ROBINSON v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION. Signed by Judge Jose L. Linares on 1/6/14. (jd, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TYISHA ROBINSON,
Civil Action No. 13-916 (JLL)
Plaintiff,

v.

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

LINARES, District Judge.

Before the Court is Tyisha Robinson (“Plaintiff’)’s appeal on behalf of her minor child,
J.G. (“Claimant”), seeking review of a final determination by Administrative Law Judge (“AU”)
Richard L. De Steno denying her application for supplemental security income. The Court
declines Plaintiff’s request for oral argument and, thus, resolves this matter on the parties’ briefs
pursuant to Local Civil Rule 9.1(f). For the reasons below, the Court affirms the final decision
of the Commissioner of Social Security.
I.

BACKGROUND

A.

Medical Evidence Concerning Claimant’s Impairments

Plaintiff claims that Claimant is disabled due to his (1) hearing impairment, (2) attention
deficit hyperactivity disorder (“ADHD”), and (3) oppositional defiant disorder (“ODD”). The
AU concluded that these impairments were severe. (R. at

“R.” refers to the pages of the Administrative Record.

19))

A discussion of the medical

evidence pertaining to each of Claimant’s impairments, including hospital reports and
consultative examinations, follows.
1.

Claimant’s Hearing Impairment

Claimant has a history of decreased hearing and has been diagnosed with chronic serous
otitis media and auditory processing disorder. (Id. at 187-88, 199). In April 2009, Claimant had
a myringotomy and tubes placed in his ears. (id. at 199). In July 2009, Dr. Diego Saporta
conducted a pure tone audiometry examination of Claimant that revealed speech discrimination
scores of 96% in both ears. (Id. at 184-86).
In August 2009, Consultant Examiner Dr. Gerald West conducted an audiology
examination of Claimant and found that Claimant’s hearing was then at the high limits of normal
with speech discrimination scores of 90% in both ears. (Id. at 187-89). Dr. West noted that the
tubes placed in Claimant’s ears had been of “some help,” but that Claimant still had to be called
repeatedly to get his attention and had to play the television loudly to hear it. (Id. at 187). Dr.
West also noted that an examination of Claimant’s ears revealed moisture in both external
auditory canals. (Id.). In spite of Claimant’s hearing impairment, Dr. West noted that Claimant
was “able to communicate well.” (Id.).
On October 20, 2009, Claimant met with Dr. Magalia Nelson. (Id. at 199). At that time,
Claimant was receiving weekly ear canal debridement. (Id.). Dr. Nelson noted that Claimant’s
ear canals were normal and that the tubes in his ears were in “good” positions and lacked
discharge. (Id.). Dr. Nelson diagnosed Claimant with chronic external otitis, resolved, and
chronic otitis media. (Id.). The following day, on October 21, 2009, Mashenda Green, APN,
conducted a psychiatric evaluation of Claimant at Trinitas Hospital. (Id. at 201-05). Plaintiff

2

informed Nurse Green that Claimant’s hearing had improved since the tubes were placed in
Claimant’s ears. (Id. at 202).
2.

Claimant’s ADHD and ODD

Claimant began attending ADHD support groups in June 2009. (Id. at 202). In July
2009, a psychiatrist at Trinitas Hospital assigned Claimant a Global Assessment Functioning
(“GAF”) rating of sixty, and diagnosed Claimant with ADHD, combined type, and ODD. (Id. at
2
227).

In October 2009, Claimant’s school referred him to Trinitas hospital for a psychiatric
evaluation. (Id. at 20 1-05). Nurse Green conducted the evaluation. (Id. at 201-205). At that
time, Claimant was in the fourth grade. (Id. at 203). Nurse Green noted that the school referred
Claimant because of his hyperactive behavior, inability to focus, highly distractible behavior, and
frequent fighting in school. (Id. at 201). Plaintiff told Nurse Green that Claimant engaged in
similar behaviors while at home and also fought with his siblings. (Id. at 202). Plaintiff also
informed Nurse Green that she had received numerous telephone calls from Claimant’s school
reporting misbehavior. (Id. at 202). Plaintiff also told Nurse Green that there had been some
improvement since Claimant had tubes placed in his ears. (Id.).
According to Nurse Green’s mental status examination of Claimant, Claimant was
cooperative, his speech was normal, and his mood was neutral with a congruent affect. (Id. at
204). Nurse Green’s examination further revealed that Claimant was easily frustrated and
2

The GAF Scale ranges from zero to one-hundred. American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed. text rev. 2000) (hereinafter DSM-IV-TR). An individual’s “GAF rating is
within a particular decile if either the symptom severity or the level of functioning falls within the range.” Id. at 32.
“[l]n situations where the individual’s symptom severity and level of functioning are discordant, the final GAF
rating always reflects the worse of the two.” Id. at 33. “In most instances, ratings on the GAF Scale should be for
the current period (i.e., the level of functioning at the time of the evaluation) because ratings of current functioning
will generally reflect the need for treatment or care.” Id. A GAF rating of fifty-one to sixty indicates that an
individual has “[m]oderate symptoms,” e.g., “flat affect and circumstantial speech, [or] occasional panic attacks,’ or
“moderate difficulty in social, occupational, or school functioning,” e.g., “few friends, conflicts with peers
Id.
at 34.

3

angered, fidgeted frequently, was clumsy and forgetful, lacked impulse control, frequently acted
before he thought, and had fair judgment and insight. (Id.). Nurse Green assigned Claimant a
GAF rating of forty-five to fifty and diagnosed Claimant with ADHD, combined type, and
3
ODD. (Id. at 204-05). Nurse Green ruled out the possibility that Claimant had a learning
disorder related to reading or mood disorder. (Id. at 204). Nurse Green recommended treatment
with medication, particularly Concerta, monthly medication monitoring, and continued
participation in the ADHD group. (Id. at 205). Trinitas Hospital prescribed Claimant Concerta
in October 2009 and continued to prescribe it until at least April 2011. (Id. at 237).
In November 2009, a doctor at Trinitas Hospital noted that Plaintiff was “very happy”
because Claimant had improved both academically and behaviorally. (Id. at 207). The doctor
noted that Claimant was very proud of himself and that Plaintiff reported a decrease in
Claimant’s fighting and irritability. (Jd.). The doctor also noted that Claimant had a neutral and
appropriate mood/affect, a goal oriented thought process/content, and intact cognitive
functioning. (Id.). In April 2011, Nurse Green noted that Claimant, who was at that time in the
fifth grade, was classified as having a learning disorder and behavioral disability. (Id. at 238).
B.

Claimant’s School Records

Claimant’s fourth grade teacher, Michelle DelBene, spent two school years with
Claimant because Claimant had to repeat the fourth grade. (See Id. at 105-12, 166-73).
DelBene’s records from September to December 2008 noted that Claimant fooled around
constantly, talked too much, and was failing most subjects. (Id. at 106-07). According to
DelBene, on December 5, 2008, Claimant stayed outside longer for recess than he should have
and did not come inside with his classmates. (Id. at 106).
‘

A GAF rating of forty-one to fifty indicates that an individual has either “[slerious
impairment in social, occupational, or school functioning
DSM-IV-TR 34.

4

symptoms” or “serious

In December 2009, DelBene completed a teacher questionnaire for the Division of
Disability Determination Services. (Id. at 166-73). In said questionnaire, DelBene rated
Claimant’s capacity to perform certain activities that the Social Security Administration
considers probative of whether a child has a marked or extreme limitation in each of the six
4
domains. (Id. at 167-72). A teacher completing the questionnaire could rate a child’s capacity
to perform an activity on a scale from one to five. (Id.). A rating of “one” signified that
Claimant had no problem, a rating of “two” signified that Claimant had a slight problem, a rating
of “three” signified that Claimant had an obvious problem, a rating of “four” signified that
Claimant had a serious problem, and a rating of five signified that Claimant had a very serious
problem. (Id.).
With regard to Claimant’s ability to acquire and use information, in the context of
performing ten probative activities, DelBene made the following findings. (Id. at 167). DelBene
found that Claimant had a serious problem with providing organized oral explanations and
adequate descriptions. (Id.). DelBene also found that Claimant had obvious problems with: (I)
understanding school and content vocabulary; (2) reading and comprehending written material;
(3) comprehending and doing math problems; (4) expressing ideas in written form; (5) learning
new material; (6) recalling and applying previously learned materials; and (7) applying problemsolving skills in class discussions. (Id.). Lastly, DelBene found that Claimant had slight
problems with (1) comprehending oral instructions and (2) understanding and participating in
class discussions. (Id.). DelBene noted the following additional information about Claimant’s
ability to acquire and use information: Claimant received help from a reading tutor and was

The six domains are: (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 yourself; and (6) health
and physical
well-being. 20 C.FR. § 416.926a(b)(l). The Court explains their importance in the legal standard section of
the
Opinion.

5

pulled out of class daily for corrective reading; Claimant’s hearing had improved significantly
after he had tubes placed in his ears, and that, as a result, Claimant understood his schoolwork
better than he had in the prior school year; and that, despite this improvement, Claimant
possessed second-to-third-grade level reading skills, third-grade level writing skills, and thirdgrade level math skills. (Id. at 166-67).
With regard to Claimant’s ability to attend and complete tasks, in the context of
performing thirteen probative activities, DelBene made the following findings. (Id. at 168).
DelBene found that Claimant had obvious problems with: (I) changing from one activity to
another without being disruptive; (2) completing work accurately without careless mistakes; and
(3) working without distracting himself or others. Id. DelBene also found that Claimant had

slight problems with: (1) paying attention when spoken to directly; (2) focusing long enough to
finish assigned activities or tasks; (3) refocusing to task when necessary; (4) carrying out multistep instructions; (5) waiting to take turns; and (6) working at a reasonable pace or finishing on
time. (Id.). Lastly, DelBene found that Claimant had no problems with: (1) sustaining attention
during play or sports activities; (2) carrying out single-step instructions; (3) organizing his own
things or school materials; and (4) completing class or homework assignments. (Id.). DelBene
noted the following additional information about Claimant’s ability to attend and complete tasks.
DelBene noted that Claimant’s ability to focus and stay on task had improved since he began
taking medication. (Id.). She also noted that Plaintiff signed Claimant’s homework book daily
to ensure that Claimant wrote his assignments down accurately and took his books and materials
home with him. (Id.).
With regard to Claimant’s ability to interact and relate with others, in the context of
performing thirteen probative activities, DelBene made the following findings. (Id. at 169).

6

DelBene found that Claimant had obvious problems with: (1) expressing anger appropriately,
(2) respecting or obeying adults in authority; and (3) introducing and maintaining relevant and
appropriate topics of conversation. (Id.). DelBene also found that Claimant had slight problems
with: (1) playing cooperatively with other children; (2) seeking attention in an appropriate
manner; (3) following rules in the classroom, and during games and sports activities; and (4)
using adequate vocabulary and grammar to express his thoughts or ideas. (Id.). DelBene found
that Claimant had no problems with: (1) making and keeping friends; (2) asking permission
appropriately; (3) relating experiences and telling stories; (4) using language appropriate to the
situation and listener; (5) taking turns in a conversation; and (6) interpreting the meaning of
facial expressions, body language, hints, or sarcasm. (Id.). Delflene noted the following
additional information about Claimant’s ability to interact and relate with others. DelBene noted
that Claimant had a core group of friends, tended to instigate children that he disliked, and
frequently stole things from his peers. (Id.). DelBene also noted that Claimant’s friendships had
to be monitored closely because he was a follower and did not always choose appropriate role
models. (Id.).
With regard to Claimant’s ability to move about and manipulate objects, DelBene found
that Claimant had no problems. (Id. at 170).
With regard to Claimant’s ability to care for himself, in the context of performing ten
probative activities, DelBene made the following findings. (Id. at 171). DelBene found that
Claimant had a serious problem with judgment regarding his personal safety and dangerous
circumstances. (Id.). DelBene also found that Claimant had obvious problems with: (1)
handling frustration appropriately; (2) being patient when necessary; (3) identifying and
appropriately asserting emotional needs; (4) responding appropriately to changes in his own

7

mood; and (5) using appropriate coping skills to meet the daily demands of the school
environment. (Id.). Additionally, DelBene found that Claimant had slight problems with (1)
cooperating in, or being responsible for, taking needed medications and (2) knowing when to ask
fir help. (Id.). Lastly, DelBene found that Claimant had no problems with (1) taking care of his
personal hygiene, and (2) caring for his physical needs such as dressing and eating. (Id.).
DelBene also noted that Claimant tended to “shut down” when frustrated or angry and would
follow his friends’ actions even when he knew that doing so was wrong. (Id.). DelBene wrote
that when Claimant was angry he could become defiant and stubborn, but would eventually calm
down and resume his activities if she ignored or coerced him. (Id.).
Finally, with regard to Claimant’s health and well-being, DelBene noted that Claimant’s
daily use of ADHD medication made him more focused. (Id. at 172). DelBene also noted that
Claimant attended anger management counseling at Trinitas Hospital on a weekly basis. (Id.).
C.

Procedural History

On May 4, 2009, Plaintiff filed an application for supplemental security income on behalf
of Claimant with the Social Security Administration. (Id. at 91-98). The Administration denied
Plaintiff’s application and subsequent request for reconsideration. (Id. at 5 1-56). In response,
Plaintiff filed a request for a hearing before an AU with the Office of Disability Adjudication
and Review. (Id. at 59-60).
AU De Steno presided over this hearing on April 7, 2011, in Newark, New Jersey. (Id.
at 32). After reviewing the facts of Claimant’s case, on May 31, 2011, AU De Steno issued a
decision finding that Claimant was not disabled from the date that Plaintiff filed her application
through the date of decision. (Id. at 12-28).
5

Supplemental security income benefits are not payable for any month prior to the month after the application for
such benefits is filed. 20 C.F.R. § 416.335.

8

Plaintiff sought Appeals Council review. (Id. at 7). The Appeals Council denied
Plaintiffs request on December 13, 2012, rendering the AU’s decision the final decision of the
Commissioner. (Id. at 1). Plaintiff appealed to this Court on February 14, 2013. (Compi. 1-3,
ECF o. 1). This Court has jurisdiction to review this matter pursuant to 42 U.S.C.
LI.

§ 405(g).

LEGAL STANDARD

A.

The Three-Step Process for Evaluating Whether a Child is Disabled

Under the Social Security Act, the Social Security Administration is authorized to pay
supplemental security income to “disabled” persons. 42 U.S.C.

§ 1382(a). A child,

i.e., “[ajn

individual under the age of 18,” is “disabled” if he “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.

§ 1382c(a)(3)(C)(i).

Regulations promulgated under the Social Security Act establish a three-step process for
determining whether a child is disabled. 20 C.F.R.

§ 4 16.924. At step one, the AU assesses

whether the child is currently engaging in substantial gainful activity. 20 C.F.R.

§ 4 16.924(b). If

so, the child is not disabled and, thus, the process ends. Id. If not, the AU proceeds to step two
and determines whether the child suffers from a severe impairment or combination of
impairments. 20 C.F.R.

§ 4 16.920(c). Absent such an impairment or combination of

impairments, the child is not disabled. Id. Conversely, if the child has such an impairment or
combination of impairments, the AU proceeds to step three. 20 C.F.R.

§ 416.924(a).

At step three, the AU determines whether the child has an impairment or combination of
impairments that meets, medically equals, or functionally equals a listed impairment in the
appendix. 20 C.F.R.

§ 416.924(d). An impairment or combination of impairments “medically

9

equals” a listed impairment “if it is at least equal in severity and duration to the criteria of any
listed impairment.” 20 C.F.R.

§ 416.926(a). An impairment or combination of impairments

“functionally equals” a listed impairment if the child has either two “marked” limitations or one
“extreme” limitation in the following domains: (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 yourself; or (6) health and physical well-being. 20 C.F.R.

§

41 6.926a(b)( 1). A limitation is “marked” if it “interferes seriously with [the child’s] ability to
independently initiate, sustain, or complete activities.” 20 C.F.R.
limitation is” ‘more than moderate’ but ‘less than extreme.’

“

§ 416.926a(e)(2). Such a

Id. A limitation is “extreme” if it

“interferes very seriously with [the child’s] ability to independently initiate, sustain, or complete
activities.” 20 C.F.R.

§ 4l6.926a(e)(3). While an extreme limitation is “more than marked,” it is

not necessarily the equivalent of “a total lack or loss of ability to function.” Id. In assessing
whether an impairment or combination of impairments “functionally equals” a listed impairment,
the AU considers “all the relevant factors,” including the effectiveness of the child’s medication,
the child’s ability to function in school, and the effects of structured settings on the child’s
performance. 20 C.F.R.

§ 416.926a(a)(l)-(3). If the child has an impairment that meets,

medically equals, or functionally equals a listed impairment, the child is considered disabled
under the Social Security Act. 20 C.F.R.
B.

§ 4l6.924(d)(l).

The Standard of Review: “Substantial Evidence”
6

This Court must affirm an AU’s decision if it is supported by substantial evidence. See
42 U.S.C.

§ 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla. It means

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
6

Because the regulations governing supplemental security income—20 C.F.R. § 416.920—are identical to those
covering disability insurance benefits——20 C.F.R. § 404.1 520—this Court will consider case law developed under
both regimes. Rutherford v. Barn hart, 399 F.3d 546, 551 n. 1 (3d Cir. 2005) (citation omitted).

10

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co.

1’.

NLRB, 305 U.s.

197, 229 (1938)). To determine whether an AU’s decision is supported by substantial evidence,
this Court must review the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.
1984). However, this Court may not “weigh the evidence or substitute its conclusions for those
of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citation omitted).
Consequently, this Court may not set an AU’s decision aside, “even if [it] would have decided
the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citations
omitted).
III.

DISCUSSION
After applying the three-step process, the AU concluded that Claimant had not been

disabled from the date that Plaintiff filed Claimant’s application through the date of decision.
(R. at 27). At step one, the AU found that Claimant had not engaged in substantial gainful
activity. (Id. at 19). At step two, the AU found that Claimant’s hearing impairment, ADHD,
and ODD were severe impairments. (Id.). At step three, the AU found that these severe
impairments did not meet, medically equal, or functionally equal a listed impairment. (Id. at 1927). Plaintiff contends that the AU’s findings at step three concerning medical and functional
equivalence are not based on substantial evidence. (See P1. Br. 5-16, ECF No. 10).
A.

Whether the AU’s Finding that Claimant Did Not Have an Impairment or
Combination of Impairments That Met or Medically Equaled a Listed Impairment
is Based on Substantial Evidence

Plaintiff contends that the AU’s finding concerning medical equivalence is not based on
substantial evidence because the AU did not adequately: (1) explain why Claimant’s ADHD did
not meet or medically equal listing 112.11; (2) explain why Claimant’s ODD did not meet or
medically equal listing 122.08; and (3) assess whether the combination of Claimant’s

11

impairments medically equaled a listed impairment. (Id. at 7-13). The Court addresses each of
Plaintiffs contentions in turn.
1.

Whether the AU’s Finding that Claimant’s ADHD Did Not Meet or
Medically Equal Listing 112.11 is Based on Substantial Evidence

Plaintiff argues that contrary to Cotter v. Harris and its progeny, the AU failed to
adequately explain why Claimant’s ADHD did not meet or medically equal listing 112.11. (P1.
Br. 7-11). In Cotter, the Third Circuit held that an AU should provide “a clear and satisfactory
explication of the basis on which [his decision] rests.” 642 F.2d 700, 704 (3d Cir. 1981). The
Third Circuit later clarified in Burnett v. Commissioner ofSocial Security Administration that an

AU must “fully develop the record and explain his findings at step three, including an analysis
of whether and why [each of the claimant’s] impairments, or those impairments combined, are or
are not equivalent in severity to one of the listed impairments.” 220 F.3d 112, 120 (3d Cir.
2000). “Burnett does not require the AU to use particular language or adhere to a particular
format in conducting his analysis.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).
Rather, the AU’s decision, “read as a whole,” must permit meaningful judicial review by
developing the record and explaining its findings. Id.; Cosby v. Comm ‘r ofSoc. Sec., 231 F.
App’x 140, 146 (3d Cir. 2007) (citations omitted). Here, the AU’s explanation as to why
Claimant’s ADHD did not meet or medically equal listing 112.11 satisfies the Cotter line of
cases.
A child’s ADHD meets or medically equals listing 112.11 if there are medically
documented findings of marked inattention, marked impulsiveness, and marked hyperactivity in
addition to marked limitations in at least two of the following categories: (1) age-appropriate
cognitive/communicative functioning; (2) age-appropriate social functioning; (3) age-appropriate
personal functioning; or (4) difficulties in maintaining concentration, persistence, or pace. 20
12

C.F.R. Pt. 404, Subpt. P, App’x. 1, Pt. B 112.11. Here, the AU found that the record did not
show that Claimant’s ADHD met listing 112.11. (R. at 20). The AU explained that Claimant
“is in regular classes, has friends, is able to perform self-care, such as getting dressed and
brushing his teeth, and has improved ability to maintain focus due to medication.” (Id.).
Plaintiff contends that this explanation is inadequate pursuant to the Cotter line of cases
because it fails to mention certain facts and is overly ambiguous. (See P1. Br. 9-Il). For
instance, Plaintiff notes that although the AU’s step three explanation mentions that Claimant is
in “regular classes,” it fails to mention that Plaintiff was held back for one year. (Id. at 9-10).
For the reasons that follow, the Court disagrees that the AU’s opinion is inadequate.
As there is no requirement that an AU “use particular language or adhere to a particular
format in conducting his analysis,” there is no requirement that an AU mention all evidence
related to a step-three finding in that section of the opinion. Jones, 364 F.3d at 505; see also
King v. Comm ‘r of Soc. Sec., No. 12-6573, 2013 WL 6188386, *8 (D.N.J. Nov. 26, 2013)
(citation omitted) (“To the extent that Plaintiff attempts to invoke Cotter v. Harris, the standard
before the reviewing court is not that the AU must mention every shed of evidence.”). Rather,
“the AU’s decision, read as a whole, [must] illustrate[] that the AU considered the appropriate
factors

.

.

.

.“

Jones, 364 F.3d at 505. Here, the AU’s decision satisfies that standard.

While the AU’s step-three explanation does not mention certain facts highlighted by
P1aintift the AU’s decision elsewhere mentions and develops these facts. (R. at 15-19). Thus,
the AU’s decision read as whole provides a “sufficient development of the record and
explanation of findings to permit meaningful judicial review.” Jones, 364 F.3d at 505; see also
Jararnillo cx ret. Mesa v. Comm ‘r ofSoc. Sec., 130 F. App’x 557, 561 (3d Cir. 2005)

(concluding that an AU’ s decision was sufficient and permitted meaningful judicial review

13

because the AU “identified the specific Listings to which he was referring” and “discussed the
evidence presented at length.”). Accordingly, the AU’s explanation as to why Claimant’s
ADHD did not meet or medically equal Listing 112.11 satisfies Cotter and its progeny. See, e.g.,
Watkins v. Comm ‘r of Soc. Sec., 131 F. App’x 362, 365 (concluding that AU adequately
supported finding that claimant’s ADHD did not meet or medically equal Listing 112.11 because
AU “point[ed] to specific evidence that supported his conclusion.
2.

.

.

Whether the AU’s Finding that Claimant’s ODD Did Not Meet or
Medically Equal Listing 112.08 is Based on Substantial Evidence

Plaintiff contends that the AU’s finding that Claimant’s ODD did not meet or medically
equal listing 112.08 is not based on substantial evidence. (see P1. Br. 11-13). A child’s ODD
meets listing 112.08 if three total requirements are met. 20 C.F.R. Pt. 404, Subpt. P. App’x. 1,
Pt. B 112.08. The child must have “deeply ingrained, maladaptive patterns of behavior,
associated with one of the following: [1] Seclusiveness or autistic thinking; or [2] Pathologically
inappropriate suspiciousness or hostility; or [3] Oddities of thought, perception, speech, and
behavior; or

[41 Persistent disturbances of mood or affect; or [5] Pathological dependence,

passivity, or aggressiveness; or [6] Intense and unstable interpersonal relationships and impulsive
and exploitative behavior; or [7] Pathological perfectionism and inflexibility.

.

.

.“

Id. In

addition, the child must have marked limitations in at least two of the following categories: (1)
age-appropriate cognitive/communicative functioning; (2) age-appropriate social functioning; (3)
age-appropriate personal functioning; or (4) difficulties in maintaining concentration,
persistence, or pace. Id.
In this matter, the AU found that Claimant’s ODD did not meet or medically equal
listing 112.08. (R. at 20). In support of this finding, the AU discussed some of DelBene’s
observations of Claimant. (Id.). The AU noted that DelBene observed that although Claimant
14

could become defiant and stubborn when angry, she was able to calm him down enough to
enable him to resume his activities. (Id.). The ALl also noted that DelBene observed that
Claimant’s fighting and irritability had decreased once he started medication. (Id.). Lastly, the
AU referred back to his finding that Claimant “is in regular classes, has friends, is able to
perform self-care, such as getting dressed and brushing his teeth, and has improved ability to
maintain focus due to medication.” (Id.).
This analysis constitutes substantial evidence in support of the AU’s finding. See, e.g.,
Watkins, 131 F. App’x 362, 366 (3d Cir. 2005) (suggesting that evidence of progress constitutes
substantial evidence in support of AU’s finding). Furthermore, when the AU’s decision is read
as whole, it is clear that it provides a “sufficient development of the record and explanation of
findings to permit meaningful judicial review.” Jones, 364 F.3d at 505.
3.

Whether the AU Adequately Assessed Whether the Combination of
Claimant’s Impairments Medically Equaled a Listed Impairment

Plaintiff contends that the Court should remand this case to the AU for failure to
examine Claimant’s combined impairments to determine medical equivalence. (P1. Br. 6-8).
An AU fulfills his obligation to consider a claimant’s impairments in combination if the AU
explicitly indicates that he has done so and there is “no reason not to believe him.” Morrison ex
rd. Morrison v. Comm ‘r ofSoc. Sec., 268 F. App’x 186, 189 (3d Cir. 2008).
Here, the AU explicitly indicated at the beginning of his step three discussion that
Claimant “does not have an impairment or combination of impairments that meets or medically
equals any of the listed impairments.

.

.

.“

(R. at 19). Given the AU’s thorough discussion of

the record throughout his opinion and detailed explanation of why each of Claimant’s
impairments did not meet a listing, the Court finds no reason to disbelieve the AU’s indications
that he considered the combined effect of Claimant’s impairments. See Jones, 364 F.3d at 505
15

(finding AU ‘s step-three detennination adequate because AU’s decision, “read as a whole,”
illustrated that AU considered the appropriate factors); see also Gainey v. Astrue, No. 10-1912,
2011 WL 15660865, *12 (D.N.J. Apr. 25, 2011) (citation omitted) (holding that “AU’s detailed
analysis of the individual impairments and conclusion that Plaintiff did not have ‘an impairment
or combination of impairments’ that met or equaled a listing is sufficient.”). Accordingly, the
Court finds that the AU’s step-three findings are based on substantial evidence.
B,

Whether the AU’s Finding that Claimant Did Not Have an Impairment or
Combination of Impairments That Functionally Equaled a Listed Impairment is
Based on Substantial Evidence

Plaintiff contends that the AU’s finding that Claimant does not have an impairment or
combination of impairments that functionally equals the listings is not based on substantial
evidence. (P1. Br. 13-16). Plaintiff attacks the AU’s findings that Claimant had a less than
marked limitation in the following three domains: (1) acquiring and using information; (2)
attending and completing tasks; and (3) interacting and relating with others. (Id.). For the
reasons that follow, the Court concludes that the AU’s explanations as to why Claimant had a
less than marked limitation in each of these three domains are sufficient to permit meaningful
judicial review and are supported by substantial evidence.
1.

Whether the AU’s Finding That Claimant Had a Less Than Marked
Limitation in Acquiring and Using Information is Based on Substantial
Evidence

The domain of acquiring and using information focuses on “a child’s ability to learn
information and to think about and use the information.” S.S.R. O9-3p. When assessing this
domain, an AU may consider, among other limitations, whether a child reads, writes, or does
arithmetic at the appropriate level. Id. An AU may also consider whether a child has difficulty

16

understanding and following directions. Id. Notably, these limitations do not necessarily
describe a “marked” or an “extreme” limitation. Id.
Here, the AU acknowledged that Claimant’s reading, written language, and math skills
were one grade below grade level. (R. at 22). The AU also acknowledged that Claimant was
held back in the fourth grade and was classified for behavioral issues and learning disabilities.
(Id.). N. onetheless, the AU found that Claimant had a less than marked limitation in acquiring
and using information because: (1) Claimant’s hearing had improved with the placement of tubes
in his ears; (2) Claimant’s vision had improved with glasses; (3) Claimant’s ability to focus had
improved with medications; (4) Claimant’s teacher, DelBene, noted that Claimant was starting to
do better in school; (5) Claimant had advanced to the fifth grade after repeating the fourth grade;
and (6) Claimant was in regular classes. (Id.).
Plaintiff contends that the AU’s explanation as to why Claimant had a less than marked
limitation in acquiring and using information is deficient because it places too much emphasis on
Claimant’s placement in regular classes and DelBene’s statement that Claimant was starting to
do better in school. (See P1. Br. 14-15). Plaintiff also contends that the AU neglected to
mention that Claimant spent some of his school day in special classes. (Id.).
However, this Court finds that the six reasons offered by the AU here are sufficient to
support his finding, and notes that the Court may not now “weigh the evidence or substitute its
conclusions for those of the fact finder.” Williams, 970 F.2d at 1182 (citation omitted). The
Third Circuit has found that a teacher’s observation that a claimant has improved in school can
constitute substantial evidence in support of an AU’s finding. See Watkins, 131 F. App’x 362,
366 (3d Cir. 2005) (finding teachers observation that claimant “made progress in school and is
now capable of completing tasks that he is asked to perform” constituted substantial evidence in

17

support of AU’s finding). Lastly, the AU’s decision “read as whole,” Jones 364 F.3d at 505,
acknowledges that although Claimant was in regular classes, he “received help from the reading
tutor and was pulled out for corrective reading daily.” (R. at 16).
2.

Whether the AU’s Finding That Claimant Had a Less Than Marked
Limitation in Attending and Completing Tasks is Based on Substantial
Evidence

When assessing the domain of attending and completing asks, ALJs “consider a child’s
ability to focus and maintain attention, and to begin, carry through, and finish activities or tasks.”
S.S.R.

O9-4p.

Additionally, ALJs “consider the child’s ability to initiate and maintain attention,

including the child’s alertness and ability to focus on an activity or task despite distractions,
and
to perform tasks at an appropriate pace.” Id. ALJs also “consider the child’s ability to change
focus after completing a task and to avoid impulsive thinking and acting.” Id. Finally, ALJs
“evaluate a child’s ability to organize, plan ahead, prioritize competing tasks, and manag
e time.”
Id.

Here, the AU provided four reasons in support of his finding that Claimant had a less
than marked limitation in the domain of attending and completing tasks. (See R. at 23-24)
. First,
the AU noted that Claimant’s behavior and schoolwork had improved after he began taking
medication. (Id.). Relatedly, the AU noted that a November 2009 medical report stated
that
Claimant’s cognitive functioning was intact and that his thoughts were goal-oriented
. (Id. at 23).
Second, the AU referred to DelBene’s ratings of Claimant’s ability to partake in thirtee
n
activities pertaining to attending and completing tasks. (Id.). The AU noted that
DelBene did
not rate Claimant’s ability to partake in any of the thirteen activities as a serious or very
serious
problem. (See Id. at 23). Instead, DelBene rated Claimant’s ability to partake in
just three of
these activities—( 1) working without distracting himself or others, (2) completing
work

18

accurately, and (3) changing from one activity to another—as obvious problems. (Id.). For the
remaining ten activities, DelBene rated Claimant as having either a slight problem or no
problem. (Id. at 23, 168). Third, the ALl noted that Plaintiff and DelBene monitored Claimant’s
completion of assignments. (Id. at 23). Last, the ALl noted that Plaintiff had reported that
Claimant’s schoolwork and behavior had improved with medication. (Id.).
Plaintiff asserts that the AU improperly treated DelBene’s ratings of Claimant’s capacity
to partake in the thirteen activities pertaining to attending and completing tasks. (P1. Br. 15).
According to Plaintiff, the AU downplayed DelBene findings that Claimant had “obvious
problems” performing three of the activities by “throw[ing] in irrelevancies,” such as DelBene’s
findings that Claimant had a “slight problem” or “no problem” performing the other ten
activities. (Id.).
The Court finds Plaintiffs assertion unavailing. DelBene’s other ten ratings were, in
fact, highly relevant. The teacher questionnaire explicitly listed those activities under the
heading “Attending and Completing Tasks,” and the activities measured factors are outlined as
relevant in S.S.R.

09-4p.

(R. at 168). Ultimately, the AU “adequately articulated a sufficient

evidentiary basis for his decision.” Jaramillo, 130 F. App’x at 562.
3.

Whether the AU’s Finding That Claimant Had a Less Than Marked
Limitation in Interacting and Relating With Others is Based on Substantial
Evidence

The domain of interacting and relating with others focuses on “a child’s ability to initiate
and respond to exchanges with other people, and to form and sustain relationships with family
members, friends, and others.” S.S.R. O9-5p. “Important aspects” of this domain include “the
child’s response to persons in authority, compliance with rules, and regard for the possessions
of

19

others.” Id. Additionally, ALJs consider in this domain “the speech and language skills children
need to speak intelligible and to understand and use the language of their community.”
Here, the AU found that Claimant had a less than marked limitation in interacting and
relating with others. (R. at 24-25). In making this finding, the AU acknowledged the facts that
Plaintiff now argues supported a contrary finding. (P1. Br. 15-16). Namely, the AU
acknowledged that Claimant’s teacher, DelBene, observed that Claimant took things that did not
belong to him, instigated children that he did not like, and sometimes followed his friends’
actions even when he knew that doing so was wrong. (R. at 24-25). In addition, however, the
AU cited other evidence that supported his finding.
In support of his finding, the AU noted that Dr. West observed that Claimant
communicated well. (Id. at 24) The AU also noted that Plaintiff had reported that Claimant was
less irritable and fought less. (Id.). The AU referred to DelBene’s observation that Claimant’s
speech was understandable and to her ratings of Claimant’s capacity to partake in the thirteen
relevant activities. (Id.). The AU noted that DelBene rated Claimant’s capacity to partake in
just three of these activities—(l) expressing anger appropriately, (2) respecting or obeying adults
in authority, and (3) introducing and maintaining relevant and appropriate topics of
conversation—as “obvious” problems. (Id.). The AU further noted that DelBene rated
Claimant’s capacity to partake in the other ten activities as “slight problems” or “no problems.”
(Id.). In citing to this evidence, the AU provided substantial evidence in support of his finding.
See, e.g., Whitsett cx rel. Whitsett v. Comm ‘r ofSoc. Sec., 134 F. App’x 493, 496 (3d Cir. 2005)

(finding AU ‘s functional equivalence determination sufficient where AU discussed factual
record before reaching his conclusion).
IV.

CONCLUSION

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The Court has reviewed the entire record and, for the reasons discussed above, finds that
the AU ‘s determination that Claimant was not disabled was supported by substantial evidence.
Accordingly, the Court affirms the AU’s decision. An appropriate order accompanies this
opinion.
-_)__

L

DATED January t 2014

JOS L.’LINARES
U4PISTRICT JUDGE

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