Johnson v. Social Security Administration

Filing 18

OPINION AND ORDER by Magistrate Judge Frank H McCarthy Affirming the Commissioner's decision (tjc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
STAR JOHNSON O/B/O J.K.J.,
a Minor,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,1
DEFENDANT .

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CASE NO . 12-CV-77-FHM

OPINION AND ORDER
Plaintiff, Star Johnson o/b/o J.K.J., a minor, seeks judicial review of a decision of
the Commissioner of the Social Security Administration denying Social Security disability
benefits.2 In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to
proceed before a United States Magistrate Judge. The Commissioner’s denial decision
is AFFIRMED.
Standard of Review
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C.
§ 405(g) is limited to a determination of whether the record as a whole contains substantial
evidence to support the decision and whether the correct legal standards were applied.
See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v.

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Effective February 14, 2013, pursuant to Fed. R. Civ. P. 25(d)(1), Carolyn W . Colvin, Acting
Com m issioner of Social Security, is substituted as the defendant in this action. No further action need be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
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Plaintiff's February 24, 2009, application for disability benefits was denied initially and on
reconsideration. A hearing before Adm inistrative Law Judge ("ALJ") John W . Belcher was held May 27, 2010.
By decision dated July 9, 2010, the ALJ entered the findings that are the subject of this appeal. The Appeals
Council denied Plaintiff’s request for review on Decem ber 22, 2011. The decision of the Appeals Council
represents the Com m issioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481.

Chater, 92 F.3d 1017 (10th Cir. 1996); Castellano v. Secretary of Health & Human Servs.,
26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is more than a scintilla, less
than a preponderance, and is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427, 28 L. Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). The court may neither reweigh the evidence nor substitute its judgment
for that of the Commissioner. Casias v. Secretary of Health & Human Servs., 933 F.2d
799, 800 (10th Cir. 1991). Even if the court would have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. Hamilton v.
Secretary of Health & Human Servs., 961 F.2d 1495 (10th Cir. 1992).
Sequential Evaluation for Child’s Disability Benefits
The procedures for evaluating disability for children are set out at 20 C.F.R. §
416.924(a). The first step is to determine whether the child is performing substantial
gainful activity. If not, the next consideration is whether the child has a “severe” mental or
physical impairment. A “severe” impairment is one that causes more than minimal
functional limitations. If a “severe” impairment is identified, the claim is reviewed to
determine whether the child has an impairment that: 1) meets, medically equals, or
functionally equals the listings of impairments for children;3 and 2) meets the duration
requirement. If the child does not have impairments of a severity to meet a listing, the

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The listings describe, for each of the m ajor body system s, m edical findings which are considered
severe enough that they represent im pairm ents which presum ptively dem onstrate disability. 20 C.F.R. Pt.
404, Subpt. P, App. 1.

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severity of the limitations imposed by impairments are analyzed to determine whether they
functionally equal a listing.
Six broad areas of functioning, called domains, are considered to assess what a
child can and cannot do. Impairments functionally equal a listing when the impairments
result in “marked” limitations in two domains or an “extreme” limitation in one domain. 20
C.F.R. § 416.926a. 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.F.R. § 416.926a(b)(1). A limitation is “marked” when it interferes seriously with the ability
to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2)(I). An
“extreme” limitation interferes very seriously with the ability to independently initiate,
sustain, or complete activities. 20 C.F.R. § 416.926a(e)(3)(I). The definitions of “marked”
and “extreme” are the same as those used for determining whether symptoms meet listing
criteria.
Background
The claim for benefits was brought on behalf of the minor child by his mother.4
Plaintiff was 10 years old on February 24, 2009, the date the application for disability was
filed and 12 years old at the time of the ALJ’s denial decision. Plaintiff claims to be
disabled as a result of attention deficit hyperactivity disorder (ADHD) and behavioral
problems which meet the requirements of disability under 20 C.F.R. § 416.924(a).

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For the sake of clarity, the court will refer to the child as Plaintiff.

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The ALJ’s Decision
The ALJ applied the required sequential evaluation process for determining whether
an individual under the age of 18 is disabled. 20 C.F.R. § 416.924(a). The ALJ found that
Plaintiff does not have impairments which meet or medically equal one of the listed
impairments in 20 C.F.R. Part 404, Subpt. P, App.1. The ALJ also found that Plaintiff does
not have an impairment or combination of impairments that functionally equal the listings.
In this regard, the ALJ considered Plaintiff’s level of functioning in the six domains
as required by 20 C.F.R. § 416.926a. The ALJ found that Plaintiff did not have an
impairment or combination of impairments that resulted in either “marked” limitations in two
domains of functioning or “extreme” limitations in one domain. [R. 49]. In particular, the
ALJ found Plaintiff has: “less than marked limitation in acquiring and using information,”
[R. 42-43]; “less than marked limitation in attending and completing tasks,” [R. 43-44];
“marked limitation in interacting and relating with others,” [R. 45-46]; “no limitation in
moving about and manipulating objects,” [R. 46-47]; “less than marked limitation in ability
to care for himself,” [R. 47-48]; and “less than marked limitation in health and physical wellbeing,” [R. 48-49].
Plaintiff’s Allegations
Plaintiff asserts that the ALJ erred by: 1) failing to find that he meets or equals a
listed impairment; 2) failing to properly evaluate functional equivalent of meeting a listing;
and 3) failing to perform a proper credibility determination.

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Analysis
Analysis of Listed Impairment
In finding Plaintiff does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments, the ALJ stated:
I have given particular consideration to The [sic] claimant’s
physical and mental impairments. (see Section 112.00, et
seq.,Mental) Despite the claimant’s impairment, the medical
evidence does not document listing-level severity, and no
acceptable medical source has mentioned findings equivalent
in severity to the criteria of any listed impairment.
[R. 39]. Plaintiff argues that the ALJ ignored that he meets the requirements for listings §§
112.04 and 112.11, he asserts that the ALJ’s decision is legally unsound and unsupported
by substantial evidence. He argues that the ALJ’s finding is impermissibly conclusory and
leaves the Court with nothing to review, citing Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996) (a bare conclusion that a claimant does not meet any listed impairment is
beyond meaningful judicial review).
The court finds that although the ALJ’s analysis of whether Plaintiff meets a listing
could have been more extensive, it is supported by substantial evidence. The ALJ made
an accurate summary of the evidence in connection with his discussion of whether
Plaintiff’s impairments were functionally equivalent to a listing. Within that discussion, the
ALJ noted the comments by Christopher Johnson, M.D. that he was not sure whether
Plaintiff had ADHD because he was doing well in school with the exception of one class,
that he later diagnosed Plaintiff with ADHD, started him on medication and noted that he
was doing better, was able to pay attention, and was not getting in so much trouble.
Medication was adjusted as needed and medication was added for depression. The ALJ
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noted that Dr. Johnson recorded that Plaintiff was doing well, his development was fine,
and he was doing well in school [R. 40, 41]. The ALJ cited records from Family and
Children’s Services regarding trouble focusing in some school classes but that physical
confrontations at school have been reduced. [R. 40]. The ALJ also noted information
received from Plaintiff’s assistant principal at school that Plaintiff is a playful student who
gets out of control sometimes, but his academic performance is excellent. [R. 42].
The ALJ also noted the opinions of two Disability Determination Services (DDS)
experts, Hannah Swallow, Ph.D. and Ron Smallwood, Ph.D., who reviewed Plaintiff’s
medical records and opined that Plaintiff did not meet or medically equal the listings. [R.
41, 261, 318].

Although the ALJ is not bound by the findings made by the DDS

psychological consultants, the regulations instruct that these consultants are “highly
qualified physicians and psychologists who are also experts in Social Security disability
evaluation” whose findings must be considered as opinion evidence.

20 C.F.R. §

404.1527(f)(2)(i); 20 C.F.R. § 416.927(f)(2)(i). The opinions of these DDS experts are
substantial evidence to support the ALJ’s conclusion that “the medical evidence does not
document listing-level severity.” [R. 39].
Plaintiff has listed pages in the record on which notations appear that Plaintiff
argues demonstrate he meets listing requirements. Although the record contains some
evidence which may be contrary to the ALJ’s decision, it is not for this court to reweigh the
evidence. Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007). The question
before this court is whether the ALJ’s decision is supported by substantial evidence. The
court finds that the ALJ’s determination that Plaintiff did not meet or medically equal the
listings is supported by substantial evidence.
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In addition to considering whether the ALJ’s decision is supported by substantial
evidence, the court must also consider whether the correct legal standards were applied.
Plaintiff argues that the ALJ’s discussion of the listings was impermissibly conclusory which
leaves the court nothing to review on appeal and requires the decision be reversed and the
case remanded under Clifton. Plaintiff also cites Huffman v. Astrue, 290 Fed.Appx. 87
(10th Cir 2008) (unpublished) for the proposition that the remainder of the ALJ’s decision
does not save the case from remand. Plaintiff cited Huffman without any accompanying
discussion. The Commissioner did not even mention the case. The Huffman case bears
some discussion.
The Huffman Court reversed the ALJ’s decision finding that the ALJ failed to
adequately explain why the claimant’s impairment did not meet a listed impairment. The
Court stated that in the absence of specific weighing of the evidence, it could not assess
whether relevant evidence supports the ALJ’s conclusion. 290 Fed.Appx. at 89. The Court
rejected the Commissioner’s argument that the lack of specific findings concerning the
listings was “saved” by the ALJ’s detailed discussion of the six domains used to measure
functional equivalency to the listings. The Court said that although the categories of the
symptoms required for the listings were similar to the functional limitations considered in
regard to the six domains for functional equivalency, they are not the same. In support of
the idea that the ALJ’s analysis of functional equivalence could not supply the rationale for
the decision with regard to the listings, the Court stated:
[T]he Commissioner’s rules for determining childhood disability
claims explain that the six “domains are specifically designed
for determining functional equivalence and are completely

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delinked from the mental disorders and other listings.” 65
Fed.Reg. 54746, 54755 (Sept. 11, 2000).
290 Fed.Appx. at 88. According to the Court, the Commissioner’s argument that the ALJ’s
analysis is saved by his analysis of functional equivalence might have merit if the ALJ had
mentioned the four relevant listing categories in the context of his discussion of the six
domains used to determine functional equivalence, but concluded that since the ALJ did
not do so the ALJ’s determination was “beyond meaningful judicial review,” citing Clifton,
79 F.3d at 1009.
At first blush, the language in Huffman appears to be on point. However, this court
does not read that unpublished decision as establishing a rule that the ALJ’s failure to fully
discuss the listings in a child’s disability case can never be overcome by a thorough
analysis of whether the child meets the functional equivalence of a listing. Such a rule
would be contrary to the Tenth Circuit’s decision in Fischer-Ross v. Barnhart, 431 F.3d
729, 730 (10th Cir. 2005) which rejected a construction of Clifton that would lead to
unwarranted remands where, although the ALJ’s discussion of the listings may be lacking,
the factually substantiated findings in the remainder of the decision alleviates any concern
that a claimant might have been adjudged disabled at step three. Further, the language
the Huffman Court cited from the Federal Register does not establish, or even suggest,
such a rule.
Contrary to the Huffman Court’s statement, the language that the six domains to be
considered for determining functional equivalence to a listing are “completely delinked”
from the listings does not appear in the Commissioner’s rules. That language appears in
an explanatory section outlining changes that were enacted to 20 C.F.R. § 416.926a
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(functional equivalence for children) after notice and comment. The quoted section of the
Federal Register explains that the final rules were simplified so adjudicators would no
longer have to refer to any of the listings when deciding functional equivalence. Use of the
term “delinked” in the explanatory section does not purport to affect the scope or manner
of judicial review. The “delinking” spoken of appears in 20 C.F.R. § 416.926a(d), “[w]e will
not compare your functioning to the requirements of any specific listing.” That language
simply cannot be interpreted to alter judicial review.
The required analysis of functional equivalency for a child’s case is similar to the
development of a residual functional capacity and subsequent analytical steps applicable
to an adult’s case. As in an adult case, it is preferable for the ALJ to render complete
findings and conclusions at each step in the analytical process. Fischer-Ross v. Barnhart,
431 F.3d at 730. However, the failure of the ALJ to make complete findings at one step
of the analytical process will not require reversal “when confirmed or unchallenged findings
made elsewhere in the ALJ’s decision confirm the [listings] determination under review.”
Id. at 734.
Having rejected the assertion that Clifton and Huffman necessarily require reversal
of the instant case, the court will proceed to address the ALJ’s determination that Plaintiff
did not functionally equal a listing.
Functional Equivalence of Listing
The ALJ analyzed the evidence in terms of each of the 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 yourself; and
6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). [R. 39-49]. Based on
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reports from school teachers and the principal and other notations in the record of good
progress in school, the ALJ found that Plaintiff had less than a marked limitation in
acquiring and using information. [R. 43]. Citing reports that medication was helpful for
Plaintiff’s school performance and focus, and reports from a teacher and the principal that
his academic performance was excellent, the ALJ found that Plaintiff has less than marked
limitation in attending and completing tasks. [R. 44-45]. Based on reports of repeated
suspensions from school for fighting and discipline for disruptive conduct, the ALJ found
that Plaintiff has marked limitation in interacting and relating with others. [R. 46]. The ALJ
relied on treatment notes that Plaintiff is good at track and basketball and the lack of any
evidence in the record of limitations in this area to support his conclusion that Plaintiff has
no limitation in moving about and manipulating objects. [R. 47]. Based on notations that
Plaintiff is able to care for himself at an age-appropriate level, and the opinion of a teacher,
the ALJ found that Plaintiff has less than marked limitation in the ability to care for himself.
[R. 48]. Relying on the notations of positive results from prescribed medications, the ALJ
concluded that Plaintiff has less than marked limitation in health and physical well-being.
[R. 49]. Since Plaintiff did not have marked limitations in two of the domains or any
extreme limitations, the ALJ found that Plaintiff did not functionally meet the listings of
impairments.
Plaintiff argues that he functionally meets a listing because he has a marked
impairment in two of the functional equivalency domains: attending and completing tasks;
and interacting and relating with others. As support for this argument Plaintiff points to the
DDS reviewers’ finding that Plaintiff had marked limitations in the area of attending and
completing tasks, [R. 263, 323], and the ALJ’s finding of marked limitations in the area of
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interacting and relating with others. Although the DDS reviewers and the ALJ found
marked limitations in only one area, those were different areas. Plaintiff argues that the
ALJ should have adopted the DDS reviewers’ opinion concerning the area of attending and
completing tasks which together with the ALJ’s finding of a marked limitation in the area
of interacting and relating with others would have resulted in a finding of disability.
The ALJ stated he disagreed with some of the DDS reviewers’ specific findings in
the six functional equivalency areas. [R. 42]. The ALJ did not specify what findings he
disagreed with but it is obvious that he disagreed with the DDS reviewers’ conclusion that
Plaintiff had less than marked degree of limitation in interacting and relating with others
because the ALJ found that area to have a marked limitation. The ALJ found that Plaintiff
had a marked limitation in that area due to his fighting and disciplinary problems at school.
[R. 46, 263]. It is also obvious that the ALJ disagreed with the DDS reviewers’ opinion that
Plaintiff had marked limitation in attending and completing tasks. The ALJ found that
Plaintiff had less than marked limitations in this area. [R. 44, 263]. Plaintiff argues that the
ALJ engaged in picking and choosing only the evidence that supported his decision,
ignoring teacher reports of Plaintiff’s inability to stay on task.
The court disagrees that the ALJ engaged in impermissible picking and choosing
of evidence. The ALJ clearly acknowledged the teacher reports that Plaintiff has a very
serious problem with focusing and staying on task. [R. 45]. However, he also cited later
reports which were generated after the initial DDS review5 and which indicate Plaintiff is

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The initial DDS review is dated March 18, 2009, [R. 261-266], the subsequent review is dated June
17, 2009, [R. 318-323]. The reports cited by the ALJ are dated April 6, 2009, [R. 376], and Novem ber 20,
2009, [R. 403].

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able to stay on task when assignments are given. [R. 376, 403]. The ALJ also noted
Plaintiff’s improving grades and the school’s assistant principal’s March 25, 2010 comment
that Plaintiff’s “academic performance is excellent.” [R. 45, 421]. The information about
Plaintiff’s ability to stay on task, improving grades, and excellent academic performance
was not available to the DDS reviewers and supports the ALJ’s disagreement with the DDS
reviewers’ conclusions. The court finds that the ALJ’s conclusion that Plaintiff has less
than marked limitations in attending and completing tasks is supported by substantial
evidence.6
What remains to be determined is whether the ALJ’s decision that Plaintiff does not
functionally meet a listing provides a proper basis for upholding what Plaintiff argues is the
ALJ’s conclusion that Plaintiff’s impairments do not meet a listing. In Fischer-Ross, 431
F.3d at 733 the Court stated an ALJ’s findings at other steps of the process may provide
a proper basis for upholding a conclusion that a claimant’s impairments do not meet or
equal a listed impairment. This “harmless error” analysis is appropriately applied where

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Plaintiff subm itted additional school records to the Appeals Council which cover the tim e period from
March 2011 to May 2011. [R. 11-32]. Although the additional records were not before the ALJ, the Tenth
Circuit has ruled that "new evidence [subm itted to the Appeals Council] becom es part of the adm inistrative
record to be considered when evaluating the Secretary's decision for substantial evidence." O'Dell v. Shalala,
44 F.3d 855, 859 (10th Cir. 1994). Accordingly, even though the Court m ay not reweigh the evidence or
substitute its judgm ent for that of the Com m issioner, O’Dell requires the Court to review the new evidence to
determ ine whether, even considering this new evidence, the ALJ’s decision is supported by substantial
evidence.
The court finds that the additional school records do not underm ine the determ ination that the ALJ’s
decision is supported by substantial evidence. After testing, it was determ ined that Plaintiff is capable of grade
work in all levels but has som e problem s with boundaries and peer relationships. [R. 28]. Plaintiff scored
advanced and satisfactory on the OMAAP (Oklahom a Modified Alternative Assessm ent Program ) tests this
year and it was determ ined that he would take the OCCT (Oklahom a Core Curriculum Test) the next year.
Id.
In his opening brief, Plaintiff m akes reference to a hospitalization at HillCrest Behavioral Health that
occurred after the hearing. [Dkt. 15, p. 6]. Plaintiff m akes som e speculative com m ents that the hospitalization
could have occurred because of the failure of his m edications to work. Id. Since Plaintiff did not provide the
m edical records of that hospitalization to the Appeals Counsel there is nothing in the record for the court to
review. Accordingly, Plaintiff’s com m ents in this regard have not been considered in evaluating this appeal.

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the court can “confidently say that no reasonable administrative fact finder, following the
correct analysis, could have resolved the factual matter in any other way.” Id. at 733-34.
In addition to medical findings particular to the specific listings, the relevant listings,
§§112.04 and 112.11, also require medical findings of marked impairments in two of the
following four areas:

age-appropriate cognitive/communicative functioning; age

appropriate social functioning; age appropriate personal functioning; and maintaining
concentration, persistence, or pace. 20 C.F.R. Pt. 404 Subpt. P., App. 1, §112.02B2.
These four areas are known as the “B criteria.” Although the six domains of functioning
analyzed and discussed by the ALJ are not the same as the “B criteria” of the listings, they
do overlap and the same information in the record is considered to make the relevant
findings. In this case the ALJ provided detailed factual findings to support his conclusions
about the six domains of functional equivalence. In light of the ALJ’s supported findings
that Plaintiff has a marked limitation in only the area of interacting and relating with others
and no limitation or less than marked limitation in the other areas, the court is confident
that a more thorough discussion of the evidence in light of the “B criteria” of the listings
would not have changed the outcome of the case.7 That is, the court is confident that no
reasonable administrative fact finder could have resolved the matter any other way. Thus,
it is appropriate to apply harmless error to the ALJ’s failure to more fully discuss the listing
criteria.

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Since the “B criteria” are not m et, it is not necessary to discuss the other criteria of the relevant
listings as they require the existence of the “B criteria” in addition to the other m edical criteria. All of the
specified m edical criteria m ust be m atched to m eet a listing. An im pairm ent that m anifests only som e of the
criteria, no m atter how severely, does not qualify. Sullivan v. Zebley, 493 U.S. 521, 531, 110 S.Ct. 885, 891,
107 L.Ed.2d 967 (1988).

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Credibility Analysis
Plaintiff argues that the case should be reversed because the ALJ did not perform
a proper credibility analysis. The court finds that the ALJ performed an adequate credibility
analysis.
The ALJ accurately outlined the prominent points of Plaintiff’s and his mother’s
testimony. The ALJ noted Plaintiff’s disruptive behavior, his bouncing off the walls, not
doing what he is told, getting into trouble at school, pushing people, getting into fights, four
suspensions from school that year, and his suicidal ideation on two occasions. [R. 40].
The ALJ also noted Plaintiff testified that he watches his nieces and nephews, does not
get along with kids at school, does not believe the medication is helpful, and is impatient
and disruptive at school. [R. 40]. The ALJ pointed out that the testimony of Plaintiff and
his mother was contradicted by the record which weakened their credibility:
Both the claimant’s and Ms. Johnson’s allegations are contrary
to the evidence in the record. At the hearing, the claimant
testified that his medications do not work, and his mother
testified that (sic) will not do what he is told, and has disruptive
behavior in school. These assertions are contradicted by Dr.
Johnson’s notes at the claimant’s most recent visit in March,
2010. In those notes, Dr. Johnson states that the claimant
feels that his medication really helps with his concentration and
focus. Dr. Johnson also notes that the claimant is happy with
his medication and is doing so well that he actually made the
honor roll. This contradiction weakens both the claimant’s and
his mothers credibility.
Ms. Johnson’s allegations regarding the claimant’s school
behavior problems are not consistent with the evidence. At the
hearing, Ms. Johnson testified that the claimant is disruptive at
school, will not do what he is told, gets into fights, and has
been suspended 4 times this year. Conversely, the claimant’s
assistant principal, R.J. Alford, indicates in his March 25, 2010
letter that the claimant is a “very playful student. . . He notes
that the claimant’s playfulness gets out of control at times and
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turns into an altercation, but he states that the claimant’s
academic performance is “excellent.”
[R. 41-42].
The ALJ cited numerous grounds tied to the evidence for his credibility
determination. The court is persuaded that the ALJ’s credibility findings are closely linked
to substantial evidence. Since the ALJ properly linked his credibility finding to the record,
the court finds no reason to deviate from the general rule to accord deference to the ALJ’s
credibility determination. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995) (credibility
determinations are peculiarly the province of the finder of fact, but should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of
findings)."
Conclusion
The court finds that the record contains substantial evidence supporting the ALJ’s
denial of benefits in this case, that the ALJ applied the correct standards in evaluating the
evidence, and that any error committed by the ALJ in his discussion of the listings was
harmless. Therefore the Commissioner’s denial of benefits is AFFIRMED.
SO ORDERED this 24th day of June, 2013.

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