UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jodie Skellie on behalf of J.D.N.
v. Case No. 14-cv-00010-PB Opinion No. 2015 DNH 026 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Jodie Skellie, on behalf of her minor son, J.D.N., seeks
judicial review of a ruling by the Social Security
Administration denying her application for supplemental security
income (“SSI”). For the reasons set forth below, I deny
Skellie’s request and affirm the decision of the Commissioner.
I. BACKGROUND
A. Stipulated Facts
Pursuant to this court’s Local Rule 9.1, the parties have
submitted a joint statement of material facts, which is part of
the court’s record (Doc. No. 18). The facts relevant to the
disposition of this matter are discussed below. B. Procedural History
On April 15, 2011, Skellie applied for SSI on behalf of
J.D.N., alleging a disability beginning July 24, 2002, due to
attention deficit hyperactivity disorder (“ADHD”), a learning
disability, spina bifida occulta, and asthma. J.D.N. was eight
years old at the time the application was filed. Skellie
requested a hearing before an administrative law judge (“ALJ”).
On October 10, 2012, Skellie and J.D.N. testified at a hearing
before an ALJ.
On October 18, 2012, the ALJ issued an Unfavorable
Decision, finding that J.D.N. was not disabled within the
meaning of the Social Security Act. The ALJ followed the
sequential three-step process for determining whether a child is
disabled. See 20 C.F.R. § 416.924. First, she determined that
J.D.N. was not engaged in substantial gainful activity. Second,
she found that he had the following severe impairments:
“attention deficit hyperactivity disorder, learning disability,
spina bifida occulta with chronic constipation, and asthma.”
Tr. at 15. Third, the ALJ found that J.D.N. did not have an
impairment or combination of impairments that met, medically
equaled, or functionally equaled the listed impairments in 20
2 C.F.R. Part 404, Subpart P, Appendix 1. Accordingly, she
concluded that J.D.N. was not disabled. On November 7, 2013,
the Appeals Council denied Skellie’s request for review of the
ALJ’s decision.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the administrative record
and enter a judgment affirming, modifying, or reversing the
“final decision” of the Commissioner. My review “is limited to
determining whether the ALJ used the proper legal standards and
found facts [based] upon the proper quantum of evidence.” Ward
v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
Findings of fact made by the ALJ are accorded deference as long
as they are supported by substantial evidence. Id. Substantial
evidence to support factual findings exists “‘if a reasonable
mind, reviewing the evidence in the record as a whole, could
accept it as adequate to support his conclusion.’” Irlanda
Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). If the
3 substantial evidence standard is met, factual findings are
conclusive even if the record “arguably could support a
different conclusion.” Id. at 770. Findings are not
conclusive, however, if they are derived by “ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
The ALJ is responsible for determining issues of credibility and
for drawing inferences from evidence in the record. Irlanda
Ortiz, 955 F.2d at 769. It is the role of the ALJ, not the
court, to resolve conflicts in the evidence. Id.
III. ANALYSIS
Skellie contends that the ALJ erred by finding that
J.D.N.’s ADHD (1) does not meet a listed impairment, (2) does
not medically equal a listed impairment, and (3) does not
functionally equal a listed impairment.
A. Entitlement to Children’s Disability Benefits
With respect to children, the Social Security Act provides:
An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected
4 to last for a continuous period of not less than 12 months.
42 U.S.C. § 1382c(a)(3)(C)(i).
To evaluate whether a child is entitled to SSI benefits, an
ALJ engages in a three-part inquiry that largely mirrors the
first three questions of the five-part inquiry for adults: (1)
whether the child is engaged in substantial gainful activity,
(2) if not, whether the child has a medically determinable
impairment that is severe, and (3) whether the impairment meets,
medically equals, or functionally equals one of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the
regulations. See 20 C.F.R. § 416.924(b)-(d).
At the third step, if the ALJ finds that the child’s
impairment does not meet or medically equal a listed impairment,
the ALJ must determine whether the child’s impairment
functionally equals a listed impairment. See 20 C.F.R. §
416.924(d). To determine functional equivalence, the ALJ
considers the child’s functioning in six “domains”: “(i)
Acquiring and using information; (ii) Attending and completing
tasks; (iii) Interacting and relating with others; (iv) Moving
about and manipulating objects; (v) Caring for yourself; and,
(vi) Health and physical well-being.” 20 C.F.R. §
5 416.926a(b)(1). An impairment “functionally equal[s] the
listings” if it results in “marked” limitations in at least two
domains or an “extreme” limitation in one domain. 20 C.F.R. §
416.926a(a).
B. Does J.D.N.’s impairment meet or medically equal a listed impairment?
Skellie contends that the ALJ erred in determining that
J.D.N.’s impairment did not meet or medically equal a listed
impairment. She focuses her arguments on Listing 112.11, which
describes ADHD.
1. Listing 112.11: ADHD
With respect to a child (like J.D.N.), Listing 112.11
requires a marked degree of inattention, impulsiveness, and
hyperactivity as well as a marked impairment in age-appropriate
function in at least two of the following categories: (a)
cognitive/communicative function, (b) social functioning, (c)
personal functioning, and (d) maintaining concentration,
persistence, or pace. 20 C.F.R. pt. 404, subpt. P, app’x 1, pt.
B, ¶¶ 112.02, 112.11. “Marked” means “more than moderate but
less than extreme.” Id. ¶ 112.00(C).
2. The ALJ’s Decision
The ALJ determined that J.D.N.’s impairment did not meet or
6 medically equal Listing 112.11.1 Tr. at 15. The ALJ found that
since November 2010, when J.D.N. was prescribed Concerta to
treat his ADHD, his symptoms abated.2 Tr. at 17-18. She pointed
to Skellie’s own reports in December 2010 that J.D.N. was doing
“absolutely great” on his medication and that the medication was
the “missing piece.” Tr. at 17-18 (quoting Tr. at 316). The
ALJ also relied on January 2011 office notes from Dr. Erin
Jackson, which noted that J.D.N. had improved in school and “had
been able to focus easier and had fewer interruptions in class.”
Tr. at 18 (citing Tr. at 317). Similarly, she noted that J.D.N.
experienced “less active and . . . impulsive behavior” at home.
Tr. at 18 (citing Tr. at 317).
1 The ALJ summarily stated that J.D.N.’s impairments did not meet or medically equal a listed impairment without further discussion under that heading. Tr. at 15. Skellie does not argue that the findings must be reported directly under a specific heading and I am not aware of any regulation requiring it. I find that the ALJ’s finding is supported by substantial evidence in another part of her decision. See Tr. at 17-18; see also Fiske v. Astrue, No. 10-40059-TSH, 2012 WL 1065480, at *9 (D. Mass. Mar. 27, 2012)(“[T]he focus must be on whether there exists substantial evidence in the decision as a whole for the step three determination.”). 2 The ALJ stated that J.D.N. began taking Concerta in October 2010, but the record shows and the parties agree that he was prescribed Concerta on November 16, 2010. Doc. No. 18 at 9 (citing Tr. at 589, 591). 7 3. Does J.D.N.’s impairment “meet” a listed impairment?
To meet a listed impairment, the claimant must show that
the impairment matches each of the listed medical criteria.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990). “An impairment
that manifests only some of those criteria, no matter how
severely, does not qualify.” Id.
Skellie contends that the ALJ erred in finding that
J.D.N.’s impairments did not “meet” Listing 112.11 because she
ignored four categories of evidence: (1) the diagnoses of ADHD
by J.D.N.’s treating therapist, treating psychiatrist, and
treating physician; (2) Skellie’s reports about J.D.N.’s
behavior; (3) treatment notes describing J.D.N.’s behavior; and
(4) assessments completed by J.D.N.’s treating therapist,
Iphigenia Hatt. Doc. No. 14-1 at 9-10, 12, 14-15. I disagree
with each argument.
First, a diagnosis of ADHD is insufficient to show that
J.D.N. met the listing for ADHD. The regulations state that an
impairment “cannot meet the criteria of a listing based only on
a diagnosis. To meet the requirements of a listing, you must
have a medically determinable impairment(s) that satisfies all
of the criteria of the listing.” 20 C.F.R. § 416.925(d); see
8 Batista-Canales v. Sec’y of Health & Human Servs., 39 F.3d 1166,
No. 94-1638, 1994 WL 631647, at *2 (1st Cir. Nov. 10, 1994)
(table opinion) (“The diagnosis of bronchial asthma standing by
itself is insufficient to establish claimant’s entitlement to
disability benefits.”). Moreover, in this case, the ALJ
determined that after the diagnosis, J.D.N.’s symptoms abated
with the use of medication. Tr. at 17-18; see 20 C.F.R. §
416.924a(b)(9)(i) (the ALJ may consider the effects of
medications on symptoms).
Second, Skellie’s reports to doctors about J.D.N.’s
behavioral issues do not undermine the ALJ’s conclusion.
Skellie points to various pieces of evidence in an apparent
effort to demonstrate the facts that the ALJ allegedly ignored.
Doc. No. 14-1 at 10-15. Much of the evidence that she
highlights, however, describes J.D.N.’s symptoms before he was
prescribed Concerta on November 16, 2010, and therefore is
consistent with the ALJ’s finding that J.D.N.’s behavior
improved after he was prescribed Concerta. See Tr. at 359-64,
379, 413, 414, 589-91. With respect to post-prescription
reports, Skellie points to various occasions during the spring
of 2011 when she reported to Ms. Hatt that J.D.N. was
9 inattentive or having trouble following directions. Doc. No.
14-1 at 12-14 (citing Tr. at 380, 381, 383, 385, 393, 395, 400,
405). Skellie does not articulate, however, how these reports
demonstrate the “marked” levels of inattention, impulsiveness,
and hyperactivity necessary to meet Listing 112.11. See Young
v. Colvin, 2014 DNH 035, 10-11 (finding substantial evidence
supported the ALJ’s conclusion that a child’s condition did not
meet a listed impairment where, “[a]side from simply summarizing
[the child’s] medical history, [the claimant] failed to point to
specific evidence that meets the [listed criteria]”). Moreover,
on each of those occasions, Ms. Hatt noted that J.D.N.’s
relative changes in “Mood/Affect,” “Thought
Process/Orientation,” and “Behavior/Functioning” were
“Unremarkable,” except for one occasion on which she did not
assess his condition. See Tr. at 380, 381, 383, 385, 393, 395,
400, 405.
Third, treatment notes describing J.D.N.’s behavior
similarly do not undermine the ALJ’s conclusion. Like Skellie’s
reports, most of the treatment notes to which Skellie points
describe symptoms before J.D.N. was prescribed Concerta and
therefore they are consistent with the ALJ’s finding that
10 J.D.N.’s behavior improved with medication. See Tr. at 414-15,
417-20, 422, 424-25, 427-29, 431, 438-41, 444, 447, 452, 455,
457, 548-49. The remaining treatment notes consist of eleven
pages, which are handwritten and difficult to decipher. See Tr.
at 392-402. Contrary to Skellie’s assertions, these pages
largely support the ALJ’s finding that J.D.N.’s behavior
improved with medication. See, e.g., Tr. at 392 (“[J.D.N.] is
following direction [with] more frequency. . . .”), 399
(“[M]edication is working well.”), 400 (“[J.D.N.] has
demonstrated consistent improvement in school. He has brought
four of his academic grades up [from] needs improvement to
satisfactory progress.”) Even the passages that support
Skellie’s contentions fail to demonstrate the “marked” levels of
inattention, impulsiveness, and hyperactivity necessary to meet
Listing 112.11. See, e.g., Tr. at 395 (“[J.D.N.] is not very
cooperative [or] following directions currently. He is not
being very attentive.”), 400 (“Transitions are difficult for
[J.D.N.] and boundary issues and issues of appropriate
behaviors. . . come into effect.”). Accordingly, these
treatment notes do not undermine the ALJ’s finding.
11 Fourth, Ms. Hatt’s January 2010 and January 2011
assessments of J.D.N. also do not undermine the ALJ’s
conclusion. In January 2010, Ms. Hatt completed an assessment
noting J.D.N.’s anxiety, distractability, hyperactivity, and
impulsiveness. See Tr. at 359. This assessment is consistent
with the ALJ’s finding that J.D.N.’s behavior only improved
after he was prescribed Concerta in November 2010. See Tr. at
17-18. Skellie also points to Ms. Hatt’s January 2011
assessment, in which Ms. Hatt checked the boxes to indicate that
J.D.N. suffered from the following relevant symptoms:
“Aggression, physical,” “Aggression, verbal,” “Angry outbursts,”
“Anxiety,” “Distractibility,” “Hyperactive,” “Impulsive,”
“Interpersonal problems,” “Self-esteem, low.” Doc. No. 14-1 at
13 (citing Tr. at 365-70). I agree with Skellie that this
evidence supports her contention and also that the ALJ did not
discuss this assessment in her opinion. Nonetheless, the ALJ
supported her conclusion with substantial evidence showing that
J.D.N.’s behavior had in fact improved by the time of the
January 2011 assessment. See Tr. at 17-18. Accordingly,
because remand is not necessary “if it will amount to no more
than an empty exercise,” I do not find the ALJ’s failure to
12 discuss this assessment to require remand. See Ward, 211 F.3d
at 656.
4. Does J.D.N.’s impairment “medically equal” the listings?
An impairment “medically equals” a listing if “it is at
least equal in severity and duration to the criteria of any
listed impairment.” 20 C.F.R. § 416.926(a); see Young v.
Colvin, 2014 DNH 035, 9-10. The ALJ is responsible for
determining whether an impairment medically equals a listed
impairment. SSR 96-6p, 1996 WL 374180, at * 3 (July 2, 1996).
According to Social Security Ruling 96-6p, “longstanding policy”
requires the ALJ to obtain evidence from a state agency
physician or psychologist on the issue of equivalence and assign
that expert opinion evidence appropriate weight. Id.
Ultimately, however, the ALJ is not bound by a finding of a
medical or psychological consultant. Id.
In some circumstances, the ALJ is required to obtain an
updated medical opinion from a medical expert. Id.
Specifically, an update is required “[w]hen additional medical
evidence is received that in the opinion of the [ALJ] may change
the State agency medical or psychological consultant’s finding
that the impairment(s) is not equivalent in severity to any
13 impairment in the Listing of Impairments.” Id. at *4. That is,
the ALJ retains discretion to determine whether newly-acquired
evidence would change the State agency consultant’s opinion.
See id.
Here, the ALJ concluded that J.D.N. did not have an
impairment or combination of impairments that medically equaled
a listed impairment. Tr. at 15. The ALJ relied on the May 31,
2011 evaluations of State agency medical consultant Dr. Diana
Dorsey and State agency psychological consultant Dr. Michael
Schneider. See Tr. at 23. They both reviewed the available
evidence in the record at the time. Doc. No. 18 at 6. Dr.
Schneider and Dr. Dorsey opined that J.D.N.’s mental and
physical impairments did not meet or medically equal a listed
impairment. Tr. at 54. With respect to functional equivalence,
neither doctor opined that J.D.N. had more than a “less than
marked” limitation in any of the six domains. Tr. at 55-56.
Invoking Social Security Ruling 96-6p, the ALJ accorded these
opinions “great weight.” Tr. at 23.
Skellie contends that the ALJ erred because she did not
require the medical consultants to update their opinions. Doc.
No. 14-1 at 16. She lists several exhibits that contain
14 evidence that post-date May 31, 2011, but she does not identify
a single piece of evidence in those exhibits that undermine the
ALJ’s decision not to update the expert opinions. Id. at 16-17.
Accordingly, I find that the ALJ did not err in relying on Dr.
Dorsey and Dr. Schneider’s May 2011 opinions.
C. Does J.D.N.’s impairment “functionally equal” the listings?
If an ALJ determines that a child’s impairments do not meet
or medically equal a listed impairment, the ALJ must then
evaluate whether the impairments nonetheless functionally equal
the listings. 20 C.F.R. § 416.926a(a). To demonstrate
functional equivalence, the child must have a marked limitation
in two functional domains or an extreme limitation in one
functional domain. Id.
Here, the ALJ found that J.D.N.’s impairments did not
functionally equal the listings. Tr. at 15. Specifically, she
found that J.D.N. had “less than marked” limitation in five of
six domains and “no limitation” in the remaining domain. Tr. at
18-23.
Skellie argues that it was error for the ALJ to find that
J.D.N. did not have marked impairments in the domains of (1)
acquiring and using information, (2) interacting and relating to
15 others, and (3) caring for oneself. Because Skellie merely
recites factual information that supports her version of the
story rather than addressing any errors in the ALJ’s findings, I
disagree with each of her contentions. See Irlanda Ortiz, 955
F.2d at 769.
First, Skellie contends that the ALJ erred in finding that
J.D.N. has a less than marked limitation in acquiring and using
information. See Doc. No. 14-1 at 18-19. In support of her
argument, she points to J.D.N.’s scores on the “Weschler
Intelligence Scale for Children – IV” and the comments of school
psychologist Cheryl Gamble related to that testing. See id.
Instead of showing that the ALJ’s finding was not supported by
substantial evidence, however, the test results largely support
the ALJ’s finding. For example, Skellie notes that the tests
show that J.D.N.’s “general cognitive ability is Average” and
that “[h]is ability in processing simple or routine visual
material w/o error is Average.” Id. at 18. Rather than
undermining the ALJ’s decision, these test results reinforce
that J.D.N. did not have a marked limitation in acquiring and
using information.
Second, Skellie argues that the ALJ’s finding that J.D.N.
16 had a less than marked limitation in “interacting and relating
to others” was error. See id. at 19. In support of this
argument, she points to his Individualized Education Plan, which
notes that J.D.N. meets the reading level expectation for the
end of first grade, but does not meet the expectation for the
end of second grade. Id. (citing Tr. at 146). The domain of
interacting and relating to others “consider[s] how well you
initiate and sustain emotional connections with others, develop
and use the language of your community, cooperate with others,
comply with rules, respond to criticism, and respect and take
care of the possessions of others.” 20 C.F.R. § 416.926a(i).
Whatever relation J.D.N.’s reading ability may have to this
domain, Skellie has failed to articulate it. Therefore, Skellie
has not shown that the ALJ erred in finding a less than marked
limitation in interacting and relating with others.
Third, Skellie contends that the ALJ erred in finding that
J.D.N. had a less than marked limitation in his ability to care
for himself. See Doc. No. 14-1 at 19. To support this
contention, Skellie argues that the ALJ “neglected to include
her testimony regarding [J.D.N.’s] lack of awareness of how he
angers his peers and gets himself into trouble and fights.” Id.
17 Despite this argument, an ALJ need not discuss every piece of
evidence in the record when the finding is otherwise supported
by substantial evidence. See Rodriguez v. Sec’y of Health &
Human Servs., No. 90-1039, 1990 WL 152336, at *1 (1st Cir. Sept.
11, 1990); Lord v. Apfel, 114 F. Supp. 2d 3, 13 (D.N.H. 2000).
IV. CONCLUSION
For the foregoing reasons, I grant the Commissioner’s
motion to affirm (Doc. No. 17) and deny Skellie’s motion to
reverse (Doc. No. 14). The clerk is directed to enter judgment
accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
February 27, 2015
cc: Judith E. Gola T. David Plourde