L. v. Astrue

Filing 21

MEMORANDUM OPINION: In sum, the ALJ erred in failing to articulate a sufficient rationale for his finding that plaintiff's condition did not meet or equal Listing 112.11. The ALJ also erred in determining that plaintiff'scondition did not f unctionally equal a listing because his finding that plaintiff's ability to attend to and complete tasks has not been markedly or extremely limited is not supported by substantial evidence. For these reasons, this cause will be reversed and rema nded to the ALJ for further development inorder for the ALJ to properly determine whether plaintiff's condition meets or equals Listing 112.11; and whether plaintiff has a marked or extreme limitation in the domain of attending and completing tasks. Accordingly, a Judgment of Reversal and Remand will be entered separately in favor ofplaintiff in accordance with this Memorandum. Signed by Magistrate Judge Lewis M. Blanton on 3/22/12. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DANIELLE MAYO o/b/o D.L.,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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MEMORANDUM

This is an action under 42 U.S.C. § 405(g) for judicial review of defendant’s final decision
denying the application of Danielle Mayo for Supplemental Security Income benefits on behalf of
her minor son, D.L., under Title XVI of the Social Security Act. This case has been assigned to
the undersigned United States Magistrate Judge pursuant to the Civil Justice Reform Act and is
being heard by consent of the parties. See 28 U.S.C. § 636(c). Plaintiff has filed a Brief in
Support of the Complaint. (Document Number 18). Defendant has filed a Brief in Support of the
Answer. (Doc. No. 20).
Procedural History
Danielle Mayo filed an application for Supplemental Security Income (SSI) benefits on
behalf of her son, D.L. (“plaintiff”) on March 12, 2008, alleging a disability onset date of January
12, 1999. (Tr. 97-99). The application was denied initially and, following an administrative
hearing, plaintiff’s claim was denied in a written opinion by an Administrative Law Judge (ALJ)
dated November 4, 2009. (Tr. 61-66, 25-28). Ms. Mayo thereafter filed a request for review

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with the Appeals Council of the Social Security Administration (SSA), which was denied on
December 21, 2009. (Tr. 15, 10-12). Thus, the decision of the ALJ stands as the final decision of
the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
Evidence Before the ALJ
A.

ALJ Hearing
Plaintiff’s administrative hearing was held on September 29, 2009. (Tr. 31). Plaintiff was

present and was represented by counsel. (Id.). Ms. Mayo, plaintiff’s mother, was also present.
(Id.).
The ALJ first examined plaintiff, who testified that he was ten years old, and lived in a
house with his mother, his seventeen-year-old sister, his thirteen-year-old brother, and his twoyear-old sister. (Tr. 35). Plaintiff stated that he lived with his grandmother until he was five years
old. (Tr. 36).
Plaintiff testified that he had his own room at his mother’s home. (Id.). Plaintiff stated
that his younger sister occasionally slept with him. (Id.).
Plaintiff testified that he helped his mother by cleaning his room. (Tr. 37). Plaintiff stated
that he picked up his toys, put his dirty clothes in the hamper, and swept his room. (Id.).
Plaintiff testified that on days he does not have school, he wakes up, “wash[es] up,” dresses, and
eats breakfast. (Id.). Plaintiff stated that he likes to eat sausage and bacon sandwiches for
breakfast. (Id.). Plaintiff testified that his mother usually cooks breakfast, although his older
brother or sister cook for him if his mother is unavailable. (Tr. 38). Plaintiff stated that his
mother does not work, but she attends court frequently. (Id.).
Plaintiff testified that, after he eats breakfast, he lies down and watches televison. (Id.).
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Plaintiff stated that he likes to watch cartoons. (Id.). Plaintiff testified that he plays outside with
his two pit bull dogs. (Id.). Plaintiff stated that he feeds his dogs and bathes them. (Tr. 39).
Plaintiff testified that he also plays with friends outside. (Id.). Plaintiff named seven
friends. (Id.). Plaintiff testified that he and his friends play tag, and football. (Id.). Plaintiff
stated that his older sister takes him to the park with his younger sister. (Tr. 40). Plaintiff
testified that he plays on the playground at the park. (Id.). Plaintiff stated that he has a swimming
pool in his back yard, and that he swam the previous summer. (Id.).
Plaintiff testified that he walks to school with his uncle. (Id.). Plaintiff stated that he has
friends in his class, and named six friends. (Tr. 41). Plaintiff testified that he was in fourth grade.
(Id.). Plaintiff stated that he stays in the regular classroom all day. (Id.). Plaintiff testified that he
was taking Math, Social Studies, and Science classes. (Id.). Plaintiff stated that, at recess, he
plays tag, runs, plays soccer, and plays kickball. (Id.).
Plaintiff testified that he gets in trouble at school for fighting. (Tr. 42). Plaintiff stated
that other children hit him, and he hits them back. (Id.). Plaintiff stated that he had been in
trouble four to six times that year for fighting, and for running around the building. (Id.).
Plaintiff testified that he received one “A,” “B”s, and one “F.” (Id.). Plaintiff stated that
the “F” was in Reading. (Id.). Plaintiff testified that he has a teacher who helps him with reading.
(Tr. 43). Plaintiff stated that he is unable to read tests. (Id.).
Plaintiff testified that the school nurse gives him his medication during the week. (Id.).
Plaintiff stated that he takes his medication at home on the weekends. (Id.). Plaintiff testified that
he was not sure why he took medication, although he thought it might be because he gets “too
excited.” (Id.). Plaintiff stated that he always takes his medication, even during the summer.
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(Id.).
Plaintiff testified that he planned to start playing football soon after the hearing. (Tr. 44).
Plaintiff stated that he was participating in a program in which he was given parts to a
bicycle and instructed on how to repair the bicycle. (Id.). Plaintiff testified that he enjoyed
repairing bicycles. (Id.). Plaintiff stated that he had his own bicycle, and rides it every day. (Id.).
Plaintiff testified that he did homework every day when he came home from school. (Id.).
Plaintiff stated that his older brother helped him with his homework. (Id.).
The ALJ next examined Ms. Mayo, who testified that she lived in a townhouse with her
five children. (Tr. 46). Ms. Mayo stated that none of her other children received disability
benefits at the time of the hearing, although her oldest son received them in the past. (Id.).
Ms. Mayo testified that plaintiff sleeps in a room by himself. (Id.). Ms. Mayo stated that
plaintiff also spends the night at his grandmother’s house frequently. (Id.).
Ms. Mayo testified that plaintiff occasionally helps her around the house by taking out the
trash. (Id.). Ms. Mayo stated that she does not ask plaintiff to do any major tasks because he will
“mess it up.” (Id.).
Ms. Mayo testified that she used to have a puppy, but it died. (Id.). Ms. Mayo stated that
she took care of the puppy when it was alive. (Tr. 47).
Ms. Mayo testified that she did not work. (Id.). Ms. Mayo stated that she last worked in
late 2007 or early 2008. (Id.).
Ms. Mayo testified that she and her children lived at plaintiff’s grandmother’s house for a
period of time but the grandmother never had custody of plaintiff. (Id.). Ms. Mayo stated that
plaintiff’s father died approximately one year prior to the hearing. (Tr. 48).
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Ms. Mayo testified that plaintiff was in fourth grade. (Id.). Ms. Mayo stated that plaintiff
should be in fifth grade, but he was held back. (Id.). Ms. Mayo testified that plaintiff received all
“F”s in fourth grade. (Id.). Ms. Mayo stated that she talked to plaintiff’s teachers and they told
her that plaintiff was “way off.” (Id.). Ms. Mayo testified that she had been trying to get help for
plaintiff since he started school. (Id.). Ms. Mayo stated that plaintiff took all special education
classes, except for Music and Gym. (Tr. 49).
Ms. Mayo testified that plaintiff had been taking Concerta1 for about one year. (Id.). Ms.
Mayo stated that plaintiff takes medication three times a day-in the morning, at lunch, and before
going to bed. (Id.). Ms. Mayo testified that plaintiff’s lunch dosage is administered by his school.
(Tr. 50). Ms. Mayo stated that plaintiff’s dosage had recently been increased due to plaintiff’s
uncontrollable behavior. (Id.). Ms. Mayo testified that plaintiff takes his medication year-round.
(Id.).
Ms. Mayo stated that her other children received good grades. (Id.).
Ms. Mayo testified that plaintiff had friends in the community. (Id.). Ms. Mayo stated
that she only knew one of plaintiff’s friends. (Id.).
Ms. Mayo testified that plaintiff rides his bicycle most days. (Id.). Ms. Mayo stated that
plaintiff goes to the park with his grandmother and his cousin. (Tr. 51).
Ms. Mayo testified that plaintiff gets along really well with his siblings. (Id.). Ms. Mayo
stated that plaintiff occasionally fights with his neighborhood friends. (Id.).
Ms. Mayo testified that plaintiff has gotten in trouble at school on many occasions for

1

Concerta is indicated for the treatment of ADHD. See Physician’s Desk Reference
(PDR), 1925 (63rd Ed. 2009).
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fighting and other conduct. (Id.). Ms. Mayo stated that plaintiff is sneaky, and has taken items
from school home with him. (Id.). Ms. Mayo testified that plaintiff has to be watched constantly.
(Tr. 52).
Ms. Mayo stated that her only income was food stamps. (Id.). Ms. Mayo testified that
her twenty-year-old son was not working. (Id.).
Ms. Mayo stated that her children occasionally spend the weekend at her mother’s house.
(Id.).
Ms. Mayo testified that plaintiff was having problems at school academically, and with his
behavior. (Id.). Ms. Mayo stated that plaintiff is working at the first or second grade level. (Id.).
Ms. Mayo testified that plaintiff writes his letters backwards, and is unable to focus. (Id.). Ms.
Mayo stated that plaintiff spends part of his day in the regular classroom, and part of his day in the
special education classroom. (Tr. 53).
The ALJ pointed out that plaintiff’s medical records indicate that plaintiff’s grandmother
had custody of plaintiff since he was three years old. (Id.). Ms. Mayo testified that this was
inaccurate. (Id.). Ms. Mayo stated that she and her children lived with plaintiff’s paternal
grandmother when plaintiff’s father was alive, but the grandmother never had legal custody of
plaintiff. (Id.). Ms. Mayo testified that both of plaintiff’s grandmothers take him to doctor
appointments. (Tr. 54).
Ms. Mayo stated that plaintiff gets in trouble at school for not staying in his seat, running
out of the building, and not doing his work. (Id.). Ms. Mayo testified that plaintiff just scribbles
rather than complete his work assignments. (Id.). Ms. Mayo stated that she helps plaintiff with
his homework. (Id.). Ms. Mayo testified that she occasionally goes to school and sits with
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plaintiff. (Id.). Ms. Mayo stated that she believes plaintiff should be in special education classes
all day. (Tr. 55).
Ms. Mayo testified that her older children occasionally baby-sit plaintiff. (Id.).
Plaintiff’s attorney stated that new evidence he submitted revealed significant findings.
(Id.). Plaintiff’s attorney noted that plaintiff tested at the kindergarten level. (Id.). Plaintiff’s
attorney pointed out that plaintiff’s teachers indicated that plaintiff has severe problems. (Id.).
Plaintiff’s attorney stated that this evidence reveals that plaintiff has marked impairments in
acquiring and using information; and in attending to and completing tasks. (Tr. 57-58).
B.

Relevant Medical Records
The record reveals that plaintiff received treatment at Grace Hill Neighborhood Health

Centers (“Grace Hill”) from April 2008 through June 2009. On April 10, 2008, plaintiff
underwent ADHD2 testing, which rated plaintiff’s level of inattention at nine out of nine, and his
level of hyperactivity at eight out of nine. (Tr. 273).
Plaintiff saw Alison Burner, M.A., Licensed Psychologist, on May 9, 2008, for a
psychological consultation at the request of the state agency. (Tr. 264-66). It was noted that
plaintiff was nine years of age, attended third grade, and did not receive special education
services. (Tr. 264). During the examination, plaintiff was able to sit quietly and attentively, and
was cooperative. (Tr. 265). Ms. Burner noted that psychomotor agitation was present. (Id.).
Ms. Burner found that, overall, plaintiff’s attention and concentration were adequate and no
2

A behavioral disorder manifested by developmentally inappropriate degrees of
inattentiveness (short attention span, distractability, inability to complete tasks, difficulty in
following directions), impulsiveness (acting without due reflection), and hyperactivity
(restlessness, fidgeting, squirming, excessive loquacity). Stedman’s Medical Dictionary, 568
(28th Ed. 2006).
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symptoms of ADHD were observed, although symptoms were reported by plaintiff’s mother and
the school. (Id.). No difficulties of adaptive functioning were reported. (Id.). Plaintiff was able
to care for himself and his hygiene. (Id.). Plaintiff was able to do age appropriate chores with
supervision. (Tr. 266). Plaintiff’s mother reported that plaintiff had appropriate peer
relationships and had friends at school. (Id.). Plaintiff appeared to be of low average to
borderline intellectual functioning based upon testing results. (Id.). Plaintiff’s social judgment
and reasoning, abstract thinking, mental control, and short and long-term memory were in the low
average range. (Id.). Plaintiff was not receiving medication for ADHD, and had never been
diagnosed. (Id.). Ms. Burner diagnosed plaintiff with ADHD, combined type, based on plaintiff’s
mother’s reports and school records. (Id.). She assessed a GAF score3 of 65.4 (Id.). Ms. Burner
indicated that, with appropriate medical intervention and educational support, plaintiff should be
able to function adequately within society at a level commensurate with his ability. (Id.). Ms.
Burner stated that, without medication, plaintiff’s impulsivity and hyperactivity would likely
negatively impact his social, emotional, educational, and adaptive functioning to a mild or
moderate degree, and would likely interfere with his peer relations and educational functioning.
(Id.).

3

The Global Assessment of Functioning Scale (GAF) is a psychological assessment tool
wherein an examiner is to “[c]onsider psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness” which does “not include impairment in
functioning due to physical (or environmental) limitations.” Diagnostic and Statistical Manual of
Mental Disorders (DSM-IV), 32 (4th Ed. 1994).
4

A GAF score of 61 to 70 denotes “[s]ome mild symptoms (e.g., depressed mood and mild
insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally functioning pretty well, has some meaningful
interpersonal relationships.” DSM-IV at 32.
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Terry Dunn, Ph.D. completed a Childhood Disability Evaluation Form on June 5, 2008.
(Tr. 267-72). Dr. Dunn found that plaintiff’s impairments were severe but did not meet or
medically equal, or functionally equal the listings. (Tr. 267). Dr. Dunn expressed the opinion that
plaintiff had less than marked limitations in the domain of “Attending and Completing Tasks,” but
had no limitations in any other domain. (Tr. 269).
Plaintiff saw Sharon West, Ph.D. at Grace Hill on June 3, 2008, for an initial assessment.
(Tr. 171-72). Plaintiff was accompanied by his paternal grandmother, who reported that plaintiff
told her he wanted to talk to someone. (Tr. 171). It was noted that plaintiff had extremely poor
impulse control, did “whatever pops into his head,” and was frequently in trouble in school. (Id.).
Plaintiff was struggling academically, was unable to read, and was behind in every subject. (Id.).
It was noted that plaintiff was born drug exposed, and sustained a head injury after being struck
by a car at the age of three. (Id.). Upon examination, plaintiff was difficult to engage, evidenced
poor eye contact, and admitted to suicidal ideation when he was under stress. (Tr. 171-72).
Plaintiff denied having a suicide plan, although he indicated that he wished that he were not alive.
(Tr. 172). Plaintiff had a history of difficulty focusing, staying on task, and following directions;
and was easily distracted and frustrated. (Id.). Dr. West found that plaintiff’s memory, judgment,
and insight were poor. (Id.). Dr. West diagnosed plaintiff with ADHD, and assessed a GAF
score of 60.5 (Id.). Dr. West recommended improved school functioning through behavior
modification. (Id.).
Plaintiff saw neurologist Shulamit Portnoy, M.D. at Grace Hill on June 22, 2008. (Tr.
5

A GAF score of 51-60 denotes “[m]oderate 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).” DSM-IV at 32.
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173-74). Plaintiff was accompanied by his paternal grandmother. (Id.). Plaintiff’s grandmother
reported that plaintiff was fidgety, unable to sit still, daydreams too much, is easily distracted, has
trouble concentrating, fidgets/squirms, talks too much, blurts out answers, interrupts/intrudes
others’ conversations, is impatient, feels sad, worries a lot, is preoccupied with memories about
his father, fights with other children, is noncompliant with rules, teases others, blames others for
his troubles, refuses to share, is aggressive, is verbally hostile, voices homicidal threats, and has
tantrums several times a day. (Tr. 173). Plaintiff was taking no medications. (Id.). It was noted
that plaintiff attained all developmental milestones on time, and was currently in regular classes,
although he may need to repeat third grade. (Id.). Dr. Portnoy noted that plaintiff had sustained
splenic and liver lacerations, kidney hematomas, and superficial abrasions after being struck by a
car in 2002. (Id.). Upon examination, plaintiff was calm, his affect was constricted, and
plaintiff’s speech was normal. (Tr. 174). Plaintiff’s responses were one word, and plaintiff often
only nodded or shook his head. (Id.). Dr. Portnoy diagnosed plaintiff with ADHD and ODD.6
(Id.). Dr. Portnoy noted that plaintiff exhibited mood disorder symptoms in the context of
adjustment disorder,7 and that he had problems with primary support and bereavement. (Id.). Dr.
Portnoy deferred medications and recommended continued counseling with Dr. West. (Id.).

6

Oppositional defiant disorder (“ODD”) is a disorder of childhood or adolescence
characterized by a recurrent pattern of negativistic, hostile, and disobedient behavior toward
authority figures. Stedman’s at 570.
7

A disorder the essential feature of which is a maladaptive reaction to an identifiable
psychological stress, or stressors, that occurs within weeks of the onset of the stressors and
persists for as long as six months; the maladaptive nature of the reaction is indicated by
impairment in occupational (including school) functioning, or in usual social activities or
relationships with others, or with symptoms that are in excess of a normal or expectable reaction
to the stressor. Stedman’s at 567.
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Plaintiff saw Dr. Portnoy on July 24, 2008, at which time plaintiff was calm, made fair eye
contact, and had normal speech. (Tr. 277). Plaintiff’s responses were one word, and plaintiff
often only nodded or shook his head. (Id.). Plaintiff’s affect was constricted. (Id.). Dr.
Portnoy’s diagnosis remained unchanged. (Id.).
Records from Grace Hill dated October 10, 2008, reveal that testing based on plaintiff’s
teachers’ responses indicated significant inattentiveness, hyperactivity, oppositional-defiant
disorder, and conduct disorder.8 (Tr. 175-76). Plaintiff’s Art teacher noted that plaintiff “walks
in and out of my class room during instruction. He touches the students and throws crayons at
them.” (Tr. 176).
Plaintiff saw social worker Mary Peterson at Grace Hill on November 21, 2008, at which
time plaintiff’s grandmother reported that plaintiff had just started a new school, his third school
that year. (Tr. 280). The social worker indicated that she would compose a letter to support
plaintiff’s grandmother’s request for psycho-educational testing. (Id.). On January 13, 2009,
plaintiff’s grandmother brought a copy of a diagnostic evaluation completed by the Special School
District in November 2007, in which it was found that plaintiff did not qualify for special
education services at that time. (Tr. 288). Ms. Peterson indicated that plaintiff’s grandmother
planned to pursue special education services for plaintiff. (Id.).
Plaintiff saw Dr. Portnoy on January 13, 2009, at which time it was noted that plaintiff
exhibited ongoing behavioral concerns. (Tr. 289). Dr. Portnoy noted that plaintiff engaged in

8

A mental disorder of childhood or adolescence characterized by a persistent pattern of
violating societal norms and the rights of others; children with the disorder may exhibit physical
aggression, cruelty to animals, vandalism, robbery, truancy, cheating, and lying. Stedman’s at
568.
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fights on the bus, and was suspended from school. (Id.). Upon examination, plaintiff was alert,
intrusive, and had an immature affect. (Tr. 290). Plaintiff answered questions nodding or shaking
his head, or in brief primitive sentences. (Id.). Plaintiff’s speech was fast-paced, and was less than
100 percent intelligible, although with redirection, plaintiff talked slower with better intelligibility.
(Id.). Dr. Portnoy’s assessment was ADHD, ODD, low average range of IQ, mood disorder
symptoms per history, and problems with primary support. (Id.). Dr. Portnoy recommended a
trial of Concerta. (Id.).
Plaintiff saw Dr. Portnoy on March 23, 2009, at which time no substantial improvement
was noted according to plaintiff’s paternal grandmother and plaintiff’s teachers. (Tr. 299). It was
noted that in-school suspensions had been imposed repeatedly, but no out-of-school suspensions.
(Id.). Plaintiff’s learning difficulties persisted, and plaintiff was not receiving special education
services. (Id.). Dr. Portnoy increased plaintiff’s dosage of Concerta. (Tr. 300).
Plaintiff saw Dr. West on April 22, 2009, at which time Dr. West found that plaintiff
continued to have “extremely poor impulse control.” (Tr. 312). Dr. West noted that plaintiff had
just returned to school following a three-day suspension for being very disruptive. (Id.). Plaintiff
ran from the teacher and screamed over the banister. (Id.). Dr. West noted that plaintiff tends to
regress into baby talk and does not seem to comprehend, although during play therapy he seems
more cognitively intuned to what is going on. (Id.).
Plaintiff also saw Dr. Portnoy on April 22, 2009, at which time Dr. Portnoy stated that
plaintiff exhibited significant residual impulsivity, and that he had been suspended for running in
the hallways. (Tr. 310). Dr. Portnoy noted that plaintiff had engaged legal counsel and was
contesting the denial of special education services. (Id.). Dr. Portnoy increased plaintiff’s dosage
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of Concerta, and recommended that plaintiff pursue special education services. (Tr. 311).
Plaintiff saw Dr. Portnoy on June 1, 2009, for ongoing concerns about ADHD symptoms
at school. (Tr. 307). Dr. Portnoy noted that plaintiff had been reevaluated at school, and would
be receiving special education services starting the next year. (Id.). Plaintiff was repeating the
current grade and was attending summer school. (Id.). Dr. Portnoy continued plaintiff’s
medication. (Tr. 308).
C.

School Records
Plaintiff’s mother reported at a pre-evaluation conference on October 23, 2007 that

plaintiff struggled with all academic subjects. (Tr. 103). Plaintiff wrote letters and numbers
backward, and was unable to read books on his own. (Id.). Plaintiff was unable to do any work
by himself. (Id.). Plaintiff was unable to sit still, needed frequent redirection, and was easily
distracted. (Id.). Plaintiff’s first quarter grades were: Reading: F, Spelling: F, Language: F,
Mathematics: F, and Science: D. (Id.).
Plaintiff underwent a multi-disciplinary evaluation on November 20, 2007, which revealed
that plaintiff did not meet the Missouri Department of Elementary and Secondary Education’s
(DESE) criteria for any educational diagnosis, and was not eligible for special education services.
(Tr. 185). It was noted that plaintiff was easily distracted by external and internal stimuli and did
require frequent restructuring, refocusing, and repetition in order to attend and respond to test
items. (Id.). Plaintiff’s activity level was judged to be outside normal limits. (Id.). Testing
revealed overall cognitive functioning within the low average range of intelligence. (Id.).
Academic concerns were noted in the areas of Reading, Mathematics, and Written Expression.
(Tr. 187). Plaintiff’s academic skills were within cognitive expectancy, but below grade level.
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(Id.). Plaintiff exhibited significant task focus concerns. (Tr. 188). It was noted that plaintiff was
impulsive, easily distracted, hyperactive, and inattentive, both at home and at school. (Id.). It
was noted that, although plaintiff did not qualify for special education support, he would benefit
from visual cues, extra time, oral testing, frequent redirection, and a modified curriculum. (Id.).
A report card from the 2008-2009 school year from the St. Louis Public Schools indicates
that plaintiff received “F” s in all subjects. (Tr. 148-49).
Plaintiff received a three-day out-of-school suspension on September 8, 2008, for
punching a student. (Tr. 168).
Plaintiff received a three-day out-of-school suspension on January 14, 2009, for physically
attacking another student. (Tr. 163).
Larry Ellis, plaintiff’s fourth grade teacher, completed an assessment on February 12,
2009. (Tr. 169-70). Mr. Ellis indicated that plaintiff “very often” exhibited the following
symptoms: fails to give attention to details; has difficulty sustaining attention to tasks; does not
seem to listen when spoken to directly; does not follow through on instructions and fails to finish
schoolwork; has difficulty organizing tasks and activities; avoids, dislikes or is reluctant to engage
in tasks that require sustained mental effort; loses things necessary for tasks; is easily distracted by
extraneous stimuli; is forgetful in daily activities; fidgets; leaves seat in classroom; runs about or
climbs excessively; has difficulty playing quietly; is “on the go” or often acts as if “driven by a
motor;” talks excessively; blurts out answers before questions have been completed; has difficulty
waiting in line; interrupts or intrudes on others; is fearful, anxious or worried; is self-conscious or
easily embarrassed; and is afraid to try new things for fear of making mistakes. (Tr. 169). Mr.
Ellis found that plaintiff exhibited the following symptoms “often:” loses temper; actively defies
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or refuses to comply with adult’s requests; is angry or resentful; is spiteful and vindictive; is
physically cruel to people; and feels worthless or inferior. (Tr. 169-70). Mr. Ellis also indicated
that plaintiff displayed the following symptoms “occasionally:” bullies, threatens, or intimidates
others; initiates physical fights; lies to obtain goods for favors or to avoid obligations; and
deliberately destroys others’ property. (Id.). Mr. Ellis found that plaintiff’s academic
performance in Reading, Mathematics, and Written Expression were problematic. (Tr. 170). Mr.
Ellis indicated that the following classroom behavior was problematic: relationship with peers,
following directions, disrupting class, assignment completion, and organizational skills. (Id.). Mr.
Ellis stated “[plaintiff] is an educationally unmotivated nonreader and writer who seems to be a
good kid who’s self-conscious and embarrassed that he cannot successfully function in a regular
4th grade classroom.” (Id.).
On February 25, 2009, Mr. Ellis completed an “Office Referral” in which he stated that
plaintiff was “basically a good kid that has unfortunately fallen through the cracks.” (Tr. 153).
Mr. Ellis indicated that plaintiff makes animal noises, mimics different gunshot sounds, horseplays,
fights, walks out of the classroom, and “basically does whatever he decides to do.” (Id.). Mr.
Ellis indicated that he believed plaintiff was “acting out constantly because he ‘simply’ cannot
work at the 4th grade level. Other than that, he’s a little darling!” (Id.).
Plaintiff received an out-of-school suspension on April 15, 2009, for running throughout
the hallway, yelling over the banister, hiding in the boys’ restroom, and disobeying authority. (Tr.
204).
Mr. Ellis completed an evaluation on April 15, 2008, in which he indicated that work
habits, classroom behaviors, and interpersonal behaviors were problems. (Tr. 226). Mr. Ellis
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stated that plaintiff’s “lack of basic skills and constantly acting out obviously hinders him from
making further academic progress.” (Id.).
Plaintiff received an out-of-school suspension on April 29, 2009, for entering the boys’
restroom and punching a third grade student in his jaw. (Tr. 204).
Plaintiff underwent a Psychological-Educational Assessment conducted by Saint Louis
Public Schools on May 11, 2009, due to concerns regarding plaintiff’s academic progress. (Tr.
216-56). Plaintiff’s teacher estimated that plaintiff was functioning at the Pre-K level in Reading,
Math, and in Written Expression. (Tr. 219). Plaintiff’s report card grades reflected continued
struggles in all academic areas. (Id.). Plaintiff underwent intelligence testing on May 19, 2009,
which revealed a nonverbal IQ of 98, and a percentile of 45, which placed plaintiff in the average
range of cognitive ability. (Tr. 218). Testing revealed that plaintiff’s adaptive functioning was at
the low level. (Id.). Plaintiff also underwent academic achievement testing, which revealed that
plaintiff was functioning at the kindergarten and first grade level. (Tr. 220). It was found that
plaintiff was not achieving commensurate with his cognitive ability in Basic Reading, Reading
Comprehension, Math Reasoning, Math Calculation, and Written Expression. (Id.). It was noted
that, although plaintiff’s cognitive ability was within the normal range, his achievement
significantly lagged behind his ability, thus jeopardizing day-to-day classroom functioning and
academic progress. (Id.). With regard to social/emotional behavior, it was noted that although
plaintiff exhibited some behavior problems in school, these behaviors were a result of his diagnosis
of ADHD, which impaired his ability to function socially, academically, and at home. (Tr. 225).
Plaintiff was described by a teacher as a “very personable young man,” who was not disrespectful,

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but acted out because he was unable to perform his school work. (Id.). It was concluded that
plaintiff’s ADHD impaired plaintiff’s ability to function socially, academically, and emotionally in
the school setting; and that plaintiff required special education and related services. (Tr. 231).

Plaintiff received an out-of-school suspension on May 13, 2009, for running around the
halls and playing in adult restrooms, and then refusing to enter the in-school suspension room.
(Tr. 204).
On August 25, 2009, plaintiff’s school counselor stated that plaintiff “needs to be
redirected by staff to remain quiet and focus on the speaker. He is easily distracted by the
movement of others.” (Tr. 226).
The ALJ’s Determination
The ALJ made the following findings:
1.

The claimant was nine years old on March 3, 2008, and is now ten (in regulatory
parlance, a school-age child) (20 C.F.R. 416.926a(g)(2)).

2.

The claimant, obviously, has not engaged in substantial gainful activity since
March 3, 2008 (20 C.F.R. 416.924(b) and 416.971 et seq.).

3.

The claimant has the following severe impairment: an attention deficit hyperactivity
disorder (ADHD) (the “learning disability” is considered a symptom of ADHD)
(20 CFR 416.924(c)).

4.

The claimant’s condition has not met or medically equaled a listing in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).

5.

The claimant’s condition has not functionally equaled a listing (20 C.F.R.
416.924(d) and 416.926a).

6.

The claimant has not been disabled in accordance with the Social Security Act (20

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CFR 416.924(a)).
(Tr. 26-28).
The ALJ’s final decision reads as follows:
The claimant’s application for supplemental security income, protectively filed on March
3, 2008, is denied. The claimant has not been disabled under section 1614(a)(3)(C) of the
Social Security Act.
(Tr. 28).

Discussion
A.

Standard of Review
Judicial review of a decision to deny Social Security benefits is limited and deferential to

the agency. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). The decision of the SSA
will be affirmed if substantial evidence in the record as a whole supports it. See Roberts v. Apfel,
222 F.3d 466, 468 (8th Cir. 2000). Substantial evidence is less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a conclusion. See Kelley v.
Callahan, 133 F.3d 583, 587 (8th Cir. 1998). If, after review, it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the Commissioner’s
findings, the denial of benefits must be upheld. See Robinson v. Sullivan, 956 F.2d 836, 838 (8th
Cir. 1992). The reviewing court, however, must consider both evidence that supports and
evidence that detracts from the Commissioner’s decision. See Johnson v. Chater, 87 F.3d 1015,
1017 (8th Cir. 1996) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). “[T]he court
must also take into consideration the weight of the evidence in the record and apply a balancing

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test to evidence which is contrary.” Burress v. Apfel, 141 F.3d 875, 878 (8th Cir. 1998). The
analysis required has been described as a “searching inquiry.” Id.
B.

The Determination of Disability
A child is considered disabled if that child “has a medically determinable physical or mental

impairment, which results in marked and severe functional limitations” and which lasts for a
period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(C)(i),(ii). The Commissioner has
established a three-step process for determining whether a child is disabled under the Social
Security Act. See 20 C.F.R. § 416.924. Under the first step, it is determined whether the child
was engaged in substantial gainful activity. If substantial gainful activity is being performed, then
a finding of no disability is warranted. See 20 C.F.R. §§ 416.924(b). Next, it is determined
whether the child’s impairments are severe. See 20 C.F.R. §§ 416.924(c). If a severe impairment
is found, the next issue is whether the child’s impairment meets or medically equals a listed
impairment found in Appendix One to 20 C.F.R. 404. See 20 C.F.R. §§ 416.924(d); 20 C.F.R.
pt. 404, subpt. P, App. 1. If it is determined that the impairment does not meet or medically equal
a listing, then the final consideration is whether the child’s impairment “functionally equals” a
listed impairment. See 20 C.F.R. § 416.924(d).
An ALJ is to evaluate, in determining functional equivalence, a child’s functional
limitations in: (1) acquiring and using information, (2) attending and completing tasks, (3)
interacting and relating with others, (4) moving about and manipulating objects, (5) caring for
himself/herself, and (6) health and physical well-being. See 20 C.F.R. § 416.926a (b)(1)(I)-(vi).
A medically determinable impairment or combination of impairments functionally equals a listed

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impairment if it results in “marked” limitations in two domains or an “extreme” limitation in one
domain. See 20 C.F.R. § 416.926a(d).
A “marked” limitation is a limitation which is “more than moderate” but “less than
extreme.” 20 C.F.R. § 416.926a (e)(2)(I). A “marked” limitation can also be “equivalent to
standardized testing with scores that are at least two, but less than three, standard deviations
below the mean.” Id.
An “extreme” limitation is “more than marked,” and is given “to the worst limitations,”
although it need not necessarily mean a total lack or loss of ability to function. 20 CF.R. §
416.926a(e)(3)(I).
C.

Plaintiff’s Claims on Appeal
Plaintiff argues that the ALJ failed to point to evidence supporting his decision that

plaintiff’s condition did not meet, equal, or functionally equal a listing. Plaintiff contends that the
ALJ erred in determining plaintiff’s impairment did not functionally equal a listing because
plaintiff had marked impairments in the domains of attending or completing tasks, and in
interacting and relating to others. Plaintiff also argues that the ALJ erred in failing to articulate a
sufficient rationale for the conclusion that plaintiff’s condition did not meet or equal a listing
based upon a failure to meet the “B” criteria. The undersigned will discuss plaintiff’s claims in
turn.
I.

Functional Equivalence
The ALJ found that plaintiff had a marked limitation in his ability to acquire and use

information; less than marked limitations in his ability to attend to and complete tasks, and interact

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and relate with others; and no limitations in his ability to move about, manipulate objects, or care
for himself. (Tr. 27-28). Plaintiff challenges the ALJ’s findings that plaintiff had less than marked
limitations in his ability to attend to and complete tasks, and interact and relate with others.
1.

Attending and Completing Tasks
The ALJ found that plaintiff’s ability to attend to and complete tasks has not been

markedly or extremely limited. (Tr. 27).
The domain of attending to and completing tasks considers how well the child focuses and
maintains attention; begins, carries through, and finishes activities (including the pace activities are
performed); and the ease with which the child changes activities. See 20 C.F.R. § 416.926a(h).
School age children (age 6 to age to 12), should be able to focus their attention in a variety of
situations in order to follow directions, remember and organize school materials, and complete
classroom and homework assignments. See id. at § 416.926a(h)(2)(iv). The child should be able
to concentrate on details and not make careless mistakes in his or her work, change his or her
activities or routines without distracting others, and stay on task and in place when appropriate.
See id. The child should also be able to sustain his or her attention well enough to participate in
group sports, read, and complete family chores. See id.
The ALJ first acknowledged that plaintiff’s mother testified that plaintiff was “way out of
focus,” and that he does not remain in his seat at school. (Tr. 27, 52). The ALJ also noted that
plaintiff’s teacher, Mr. Ellis, stated that plaintiff has a short attention span, is easily distracted, is
reluctant to begin tasks, and does not complete tasks, needs to have directions repeated, works
slowly, has difficulty working independently, and performs work in a careless manner. (Tr. 27,

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217).
The ALJ pointed out that consultative psychologist Alison Burner, however, assessed a
GAF score of 65 in May 2008, despite plaintiff’s diagnosis of ADHD. (Tr. 27, 266). The ALJ
noted that Ms. Burner found that plaintiff demonstrated psychomotor agitation, but she also
found that plaintiff had adequate attention and concentration overall. (Tr. 27, 265). The ALJ
next stated that treating psychologist Sharon West diagnosed plaintiff with ADHD, but assessed a
GAF score of 60 in June 2008. (Tr. 27, 172). The ALJ noted that state agency psychologist
Terry Dunn reviewed the record in June 2008, and concluded that plaintiff did not have a marked
or extreme limitation in this domain. (Tr. 27, 269). The ALJ stated that Dr. Portnoy performed
an evaluation in July 2008, in which he noted that plaintiff’s activity level was calm. (Tr. 27,
277). The ALJ noted that, although Dr. Portnoy indicated that plaintiff exhibited fast-paced
speech during a January 2009 evaluation, he also noted that plaintiff talked slower upon
redirection. (Tr. 27, 290). Finally, the ALJ pointed out that, in March 2009, Dr. Portnoy
reported that plaintiff had a favorable response to Adderall.9 (Tr. 27). The ALJ concluded that
the above-cited medical evidence was “more persuasive because it is from individuals with
credentials in the psychological realm.” (Id.).
Plaintiff contends that the ALJ erred in assigning more weight to the medical evidence,
and ignoring all the evidence favorable to plaintiff’s claim, including the school records, Dr.
Portnoy’s diagnoses, and the statements of plaintiff’s mother and grandmother.
In analyzing medical evidence, “[i]t is the ALJ’s function to resolve conflicts among ‘the
9

Adderall is indicated for the treatment of ADHD. See PDR at 3013.

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various treating and examining physicians.’” Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir.
2001) (quoting Bentley v. Shalala, 52 F.3d 784, 787 (8th Cir. 1995)). “Ordinarily, a treating
physician’s opinion should be given substantial weight.” Rhodes v. Apfel, 40 F. Supp.2d 1108,
1119 (E.D. Mo. 1999) (quoting Metz v. Halala, 49 F.3d 374, 377 (8th Cir. 1995)). Further, a
treating physician’s opinion will typically be given controlling weight when the opinion is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] record.” Prosch v. Apfel, 201 F.3d 1010,
1012-1013 (8th Cir. 2000) (quoting 20 C.F.R. § 404.1527 (d)(2) (bracketed material in original).
Such opinions, however, do “not automatically control, since the record must be evaluated as a
whole.” Id. at 1013 (quoting Bentley, 52 F.3d at 785-786). Opinions of treating physicians may
be discounted or disregarded where other “medical assessments ‘are supported by better or more
thorough medical evidence.’” Id. (quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997)).
“The opinion of a consulting physician who examines a claimant once or not at all does not
generally constitute substantial evidence.” Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).
In support of his decision that plaintiff had a less than marked limitation in the ability to
attend and complete tasks, the ALJ first cited the opinion of one-time consulting psychologist Ms.
Burner. (Tr. 27). Specifically, Ms. Burner found that plaintiff had adequate attention and
concentration overall during his examination. (Tr. 27, 265). Ms. Burner also noted, however,
that symptoms of ADHD were reported by plaintiff’s mother and the school. (Tr. 265). In
addition, Ms. Burner examined plaintiff in May 2008, approximately sixteen months prior to the
administrative hearing. As such, Ms. Burner did not have the benefit of subsequent medical

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evidence and school evidence, which revealed significant deficits in plaintiff’s attention and
concentration.
The ALJ also cited the opinion of state agency psychologist Dr. Dunn, who reviewed the
record in June 2008, and concluded that plaintiff did not have a marked or extreme limitation in
this domain. (Tr. 27, 269). Dr. Dunn did not examine plaintiff. Further, similar to Ms. Burner,
Dr. Dunn’s review of the record occurred approximately fifteen months prior to the hearing and
did not include a significant amount of relevant evidence. As such, this opinion was entitled to
little weight.
The ALJ next pointed to evidence from plaintiff’s treating psychologist, Dr. West. (Tr.
27). Specifically, the ALJ noted that in June 2008, Dr. West diagnosed plaintiff with ADHD, but
also assessed a GAF score of 60, which was indicative of only moderate impairment. (Tr. 27,
172). First, the Commissioner has declined to endorse the GAF scale for “use in the Social
Security and SSI disability programs.” 65 Fed.Reg. 50764-65, 2000 WL 1173632 (Aug. 21,
2000). See Jones v. Astrue, 619 F.3d 963, 973-74 (8th Cir. 2010). “An ALJ may afford greater
weight to medical evidence and testimony than to GAF scores when the evidence requires it.”
Jones, 619 F.3d at 974. Although Dr. West assessed a GAF score of 60 on June 2008, Dr. West
also noted that plaintiff had “extremely poor impulse control;” did “whatever pops into his head;”
was struggling academically; was difficult to engage during the examination; evidenced poor eye
contact; reported suicidal ideation; had a history of difficulty focusing, staying on task, and
following directions; and was easily distracted and frustrated. (Tr. 171-72). Further, on April 22,
2009, Dr. West found that plaintiff continued to have “extremely poor impulse control.” (Tr.

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312). Dr. West noted that plaintiff had recently been suspended from school for being disruptive
and would not be redirected. (Id.). In sum, although Dr. West assessed a GAF score of 60 in
June 2008, her treatment notes reveal that plaintiff experienced significant limitations in his ability
to attend and complete tasks.
The ALJ also cited evidence from plaintiff’s treating neurologist, Dr. Portnoy. The ALJ
noted that Dr. Portnoy found that plaintiff’s activity level was calm in July 2008, and that plaintiff
talked slower upon redirection in January 2009. (Tr. 27, 27, 290).
Dr. Portnoy also indicated that plaintiff’s grandmother reported the following symptoms at
plaintiff’s June 2008 visit: plaintiff was fidgety, unable to sit still, daydreams too much, is easily
distracted, has trouble concentrating, fidgets/squirms, talks too much, blurts out answers,
interrupts/intrudes others’ conversations, is impatient, feels sad, worries a lot, is preoccupied with
memories about his father, fights with other children, is noncompliant with rules, teases others,
blames others for his troubles, refuses to share, is aggressive, is verbally hostile, voices homicidal
threats, and has tantrums several times a day. (Tr. 173). Further, in January 2009, Dr. Portnoy
noted that plaintiff exhibited ongoing behavioral concerns, including engaging in fights on the bus,
and was suspended from school. (Tr. 289). Plaintiff answered questions nodding or shaking his
head, or in brief, primitive sentences. (Tr. 290). The ALJ did not discuss this evidence.
The ALJ also stated that Dr. Portnoy reported that plaintiff had a favorable response to
Adderall in March 2009. (Tr. 27). The treatment note to which the ALJ refers, however, does
not relate to plaintiff. This treatment note pertains to “Byron, a 6 YO boy,” and was mistakenly
included in plaintiff’s records (Tr. 298). With regard to plaintiff, in March 2009, Dr. Portnoy

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found “no substantial improvement,” according to plaintiff’s parent and teacher reports. (Tr.
299). Dr. Portnoy noted that in-school suspensions had been imposed repeatedly and plaintiff’s
learning difficulties persisted. (Id.). As such, the ALJ’s determination is not supported by Dr.
Portnoy’s treatment notes.
The ALJ’s determination is also not supported by the testimony of plaintiff’s mother,
plaintiff’s school records, or the remainder of the record. The ALJ acknowledged that plaintiff’s
teacher, Mr. Ellis, indicated that plaintiff had a short attention span, is easily distracted, is
reluctant to begin tasks, and does not complete tasks, needs to have directions repeated, works
slowly, has difficulty working independently, and performs work in a careless manner. (Tr. 27,
217). The ALJ also noted that plaintiff’s mother testified that plaintiff was “way out of focus,”
and that he did not remain in his seat at school. (Tr. 27, 52). In addition, plaintiff underwent
ADHD testing in April 2008, which rated plaintiff’s level of inattention at nine out of nine, and his
level of hyperactivity at eight out of nine. (Tr. 273). Testing performed in October 2008 based
on plaintiff’s teachers’ responses indicated significant inattentiveness and hyperactivity. (Tr. 17576). Further, the assessment conducted by Saint Louis Public Schools in May 2009 revealed
plaintiff was functioning at the kindergarten and first grade level. (Tr. 220). Finally, in August
2009, plaintiff’s school counselor stated that plaintiff “needs to be redirected by staff to remain
quiet and focus. He is easily distracted by the movement of others.” (Tr. 226). Despite the
evidence cited above, the ALJ concluded that the medical evidence was more persuasive because
it was from individuals with psychological credentials. (Tr. 27).
The Commissioner’s regulations for childhood disabilities provide that parents and

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teachers, as well as medical providers, are important sources of information. 20 C.F.R.
§ 416.924a; Richardson ex rel. Richardson v. Massanari, No. C00-2083 MJM, 2001 WL
34152093, *10 (N.D. Iowa Sept. 27, 2001) (stating that under the Commissioner’s regulations,
“the observations and opinions of a child’s teachers are particularly informative at [the functional
equivalence] step due to the teachers’ regular, ongoing interaction with, and observation of, the
child over a sustained period of time”).
The undersigned finds that the ALJ’s determination that plaintiff had a less than marked
limitation in the domain of attending to and completing tasks is not supported by substantial
evidence. The ALJ acknowledged that plaintiff’s mother’s testimony and plaintiff’s school
records revealed significant limitations in plaintiff’s ability to attend and complete tasks due to his
ADHD, yet the ALJ found that the medical evidence was more persuasive. The only medical
evidence supporting the ALJ’s decision, however, are the opinions of the two consultative
psychologists. Both of these consultative psychologists provided their opinions more than a year
prior to the hearing and did not have the benefit of the majority of the records in this case. The
treatment notes of plaintiff’s treating psychologist and treating neurologist reveal plaintiff
exhibited significant symptoms of inattention and inability to focus. In addition, the ALJ
mistakenly considered treatment notes that did not pertain to plaintiff in analyzing Dr. Portnoy’s
records. As such, the ALJ’s conclusion is not supported by substantial evidence.
2.

Interacting and Relating With Others
The ALJ found that plaintiff’s ability to interact and relate with others has not been

markedly or extremely limited. (Tr. 27). The ALJ noted that plaintiff was suspended for brief

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periods of misbehavior five times during the 2008-09 school year. (Id.). The ALJ, however,
pointed out that the consultative psychologist found that plaintiff’s social judgment was in the
average range, and that plaintiff’s mother informed the psychologist that plaintiff had appropriate
peer relationships. (Tr. 27-28). The ALJ noted that Dr. Dunn concluded that plaintiff did not
have any limitation in this domain. (Tr. 28). Finally, the ALJ stated that Mr. Ellis considered
plaintiff respectful and very personable. (Id.).
This domain considers how well the child initiates and sustains emotional connections with
others, develops and uses the language of her community, cooperates with others, complies with
rules, responds to criticism, and respects and takes care of the possessions of others. See 20
C.F.R. § 416.926a(I) (2006).
The undersigned finds that the ALJ’s determination that plaintiff’s ability to interact and
relate with others has not been markedly or extremely limited is supported by substantial
evidence. As the ALJ noted, plaintiff’s mother reported to consultative psychologist Ms. Burner
that plaintiff had appropriate peer relationships and friends at school. (Tr. 266). Mr. Ellis
described plaintiff as a “very personable young man,” who was not disrespectful. (Tr. 225). In
addition, plaintiff testified at the hearing that he had many friends in his neighborhood and in his
class. (Tr. 39, 41). Plaintiff’s mother also testified at the hearing that plaintiff had friends in the
community, and that plaintiff got along really well with his siblings. (Tr. 50-51).
As the ALJ pointed out, plaintiff was suspended five times during the 2008-09 school for
misbehavior, sometimes involving physical encounters with other students. Although this
evidence would support the opposite conclusion, substantial evidence supports the ALJ’s

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decision. As such, the ALJ’s decision is not subject to reversal on this basis. See Krogmeier v.
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (internal citations omitted) (“As long as substantial
evidence in the record supports the Commissioner’s decision, we may not reverse it because
substantial evidence exists in the record that would have supported a contrary outcome.”).
II.

Listing 112.11
Plaintiff also argues that the ALJ erred in failing to articulate a sufficient rationale for the

conclusion that plaintiff’s condition did not meet or equal a listing.
The burden of proof is on the plaintiff to establish that his or her impairment meets or
equals a listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). To meet a listing, an
impairment must meet all of the listing’s specified criteria. Id. An impairment that manifests only
some of these criteria, no matter how severely, does not qualify. Id. (quoting Sullivan v. Zebley,
493 U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990)). Although it is preferable that
ALJs address a specific listing, failure to do so is not reversible error if the record supports the
overall conclusion. Pepper ex rel Gardner v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003).
The ALJ found that plaintiff’s condition did not meet or equal listing 112.11, the listing for
ADHD, because “the medical record does not show satisfaction of the ‘B’ criteria.” (Tr. 26).
The ALJ provided no further discussion of listing 112.11.
Listing 112.11 sets out the following:
Attention Deficit Hyperactivity Disorder: Manifested by developmentally
inappropriate degrees of inattention, impulsiveness, and hyperactivity.
The required level of severity for these disorders is met when the requirements in
both A and B are satisfied.

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A. Medically documented findings of all three of the following:
1. Marked inattention; and
2. Marked impulsiveness; and
3. Marked hyperactvity;
And
B. For...children (age 3 to attainment of age 18), resulting in at least two of the
appropriate age-group criteria in paragraph B2 of 112.02.
The “B” criteria referenced in 112.02 provide as follows:
For children (age 3 to attainment of age 18), resulting in at least two of the
following:
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
b. Marked impairment in age-appropriate social functioning, documented by
history and medical findings...; or
c. Marked impairment in age-appropriate personal functioning, documented by
history and medical findings...; or
d. Marked difficulties in maintaining concentration, persistence, or pace.
20 C.F.R. pt. 404, subpt. P, App. 1.
As previously discussed, the ALJ found that plaintiff’s ability to acquire and use
information has been markedly limited. (Tr. 27). This finding is supported by the overwhelming
evidence in the record, specifically plaintiff’s school records. As such, plaintiff appears to meet
the first criterion, “Marked impairment in age-appropriate cognitive/communicative function.”
Plaintiff argues that he also meets the last criterion, “Marked difficulties in maintaining
concentration, persistence, or pace.” The court has found that the ALJ’s determination that
plaintiff had less than marked limitations in the domain of attending to and completing tasks was
not supported by substantial evidence. The same evidence discussed with regard to this domain

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would also tend to support a finding with regard to the last criterion of the listing. The ALJ,
however, provided no discussion of the “B” criteria. As such, the ALJ’s conclusory finding that
plaintiff’s condition did not meet or equal Listing 112.11 because the “B” criteria are not satisfied
is also not supported by substantial evidence.

Conclusion
In sum, the ALJ erred in failing to articulate a sufficient rationale for his finding that plaintiff’s
condition did not meet or equal Listing 112.11. The ALJ also erred in determining that plaintiff’s
condition did not functionally equal a listing because his finding that plaintiff’s ability to attend to and
complete tasks has not been markedly or extremely limited is not supported by substantial evidence.
For these reasons, this cause will be reversed and remanded to the ALJ for further development in
order for the ALJ to properly determine whether plaintiff’s condition meets or equals Listing 112.11;
and whether plaintiff has a marked or extreme limitation in the domain of attending and completing
tasks. Accordingly, a Judgment of Reversal and Remand will be entered separately in favor of
plaintiff in accordance with this Memorandum.

Dated this 22nd day of March, 2012.

LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE

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