King v. Astrue

Filing 26

MEMORANDUM OPINION: IT IS HEREBY ORDERED ADJUDGED AND DECREED that the decision of the Commissioner of Social Security is AFFIRMED.. Signed by Magistrate Judge Shirley P. Mensah on 3/1/2013. (RAK)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
VINITA KING, o/b/o W.G.
Plaintiff,
v.

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 4:11-CV-1923-SPM

MEMORANDUM OPINION
This is an action under 42 U.S.C. § 405(g) for judicial review of the final decision
of Defendant Michael J. Astrue, the Commissioner of Social Security, denying the
application of Plaintiff for Child’s Supplemental Social Security Income (“SSI”) under
Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq.

The parties have

consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c). (Doc. 25). For the reasons stated below, the Court affirms the
Commissioner’s denial of Plaintiff’s application.
I.

PROCEDURAL HISTORY

On August 10, 2007, Plaintiff (then six years old), through his mother, filed an
application for SSI. (Tr. 214-17). His application was initially denied. (Tr. 106-11). On
August 29, 2008, following a hearing, an administrative law judge (ALJ) found Plaintiff
not disabled. (Tr. 81-94). On April 13, 2010, the Appeals Council of the Social Security
Administration reversed the ALJ’s decision and remanded the case to the ALJ for

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consideration of new evidence relevant to Plaintiff’s intellectual functioning, for further
acquisition of evidence related to Plaintiff’s mental impairments, and for (if necessary)
evidence from a medical expert. (Tr. 97-99). On November 17, 2010, following a
supplemental hearing, the ALJ issued another decision finding Plaintiff not disabled. (Tr.
10-19). On October 4, 2011, the Appeals Council denied Plaintiff’s request for review.
(Tr. 1-4). Thus, the November 2010 decision of the ALJ stands as the final decision of
the Commissioner.
In appealing the Commissioner’s decision, Plaintiff challenges the ALJ’s finding
that Plaintiff did not have a “marked” limitation in the ability to attend to and complete
tasks.
II.

GENERAL LEGAL PRINCIPLES

A child under the age of eighteen 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 can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. S 1382c(a)(3)(C)(i). To determine whether a child is disabled, the ALJ employs a
three-step process. At the first step, the ALJ determines whether the child is engaged in
“substantial gainful activity.” 20 C.F.R. § 416.924(a), (b). If so, the child is not disabled;
if not, the ALJ proceeds to the next step. Id. At the second step, the ALJ determines
whether the child has a medically determinable impairment that is severe. 20 C.F.R. §
416.924(c).

If the child’s impairment is not medically determinable or is a slight

abnormality that causes minimal limitations, the ALJ will find the child does not have a
severe impairment and is not disabled. 20 C.F.R. § 416.924(c). If the impairment is

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severe, the ALJ proceeds to the third step. At the third step, the ALJ determines whether
the child’s impairment meets, medically equals, or functionally equals the severity of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

If the child’s

impairment meets, medically equals, or functionally equals a listed impairment, the child
is disabled under the Act. 20 C.F.R. § 416.924. See also Scott ex rel. Scott v. Astrue, 529
F.3d 818, 821 (8th Cir. 2004) (describing the three-step process).
In determining whether a child’s impairment is functionally equivalent to a listed
impairment, the ALJ considers the claimant’s functioning in six domains: (1) acquiring
and using information, (2) attending and completing tasks, (3) interacting and relating
with others), (3) moving about and manipulating objects, (4) caring for oneself, and (5)
health and physical well-being. 20 C.F.R. § 416.926a(b)(1).

“An impairment is

functionally equivalent to a listed impairment when the impairment results in an
‘extreme’ limitation in one domain of functioning or a ‘marked’ limitation in two
domains of functioning.” England v. Astrue, 490 F.3d 1017, 1020 (8th Cir. 2007) (citing
20 C.F.R. § 416.926a(a)). “A marked limitation in a domain is a limitation that seriously
interferes with a child’s ability to ‘independently initiate, sustain, or complete activities.’”
Id. (quoting § 416.926a(c)(2)(i)). A marked limitation is “‘more than moderate’ but ‘less
than extreme.’” Id. (quoting 20 C.F.R. § 416.926a(e)(2)(i)). An extreme limitation is
one that “interferes very seriously with [a child’s] ability to independently initiate,
sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(1).
In reviewing a decision to deny benefits, the Court’s role is to determine whether
the Commissioner’s decision is supported by substantial evidence. Scott, 529 F.3d at
821; England, 490 F.3d at 1019. “‘Substantial evidence is less than a preponderance, but

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is enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.’” England, 490 F.3d at 1019 (quoting Stormo v. Barnhart, 377 F.3d 801, 805
(8th Cir. 2004)).

The Court must consider “both evidence that detracts from and

evidence that supports the Commissioner’s decision.”

Id. (internal quotation marks

omitted). “If substantial evidence supports the decision, [the Court] will not reverse,
even if substantial evidence could have been marshaled in support of a different
outcome.” Id.
III.
A.

FACTUAL BACKGROUND

TESTIMONY OF PLAINTIFF’S MOTHER

Plaintiff was born on February 10, 2001. (Tr. 214). He was six years old at the
time he applied for benefits, seven years old at the time of the first hearing before the
ALJ, and nine years old at the time of the second hearing before the ALJ. (Tr. 22, 57,
214).
At the first hearing before the ALJ, on July 3, 2008, Plaintiff’s mother, Vinita
King, testified to the following.

Plaintiff was repeating the first grade because of

problems learning to read and write. (Tr. 60, 64). He had one-on-one teachers in school
to help him, along with an occupational therapist. (Tr. 61). He could not remember from
one hour to the next what he had been told, and he had trouble following instructions.
(Tr. 64-65). He did some chores and brushed his teeth, but his mother had to get him
dressed and make him take a bath. (Tr. 68).
At the second hearing before the ALJ, on August 5, 2010, Plaintiff’s mother
testified to the following. Plaintiff was going into third grade. (Tr. 24). He was in
regular school, not special classes, but he received one-on-one help. (Tr. 38). In the

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previous school year, he had had problems trying to read small words. (Tr. 25). His
teachers had told her that he had problems with reading, math, and following directions.
(Tr. 26-27). He could not read headlines in a newspaper or tell the difference between a
“tomato” and “potato” on a can of soup. (Tr. 27-28). He could add and subtract singledigit numbers a little but could not do multiplication and does not know how many
quarters or dimes make up a dollar. (Tr. 28-29). He could write his name but not his
phone number, his address, or a whole sentence. (Tr. 29-30). He had trouble explaining
things and figuring out which word to use. (Tr. 31).
Plaintiff had friends at school and got along pretty well there. (Tr. 32). He
needed help buttoning his shirt, tying his shoes, and getting his pants on correctly. (Tr.
33). He knew to look both ways before he crosses the street, knew not to get in a car with
strangers, and knew not to play with fire. (Tr. 35-36). Until shortly before the hearing,
he had not been holding a pencil correctly, but he had been working with an occupational
therapist once a week, and his handwriting had gotten more legible. (Tr. 34-35).
Plaintiff’s mother testified that at home, Plaintiff watched age-appropriate
television. He did not express any interest in other activities. (Tr. 36).
B.

MEDICAL, EDUCATIONAL, AND OPINION EVIDENCE1
1.

SPECIAL SCHOOL DISTRICT EVALUATION – MAY 8, 2007

On May 8, 2007, when Plaintiff was six years old and in kindergarten, Special
School District completed a diagnostic report with respect to Plaintiff. (Tr. 249-56). It
was noted that the school had significant educational concerns in the areas of cognition

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The following is not intended to be an exhaustive summary of all of the evidence the
Court has reviewed; instead, it focuses on the records most relevant to the issues
presented on appeal and those emphasized by the parties.
5

and language. It was also noted that “[t]he school did not document significant concerns
in the areas of . . . adaptive behavior, task related behaviors, speech, or social-emotional
behavior.” Plaintiff’s mother reported to the school that the following behaviors were of
occasional concern: care for personal needs without reminders, performing chores and
running errands, fulfilling responsibilities without reminders, having adequate memory
and concentration skills, expressing ideas clearly, admitting when he had done something
wrong, responding to discipline, knowing right from wrong, managing money properly,
completing homework with minimal help in a reasonable amount of time, showing signs
of frustration working on homework, and having fears or problems sleeping or
nightmares. (Tr. 250). The report indicated that Plaintiff was functioning in the lower
third of his class in all areas.

He had specific difficulties understanding concepts,

understanding words, using complete sentences, sequencing events when talking,
defining words verbally, drawing conclusions, and communicating in social situations.
(Tr. 251).
On a Weschler Preschool and Primary Scale of Intelligence test, Plaintiff had a
full-scale IQ of 78, placing him in the borderline range and in the seventh percentile. (Tr.
252, 254). His weakest area was processing speed, indicating that he has difficulty with
tasks that require working memory and reasoning ability. (Tr. 254). Plaintiff showed
age-appropriate skills in use of grammatical and morphological structures, sentence
length and form, and vocabulary.

Concerns included poor topic maintenance and

inappropriate and/or excessive responses. (Tr. 255).
Overall, Plaintiff’s scores revealed skills consistent with overall cognitive
functioning, with some areas of weakness. It was noted that his language functioning

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may impact his educational performance in identifying labels, attributes, and functions;
stating functions and definitions; responding to questions; telling/retelling stories; and
turn-taking with peers. (Tr. 255).
Informal observations showed that Plaintiff struggled with alphabet recognition,
writing, number recognition, language skills, understanding concepts, understanding
words, using complete sentences, and communicating in social situations. However, he
had made progress and was trying hard. (Tr. 255).
Plaintiff was found to be ineligible for special education services. (Tr. 256).
2.

TEACHER QUESTIONNAIRE (FIRST GRADE TEACHER) – NOVEMBER
12, 2007

On November 12, 2007, Plaintiff’s first-grade teacher filled out a questionnaire
indicating that Plaintiff had very serious problems in all areas of acquiring and using
information. (Tr. 265). She also stated that Plaintiff had serious or very serious problems
in several areas related to attending and completing tasks, specifically paying attention
when spoken to directly, carrying out single- or multi-step instructions, completing class
and homework assignments, and completing work without careless mistakes. She stated
that he needed much teacher and/or peer assistance, had difficulty following oral
directions, and was unable to read written directions. (Tr. 266). She also indicated
numerous very serious problems with language use in interactions with others. (Tr. 267).
3.

EVALUATION OF KYLE DEVORE, PH.D. – NOVEMBER 27, 2007

On November 27, 2007, Kyle DeVore, Ph.D., filled out a Childhood Disability
Evaluation Form indicating that Plaintiff had an impairment or combination of
impairments that was severe, but did not meet, medically, equal, or functionally equal,
the listings. (Tr. 562). He found marked limitations in acquiring and using information,
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noting that Plaintiff had borderline IQ scores. He found less than marked limitations in
attending and completing tasks, noting that Plaintiff had difficulty following verbal
instructions and read very little but was methodical in his approach to problem solving
and task completion. He found less than marked limitations in Plaintiff’s ability to
interact and relate with others and no limitations in moving about and manipulating
objects or in Plaintiff’s ability to care for himself. (Tr. 564).
4.

SPECIAL SCHOOL DISTRICT EVALUATION – JANUARY 18, 2008

On January 18, 2008, Special School District completed another diagnostic report.
(Tr. 618-31). It was noted that Plaintiff’s school had concerns in the areas of cognition
and academics (reading, math, and written expression). It was noted that “[t]he school
did not document significant concerns in the areas of . . . . adaptive behavior, task related
behaviors, speech, or social-emotional behavior.” (Tr. 619). Plaintiff’s mother reported
significant concerns with memory and concentration skills and completing homework
within a reasonable time, and occasional concerns with performing chores, fulfilling
responsibilities without reminders, and completing homework with minimal help. It was
noted that Plaintiff’s teacher reported that Plaintiff was functioning in the lower third of
his class in all academic areas, that he required continuous intervention to function in the
classroom setting, that the curriculum and instruction were modified to meet his
individual needs, and that Plaintiff was unable to retain information on an hour-to-hour or
day-to-day basis. It was noted that interventions attempted included Oasis tutors in
kindergarten and first grade, occupational therapy twice a week for one hour, one-on-one
work with a teacher for 45 minutes daily, peer models, small group and one-on-one

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reading with reading specialists, computer assisted technology for letter/word
identification, and modification of academics to his skill level. (Tr. 620).
On the Kaufman Assessment Battery for Children – Second edition (KABC-II),
Plaintiff’s score was in the below average range of cognitive ability (a score of 77, sixth
percentile). (Tr. 623). On a Kaufman Test of Educational Achievement, Second Edition
(KTEA-II), his overall academic skills were in the below average range (seventh
percentile). (Tr. 624). Multiple individuals indicated that Plaintiff tried very hard and
was eager to learn. (Tr. 624-25). Plaintiff was found ineligible for special education
services. (Tr. 627).
5.

CARE TEAM REPORT – MARCH 31, 2008

On March 31, 2008, a Care Team report noted that Plaintiff had made steady but
slow progress in kindergarten, with many interventions in place. (Tr. 390). It was noted
that Plaintiff was “on task, attentive and asks for help when needed” in the classroom,
that he was polite and followed school norms, and that he always tried his best.
However, it was noted that he was experiencing difficulty in most areas of the first-grade
curriculum; that he struggled to understand and use language concepts; that he does not
use or understand age appropriate vocabulary; that he has difficulty understanding
directions; and that he was often delayed in his ability to answer a question. The teacher
noted that Plaintiff often looked confused or lost when directions were given, and that
was also true in the physical education setting. The teacher noted considerable concern
in the area of reading, noting that Plaintiff did not know how to write letters
independently, confused letters and numbers, did not know what sounds letters make, and
struggled with math concepts such as counting and identifying numbers. In an update, it

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was noted that Plaintiff was making very slow progress and was able to identify most
letters but did not have phonemic awareness. It was noted that during the day, he spent
part of the time in a kindergarten class and part of the day working with individuals on
reading and basic math. He started the day with his first grade class but then attended a
kindergarten class for part of the day. (Tr. 391). The team recommended that Plaintiff
possibly be retained for a second first-grade year. Interventions at that point included
attending a kindergarten for part of the morning, one-on-one work with his teacher, oneon-one work with a teaching assistant, one-on-one work with a reading assistant, an Oasis
tutor in kindergarten, peer modeling, directions given a variety of ways, small group
reading with reading specialists, occupational therapy outside of school, additional oneon-one work with fine motor and letter identification, computer-assisted technology
being used for letter and word identifications, and a referral to Special School District for
an academic evaluation. (Tr. 392).
6.

TESTIMONY OF LICENSED PSYCHOLOGIST KAREN PERRY – JULY 3,
2008

On July 3, 2008, Licensed Psychologist Karen Perry testified as a medical expert
at the first hearing before the ALJ. (Tr. 69-76, 130). She had reviewed Plaintiff’s
medical evidence but had not examined him. (Tr. 70). She rated Plaintiff as having
marked limitations in acquiring and using information, less than marked limitations in
attending and completing tasks, less than marked limitations in interacting and relating
with others, no limitations in moving and manipulating objects, no limitations with regard
to care for self, and no limitations with regard to physical well-being. (Tr. 71, 74, 91).
On examination by Plaintiff’s attorney, she testified that she had considered the teacher
questionnaire indicating that Plaintiff required one-on-one assistance and stated that it
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indicated that he needs more assistance than other kids his age; however, she testified that
she considered the other evidence in the record as well, including the Care Team report
describing one of Plaintiff’s strengths as the fact that he was on task and asked for help
when needed. (Tr. 72-75). She also testified that consideration of the interventions
described in the Care Team report did not change any of her answers to any of the
domains. (Tr. 74).
7.

TEACHER QUESTIONNAIRE
UNDATED2

(SECOND

GRADE

TEACHER)

–

An undated questionnaire was completed by Plaintiff’s second-grade teacher,
Kimberly Howard. (Tr. 494-501). She indicated that Plaintiff was functioning a grade
level below normal. (Tr. 494). In the area of acquiring and using information, the
teacher indicated very serious problems in reading and comprehending written material
and recalling and applying previously learned material, and serious problems in
understanding vocabulary, comprehending and doing math problems, providing
organized oral explanations and adequate descriptions, expressing ideas in written form,
and applying problem-solving in class discussions. She stated that Plaintiff struggled to
complete written assignments without assistance from the teacher and that even with
extra support for his reading skills, he had difficulty retaining instructional strategies.
(Tr. 495).
Ms. Howard found that Plaintiff had no limitations in attending and completing
tasks, interacting with others, caring for himself, or physical well-being. (Tr. 496-500).

It is unclear when this report was completed. However, it appears to have been printed
on January 21, 2010, so it must have been completed on or before that date. (Tr. 493501).
2

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8.

EVALUATION OF ROBERT COTTONE, PH.D. – FEBRUARY 10, 2010

On February 10, 2010, Robert Cottone, Ph.D., filled out a Childhood Disability
Evaluation form for Plaintiff. (Tr. 658). He found less than marked limitations in
acquiring and using information and no limitations in attending and completing tasks,
interacting and relating with others, moving about and manipulating objects, caring for
yourself, and health and physical well-being.

(Tr. 660).

He found that Plaintiff’s

impairments were severe but did not meet or equal a listing. (Tr. 658). His report
indicates that he considered Plaintiff’s prior testing results, the Special School District
evaluation from January 2008, one teacher questionnaire, and reports from Plaintiff’s
mother. (Tr. 663).
9.

TEACHER QUESTIONNAIRE (SECOND GRADE TEACHER) – JUNE 4,
2010

On June 4, 2010, Kimberly Howard completed another questionnaire. (Tr. 51318). It was noted that Plaintiff is in a regular classroom and received services from
reading specialists for three hours a week and services from math specialists for three
hours a week, in addition to services from three volunteer tutors (an Oasis tutor, a
community member, and a grandparent). (Tr. 512). Plaintiff’s teacher identified several
serious problems related to acquiring and using information. (Tr. 513). With respect to
attending and completing tasks, she indicated that Plaintiff had serious or very serious
problems in maintaining pace, completing tasks on time, working independently, and
carrying out detailed instructions. She noted that Plaintiff has difficulty understanding
and retaining information. (Tr. 517).

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10.

CONSULTATIVE EXAMINATION
27, 2010

OF

PAUL REXROAT, PH.D. – JULY

On July 27, 2010, Paul Rexroat, Ph.D., examined Plaintiff and completed a
psychological evaluation report. (Tr. 686-97). Dr. Rexroat noted that Plaintiff’s speech
was easily understood, that his fine and gross motor skills were age-appropriate, that
rapport was easily established, and that Plaintiff had good social skills and excellent
verbal skills. Dr. Rexroat stated that Plaintiff exhibited good understanding of directions,
had a good attitude toward testing, had a methodical and orderly approach to test items,
put forth a lot of effort, “exhibited good ability to attend to and concentrate on tasks,” and
recognized errors and reacted realistically. (Tr. 686). He administered a Weschler
Intelligence Scale for Children – 4 and found a full-scale IQ of 76, which is in the
borderline range of intelligence and placed Plaintiff in the fifth percentile. (Tr. 687). Dr.
Rexroat diagnosed borderline intelligence. (Tr. 693). Dr. Rexroat completed a Medical
Source Statement indicating that Plaintiff had a good or very good ability to interact with
others, follow directions, and communicate. He stated that Plaintiff had a fair ability to
use judgment; maintain attention/concentration; and maintain concentration, persistence,
or pace. He also found good social skills and very good motor skills. (Tr. 696). On the
form he filled out, “fair” was defined as “ability to function in this area is seriously
limited, but not precluded.”

(Tr. 695).

Dr. Rexroat assigned Plaintiff a Global

Assessment of Functioning (GAF) Score of 55.3 (Tr. 694).

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”; it 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). A GAF of 51-60 indicates
“[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
33

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11.

TESTIMONY
2010

OF

PSYCHOLOGIST JAMES LANE, PH.D. – AUGUST 5,

On August 5, 2010, James Lane, Ph.D., a psychologist, testified as a medical
expert before the ALJ. (Tr. 40-53). He had reviewed Plaintiff’s medical evidence but
had not examined him. (Tr. 43). He opined that Plaintiff’s learning disability was severe
but did not meet or equal the criteria of a listed impairment. (Tr. 46-47). He found that
Plaintiff had a marked impairment in acquiring and using information, basing that
assessment on Plaintiff’s borderline IQ scores, achievement scores, and teacher reports.
(Tr. 47). He rated Plaintiff as less than marked in attending and completing tasks, in
attention and concentration, and in interacting with others. (Tr. 47-48). Dr. Lane found
no limitations on moving and manipulating objects, ability to care for oneself, or physical
health and well-being.

(Tr. 48).

Dr. Lane indicated that he had considered the

interventions Plaintiff had received. (Tr. 49-50). On examination by Plaintiff’s attorney,
he indicated that if he had reviewed the November 2007 teacher questionnaire or the June
2010 teacher questionnaire in isolation, he would have found marked limitations in the
areas of attention and concentration. (Tr. 51-53). However, he stated that what stood out
throughout the record as a whole were problems with words, reading, and writing,
whereas concentration was “not as heard about.” He stated that if he were to view a
person as markedly impaired, the impairment would be a phenomenon that stood out
throughout the record. (Tr. 51).

attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers).” DSM-IV 32.

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12.

INTERROGATORY RESPONSE OF JAMES LANE, PH.D. – SEPTEMBER
30, 2010

On September 30, 2010, Dr. Lane returned an interrogatory response indicating
that he had reviewed additional school and medical records from 2007 through 2010.
(Tr. 719-20). He changed his diagnosis to borderline intellectual functioning, severe.
However, his conclusion that Plaintiff’s impairments did not meet or equal a listing was
unchanged.

He noted that Plaintiff had marked limitations in acquiring and using

information but less than marked limitations in attending and completing tasks and in
health and physical well being, and no limitations in other areas. (Tr. 719).
13.

SPECIAL SCHOOL DISTRICT EVALUATION – FEBRUARY 23, 2011

On February 23, 2011, Special School District completed an evaluation report
with respect to Plaintiff. (Tr. 546-60). The school had requested an evaluation because
of significant educational concerns in the areas of cognition, reading, math, written
expression, and social-emotional behaviors. It was noted that Plaintiff was reading at a
first grade level and that there had been little progress despite ongoing, intense reading
intervention. (Tr. 547). Plaintiff’s composite IQ score of 84 placed him in the fourteenth
percentile. With respect to his cognitive assessment, it was noted that he “attended to
tasks and materials appropriately for his chronological age,” “required little to no
encouragement to perform the variety of tasks,” and “demonstrated adequate endurance
to complete all tasks as presented.” (Tr. 549). With respect to his behavior assessment, it
was noted that Plaintiff’s teachers reported at-risk to clinically significant concerns in the
area of attention problems (the tendency to be easily distracted or unable to concentrate
more than momentarily) and that Plaintiff’s mother reported at-risk concerns in terms of

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Plaintiff’s distractibility and ability to concentrate. (Tr. 552). The assessment revealed a
specific learning disability that indicated the need for special education. (Tr. 555).
IV.

DECISION OF THE ALJ

On November 17, 2010, the ALJ issued a written decision. (Tr. 13-19). He found
that Plaintiff had not engaged in substantial gainful activity since birth. He found that
Plaintiff had the following medically established impairments: borderline intellectual
functioning with reading and general learning disorders. He found that Plaintiff had a
marked, but not extreme, limitation in acquiring and using information. He found that
Plaintiff had less than marked limitations in attending to and completing tasks and health
and physical well-being. He found no medically established limitations in any other
domains of functioning. He found that Plaintiff had no medical impairment that met or
medically equaled the criteria of any listed impairment. He found that Plaintiff had no
medically determinable physical or mental impairment, or combination of impairments,
that resulted in marked and severe functional limitations. He concluded that Plaintiff had
not been under a disability as defined in the Act at any time through the date of his
decision. (Tr. 18). Thus, he found Plaintiff ineligible for SSI. (Tr. 19).
V.

DISCUSSION

In appealing the ALJ’s decision, Plaintiff argues that the ALJ’s finding that
Plaintiff did not have a “marked” limitation in the “attending to and completing tasks”
domain was not supported by substantial evidence.
“When considering the attending and completing tasks domain, the inquiry
focuses on how well the child is able to focus and maintain his or her attention and how
well the child begins, carries through, and finishes activities.” England v. Astrue, 490

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F.3d 1017, 1022 (8th Cir. 2007) (citing 20 C.F.R. § 416.926a(h)). A school-age child
should be able to focus his or her attention in a variety of situations in order to follow
directions, remember and organize school materials, and complete classroom and
homework assignments; to concentrate on details and not make careless mistakes beyond
what would be expected in other children of the same age; to be able to change activities
or routines without becoming distracted or distracting others; to stay on task and in place
when appropriate; to be able to sustain attention well enough to participate in group
sports, read alone, and complete family chores; and to be able to complete a transition
task (such as getting ready for a school bus or changing classrooms) without extra
reminders and accommodation. 20 C.F.R. § 926a(h)(2)(iv).
Plaintiff first argues that the ALJ’s analysis was not consistent with Social
Security Ruling 09-01p (SSR 09-01p). According to SSR 09-01p, the ALJ is to take a
“whole child” approach in determining the child’s limitations in each domain. Plaintiff
specifically notes that SSR 09-1p requires the ALJ to consider the help a child needs in
order to function. The more help or support of any kind that a child receives beyond
what would be expected for children the same age without impairments, the less
independent the child is in functioning, and the more severe the limitation. SSR 09-1p.
Plaintiff emphasizes that he required extensive help to function in the classroom, noting
that his teachers indicated that he needed significant one-on-one help and that he had a
reading specialist and a math specialist, three volunteer tutors from Oasis, a community
member, and a grandparent who came to the class to help him.
The Court first notes that the ALJ specifically discussed the “whole child”
approach in his decision and cited SSR 09-1p, indicating that he used it as a framework

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for his decisionmaking. In addition, in his decision (and in his earlier decision, which he
incorporated by reference into the second decision), the ALJ discussed the medical and
other evidence related to Plaintiff’s abilities, including evidence related to his ability to
attend to and complete tasks and his need for help in the classroom. (Tr. 16-18, 89-90).
The ALJ specifically discussed Plaintiff’s mother’s testimony regarding the
individualized help Plaintiff received at school; the statement of Plaintiff’s second grade
teacher that Plaintiff struggled to complete assignments without assistance and that he
had difficulty retaining material despite extra support; and the fact that Plaintiff received
special interventions for reading and math from three different volunteer tutors. (Tr. 1617). The ALJ noted, however, that Plaintiff was still in regular classes and was getting
“special” instruction only about six hours a week as of June 2010. (Tr. 17, 512). He also
considered the other evidence in the record, including the opinion of medical expert
James Lane, who found that although Plaintiff had a marked impairment in acquiring and
using information, he had less than marked limitations in his ability to attend and
concentrate. (Tr. 17, 47). The ALJ also considered the fact that Dr. Lane’s opinion was
consistent with the opinion of Dr. Perry, who had opined at the first hearing before the
ALJ that Plaintiff had less than marked limitations in attending to and completing tasks.
(Tr. 17, 71).
In support of his argument that he had marked limitations in the ability to attend
to and complete tasks, Plaintiff notes that medical expert Dr. Lane testified that if the
questionnaire completed by Plaintiff’s teacher second grade teacher on June 4, 2010 (Tr.
512-18) or the questionnaire completed by Plaintiff’s teacher on November 12, 2007 (Tr.
264-71) were viewed in isolation, they would indicate that Plaintiff’s ability to attend and

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concentrate were markedly impaired. (Pl’s. Br. at 20-21, Tr. 51-53). However, what a
record would indicate if viewed in isolation is of little relevance to the disability inquiry.
The disability determination requires consideration of “all relevant evidence,” not
consideration of specific pieces of evidence in isolation. See 20 C.F.R. § 416.924(a). Dr.
Lane specifically noted that a marked impairment would stand out throughout the record.
(Tr. 51). After reviewing the record as a whole, including but not limited to the teacher
questionnaires cited by Plaintiff, Dr. Lane found less than marked impairments in ability
to attend and concentrate.

(Tr. 44-48).

Importantly, Dr. Lane had considered the

evidence showing the interventions and assistance Plaintiff received. (Tr. 49-50).
The ALJ’s conclusion is also supported by a questionnaire completed by
Plaintiff’s second grade teacher in which the teacher stated that Plaintiff had no
limitations in attending to and completing tasks. (Tr. 496). In addition, in a March 2008
Care Team report, one of Plaintiff’s listed strengths was that he was on task and attentive.
(Tr. 391).
The ALJ’s decision is supported by several statements in Special School District
evaluations. Evaluations from 2007 and 2008 stated that although Plaintiff’s school had
significant educational concerns in the areas of cognition and language, “[t]he school did
not document significant concerns in the areas of . . . adaptive behavior, task related
behaviors, speech, or social-emotional behavior.”

(Tr. 250, 619).

Furthermore, an

evaluation from February 2011 noted that in a cognitive assessment, Plaintiff “attended to
tasks and materials appropriately for his chronological age,” “required little to no
encouragement to perform the variety of tasks,” and “demonstrated adequate endurance
to complete all tasks as presented.” (Tr. 549).

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The ALJ’s conclusion is further supported by the opinions of the other experts
who evaluated the evidence, none of whom found that Plaintiff had marked limitations in
the attending and completing tasks domain. Dr. Devore found that Plaintiff’s limitations
in attending and completing tasks were less than marked (Tr. 564), as did Dr. Cottone
(Tr. 660).
Plaintiff also argues that Dr. Rexroat’s MSS indicating that Plaintiff had a “fair”
(defined on the form as “seriously limited, but not precluded”) ability to use judgment;
maintain concentration/attention; and maintain concentration, persistence or pace,
demonstrates a marked level of impairment. However, in his psychological evaluation,
Dr. Rexroat also stated that Plaintiff “exhibited good ability to attend to and concentrate
on tasks,” that he “exhibited good understanding of directions,” and that “his general
approach to test items was methodical and orderly.” (Tr. 686). In addition, as the ALJ
noted, Dr. Rexroat found Plaintiff to have a GAF score of 55, which indicates moderate,
not marked, difficulty with social and school functioning. (Tr. 17, 694). Viewed as a
whole, Dr. Rexroat’s findings do not significantly undermine the ALJ’s conclusion that
Plaintiff had a less than marked limitation in attending to and completing tasks. (Tr. 686,
694).
Plaintiff also suggests that because Dr. Rexroat’s report notes concentration
problems and a need for extra help at school, his analysis is “synonymous” with the
requirements of SSR 09-4p (describing how to evaluate a child’s limitations in the
domain of attending and completing tasks). See Pl’s. Br. at 22. SSR 09-4p notes that in
the domain of attending and completing tasks, the ALJ considers how well a child is able
to focus and maintain attention; how well the child begins, carries through, and finishes

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activities or tasks; and the child’s level of alertness and ability to focus on an activity or
task despite distractions and to perform tasks at an appropriate pace. SSR 09-04p. SSR
09-04p also indicates some examples of limitations in this domain, including the need for
extra supervision to stay on task and the inability to plan, manage time, or organize self in
order to complete assignments or chores. Id. However, SSR 09-4p expressly states that
these examples “do not necessarily describe a ‘marked’ or an ‘extreme’ limitation.” Id.
To determine whether Plaintiff’s limitations were “marked,” the ALJ properly considered
the record as a whole, which (as discussed above) contained substantial evidence that
Plaintiff had less than marked limitations in the ability to concentrate and attend to tasks.
In addition, Dr. Rexroat found that Plaintiff exhibited “good ability to attend to and
concentrate on tasks,” a finding that is certainly not “synonymous” with a finding of
marked limitations in ability to concentrate or attend to tasks.
Finally, Plaintiff points to several pieces of evidence in the record supporting his
assertion that he has limitations in concentration and attending to tasks, including several
statements in his teachers’ questionnaires, statements in a Care Team report, and
statements in Special School District evaluations. See Pl’s Br. at 23-34. The Court has
reviewed this evidence and acknowledges that it provides some support for Plaintiff’s
argument that he has a marked ability to concentrate and attend to tasks. However, the
Court finds that when the record is viewed as a whole, substantial evidence in the record
as a whole supports the ALJ’s decision. The Court further finds that the ALJ’s decision
in consistent with the relevant Social Security Rulings and other legal requirements. The
Court may not reverse the decision of the ALJ merely because substantial evidence might
have supported a different conclusion. See Buckner v. Astrue, 646 F.3d 549, 556 (8th

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Cir. 2011) (“We will not disturb the denial of benefits so long as the ALJ’s decision falls
within the available zone of choice. An ALJ’s decision is not outside the zone of choice
simply because we might have reached a different conclusion had we been the initial
finder of fact.”).
VI.

CONCLUSION

For all of the foregoing reasons, the Court finds the ALJ’s decision is supported
by substantial evidence. Accordingly,
IT IS HEREBY ORDERED ADJUDGED AND DECREED that the decision
of the Commissioner of Social Security is AFFIRMED.

/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 1st day of March, 2013.

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