Vicki Shaw, for Ashley Humphries v. Donna E. Shalala, Secretary of Health and Human Services

52 F.3d 330, 1995 U.S. App. LEXIS 21084, 1995 WL 218542

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 14, 1995
• Docket: 94-3839
• Status: Published

Opinion

52 F.3d 330
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.

Vicki SHAW, for Ashley Humphries, Plaintiff-Appellant,
v.
Donna E. SHALALA, Secretary of Health and Human Services,
Defendant-Appellee.

No. 94-3839

United States Court of Appeals,
Eighth Circuit.

Submitted: April 10, 1995.
Filed: April 14, 1995.

Before MAGILL, Circuit Judge, HANSEN, Circuit Judge, and GOLDBERG,* Judge.

PER CURIAM.

Vicki Shaw, as representative for Ashley Humphries, appeals from a final judgment of the district court,1 affirming the decision of the Secretary of Health and Human Services denying Humphries, the claimant, supplemental security income. We affirm.

Shaw first contends that the ALJ failed to make express credibility findings regarding her testimony at the hearing. However, the ALJ assessed Shaw's credibility when he rejected her testimony "that her daughter fell everyday, more so than the other children," (R. at 19), and instead found that there had been no reports of the claimant experiencing balance and equilibrium difficulties. Shaw also argues that the ALJ erred in determining that the claimant had only moderate difficulty with motor development because Dr. Nitzke, an examining physician, checked the box entitled "Marked" under the category "Motor Development" pursuant to a functional assessment. (R. at 119.) However, later in his report, Dr. Nitzke explained that although the claimant's disability was severe, "she is able to function with what is defined as a 'moderate' functional disability" and would not be deemed disabled if she was an adult. (R. at 122.) The ALJ reached a similar conclusion in determining that the claimant is "moderately impaired in motor functioning." (R. at 20.)

Finally, Shaw asserts that substantial evidence does not exist to support the Secretary's determination that the claimant's personal behavior is less than moderately limited. After the ALJ concluded that the claimant has "no problem with social development," (R. at 20), Shaw submitted additional evidence to the Appeals Council which purported to show the claimant possessed certain behavioral deficiencies. The Appeals Council considered this evidence but denied further review, concluding that "there was no evidence of a medically-diagnosed mental impairment comparable in severity to impairments which would disable[ ] an adult." (R. at 3.) After a careful review of the entire record, including the additional evidence presented to the Appeals Council, we conclude that substantial evidence exists to support the Secretary's determination. Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B.

* The Honorable Richard W. GOLDBERG, Judge, United States Court of International Trade, sitting by designation

1 The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa