Taylor v. Astrue

Filing 26

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner denying Claimants application for SSI benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383 is AFFIRMED. IT IS FURTHER ORDERED that judgment is entered in favor of Defendant. [20, 25] Signed by District Judge John A. Ross on 7/19/13. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANIKA TAYLOR, on behalf of D.M.T.,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:12-CV-636 JAR

MEMORANDUM AND ORDER
Anika Taylor, the mother of Plaintiff D.M.T., brings this pro se action under Title
42 U.S.C. § 405(g) for judicial review of the Commissioner’s final decision denying her
son’s application for child’s supplemental security income (“SSI”) benefits under Title
XVI of the Social Security Act, 42 U.S.C. § 1381-1383. Taylor contends her son became
disabled on March 6, 2007, due to attention deficit hyperactivity disorder (ADHD).2 (Tr.
176) The Administrative Law Judge (“ALJ”) denied Plaintiff’s application, finding he
was not disabled under the Act. (Tr. 54, 70-73) After carefully reviewing the record, the
Court finds the ALJ’s decision is supported by substantial evidence on the record as a
whole, and the Commissioner’s decision is AFFIRMED.
I.

Procedural History

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin
is therefore substituted for Michael J. Astrue as the Defendant in this action.
Plaintiff’s application identified asthma as a secondary diagnosis (Tr. 54); however, no
allegations were made regarding asthma.
2

On November 16, 2009, Taylor applied for child’s SSI on her son’s behalf. (Tr.
135-41) The application was denied on March 3, 2010. (Tr. 54, 70-73) Taylor timely
filed a hearing request. (Tr. 74) A hearing was held on March 21, 2011. (Tr. 28-53) On
September 21, 2011, the ALJ issued a decision finding Plaintiff was not entitled to SSI
benefits. (Tr. 10-27) On March 22, 2012, the Appeals Council of the Social Security
Administration denied Plaintiff’s request for review. (Tr. 1-3) Thus, the ALJ’s decision
stands as the Commissioner’s final decision.
II.

Administrative Record

A. Hearing testimony
Taylor appeared and testified on behalf of Plaintiff at the March 21, 2011 hearing
without the assistance of counsel. (Tr. 28-53) At the time of the hearing, Plaintiff was
seven years old and in the first grade. (Tr. 33) Taylor testified she has three other
children, all boys, ages 22, 14 and 9 at the time of the hearing. (Tr. 37) She is disabled
and does not work outside the home. (Tr. 50) She is the only parent in the household and
her mother helps her care for the boys. (Tr. 48, 51) Taylor also testified that Plaintiff’s
father and grandfather have mental issues. (Tr. 49) Plaintiff’s father is diagnosed with
bipolar disorder, and his grandfather is a diagnosed schizophrenic. (Tr. 49-50)
Taylor testified Plaintiff is mentally disturbed. (Tr. 33) She noticed this when he
was almost three years old. (Id.) She removed him from daycare because of his temper
tantrums, violent behavior and speech problems. (Tr. 34-35) When Plaintiff entered
preschool, he was tested twice and qualified as a child with delays. (Tr. 35) According to
Taylor, Plaintiff received a lot of help. (Id.) He had an individualized education program
(“IEP”) and received in-class and resource room assistance. (Tr. 35-36, 39) Plaintiff’s

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most recent grades indicated he was not where he was supposed to be and had not
reached his goals. (Tr. 44)
Taylor stated her son stayed to himself at school and had no friends at home
because children were afraid of him. (Tr. 37, 46) According to Taylor, Plaintiff does not
get along with his brothers and fights constantly with his nine-year old brother. (Tr. 3738) Plaintiff received physical therapy in preschool for problems with his hands, that is,
fine motor skills. (Tr. 39) Currently, Plaintiff receives help through his IEP with his
writing skills, speech and math. (Id.) She has received a few calls from school about
Plaintiff not paying attention in class and acting out in anger. (Tr. 42-43)
Plaintiff has been seeing a psychiatrist since November 2010 for bipolar,
depression, and other conditions she could not pronounce. (Tr. 40-41) Taylor stated
Plaintiff was on “five or six” different medications. (Tr. 41) Plaintiff has trouble sleeping.
(Tr. 49) He will not sit still. (Id.) He continues to have issues with bedwetting at night
and daytime accidental wetting. (Tr. 42-43)
Taylor testified she has tried to establish a routine for Plaintiff when he comes
home from school. (Tr. 45) He has to do his homework first. Then, he sits around and
usually keeps to himself. (Id.) He plays with action figures but doesn’t like sharing. (Tr.
47) She doesn’t allow Plaintiff to play with video games very often. (Tr. 47)
B. School records
ECSE evaluation (2008)
On December 12, 2007, Plaintiff was evaluated by the Pattonville School District
Early Childhood office to determine his eligibility for Early Childhood Special Education
(ECSE) services in the areas of speech, language, and social/emotional/behavioral skills.

3

(Tr. 152) Kathryn Fogarty, ECSE Educational Diagnostician, reported that while Plaintiff
demonstrated minimal interactions with adults and peers, and often seemed unaware of
others, he also demonstrated “an above average” attention span during his preferred play
activity and appropriate play schemes even though he stayed to himself. (Id.) Plaintiff did
not exhibit any aggressive or disruptive behaviors. (Id.) Trisha Buenemann, ECSE
Speech Pathologist, administered the Goldman Fristoe Test of Articulation -2 and the
Pre-School Language Scale-4 (PLS-4) to Plaintiff. He demonstrated difficulty
understanding vocabulary and concepts, following directions incorporating concepts,
answering questions appropriately and using age appropriate sentence length and
complexity. (Tr. 153) Plaintiff was also administered the Leiter International
Performance Scale-Revised (LIPS-S) by Dorothy S. Nix, ECSE Psychologist Examiner.
(Tr. 152) He scored in the Low range with a Brief IQ Standard Score of 77; however, Nix
noted the score was not an accurate reflection of Plaintiff’s skill level given his
performance inconsistencies and lack of effort. Plaintiff was diagnosed as Young Child
with a Development Delay on January 30, 2008. (Tr. 151-161)
Individualized Education Plan (2009)
Plaintiff’s initial IEP dated March 6, 2009, noted difficulties in social, emotional
and behavioral skills which negatively affected his ability to interact appropriately with
peers, participate in non-preferred activities, consistently follow directions in a timely
manner, and attend to group activities consistently. (Tr. 148) It was also noted that since
his earlier evaluation, Plaintiff had become somewhat more outgoing in his interactions
with peers and his attention to task and transition had improved. His pre-academics were

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developing nicely and he was able to verbally interact with peers and adults with 80%
accuracy when he chose to do so. (Tr. 149)
Teacher questionnaires (2010)
On January 11, 2010, Plaintiff’s special education teacher Karen Todd completed
a teacher questionnaire. (Tr. 185-192) Todd indicated that in terms of acquiring and using
information, Plaintiff had an “obvious” problem comprehending and/or following oral
instructions, understanding and participating in class discussions, expressing ideas in
written form, and applying problem-solving skills in class discussions. He had a “slight”
problem providing organized oral explanations and adequate descriptions. (Tr. 187) In
terms of attending and completing tasks, Plaintiff had a “slight” problem paying attention
when spoken to directly, focusing long enough to finish tasks, refocusing to task when
necessary, carrying out single-step instructions, organizing things, completing
assignments, and working without distracting himself or others. (Tr. 188) He had
“obvious,” but not “serious,” problems carrying out multi-step instructions, completing
work accurately without mistakes, and working at a reasonable pace/finishing on time.
(Tr. 188) Plaintiff had no problem waiting to take turns or changing activities without
being disruptive and had only “slight” to no problems in interacting and relating with
others. (Tr. 189)
On January 19, 2010, Plaintiff’s kindergarten teacher Shelly McManus also
completed a teacher questionnaire. (Tr. 194-201) McManus reported Plaintiff was below
average in reading, math, and written language. (Tr. 194) He had “obvious” problems in
acquiring and using information, including comprehending and/or following instructions,
expressing ideas, learning new material and applying problem-solving skills in class. (Tr.

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195) In terms of attending and completing tasks, Plaintiff had no problem paying
attention when spoken to, sustaining attention during play/sports activities, focusing long
enough to finish assignments, refocusing on task when necessary, waiting to take turns,
changing activities without being disruptive, and working without distracting himself or
others (Tr. 196). McManus also indicated Plaintiff had “obvious,” but not “serious,”
problems carrying out instructions, organizing his own things, completing
class/homework assignments, completing work accurately, and working at a reasonable
pace (Tr. 196). Plaintiff had no problems interacting and relating with others, moving and
manipulating objects, and caring for himself. (Tr. 197-199) He was not prescribed
medication. (Tr. 200)
Individualized Education Plan (2010)
An IEP dated May 14, 2010 (Tr. 228-251) indicated that Plaintiff’s diagnosis was
changed from Young Child with a Developmental Delay to that of Other Health
Impairment, specifically a medical diagnosis of ADHD. (Tr. 233) Despite this diagnosis,
Plaintiff was not taking medication at this time. (Tr. 234, 237-38, 244) The diagnostic
team certified that Plaintiff required special education and related services. (Tr. 244)
Throughout the testing session, the team noted that Plaintiff attempted all assigned tasks,
but required some repetition of questions or directions, as well as some redirection to
task. (Id.) Results of cognitive testing indicated that Plaintiff’s overall cognitive
functioning remained within the “borderline” range, consistent with the previous findings
in January 2008; however, inconsistencies were noted in his performance. For example,
he demonstrated nonverbal reasoning and quantitative skills within the “average” range,
while memory skills were very depressed. (Id.)

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Behavior rating scales were completed by Taylor and McManus. (Tr. 245) At risk
levels of attention problems were reported in both home and school settings. Significant
levels of hyperactivity and lack of impulse control at home were also reported by Taylor.
(Tr. 247) Plaintiff was reported to have a short attention span and easily distracted. (Tr.
245) McManus observed Plaintiff often appeared sad or lonely. He was pessimistic or
negative about things and complained about being teased. Likewise, Taylor indicated her
son always complained about being teased, changed moods quickly, and was often easily
upset or cried easily. (Id.)
Plaintiff’s classroom teachers indicated he was below average in communication
and social skills. He did not follow teacher directions, used nonverbal communication,
did not speak clearly or distinctly, did not use politeness markers, or verbally express his
feelings. (Id.) His medically diagnosed ADHD resulted in inconsistency in skill
acquisition and classroom performance. (Tr. 247) He could complete nonverbal reasoning
tasks, but struggled with tasks involving memory. Task initiation, task focus and memory
were areas identified as significant concerns by his classroom teacher. (Id.) While able to
perform math tasks and identify words within expectancies, Plaintiff lacked book
handling skills and exposure to common concepts. (Id.) Class room observations, review
of daily work, test results, and teacher interviews revealed that Plaintiff was consistently
performing below expectancy in the classroom and needed additional support in the areas
of attention span, work completion and social skills. (Id.)
Teacher questionnaires (2011)
On May 23, 2011, Plaintiff’s special education teacher Michelle Trautman
completed a teacher questionnaire. (Tr. 256-263) She assessed his current instructional

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level for reading at a kindergarten level. (Tr. 256) She also indicated that Plaintiff had
missed 24 days of school between August 10 and April 11, and had been tardy an
additional 5 days (Tr. 256).
In the area of acquiring and using information, Trautman indicated Plaintiff had
an “obvious” problem in comprehending and doing math problems, and “serious”
problems in comprehending and following instructions, understanding vocabulary,
reading and comprehending written material, participating in class discussions, providing
organized explanations, expressing ideas in writing, learning new material, recalling and
applying previously learned material, and applying problem-solving skills in class
discussions. (Tr. 257)
In the area of attending and completing tasks, Trautman indicated Plaintiff had a
“serious” limitation only in carrying out multi-step instructions, and “slight” problems
waiting to take turns, changing from one activity to another without being disruptive and
completing assignments. (Tr. 258) Plaintiff had “obvious,” but not “serious,” paying
attention when spoken to, sustaining attention during play/sports activities, focusing long
enough to finish assignments, refocusing to task when necessary, carrying out single-step
instructions, organizing his own things, completing work accurately, working without
distracting himself or others, and working at a reasonable pace. (Tr. 258)
Trautman observed that in the area of interacting and relating with others,
Plaintiff had an “obvious” problem playing cooperatively with other children, and
“slight” problems in making and keeping friends, seeking attention appropriately,
expressing anger appropriately, asking permission appropriately, following rules,
respecting adults in authority, relating experiences and telling stories, using language

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appropriate to the situation and listener, maintaining conversation, taking turns in
conversation, and using adequate vocabulary and grammar to express himself in
conversation. (Tr. 259) She observed no problems in Plaintiff’s ability to move about and
manipulate objects (Tr. 260) and only “slight” problems in caring for himself. (Tr. 261)
Also on May 23, 2011, Plaintiff’s classroom teacher Amber Wilson completed a
teacher questionnaire. (Tr. 321-329) Wilson assessed Plaintiff’s current instructional
level for reading, math and written language at a kindergarten level. (Tr. 321) He
received resource help daily. She also indicated that Plaintiff was frequently absent from
school. (Id.) Wilson reported Plaintiff had “serious” problems with acquiring and using
information, including reading and comprehending written material, comprehending and
doing math problems, providing organized oral explanations and descriptions, expressing
ideas in writing, learning new material, recalling and applying previously learned
material, and applying problem-solving skills in class discussions. (Tr. 322) Plaintiff had
“obvious” problems in understanding vocabulary and participating in class, and only a
“slight” problem comprehending and/or following oral instructions. (Id.)
In terms of attending and completing tasks, Wilson observed that Plaintiff had
“serious problems” carrying out multi-step instructions, completing work accurately
without careless mistakes, and working at a reasonable pace/finishing on time (Tr. 323).
He had “obvious,” but less than “serious,” problems focusing on tasks long enough to
finish, organizing material, and completing classwork and homework. (Id.) Plaintiff had
only “slight” problems paying attention when spoken to, refocusing to task, carrying out
single-step instructions, changing activities without being disruptive, and working
without distracting others. (Id.)

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“Slight” problems were noted in Plaintiff’s ability to interact and relate with
others, including playing cooperatively with other children, using appropriate language,
taking turns in a conversation, and interpreting the meaning of facial expressions, body
language and the like. (Tr. 324) No problems were noted in Plaintiff’s ability to move
about and manipulate objects. (Tr. 325) In terms of caring for himself, Wilson indicated
that Plaintiff had a “severe” problem in knowing when to ask for help, but had shown
improvements in this area during the last few months of school. (Tr. 326) Only slight or
no problems were noted in other activities. (Tr. 326)
C. Medical records
Psychologist Jerry J. Bosse, Ph.D., met with Plaintiff on February 19, 2007 and
March 19, 2007 and diagnosed him as Attention Deficit-Hyperactivity Disorder,
Combined Type. (Tr. 275-279) In his April 2011 questionnaire, Dr. Bosse indicated he
had long term concerns about Plaintiff, apparently based on Taylor’s statements that
Plaintiff’s father and grandfather were diagnosed with bipolar disorder and
schizophrenia. (Tr. 306-318)
In an April 12, 2011 questionnaire, Rolando LaRice, M.D., Plaintiff’s treating
psychiatrist since September 22, 2010, stated that his diagnoses were oppositional defiant
disorder, ADHD, a learning disability by history, major depressive disorder and enuresis
by history. (Tr. 304) Dr. LaRice noted Plaintiff was noncompliant with medication and
psychotherapy. (Id.) He was hyper, but off all medication per pharmacy records. Whether
Plaintiff’s impairment limited his age-appropriate behavior was unknown. Dr. LaRice
had never seen Plaintiff compliant with medication. He prescribed five medications for
Plaintiff, the last one in February 2011, but Plaintiff’s mother did not fill it. Dr. LaRice

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concluded that Plaintiff could participate fully with appropriate medication and
psychotherapy. (Tr. 305)
III.

ALJ's Decision

The ALJ found Plaintiff had not engaged in substantial gainful activity at any
time relevant to the decision. The ALJ found Plaintiff’s impairment of attention deficithyperactivity disorder to be severe, but not to meet or medically equal the severity of any
impairment in the listings of impairments. The ALJ also found Plaintiff’s impairment did
not functionally equal the severity of the listings. The ALJ thus determined Plaintiff not
to have been disabled at any time since the filing of the application, that is, November 16,
2009. (Tr. 17–28)
IV.

Legal Standard

The Commissioner's decision denying a child SSI benefits is reviewed by this
Court to determine whether it is supported by substantial evidence. N.R.R. ex rel.
Davenport v. Astrue, 2013 WL 1090397, at *5 (E.D. Mo. Mar. 15, 2013) (citing Rucker
v. Apfel, 141 F.3d 1256, 1259 (8th Cir.1998); Clark v. Apfel, 141 F.3d 1253, 1255 (8th
Cir.1998); Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir.1995)). “Substantial evidence is
less than a preponderance, but enough that a reasonable mind might accept it as adequate
to support a decision.” Cox v. Apfel, 160 F.3d 1203, 1206–07 (8th Cir.1998).
To determine whether the decision is supported by substantial evidence, the Court
is required to review the administrative record as a whole to consider:
(1) the credibility findings made by the ALJ;
(2) the education, background, work history, and age of the claimant;
(3) the medical evidence given by claimant's treating physicians;

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(4) the subjective complaints of pain and description of the claimant's physical
activity and impairment;
(5) the corroboration by third parties of the claimant's physical impairment;
(6) the testimony of vocational experts based upon proper hypothetical questions
which fairly set forth the claimant's physical impairment; and
(7) the testimony of consulting physicians.
Brand v. Sec'y of Dept' of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.1980).
The Court must also take into account evidence in the record that fairly detracts from that
decision. Davenport, 2013 WL 1090397, at 5 (citing Warburton v. Apfel, 188 F.3d 1047,
1050 (8th Cir.1999); Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir.1998); Bryant v.
Apfel, 141 F.3d 1249, 1250 (8th Cir.1998)). The Court may not reverse the decision
merely because substantial evidence would also support a different result. McNamara v.
Astrue, 590 F.3d 607, 610 (8th Cir. 2010).
V.

Discussion

Title 42 U.S.C. § 1382c (a)(3)(C)(I) provides that “[a]n individual under the age
of 18 shall be considered to be disabled for purposes of [SSI] if that individual has a
medically determinable physical or mental impairment, which results in marked and
severe functional limitations, and which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.” A
three-step sequential evaluation process is used to determine disability for children.
Fleetwood v. Astrue, 2013 WL 395614, at *1 (W.D. Mo. Jan. 31, 2013); 20 C.F.R.
416.924(a). First, the Commissioner must determine whether the child is engaged in
substantial gainful activity. If not, the Commissioner must then determine whether the
child's impairment, or combination of impairments, is severe. Finally, if the child's

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impairment(s) is severe, the Commissioner must determine whether such impairment(s)
meets, medically equals or functionally equals the severity of an impairment listed in
Appendix 1 of Subpart P of Part 404 of the Regulations. 20 C.F.R. § 416.924(a); Garrett
ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir.2004). If the impairment(s) meets
or medically equals a Listing, the child is disabled. Garrett, 366 F.3d at 647. If a child's
impairment does not meet or medically equal a listed impairment, the Commissioner will
assess all functional limitations caused by the child's impairment to determine whether
the impairment functionally equals the Listings. 20 C.F.R. § 416.926a. To functionally
equal a listed impairment, the child's condition must result in an “extreme” limitation of
functioning in one broad area of functioning, or “marked” limitations of functioning in
two broad areas of functioning. 20 C.F.R. § 416.926a(a). If this analysis shows the child
not to have an impairment which is functionally equal in severity to a listed impairment,
the ALJ must find the child not disabled. Randall ex rel. D.M. v. Astrue, 2011 WL
1226970, at *14 (E.D.Mo. Mar. 29, 2011) (citing Oberts o/b/o Oberts v. Halter, 134
F.Supp.2d 1074, 1082 (E.D.Mo. 2001)).
Taylor argues the ALJ erred in determining that her son was not disabled. She
does not, however, refer to any specifics of the ALJ’s decision, Social Security
regulations, or case law. Because the Court is compelled to conduct a de novo review, the
Court will analyze the ALJ’s findings that Plaintiff’s impairment does not meet or
medically or functionally equal a listed impairment as well as his evaluation of the
opinion evidence and credibility.
To meet the listing requirements, a child claimant’s ADHD must be manifested
by “developmentally inappropriate degrees of inattention, impulsiveness, and

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hyperactivity.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 112.11. The required level
of severity for this disorder is met when there are “medically documented findings of
marked inattention, marked impulsiveness, and marked hyperactivity,” id. at § 112.111A,
resulting in at least two of the appropriate age-group criteria:
For children (age 3 to attainment of age 18) . . .
a. Marked impairment in age-appropriate cognitive/communicative function,
documented by medical findings . . .; 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. Part 404, Subpart P, Appendix 1, § 112.02(B)(2).
The ALJ found that Plaintiff “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.924, 416.925 and
416.926).” (Tr. 18) Upon review of the record, the Court finds that substantial evidence
supports this finding. The ALJ based his determination on the lack of medically
documented findings of marked inattention, impulsiveness, and hyperactivity, as well as
marked impairment in age-appropriate cognitive/communicative function, social
functioning, personal functioning, or marked difficulties in maintaining concentration,
persistence, or pace. (Id.) In point of fact, the evidence indicated that Plaintiff was not
regularly taking medication to manage his ADHD. Plaintiff’s school nurse reported that
Plaintiff was not on any medication. (Tr. 200) Plaintiff’s May 2010 IEP indicated he was
not taking any medication for ADHD. (Tr. 234, 244) Plaintiff’s treating psychiatrist

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Rolando LaRice, M.D., was unable to opine whether Plaintiff’s ADHD limited his ageappropriate behavior since he had never seen Plaintiff compliant with medication and
concluded that Plaintiff could participate fully with appropriate medication and
psychotherapy. (Tr. 305) Impairments that are amenable to treatment do not support a
finding of disability. Fleetwood, 2013 WL 395614, at *3 (citing Brown v. Barnhart, 390
F.3d 535, 540 (8th Cir. 2004)). Moreover, the fact that Plaintiff’s mother did not
consistently administer his medication suggests his symptoms were not as severe as she
described. A parent’s failure to consistently administer effective medication as
prescribed without good reason can be a proper ground for denying benefits. See Kelley
v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). See also Collins ex rel. Williams v.
Barnhart, 335 F .3d 726, 729–30 (8th Cir.2002) (finding that denial of benefits is
supported when a child's hyperactivity can be controlled through properly administered
medication).
As discussed in detail above, the evidence from Plaintiffs’ teachers indicates some
problems with attention, but no “very serious problems” in any area. (Tr. 188, 196, 258,
323) Plaintiff had only 4 ratings of a “serious” problem out of a total of 52 ratings. (Id.)
Again, this evidence does not support the required “marked” levels of inattention,
impulsiveness and hyperactivity necessary to meet Listing 112.11.
To establish functional equivalence, a child must have a medically determinable
impairment or combination of impairments resulting in “marked” limitations in two
areas, or an “extreme” limitation in one area. 20 C.F.R. § 416.926a(e)(2)(i). Six areas of
functioning are considered: 1) acquiring and using information; 2) attending and
completing tasks; 3) interacting and relating with others; 4) moving about and

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manipulating objects; 5) caring for yourself; and 6) health and physical well-being. 20
C.F.R. § 416.926a(b)(1)(i)-(vi). A child has a “marked” limitation in one of these area
when his or her “impairment(s) interferes seriously with his ability to independently
initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i). “Marked” also
means a limitation that is “more than moderate” but “less than extreme.” Id. A child has
an “extreme” limitation when his or her “impairment(s) interferes “very seriously” with
his or her ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(3)(i). “Extreme” limitation is the rating given to the most limiting
impairments, but “extreme” does not necessarily mean a total lack or loss of ability to
function. Fleetwood, 2013 WL 395614, at *1.
To determine whether the child is experiencing “marked” or “extreme” limitations
in any area of functioning, the ALJ must review all the evidence in the record and
compare the child's functioning to “the typical functioning of children [the child's] age
who do not have impairments.” 20 C.F.R. § 416.926a(f)(1). See also 20 C.F.R. §
416.924a(b)(5)(ii); 20 C.F.R. § 416.926a(b). The ALJ considers “the effects of structured
or supportive settings,” how the child functions in school, and the effects of the child's
medications, if any. 20 C.F.R. § 416.926a(a)(1)-(3). Finally, in determining a child's
disability, the Commissioner must consider all relevant evidence, which may include
medical evidence and information from people who know the child—such as parents and
teachers—and can provide evidence about his functioning. 20 C.F.R. § 416.924a(a).
In his decision, the ALJ thoroughly discussed all the evidence before him,
including reports from Plaintiff’s mother, teachers, and physicians and found that
Plaintiff “does not have an impairment or combination of impairments that functionally

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equals the severity of the listings (20 C.F.R. 416.924(d) and 416.926(a).” Upon review of
the record, the Court finds that substantial evidence supports this finding.
First, the ALJ’s determination that Plaintiff had no limitation in the domains of
moving about and manipulating objects, caring for himself, and health and physical wellbeing was consistent with the reports of his teachers, all of whom indicated only slight to
no limitation in these domains. (Tr. 190-92, 198-200, 260-62, 325-27)
Next, the ALJ determined that Plaintiff had “less than marked” limitations in the
domain of acquiring and using information. In assessing this domain, the ALJ must
consider “how well [the child] acquires and learns information, and how well [the child]
used information learned.” 20 C.F.R. §416.926a(g). Pursuant to the Regulations, children
Plaintiff’s age (age six to age twelve) should be able to
learn to read, write, and do math, and discuss history and science. You will need
to use these skills in academic situations to demonstrate what you have learned;
e.g., by reading about various subjects and producing oral and written projects,
solving mathematical problems, taking achievement tests, doing group work, and
entering into class discussions. You will also need to use these skills in daily
living situations at home and in the community (e.g., reading street signs, telling
time, and making change). You should be able to use increasingly complex
language (vocabulary and grammar) to share information and ideas with
individuals or groups, by asking questions and expressing your own ideas, and by
understanding and responding to the opinions of others.
20 C.F.R. § 416.926a(g)(2)(iv).
Despite his mother’s testimony that he was “significantly limited” in this domain,
the ALJ noted Plaintiff’s 2010 IEP indicated that he showed a willingness to learn. (Tr.
233) He demonstrated “average” ability to identify upper and lower case letters and
sounds. Plaintiff does not read sight words independently, but his word analysis skills
were sufficient to allow him to pick the correct word from a group of four. Plaintiff was
able to perform math tasks within expectancies, writing two-digit numbers, counting by

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tens, and performing mental addition with sums under 10. IEP evaluators reported
Plaintiff’s memory skills were depressed, but not his intelligence measures. (Tr. 21, 24647) The ALJ further noted that the record contained only one IQ test result – a brief IQ
standard score in the low range of 77. (Tr. 21) However, Dorothy Nix, the test
administrator, opined that this score was not an accurate reflection of Plaintiff’s overall
cognitive functioning given his lack of effort. (Id.) A “marked” limitation is the
equivalent of the functioning on standardized testing with scores that are at least two, but
less than three, standard deviations below the mean. 20 C.F.R. § 416.926a(e)(2)(i). Here,
Plaintiff’s IQ scores were not more than two standard deviations below the mean. See
Ulric Neisser, Rising Scores on Intelligence Tests, American Scientist Sept.-Oct. 1997,
440-47.3 Furthermore, the regulations state that the ALJ does not have to give conclusive
effect to any particular test score. 20 C.F.R. § 416.926a(e)(4)”(“[W]e will not rely on any
test score alone. No single piece of information taken in isolation can establish whether
you have a ‘marked’ or an ‘extreme’ limitation in a domain.”). Although the record
shows that Plaintiff experiences some limitations in this domain, there is substantial
evidence on the record as a whole to support the ALJ’s conclusion that such limitations
do not rise to a level to be considered “marked” under the Regulations. See Pepper ex rel.
Gardner v. Barnhart, 342 F.3d 853, 855-56 (8th Cir. 2003) (no more than a moderate
limitation where school records show child capable of doing work and that overall
condition is improving with medication and counseling).
The ALJ also determined that Plaintiff had “less than marked” limitations in the
domain of interacting and relating to others. (Tr. 24) This domain considers how well the
child initiates and sustains emotional connections with others, develops and uses the
3

Available at http://www.americanscientist.org/issues/feature/rising-scores-on-intelligence-tests/2

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language of his community, cooperates with others, complies with rules, responds to
criticism, and respects and takes care of the possessions of others. 20 C.F.R. §
416.926a(i). Children of Plaintiff’s age (age six to age twelve) should be able to
Develop more lasting friendships with children who are your age. You should
begin to understand how to work in groups to create projects and solve problems.
You should have an increasing ability to understand another’s point of view and
to tolerate differences. You should be well able to talk to people of all ages, to
share ideas, tell stories, and to speak in a manner that both familiar and unfamiliar
listeners readily understand.
20 C.F.R. § 416.926a(i) (2)(iv). Upon review of the record, the Court finds that
substantial evidence supports the ALJ’s decision in this regard. Plaintiff’s mother
reported her son was violent, exhibited temper tantrums and had no friends because
children were afraid of him; however, his classroom teachers did not indicate any
significant concerns in this area. (Tr. 189, 259, 324) Plaintiff’s early childhood evaluation
from 2008 noted he did not exhibit aggressive or disruptive behaviors. (Tr. 152) His 2009
IEP noted that his difficulties in social/emotional/behavior skills somewhat affected his
ability to interact appropriately with peers and that he needed a lot of assistance to join in
with others. Once engaged, however, he was usually okay. (Tr. 148) His 2010 IEP noted
that Plaintiff was helpful to the teacher and his peers. (Tr. 233) He followed school and
classroom rules and could identify appropriate behavior and consequences for
inappropriate behavior. (Tr. 234) The school psychologist reported Plaintiff’s behavior
was comparable to that of peers on the playground. He engaged in activities with peers,
joined a game that was in progress, and interacted with peers. (Tr. 245) As the ALJ noted,
in 2010, IEP evaluators attributed some of Plaintiff’s withdrawn behavior and increased
difficulty dealing with others to the fact that he was adjusting to his father leaving the
family home. (Tr. 238) Situational symptoms are not a basis for an award of disability

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benefits. See Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010). The ALJ reiterated
that Plaintiff was not compliant with his medication. (Tr. 24)
The ALJ found the only domain in which Plaintiff had a “marked” impairment
was in attending and completing tasks. (Tr. 22) This domain gauges how well a child is
able to focus and maintain his attention, and how well the child can begin, carry through,
and finish his activities, including the pace at which he performs activities and the ease
with which he changes them. 20 C.F.R. § 416.926a(h). Children of Plaintiff’s age (age six
to age twelve) should be able to
focus your attention in a variety of situations in order to follow directions,
remember and organize your school materials, and complete classroom and
homework assignments. You should be able to concentrate on details and not
make careless mistakes in your work.... You should be able to change your
activities or routines without distracting yourself or others, and stay on task and in
place when appropriate. You should be able to sustain your attention well enough
to participate in group sports, read by yourself, and complete family chores. You
should also be able to complete a transition task (e.g., be ready for the school bus,
change clothes after gym, change classrooms) without extra reminders and
accommodation.
20 C.F.R. § 416.926a(h)(2)(iv).
The record shows that none of Plaintiff’s teachers indicated he had “very serious”
problems in the domain of attending and completing tasks. In the vast majority of ratings,
his teachers did not even describe his symptoms as “serious.” (Tr. 188, 196, 258, 323)
However, his kindergarten teacher also reported that Plaintiff would work hard the entire
time, but his completed work may not be what was asked of him. (Tr. 196) His first grade
teacher noted Plaintiff needed repeated reminders to stay on task. (Tr. 322) Moreover, his
2010 IEP noted “significant attentional concerns” in task initiation, focus, and memory.
(Tr. 245) Specific examples cited included delays in beginning activities, refusal to
initiate tasks, difficulty following directions, appearing preoccupied, becoming easily

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distracted, losing interest when listening, not recalling details from stories, misplacing
items, difficulty remembering routines, forgetting what he is supposed to do, and not
remembering information from one day to the next. (Id.) The ALJ specifically noted that
while Plaintiff’s medically diagnosed ADHD appeared to result in inconsistency in skill
acquisition and classroom performance, his psychiatrist believed Plaintiff would have no
problem in this area if he were compliant with medication and psychotherapy. (Tr. 23)
Upon review of the record, the Court finds that substantial evidence supports the ALJ’s
decision in this regard. With only a “marked” limitation in one out of the six functional
domains, Plaintiff does not functionally equal a listing and is not entitled to child’s SSI
benefits. See 20 C.F.R. § 416.926a(d).
In a child's SSI case, the ALJ must make specific findings concerning the
credibility of a parent's testimony, just as he would if the child were testifying for
himself. See 20 C.F.R. § 416.928(a). See also, Randall ex rel. D.M., 2011 WL 1226970,
at *22 (citing Williams o/b/o Williams v. Bowen, 859 F.2d 255, 260–61 (2d Cir.1988)).
In his written decision, the ALJ set out a number of inconsistencies in the record to
support his finding that Taylor’s testimony regarding the extent of Plaintiff’s limitations
was not credible. In particular, the ALJ noted that while Taylor testified Plaintiff is taking
a lot of medication, the record shows Plaintiff was not regularly taking the medication
prescribed by his physician to manage his ADHD. (Tr. 19-20, 200, 234, 244, 304) “A
failure to follow a recommended course of treatment also weighs against a claimant’s
credibility.” Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005). The ALJ also noted
that contrary to Taylor’s reports of Plaintiff’s behavior problems and trouble getting
along with other children, his teachers indicated otherwise, observing him to be more

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withdrawn than aggressive. Because substantial evidence in the record supports this
finding, the Court will not substitute its judgment for the ALJ. When adequately
explained and supported, credibility determinations are for the ALJ to make. N.R.R. ex
rel. Davenport v. Astrue, 2013 WL 1090397, at *8 (E.D. Mo. March 15, 2013) (citing
Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000).
V.

Conclusion

For the foregoing reasons, the Court finds the Commissioner’s decision is
supported by substantial evidence in the record as a whole. Therefore, Plaintiff is not
entitled to relief.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner denying
Claimant’s application for SSI benefits under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381-1383 is AFFIRMED.
IT IS FURTHER ORDERED that judgment is entered in favor of Defendant.
[20, 25]
Dated this 19th day of July, 2013.

______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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