A. E. v. Social Security Administration

Filing 25

MEMORANDUM - For the reasons set forth above, the court finds that the decision of the ALJ is supported by substantial evidence in the record as a whole and consistent with the Regulations and applicable law. The decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 7/26/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HEATHER EIRING o/b/o
A.E.,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social
Security,
Defendant.

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No. 4:12 CV 1557 DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of defendant
Commissioner of Social Security denying the application of Heather Eiring for supplemental
security income (SSI) on behalf of her son, A.E., under Title XVI of the Social Security Act,
42 U.S.C. § 1382. The parties have consented to the exercise of plenary authority by the
undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons
set forth below, the court affirms the decision of the Administrative Law Judge (ALJ).

I. BACKGROUND
Plaintiff A.E. was born in 1997 and was 11 years old at the time of his hearing. His
mother filed an application for SSI on his behalf on January 26, 2010.

She alleged a

September 9, 2005 onset date, asserting disability due to attention deficit hyperactivity
disorder (ADHD), depression, anxiety, a sleep disorder, and a speech disorder. (Tr. 121-25.)
Plaintiff’s claims were denied initially, and after a hearing before an ALJ. (Tr. 61, 11-26.)
1

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of
Social Security. The court hereby substitutes Carolyn W. Colvin as defendant in her
official capacity. Fed. R. Civ. P. 25(d).

On July 25, 2012, the Appeals Council denied a request for review. (Tr. 1-4.) Thus, the
decision of the ALJ stands as the final decision of the Commissioner.

II. MEDICAL AND EDUCATIONAL HISTORY
From 2005 to 2007, plaintiff saw Michael R. Banton, M.D., an adolescent and
pediatric psychiatrist, for his ADHD. (Tr. 362-74.) March 8, 2006 progress notes state that
plaintiff had made good grades and finished his homework most of the time. His parents
reported that he was doing "pretty well." In December, plaintiff reported that he was doing
worse in school. The following month, Dr. Banton noted that plaintiff showed improvement.
By July 2007 plaintiff was doing "OK" when taking Adderal, used to treat ADHD. (Tr. 36871.) IQ testing conducted in 2007 showed an IQ score of 77. (Tr. 166, 170.)
On February 23, 2009, plaintiff was seen following a behavioral incident. He had
been off his medication for more than one month. (Tr. 268.) On August 27, 2009, plaintiff
saw Julianne Matt, M.D., his pediatrician, for a physical exam. He reported struggling with
friends, grades, and schoolwork. His ADHD was not under "great control."

Dr. Matt

prescribed Methylin, used to treat ADHD. Dr. Matt described plaintiff’s ADHD as
behavioral, characterized by whining, crying, moodiness, temper tantrums, and immaturity
for his age. (Tr. 299-301.)
Results from September 23, 2009 Gray Oral Reading Tests 4th Edition (GORT-4)
demonstrated an oral reading fluency score of 70, in the poor range compared to same-age
peers. (Tr. 178.)
Results from an October 8, 2009 Wechsler Individual Achievement Test-Second
Edition (WIAT-II) revealed a Reading Comprehension score of 78, defined as Borderline
Delayed range. The examiner wrote that plaintiff “had an extremely difficult time
comprehending the stories he read… He just could not remember what he read or interpret
it in any way." (Tr. 184-85.)

2

In October and November 2009, plaintiff's mother reported that plaintiff continued
to do poorly and that he was experiencing mood swings and tantrums. During a November
12, 2009 office visit, Dr. Matt reported that although plaintiff acted “very charming" during
the visit, he had he had little control over his moods. Dr. Matt believed that plaintiff's
predominant problem seemed to be impulse control, although he was now exhibiting
violence as a new symptom. Dr. Matt opined that he needed to be evaluated for bipolar
disorder, as well as oppositional defiant disorder, a mental disorder of childhood or
adolescence marked by a pattern of disobedient, negativistic, and provocative opposition to
authority figures. (Tr. 305-06.)
On September 16, 2009, plaintiff received results from the Test of Language
Development - Intermediate 4th Edition (TOLD-I:4), indicating that plaintiff exhibited
strengths and weaknesses on this assessment. Plaintiff’s strengths were Morphological
Comprehension and Word Ordering and his weaknesses were Relational Vocabulary,
Sentence Combining, and Multiple Meanings. His best composite score was Listening. His
most significant area of weakness was Semantics. (Tr. 189-91.)
By October 2009, plaintiff was receiving one hour of special education instruction in
math and task completion. He earned mostly C's in school and required extended time on
tests, easier assignments, and frequent teacher interaction. (Tr. 171.)
On October 16, 2009, a Clinical Evaluation of Language Fundamentals (CELF-4),
used to evaluate language skill deficits, was administered. Plaintiff’s core language score
of 75 was below the average range for his age. His strengths were formulating sentences and
understanding spoken paragraphs, and his weaknesses concerned concepts and following
directions, word classes, and word definitions. Plaintiff scored a 3 in concepts and following
directions, which was below average. The examiner wrote, "This was one of the most
difficult subtests for [plaintiff]. This may indicate difficulty following multi-step directions
in the classroom or difficulty with remembering how to complete homework assignments."
(Tr. 186-88.)
3

On October 22, 2009, an Individualized Education Plan (IEP) team reviewed existing
data to determine plaintiff's eligibility for Special Education services (SPED). The Team
confirmed that plaintiff's most recent IQ score of 77-- from 2007-- was consistent with prior
testing and was current enough to forego further testing. Existing data included plaintiff's
previous special education case manager’s note that plaintiff had a slower rate of learning
and that his test results indicated a poor working memory. (Tr. 166.) Plaintiff’s IEP team
stated:
[Plaintiff] demonstrates a good work ethic most of the time. He will usually
put forth his best effort and try something even if he thinks it is hard.
However, once he hits a point of frustration, he shuts down and refuses to
continue working. He pouts and pulls his shirt up over his face. He cries
and/or whines and says it is too hard. This comes about quickly and suddenly
even in a small group or one on one setting. He is impulsive in work
completion and spends much time self-correcting in regular and SPED
classrooms.
Behaviorally, [Plaintiff] exhibits the same impulsivity and immature
frustrations when interacting with his peers. He is not able to demonstrate age
appropriate problem solving skills or the ability to control his emotions when
he doesn't get his way. He often pouts or shouts in the other students' faces. He
also calls the other students names and makes faces at them. When things don't
go his way, he will often tattle on his classmates telling the teacher what they
did without including what his own wrongdoing was. These behaviors have
made it difficult for [Plaintiff] to make new friends here at school. His peers
have a hard time playing with him and working with him because he does not
react to things in an appropriate manner.
(Tr. 171-72.) That same month, his IEP team reported that plaintiff's cognitive ability was
average to low average. (Tr. 166.)
In November 2009, plaintiff saw Krystal Witthaus, LCSW, for increased aggressive
and defiant behaviors after his mother had received a note from his teacher stating that
plaintiff did not accept responsibility for his behavior and was acting aggressively toward
his peers at school. Ms. Witthaus assigned a current global assessment of functioning (GAF)
score of 63, indicating variable functioning with sporadic difficulties or symptoms in several
4

but not all social areas. She diagnosed a mood disorder and ADHD, predominantly the
impulsive type. By the end of the month, plaintiff stated that he believed that an increase in
his ADHD medication was helping. (Tr. 270-72.)
In 2010, plaintiff began seeing a psychiatrist, Claudia Viamontes, M.D. On January
15, 2010, Dr. Viamontes’s wrote that plaintiff's general appearance was guarded and
perplexed, his speech was slow, his mood and affect were anxious, and his insight and
judgment were limited. (Tr. 273.) Dr. Viamontes assigned a GAF score of 50. In a Mental
Residual Functional Capacity (RFC) Questionnaire, Dr. Viamontes indicated that treatment
had improved plaintiff's symptoms. She opined that plaintiff had unlimited ability to
understand and carry out short and simple instructions, as well as limited but satisfactory
ability to remember work-like procedures, maintain attention for two-hour segments,
complete a normal school day and school week, perform at a consistent pace, get along with
peers, and carry out detailed instructions. (Tr. 287-90.) Throughout 2010, Dr. Viamontes
assigned higher GAF scores, and by December 2010, she assigned a GAF score of 65. (Tr.
273-74; 350-54.)
On March 15, 2010, Audrey Schlote, plaintiff's sixth grade teacher, authored a
Teacher Questionnaire confirming that plaintiff had an unusual degree of absenteeism due
to doctor’s appointments and parents reporting sickness or tardiness. She reported that
plaintiff read at a fourth grade level and received special education services on a daily basis
in math, reading, task completion, and speech. Ms. Schlote reported that plaintiff received
one-on-one help and assessed mostly "slight" or "obvious" problems in plaintiff's ability to
acquire and use information, and "serious" problems comprehending and doing math
problems. Ms. Schlote noted that plaintiff was not very independent and constantly asked
for help on work or about routines. She also reported that plaintiff was routinely late or
absent, typically two out of every ten days. She reported that his family moved frequently
and that they had recently moved here from out of state. (Tr. 149-56.)

5

On March 25, 2010, plaintiff saw Dr. Matt for a cough. Plaintiff’s father reported
that plaintiff saw a psychiatrist for his ADHD. He also stated that plaintiff performed at
grade level, earned A's, B's, and C's, and had no learning disability or special needs. (Tr.
330-31.)
Also on March 25, 2010, Isabel Mora, M.D., a medical consultant with the state
agency, completed a Childhood Disability Evaluation Form. She opined that plaintiff had
marked limitation in acquiring and using information and less than marked or no limitation
in the other five domains of functioning. Dr. Mora noted that plaintiff's mother reported no
problems with language function at home. (Tr. 275-80.)
By May 2010, plaintiff's IEP team indicated that plaintiff’s behavior had improved.
His emotions did not seem to fluctuate as frequently, and the team recommended placement
inside a regular class from 40 to 79% of the time. (Tr. 208-19.)
From March 15 to October 18, 2010, plaintiff saw Michael Cundiff, Licensed
Professional Counselor, for psychotherapy. Plaintiff was having difficulty in school, showed
no respect for others, and did not listen. Notes state that the family moved frequently. His
father had recently lost his job, and the family was currently being forced out of their home
after losing their lease. Mr. Cundiff assigned a GAF score of 55 and diagnosed ADHD and
major depressive disorder (MDD) with features of impulsivity and anxiety. Plaintiff's
mother reported that plaintiff’s difficulties were more severe than ADHD. Although
medication helped control plaintiff's "fits," he still had mood swings and few coping skills.
In June, plaintiff’s mother reported inappropriate behavior and acting out. Plaintiff
reluctantly discussed past sexual abuse by an older cousin. Plaintiff also exhibited "teen
rebelliousness." Plaintiff's father reported that he was doing well academically, but still had
some social deficits. Mr. Cundiff opined that plaintiff was making slight improvement.
In December 2010, plaintiff's father reported that plaintiff showed oppositional
behavior. However, he had also joined the chess club at school, which he enjoyed. (Tr.
355-61, 379.)
6

Plaintiff saw Dr. Matt in September and October 2010. Plaintiff reported that he had
no problems with friends and that he enjoyed sports, despite spending most of his time
watching television and playing video games. In October, he was behaving appropriately
and had a normal attention span and concentration. (Tr. 324-29, 332-35, 355-61.)
In a November 11, 2010 Teacher Questionnaire, Scott Davis, plaintiff's special
education case manager, opined that plaintiff was reading at a second grade level,
performing math at a fifth grade level, and performing written language at a fourth grade
level. Mr. Scott reported that plaintiff displayed "serious" problems acquiring and using
information. He assessed "obvious" to "serious" problems attending and completing tasks,
as well as "obvious" to "very serious" problems interacting and relating with others. He
believed that plaintiff exhibited paranoid thinking, for example, plaintiff believed that his
peers and teachers did not like him. Mr. Scott opined that plaintiff’s ADHD directly
impaired his academic ability and particularly his peer relations. He reported that plaintiff’s
grades were improving due to constant attention by his teachers. Mr. Davis believed that
plaintiff lacked the social skills to deal with people in social situations and disagreements.
He noted that plaintiff spread rumors, was unable to control his anger, feelings, and
frustrations, and pouted like a five-year-old. Mr. Scott reported that plaintiff still had
verbal disagreements, demonstrated immature behaviors such as whining, pouting, tattling,
and chewing on his fingers, and made false complaints that he was not feeling well. Mr.
Scott opined that plaintiff’s delusional thinking that others were watching and picking on
him had intensified. (Tr. 226-33.)

7

Testimony at the Hearing
On February 14, 2011, plaintiff's mother testified to the following at an administrative
hearing before an ALJ. Plaintiff, who was in the seventh grade at the time of the hearing,
had the maturity level of a 9- or 10-year-old. Plaintiff had never been hospitalized for
mental problems, but received treatment from a therapist, as well as a psychiatrist.
Medication helped control plaintiff’s symptoms somewhat. Plaintiff could read but could
not remember what he read. Plaintiff had been held back in kindergarten. He attended
remedial classes in the morning at school. Plaintiff had difficulty getting along with others
and had received three in-school suspensions since the fall. With the exception of a one-day
suspension in the third or fourth grade, plaintiff had never been suspended or expelled from
school. Plaintiff received extra help at school, including individual attention and extra time
for taking tests. (Tr. 35-51.)

III. DECISION OF THE ALJ
On February 22, 2011, the ALJ issued an unfavorable decision. (Tr. 11-26.) At Step
One, the ALJ found Plaintiff had not performed substantial gainful activity (SGA) since July
26, 2010, his application date. At Step Two, the ALJ determined that plaintiff had the severe
impairments of ADHD, depression, anxiety, and a speech disorder. (Tr. 14.) At Step Three,
the ALJ determined that plaintiff's impairments did not meet or medically equal a listing.
The ALJ next evaluated functional equivalence, finding "marked" limitation in the domain
of interacting and relating with others; a less-than-marked limitation in the domains of
acquiring and using information, attending and completing tasks, and caring for self; and
no limitation in the domains of moving about and manipulating objects and health and
physical well-being. (Tr. 16-26.) The ALJ concluded that because plaintiff had only one
"marked" area of functioning, his impairments did not functionally equal the severity of the
listings. (Tr. 26.) Consequently, the ALJ found that plaintiff was not disabled under the Act.
(Id.)
8

IV. GENERAL LEGAL PRINCIPLES
The court's role on judicial review of the Commissioner's decision is to determine
whether the Commissioner's findings comply with the relevant legal requirements and are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d
935, 942 (8th Cir. 2009). "Substantial evidence is less than a preponderance, but is enough
that a reasonable mind would find it adequate to support the Commissioner's conclusion."
Id. In determining whether the evidence is substantial, the court considers evidence that both
supports and detracts from the Commissioner's decision. Id. As long as substantial evidence
supports the decision, the court may not reverse it merely because substantial evidence exists
in the record that would support a contrary outcome or because the court would have decided
the case differently. See Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
In determining whether a claimant under the age of eighteen is disabled, the ALJ
undertakes a sequential three-step evaluation. 20 C.F.R. § 416.924(a). The first step is to
inquire whether the claimant is engaged in substantial gainful activity. Id. The second step
is to ascertain whether the impairment or combination of impairments is severe. Id. The
third step is to determine whether the claimant has an impairment or impairments that meet,
medically equal, or functionally equal a listed impairment. Id. A claimant will not be
considered disabled unless he meets the requirements for each of these three steps. Id.
If a child has a severe impairment or combination of impairments that does not meet
or medically equal any listing, the Commissioner will decide whether the plaintiff has
limitations that "functionally equal the listings" of disabling conditions promulgated by the
Commissioner. See 20 C.F.R. § 416.926a(a). To functionally equal the listings, the
impairment or impairments must be of listing-level severity. Id. In other words, to be
entitled to benefits, the claimant's impairments must result in "marked" limitations in two
domains of functioning or an "extreme" limitation in one domain of functioning. Id.;
Hudson ex rel. Jones v. Barnhart, 345 F.3d 661, 665 (8th Cir. 2003).
9

There are six domains of functioning: (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 oneself; and (6) health and physical well-being. 20
C.F.R. § 416.926a(b)(1)(i)-(vi). A child has a marked limitation in a domain if the
impairment "interferes seriously" with the child's ability to independently initiate, sustain,
or complete activities. 20 C.F.R. § 416.926a(e)(2). An extreme limitation "interferes very
seriously" with the child's ability to independently initiate, sustain, or complete activities.
20 C.F.R. § 416.926a(e)(3).
When evaluating a claimant's ability to function in each domain, the Commissioner
asks for and considers information that will help to answer the following questions. What
activities is the child able to perform? What activities is the child unable to perform? Which
of the child's activities are limited or restricted compared to other age-equivalent children
who do not have impairments? Where does the child have difficulty with activities - at
home, in childcare, at school, or in the community? Does the child have difficulty
independently initiating, sustaining, or completing activities? What kind of help does the
child need to do activities, how much help is needed, and how often is it needed? 20 C.F.R.
§ 416.926a(b)(2)(i)-(vi).
These questions are not, singularly or as a whole, the only factors useful to determine
whether or not a child has a "marked" or "extreme" limitation. 20 C.F.R. § 416.926a(e)(2),
(4)(I). If applicable, test scores can be used in combination with other factors, observations,
and evidence to determine the level of impairment. Id. "Marked" or "extreme" limitations
as defined by test scores are not automatically conclusive if additional evidence in the record
shows a pattern of behavior inconsistent with those scores. See 20 C.F.R. § 416.926a(e)(4).

10

V. DISCUSSION
Plaintiff argues that the ALJ failed: (1) to properly consider all of plaintiff’s severe
medically determinable impairments, specifically, his borderline intellectual functioning
(BIF) at Step Two; (2) to properly consider opinion evidence; and (3) to fully and fairly
develop the arguments both for and against granting benefits.

1.

Step Two Analysis
Plaintiff argues that the ALJ failed to include BIF as a severe impairment at Step

Two, removing it from the ALJ's subsequent RFC determination. This court disagrees.
Once an ALJ determines that a claimant has any severe impairment, she considers the
cumulative effects of all plaintiff's severe and not severe impairments in evaluating
functional equivalence at Step Three. See 20 C.F.R. § 416.926a(a). The ALJ in this case
did just that, and therefore, her failure to find additional impairments severe is not reason to
remand at Step Two.
Plaintiff also failed to establish that BIF was medically determinable in this case. A
medically determinable impairment must be established by evidence from an acceptable
medical source. 20 C.F.R. § 416.913(a). Plaintiff cites an IQ test from 2007, more than
three years before the ALJ's decision. (Tr. 166, 170.) However, a child's IQ score of 40
or above is valid for only 2 years. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 112(D)(10).
Furthermore, an ALJ may reject IQ scores that are inconsistent with the record. See Clark
v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998). Here, the report citing the 2007 test described
plaintiff's cognitive ability as "average to low average." (Tr. 166.) The ALJ in this case
sufficiently considered the evidence concerning plaintiff's cognitive abilities at Step Three.
(Tr. 17-20.) Therefore, the court concludes the ALJ did not err at Step Two.

11

2.

Opinion Evidence
Plaintiff argues that the ALJ incorrectly found "less than marked" limitations in the

domain of acquiring and using information. This court concludes substantial evidence
supports the ALJ's conclusion that plaintiff had some limitations in this domain, although
not marked limitations.
The domain of acquiring and using information refers to how well a child learns and
uses information. See 20 C.F.R. § 416.926a(g). Adolescents should be able to demonstrate
what they have learned in academic assignments and to use what they have learned in daily
living situations without assistance. See 20 C.F.R. § 416.926a(g)(v). Adolescents should
also be able to express simple and complex ideas, use increasingly complex language, and
apply these skills in practical ways that will help them enter the workplace after finishing
school. (Id.)
The ALJ acknowledged that plaintiff's ability to learn and progress in school was
impeded by his mental impairments, particularly his ADHD, that he required special
education services, and that he performed academically below his grade level. She noted
that plaintiff’s intelligence and cognitive testing revealed a slower rate of learning, poor
working memory, and poor ability in many aspects of language and speech. (Tr. 19-20.)
Plaintiff's mother also testified at the hearing that plaintiff had difficulty remembering what
he had read. (Tr. 40-41.)
The ALJ also considered, however, that testing demonstrated average to low average
cognitive ability and that his treating psychiatrist, Dr. Viamontes, opined that plaintiff had
unlimited ability to understand and carry out short, simple instructions, and limited but
satisfactory ability to understand, remember, and carry out detailed instructions. Plaintiff's
teacher, Ms. Schlote, opined that plaintiff had slight problems in some aspects of acquiring
and using information, obvious problems in others, and a serious problem only with math.
(Tr. 20, 150.) Plaintiff was promoted from the sixth to the seventh grade, and had not been
required to repeat a grade since kindergarten. (Tr. 20.) Despite her subsequent testimony,
12

in a function report, plaintiff’s mother alleged limitations in this domain, stating only that
plaintiff had a "difficult time with reading comprehension." (Tr. 20, 142.) Cf. Dunahoo v.
Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001) (fact that claimant did not allege depression in
application for disability benefits is significant, even if the evidence of depression was later
developed).
An ALJ will find that a child has a "marked" limitation in a domain when the child
scores two standard deviations or more below the mean on a comprehensive standardized
test and his day-to-day functioning is consistent with that score. 20 C.F.R. § 416.926a(e)(2).
However, no single test score can by itself establish a marked limitation. 20 C.F.R. §
416.926a(e)(4)(I). Rather, test scores are considered together with other evidence in the
record, including reports and observations of teachers and others. See 20 C.F.R. §
416.926a(e)(4)(ii). Plaintiff argues that the ALJ failed to explain why she found less than
marked limitations despite evidence that plaintiff’s reading level was two standard deviations
below the mean. In support, plaintiff cites to objective test results from September and
October 2009.

However, few of these tests actually contained results more than two

standard deviations below the mean. (Tr. 178, 184-85, 188.) It also appears that Dr. Mora
relied on these test scores exclusively in assessing marked limitations. (Tr. 277.) Plaintiff
also suggests that Mr. Davis's and Ms. Schlotes's indications that plaintiff read at a level at
least two grades below his peers showed additional functioning two standard deviations
below the mean. (Tr. 150, 226.) See id. Plaintiff cites no authority, however, to support the
notion that a teacher's estimate of a student's grade level equates to a measure of standard
deviation on a standardized test. See id. Furthermore, as noted above, the ALJ considered
this evidence, but found that testing also indicated average or low average cognitive ability.
(Tr. 19-20.)
The ALJ also found that plaintiff's academic performance had improved with therapy
and increased medication, to the point that he began earning A's and B's in school. (Tr. 20,
232-33, 257-65.) The ALJ found that plaintiff's impairments had generally improved with
13

treatment throughout 2010, indicating that his impairments were no longer as severe as
alleged.

(Tr. 17.)

See 20 C.F.R. §§ 416.926a(a)(3), 416.924a(b)(9); Collins ex rel.

Williams v. Barnhart, 335 F.3d 726, 729-30 (8th Cir. 2002). Plaintiff contends that an
increase in medication is necessarily inconsistent with improved behavior. However, the
ALJ cited to evidence showing that medication in this case actually improved plaintiff's
functioning. (Tr. 16-17.) Specifically, Dr. Viamontes assessed steadily increasing GAF
scores throughout 2010. (Tr. 17, 350-61.) Plaintiff's teachers also noticed that by May
2010 plaintiff's emotions were stabilizing. (Tr. 17, 211.) Notes from plaintiff's treating
physician, Dr. Matt, indicated that plaintiff's functioning and behavior had improved
throughout 2010. (Tr. 17, 324-30.) Specifically, Dr. Matt noted that in December 2010
plaintiff displayed age-appropriate behavior, increased activity, and normal attention span
and concentration. (Tr. 325.) Accordingly, the ALJ concluded that the evidence as a whole
did not support a finding of marked limitations in the domain of acquiring and using
information. (Tr. 19-20.)
Plaintiff also asserts that the evidence supports his alleged difficulties in the domain
of attending and completing tasks. The ALJ, however, explicitly considered the evidence
plaintiff cited in evaluating his complaints. (Tr. 17-18, 21.) The ALJ found that the
opinions of Dr. Viamontes and Ms. Schlote supported a finding of less than marked
limitations. (Tr. 21.) Indeed, Ms. Schlote opined that plaintiff displayed "no problem" or
"a slight problem" in 7 out of 13 activities relating to this domain, a "serious" problem in
none of these activities, and a "very serious problem" in one. (Tr. 151.) Dr. Viamontes
found limited but satisfactory ability to maintain attention for two-hour segments, to
complete a normal school day or week without interruption from symptoms, and to perform
at a consistent pace without unreasonable breaks. (Tr. 21, 289.) This court therefore agrees
with the ALJ’s finding that the opinion and other evidence did not support a finding of
marked limitations.

14

3.

Opinion Evidence
Plaintiff next argues the ALJ failed to provide the weight given to the opinion of state

agency non-examining medical consultant Dr. Mora. She argues that the ALJ failed to
explain how Dr. Mora's opinion could support the ALJ’s decision on the issue of whether
plaintiff met or equaled a listed impairment, while at the same time not support her decision
on the issue of whether plaintiff functionally equaled a listed impairment.
The ALJ considers opinion evidence together with the rest of the relevant evidence
in determining disability. See 20 C.F.R. § 416.927; Social Security Ruling (SSR) 96-2p,
96-5p, 96-6p, 06-03p. When evaluating opinion evidence from acceptable medical sources
and other sources, the ALJ considers factors such as: (1) how long the source has known and
how frequently the source has seen the claimant; (2) how consistent the opinion is with the
record as a whole; (3) how well the source supports and explains the opinion; and (4)
whether the source has a specialty related to the claimant's impairments. See 20 C.F.R. §
416.927(c); SSR 06-03p. Not every factor applies in every case. SSR 06-03p.
In this case, the ALJ gave significant weight to the opinion of Dr. Viamontes,
plaintiff's treating psychiatrist. (Tr. 17-18, 287-91.) The ALJ noted that by the end of 2010,
Dr. Viamontes assessed GAF scores indicating mild symptoms. (Tr. 17, 350-61.) Plaintiff
argues that Dr. Viamontes' opinion conflicts with the ALJ's finding of marked restriction in
interacting and relating with others.

However, the ALJ specifically relied on Dr.

Viamontes's opinion in evaluating that domain. (Tr. 22.) Dr. Viamontes found limited but
satisfactory ability to get along with peers and interact appropriately with others at school,
and seriously limited but not precluded ability to work in coordination with others and
maintain socially appropriate behavior. (Tr. 22, 290.) Furthermore, Dr. Viamontes found
that plaintiff displayed anger, oppositional behavior, and difficulty behaving appropriately.
(Tr. 22, 290.) The ALJ found these limitations consistent with a marked limitation in
interacting and relating with others (Tr. 22.) Because the ALJ gave "good reasons" for the

15

weight she afforded the opinion of Dr. Viamontes, her evaluation of that opinion was
sufficient. See 20 C.F.R. § 416.927(c)(2).
The ALJ assigned some weight to the opinion of Ms. Schlote, plaintiff's sixth-grade
teacher. (Tr. 18, 149-56.) The opinions of "other" sources, such as teachers, cannot
establish impairments but can be used to determine the effect of an impairment on the
claimant's ability to function. See SSR 06-03p. Here, the ALJ considered that Ms.
Schlotes's opinion was based on daily classroom interaction with plaintiff. (Tr. 18, 149).
The ALJ also found Ms. Schlotes's opinion consistent with that of Dr. Viamontes, as well
as other record evidence. (Tr. 18.) The ALJ relied on both opinions in determining that
plaintiff had less than marked limitation in acquiring and using information and attending
and completing tasks. (Tr. 17-18, 20-21, 150, 289.) Accordingly, the ALJ properly afforded
some weight to Ms. Schlotes's opinion.
The ALJ assigned less weight to the opinion of Dr. Mora, the state agency
non-examining medical consultant. (Tr. 18, 275-80.) Dr. Mora reviewed the record in
March 2010 and opined that plaintiff's impairments did not meet, medically equal, or
functionally equal the listings. (Tr. 275.) Dr. Mora assessed marked impairment in the
domain of acquiring and using information, but no or less than marked limitation in the other
five domains. (Tr. 18, 277-78.) As plaintiff acknowledges, Dr. Mora based her opinion
regarding acquiring and using information on educational test results from 2009. (Tr. 277.)
As discussed above, the ALJ, however, found subsequent evidence regarding plaintiff's
improvement throughout 2010 particularly relevant. (Tr. 16-17.) The ALJ noted that
unlike Dr. Viamontes and Ms. Schlote, Dr. Mora had not treated or interacted with plaintiff.
(Tr. 18.) Thus, the ALJ properly assigned less weight to the opinion of Dr. Mora. See 20
C.F.R. §§ 416.927(c)(1), (6).
The ALJ also afforded little weight to the opinion of Mr. Davis, plaintiff's special
education case manager who was also a non-medical "other" source. See SSR 06-03p. The
ALJ found Mr. Davis's opinion inconsistent with the medical evidence, educational
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evidence, function reports, and plaintiff's mother's testimony. (Tr. 18.) Specifically, the ALJ
found that Mr. Davis assessed a more limited ability to communicate than indicated by other
evidence. (Tr. 18, 141, 152-53, 167, 229-30.) In fact, plaintiff's IEP team opined that his
communicative status was "adequate for school success." (Tr. 167.) Plaintiff contends that
Mr. Davis's opinion was consistent with statements from plaintiff's mother. However, the
ALJ found that plaintiff's mother testified to greater limitations than she alleged in earlier
disability and function reports.

(Tr. 17, 135, 141-42.) As the record evidence did not

support any worsening of plaintiff's condition, the ALJ found the inconsistencies undermined
plaintiff's mother's credibility.

(Tr. 17.) Plaintiff contends that the ALJ should have

resolved these inconsistencies in Mr. Davis' favor. However, resolving inconsistencies in
the evidence is a task reserved to the ALJ. See Hacker v. Barnhart, 459 F.3d 934, 936 (8th
Cir. 2006) (It is the ALJ’s task to resolve conflicts in the evidence.). To the extent that
plaintiff is suggesting that the ALJ might have weighed the evidence differently, he has not
identified any error in the ALJ's analysis that requires remand. Thus, the ALJ's consideration
of the opinion evidence will be affirmed.
Plaintiff finally argues that the ALJ failed to consider his functioning outside a
structured and supportive school setting. However, the ALJ explicitly evaluated the "whole
child," considering how plaintiff functioned "in all settings at all times." (Tr. 16.) The ALJ
acknowledged that plaintiff received special education services, but noted that he could
attend a regular classroom setting for 40 to 79% of the school day. (Tr. 19.) The ALJ also
considered records concerning plaintiff's functioning, not only in special education classes,
but during regular classes, at doctor visits, and at home. (Tr. 17-26.)
This court concludes that contrary to Plaintiff's various contentions, the ALJ
considered all of the relevant evidence in finding that plaintiff did not have "marked"
limitations in two functional domains or an "extreme" limitation in one functional domain.

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VI. CONCLUSION
For the reasons set forth above, the court finds that the decision of the ALJ is
supported by substantial evidence in the record as a whole and consistent with the
Regulations and applicable law. The decision of the Commissioner of Social Security is
affirmed. An appropriate Judgment Order is issued herewith.

/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE

Signed on July 26, 2013.

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