obvious problem
with handling frustration appropriately to changes in his own
mood, and using appropriate coping skills to meet daily
demands of a school environment; and



Ms. Turner indicated that the [C]laimant could not button his
clothes, tie his shoelaces, take a bath or shower without help,
wash his hair, choose his clothes, and hang up his clothes;
however, the [C]laimant could zipper himself, brush his teeth,
comb his hair, eat by himself with a knife an [sic] fork, pick up
and put away his toys, and help around the house. Ms. Turner
testified that the [C]laimant had no skills of independence such
as brushing his teeth, getting dressed, and using the toilet.

R. 29. Thus, the ALJ relied upon the Claimant’s report that he was able to dress and undress
himself and Ms. Richter’s questionnaire to find Claimant’s impairments cause less than marked
limitations in the domain of caring for himself. R. 29. The ALJ relied heavily on Ms. Richter’s
questionnaire to determine that Claimant’s impairments cause less than marked limitations in the
domains of moving about and manipulating objections, and health and physical well-being. R.

-20-

27-28, 29-30.13
Because the ALJ found that Claimant’s impairments do not result in either marked
limitations in two domains or an extreme limitation in one domain, the ALJ concluded that
Claimant is not disabled. R. 30. Thereafter, the Claimant submitted new evidence to the
Appeals Council, consisting primarily of a second Teacher’s Questionnaire from Ms. Richter
(see supra pp 12-14). R. 366-81. On August 25, 2010, the Appeals Council denied Claimant’s
request for review. R. 1-8. On October 8, 2010, Claimant appealed the Commissioner’s final
decision to the District Court. Doc. No. 1.
III.

LEGAL STANDARDS.
A.

THE ALJ’S DISABILITY ANALYSIS.

The Social Security Administration has established a five-step sequential evaluation
process for determining whether an individual is disabled. See 20 CFR §§ 404.1520(a),
416.920(a). The steps are followed in order. If it is determined that the claimant is or is not
disabled at a step of the evaluation process, the evaluation will not go on to the next step.
A child under the age of 18 is considered disabled if he or she has a “medically
determinable physical or mental impairment, which results in marked and severe functional
limitations, and . . . 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). At step one, the ALJ must determine whether
the claimant is engaging in substantial gainful activity. 20 CFR §§ 404.1520(b), 416.920(b).
Substantial gainful activity (“SGA”) is defined as work activity that is both substantial and
gainful.

“Substantial work activity” is work activity that involves performing significant

13

The Claimant does not raise any specific issue regarding the ALJ’s findings as to the domains of moving about
and manipulating objects and health and physical well being. Doc. No. 16. Thus, there is no need to provide a
detailed account of the ALJ’s findings.

-21-

physical or mental activities. 20 CFR §§ 404.1572(a), 416.972(a). “Gainful work activity” is
work that is usually performed for pay or profit, whether or not a profit is realized. 20 CFR §§
404.1572(b), 416.972(b). Generally, if an individual has earnings from employment or selfemployment above a specific level set out in the regulations, it is presumed that he has
demonstrated the ability to engage in SGA. 20 CFR §§ 404.1574, 404.1575, 416.974, 416.975.
If an individual is not engaging in SGA, the analysis proceeds to the second step.
At step-two, the ALJ must determine whether the claimant has a medically determinable
impairment that is “severe” or a combination of impairments that is “severe.” 20 CFR §§
404.1520(c), 416.920(c).

For an individual who has not attained age 18, a medically

determinable impairment or combination of impairments is not severe if it is a slight abnormality
or a combination of slight abnormalities that causes no more than minimal functional limitations.
20 CFR § 416.924(c).
At steps three and four, the ALJ must determine whether the claimant’s impairment or
combination of impairments meets or functionally equals the criteria of an impairment listed in
20 CFR Part 404, Subpart P, Appendix 1 (the “Listing(s)”). 20 CFR §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925, 416.926.

If the claimant’s impairment or combination of

impairments meets or medically equals the criteria of a Listing and meets the duration
requirement (20 CFR §§ 404.1509, 416.909), the claimant is disabled. If it does not, the analysis
proceeds to the next step.
In determining whether an impairment or combination of impairments functionally equals
the listings, the ALJ must assess the claimant’s functioning in terms of six domains: 1) acquiring
and using information; 2) attending and completing tasks; 3) interacting and relating with others;

-22-

4) moving about and manipulating objects; 5) caring for oneself; and 6) health and physical wellbeing. 20 CFR § 416.926a(b)(1). A child’s impairments functionally equal a listed impairment,
and thus constitute a disability, if the child’s limitations are “marked” in two of the six domains,
or if the child’s limitations are “extreme” in one of the six domains. 20 CFR 416.926a(d).
In assessing whether the claimant has “marked” or “extreme” limitations, the ALJ must
consider the functional limitations from medically determinable impairments, including any
impairments that are not severe. 20 CFR § 416.926a(a). The ALJ must consider the interactive
and cumulative effects of the claimant’s impairment or multiple impairments in any affected
domain. 20 CFR § 416.926a(c).
20 CFR § 416.926a(2) explains that a child has “marked limitation” in a domain when his
or her impairment(s) “interferes seriously” with the ability to independently initiate, sustain or
complete activities.

A child’s day-to-day functioning may be seriously limited when the

impairment(s) limits only one activity or when the interactive and cumulative effects of the
impairment(s) limit several activities. The regulations also explain that a “marked” limitation
also means: a limitation that is “more than moderate” but “less than extreme”; or the equivalent
of functioning that would be expected on standardized testing with scores that are at least two,
but less than three, standard deviations below the mean. 20 CFR § 416.926a(e)(2).
20 CFR § 416.926a(e)(3) explains that a child has an “extreme” limitation in a domain
when his impairment(s) interferes “very seriously” with his ability to independently initiate,
sustain, or complete activities. A child’s day-to-day functioning may be very seriously limited
when his impairment(s) limits only one activity or when the interactive and cumulative effects of

-23-

his impairment(s) limit several activities.

The regulations also explain that an “extreme”

limitation also means:
1. A limitation that is “more than marked.”
2. The equivalent of functioning that would be expected on standardized testing with
scores that are at least three standard deviations below the mean.
3. A valid score that is three standard deviations or more below the mean on a
comprehensive standardized test designed to ensure ability or functioning in that
domain, and his day-to-day functioning in domain-related activities is consistent with
that score.
4. For the domain of health and physical well-being, episodes of illness or exacerbations
that result in significant, documented symptoms or signs substantially in excess of the
requirements for showing a “marked” limitation.
20 CFR § 416.926a(e(3). Thus, for a disability finding, a child’s impairments functionally equal
a listing if the child’s limitations are “marked” in two of the six domains, or if the child’s
limitations are “extreme” in one of the six domains. Id.
B.

THE STANDARD OF REVIEW.

The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do
more than merely create a suspicion of the existence of a fact, and must include such relevant
evidence as a reasonable person would accept as adequate to support the conclusion. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838

-24-

(11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord, Edwards v.
Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).
Where the Commissioner’s decision is supported by substantial evidence, the District
Court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
even if the reviewer finds that the evidence preponderates against the Commissioner’s decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356,
1358 (11th Cir. 1991). The District Court must view the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire
record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177 (11th
Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner
relied). The District Court “may not decide the facts anew, reweigh the evidence, or substitute
[its] judgment for that of the [Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8
(11th Cir. 2004),
IV.

ANALYSIS.
A. Step-Three.
Claimant maintains that case should be reversed and remanded for an award of benefits

because at step-three of the sequential evaluation process the ALJ erred by not finding Claimant
meets Listing 112.11 for ADHD and by failing to specifically discuss the evidence. Doc. No. 16
at 12-18 (citing Ellington, 2008 WL 1805435 (M.D. Ala. Apr. 18, 2008)).14 Furthermore,
Claimant argues that substantial evidence supports a finding that Claimant meets Listing 112.11

14

Claimant does not suggest that the ALJ failed to discuss the evidence throughout his decision. Rather, Claimant
argues that at step-three the ALJ failed to discuss or analyze the evidence. Doc. No. 16 at 12, 17.

-25-

for ADHD. Doc. No. 16 at 12 (“The evidence supports a finding that the Plaintiff does indeed
meet or medically equal Listing 112.11. . . .”). The Commissioner maintains that substantial
evidence supports the ALJ’s decision that Claimant does not meet or medically equal any listing,
including 112.11. Doc. No. 18 at 3-4. Moreover, the Commissioner asserts that the ALJ’s
failure to discuss the evidence at step-three, when that evidence was thoroughly discussed at
steps two and four, is not reversible error. Doc. No. 18 at 9 (citing Barron v. Sullivan, 924 F.2d
227, 230 n. 3 (11th Cir. 1981)).
“To ‘meet’ a Listing, a claimant must have a diagnosis included in the Listings and must
provide medical reports documenting that the conditions meet the specific criteria of the Listings
and the duration requirement.” Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002)
(emphasis added). “To ‘equal’ a Listing, the medical findings must be “at least equal in severity
and duration to the listed findings.” Id. (emphasis added). To meet or medically equal Listing
112.11 for ADHD, a claimant must present “medically documented findings” of marked
inattention, impulsiveness, and hyperactivity. 20 CFR pt. 404 subpt. P, app. 1, § 112.11 (“§
112.11”) (emphasis added). See also Stiles v. Astrue, Case No. 5:07-cv-52-Oc-GRJ, 2008 WL
879299 at *5 (M.D. Fla. 2008) (to meet Listing 112.11 for ADHD a claimant must provide
medical findings and/or medical evidence supported by clinical and laboratory findings in
support of each of the listing’s three criteria).15

15

For children ages three to eighteen, a claimant must also demonstrate that the ADHD results in at least two of the
following:
Marked impairment in age-appropriate cognitive/communication 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

-26-

Including the new evidence submitted to Appeals Council, none of the medical
professionals who treated or examined Claimant, or those medical professionals who reviewed
the record, opined that Claimant meets or medically equals a listing. Nor do the medical records
collectively contain medical findings of marked inattention, impulsivity and hyperactivity. R.
245-62, 263-70, 285-91, 292-97, 298-302, 329-34, 335-37, 338-40, 355-57, 366-70.16 While the
record clearly demonstrates that Claimant has problems with inattention, impulsivity, and
hyperactivity, there are no medically documented findings or opinions demonstrating that those
problems meet the severity requirements of Listing 112.11. Id. Accordingly, the Court finds
that substantial evidence supports the ALJ’s finding that Claimant’s severe impairments do not
meet or medically equal any listing.
Claimant also maintains that the ALJ erred by failing to specifically discuss the record
evidence at step-three. Doc. No. 16 at 17-18 (citing Ellington, 2008 WL 1805435 (M.D. Ala.
Apr. 18, 2008)). In Ellington, 2008 WL 1805435 at *2 (M.D. Ala. Apr. 18, 2008), the ALJ
found that the claimant suffered from severe impairments of ADHD, Psychotic Disorder, and
Intermittent Explosive Disorder. Id. The Court found that the ALJ erred because he failed to
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
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
Marked difficulties in maintaining concentration, persistence, or pace.
§ 112.11B and 20 CFR pt. 404 subpt. P, app. 1, § 112.02(B)(2)(a)-(d).
16

A diagnosis of a listed impairment is not sufficient. See Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991).

-27-

properly consider whether the claimant met or medically equaled any of applicable listings for all
three of the severe mental impairments. Id. at *7-8. The Court noted that the ALJ made findings
as to whether the claimant functionally equaled a listing, but the Court found that to be a distinct
evaluation. Id. at 8. Thus, the Court concluded that it could not determine whether substantial
evidence supported the ALJ’s finding that the claimant did not meet or medically equal a listing.
Id.
In the Eleventh Circuit, there is no requirement that the ALJ “mechanically recite the
evidence” when determining whether a claimant’s impairments meet any of the listings.
Hutchison v. Bown, 787 F.2d 1461, 1463 (11th Cir. 1986) (holding that the ALJ could implicitly
find that the claimant did not meet a listing). See also Moore v. Astrue, Case No. 8:07-cv-2073T-EAJ, 2009 WL 499261 at *4 (M.D. Fla. Feb. 26, 2009) (same). In this case, the ALJ made a
specific finding at step-three that Claimant’s impairments do not meet or medically equal any
listing.

R. 16.

Thus, the Court rejects Claimant’s argument that the ALJ erred by not

specifically discussing the evidence at step-three.
Moreover, the Court finds that the facts of this case are distinguishable from Ellington.
“In Ellington, a very troubled and violent child presented with symptoms applicable to multiple
listings, including ADHD (112.11), psychotic disorder (112.03), and personality disorder
(112.08).” Mixon v. Astrue, 2011 WL 867213 at *5 (M.D. Ala. Mar. 14, 2011).

The ALJ’s

failure to specify at step-three which listing(s) were not met, and why, prevented the Court from
determining whether the ALJ’s findings were supported by substantial evidence. Id. at *5. In
this case, the only listing at issue is ADHD. At steps two and four, the ALJ provided a detailed
review of the evidence. R. 15-16, 17-30. As set forth above, the ALJ’s finding at step-three that

-28-

Claimant does not meet or medically equal any listing is supported by substantial evidence.
Accordingly, the Court finds that the ALJ did not err by failing to discuss the evidence
specifically at step-three. See Mixon, 2011 WL 867213 at *5 (where only listing at issue was
ADHD and the ALJ’s finding at step-three is supported by substantial evidence, the ALJ did not
err by failing to specifically discuss the evidence at step-three). See also Barron v. Sullivan, 924
F.2d 227, 230 n. 3 (11th Cir. 1991) (stating that while it would be helpful to discuss specific
listing at issue, there is no error where ALJ’s finding that claimant does not meet or medically
equal any listing is supported by substantial evidence).
While the Claimant also argues that substantial evidence supports a finding that Claimant
does meet Listing 112.11, where the ALJ’s findings are supported by substantial evidence, the
Court may not set those findings aside, even if the Court would have reached a contrary result as
finder of fact, and even if the Court finds that the evidence preponderates against those findings.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356,
1358 (11th Cir. 1991). This is so because the Court “may not decide facts anew, reweigh the
evidence, or substitute [its] judgment for that of the [Commissioner].” Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005). Thus, the Court rejects the Claimant’s argument that reversal
is appropriate because substantial evidence in the record may also support a conclusion contrary
to the ALJ’s findings.
B. Attending and Completing Tasks.
Claimant maintains that the ALJ erred at step-four by failing to explain how he gave
“great weight” to the opinion of Drs. Prather and Weber, but did not adopt their opinion that
Claimant has marked limitations in the domain of attending and completing tasks. Doc. No. 16

-29-

at 19. Claimant also generally maintains that the ALJ’s finding of less than marked limitations
in the domain of attending and completing tasks is not supported by substantial evidence. Doc.
No. 16 at 18-21. The Commissioner maintains that the ALJ gave great weight to Drs. Prather
and Weber’s opinion only to the extent they opined that Claimant does not meet, medically equal
or functionally equal a listing. Doc. No. 18 at 15. The Commissioner contends that the ALJ was
not required to adopt that portion of Drs. Prather and Weber’s opinion that Claimant has marked
limitations in the domain of attending and completing tasks. Doc. No. 18 at 15. Moreover, the
Commissioner contends that even if Claimant is markedly limited in the domain of attending and
completing tasks, the ALJ’s decision is still supported by substantial evidence because a claimant
must be markedly limited in two domains or extremely limited in one domain. Doc. No. 18 at
15-16.
In the decision the ALJ notes that Drs. Prather and Weber found that Claimant has
marked limitations in the domain of attending and completing tasks. R. 20. The ALJ states that
Drs. Prather and Weber “were of the opinion that the [C]laimant did not meet or medically equal
a Listing. The objective medical findings and other substantial evidence of record are consistent
with Dr. Prather and Dr. Weber’s opinion.” R. 21. Thus, the ALJ gave great weight to the
ultimate opinion of Drs. Prather and Weber that the Claimant does not meet, equal, or
functionally equal the listings. R. 21.
In finding that the Claimant’s limitations in the domain of attending and completing tasks
are less than marked, the ALJ relied on the following evidence: Claimant was easily distracted;
Claimant did no independent work; Claimant was unable to focus; Claimant was unable to do
work at grade level due to lack of focus; Claimant was able to perform single-digit addition and

-30-

subtraction; Claimant appeared to do well verbally; Claimant was unable to stay on task for very
long; Claimant had difficulty with multi-step problems; Claimant was able to perform double
digit addition and subtraction; Claimant had difficulty with spelling and sentence structure; and
Claimant had a serious problem carrying out multi-step instructions, working without distracting
others or self, and working at a reasonable pace. R. 24-25. A “marked limitation” is one that
“interferes seriously” with a claimant’s ability to independently initiate, sustain or complete
activities. 20 CFR § 416.926a(2).

The evidence cited by the ALJ shows the Claimant’s

impairments seriously interfere with his ability to attend and complete tasks.

R. 24-25.

Nevertheless, the ALJ found, without further explanation, that that evidence demonstrates that
Claimant’s impairments impose less than marked limitations in the domain of attending and
completing tasks. R. 24-25. The ALJ’s finding on this point is not supported by the evidence he
relies upon. Thus, the Court finds that the ALJ’s finding as to the domain of attending and
completing tasks is not supported by substantial evidence.17
In Muhammad v. Commissioner of Social Security, 395 Fed.Appx. 593, 601-02 (11th Cir.
2010) (unpublished), the Eleventh Circuit stated:
[E]ven if substantial evidence did not support the ALJ's
determination that T.I.M. had less-than-marked limitations in the
domain of attending and completing tasks, any such error was
harmless. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.1983)
(holding that, although the ALJ made various errors, these errors
were harmless because they ultimately were irrelevant to the denial
of the claimant's application for disability benefits). Even if
T.I.M.'s limitations in this domain were marked, he still would not
be disabled because he did not have marked limitations in at least
one additional domain. See Shinn, 391 F.3d at 1279; 20 C.F.R. §
416.926a(d). Although a minor claimant is disabled if he has
17

The Court also notes that generally an “ALJ cannot reject portions of a medical opinion without providing an
explanation for such a decision.” Monte v. Astrue, Case No. 5:08-cv-101-Oc-GRJ, 2009 WL 210720 at *6 (M.D.
Fla. Jan. 28, 2009) (citing Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987)).

-31-

extreme limitations in only one domain, the evidence described
above demonstrates that T.I.M.'s limitations in the domain of
attending and completing tasks were not extreme. See Shinn, 391
F.3d at 1279; 20 C.F.R. § 416.926a(d). Accordingly, even if the
ALJ erred in evaluating T.I.M.'s limitations in this domain,
substantial evidence still would support his ultimate determination
that T.I.M. was not disabled.
Id.18 The Court finds Muhammad persuasive because even though the evidence relied upon by
the ALJ does not support a finding of less than marked limitations in the domain of attending and
completing tasks, it does not support a finding of an extreme limitation and, as set forth below,
substantial evidence supports the ALJ’s findings as to the remaining domains.19 Thus, any errors
the ALJ may have made in the domain of attending and completing tasks, including his treatment
of Drs. Prather and Weber’s opinion as to that domain, are harmless. Id. at 601-602.
C. Other Domains.
Claimant maintains that the record contains substantial evidence supporting a finding that
Claimant has marked limitations in the domains of acquiring and using information, interacting
and relating with others, and caring for himself. Doc. No. 16 at 21-23. Thus, the Claimant
argues that the evidence preponderates against the ALJ’s findings as to those three domains.
Doc. No. 16 at 22 (“The substantial evidence is contrary to the ALJ’s findings.”). As set forth
above, at step-four, the ALJ listed numerous reasons supported by the record evidence for
finding that Claimant’s limitations were less than marked in these three domains. See supra pp.
15-21. That evidence is such that a reasonable person would accept as adequate to support the
ALJ’s conclusions. See Foote, 67 F.3d at 1560. Thus, as to the domains of acquiring and using
information, interacting and relating with others, and caring for himself, the ALJ’s findings are

18
19

In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority.
No medical professional opined that Claimant has any extreme limitations.

-32-

supported by substantial evidence. The Claimant’s argument that the evidence would also
support a contrary finding is legally insufficient for the same reasons as set forth above (see
supra p. 29).
D. New Evidence.
Claimant argues that the Appeals Council erred for failing to remand the case back to the
ALJ based upon the new and material evidence Claimant submitted after the ALJ’s decision.
Doc. No. 16 at 23-25. Claimants may generally present new evidence at each stage of the
administrative proceedings. 20 CFR §§ 404.900(b), 416.1470(b); Ingram v. Commissioner of
Social Security, 496 F.3d 1253, 1261 (11th Cir. 2007). If additional evidence is presented for the
first time to the Appeals Council, it must consider the evidence if it is “new and material”
evidence relating “to the period on or before the date of the [ALJ’s] hearing decision.” 20 CFR
§§ 404.970(b), 416.1470(b). When claimants submit additional evidence to the Appeals Council,
a reviewing court must consider whether the new evidence renders the denial of benefits
erroneous. Ingram v. Comm’r, 496 F.3d 1253, 1262, 1266 (11th Cir. 2007).
In this case, the new evidence consists largely of Ms. Richter’s second Teacher’s
Questionnaire. R. 366-81. Throughout the questionnaire, Ms. Richter repeatedly states that all
of Claimant’s problems are lessened and more manageable when he is taking his medication. R.
374-76, 78.

Moreover, a comparison of the Ms. Richter’s first questionnaire shows no

significant worsening of Claimant’s problems.

Compare R. 185-202 with R. 373-80.

Accordingly, the Court finds that the new evidence does not render the denial of benefits
erroneous. Ingram, 496 F.3d at 1266.

-33-

V.

CONCLUSION.
Based on the forgoing, it is ORDERED that final decision of the Commissioner is

AFFIRMED. The Clerk is directed to enter judgment in favor of the Commissioner and close
the case.
DONE and ORDERED in Orlando, Florida on March 26, 2012.

The Court Requests that the Clerk
Mail or Deliver Copies of this Order to:
Marianne S. Hoke, Esq.
1310 West Eau Gallie Boulevard, Suite D.
Melbourne, FL 32935
John F. Rudy, III
U.S. Attorney’s Office
Suite 3200
400 N. Tampa St.
Tampa, Florida
33602
Mary Ann Sloan, Regional Chief Counsel
Dennis R. Williams, Deputy Regional Chief Counsel
Susan Kelm Story, Branch Chief
Christopher G. Harris, Assistant Regional Counsel
Office of the General Counsel, Region IV
Social Security Administration
61 Forsyth Street, S.W., Suite 20T45
Atlanta, Georgia
30303-8920
The Honorable Jose G. Rolon-Rivera
Administrative Law Judge
c/o Office of Disability Adjudication and Review
Suite 1550 New River Ctr
200 E. Las Olas Blvd
Ft. Lauderdale, Florida 33301
-34-

-35-