Chandra Henry v. Jo Anne B. Barnhart , 156 F. App'x 171 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 25, 2005
No. 05-13848
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00251-CV-WS-M
CHANDRA HENRY,
o.b.o. Lakeisha R. Henry,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(November 25, 2005)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellant Lakeisha Henry appeals the district court’s order affirming the
Commissioner's denial of her application for children’s supplemental security
income benefits under §§ 1602 and 1614(a)(3)(C) of Title XVI of the Social
Security Act and 42 U.S.C. § 1381a. Henry argues that her impairments, as
demonstrated by her test results, attendance in special education classes, and an
Attention Deficit Hyperactivity Disorder (ADHD) diagnosis, meet the
requirements of section 112.05D of the Listings for mental retardation. Further,
Henry contends that her impairments functionally equal the Listings, and that the
Administrative Law Judge (ALJ) erred by not giving proper weight to Henry’s
treating psychologist, Dr. Reynolds’s, opinion.
This court must determine whether the ALJ’s denial of Henry’s application
for benefits is supported by substantial evidence. See Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005). This court also reviews whether the correct legal
standards were applied. See McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988). Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Falge v. Apfel, 150 F.3d 1320, 1322
(11th Cir. 1998) (citations omitted). “In other words, substantial evidence is ‘more
than a mere scintilla.’” Id. (citation omitted).
A person under the age of 18 is disabled, and thus entitled to SSI benefits, if
the person “has a medically determinable physical or mental impairment, which
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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). Social Security
regulations provide a three-step sequential evaluation process for determining
whether a child is disabled. 20 C.F.R. § 416.924(a). See Wilson v. Apfel, 179 F.3d
1276, 1277 n.1 (11th Cir. 1999). First, the ALJ must determine whether the child
is engaged in substantial gainful activity. Wilson, 179 F.3d at 1277 n.1. If yes, the
child is not disabled, but if no, the ALJ determines whether the claimant has a
severe impairment. Id. If not, the child is not disabled. Id. If yes, the ALJ then
considers whether the child has an impairment that meets, medically equals, or
functionally equals the Listings of Impairments. Id. If the child satisfies a Listing,
the child is conclusively disabled. Id.The ALJ found that Henry was not engaged in substantial gainful activity,
and that her diagnosis of ADHD and her borderline intellectual functioning
constituted “severe” impairments. Accordingly, the ALJ had to determine whether
Henry’s impairment meets or is functionally equivalent to section 112.05D of the
Listings for mental retardation.
Under section 112.05 of the Listings, mental retardation is “[c]haracterized
by significantly subaverage general intellectual functioning with deficits in
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adaptive functioning. The required level of severity for this disorder is met when
the requirements in A, B, C, D, E, or F are satisfied.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1 § 112.05. In relevant part, section D of Listing 112.05 requires “[a] valid
verbal, performance, or full scale IQ of 60 through 70 and a physical or other
mental impairment imposing an additional and significant limitation of function. . .
.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 112.05D.
“[T]he ALJ is allowed some leeway to evaluate other evidence [other then
I.Q. test score] when determining the validity of an I.Q. score. . . .” Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992). An ALJ should examine whether the
results of an I.Q. test are consistent with the other medical evidence and the
claimant’s daily activities and behavior. See Popp v. Heckler, 779 F.2d 1497,
1499-1500 (11th Cir. 1986).
Substantial evidence supports the ALJ’s finding that Henry did not meet the
requirements of section 112.05D of the Listings for mental retardation. Although
Henry’s testing scores fall within the range to meet the requirements of section
112.05D, substantial evidence supports the ALJ’s findings that Henry is
functioning at a higher level. See Popp, 779 F.2d at 1499-1500. Upon evaluation
of Henry’s daily school activities, the ALJ found, and the records supports, that
Henry takes some regular classes. Additionally, one of her teachers reported that
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she needs help but concentrates well on her work, even excelling at times, and she
obtains low passing grades. Accordingly, substantial evidence supports the ALJ’s
findings that Henry is functioning at a higher level than her I.Q. scores
demonstrate, and thus she does not meet the requirements of section 112.05D.
Next, Henry argues that her impairments functionally equal the Listings for
mental retardation. In determining whether a child’s impairment functionally
equals a Listing, the regulations require consideration of six “domains,” which are
“broad areas of functioning intended to capture all of what a child can and cannot
do.” 20 C.F.R. § 416.926a(b)(1). These 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. Id. § 416.926a(b)(1)(i)-(vi).
To satisfy the “functional equivalent” standard, a child claimant must have
“marked” limitations in two domains or an “extreme” limitation in one domain. Id.
§ 416.926a(d). A “marked” limitation is defined as a limitation that “interferes
seriously with [the] ability to independently initiate, sustain, or complete
activities,” and is “more than moderate.” Id. § 416.926a(e)(2)(i). An “extreme”
limitation is reserved for the “worst limitations” and is defined as a limitation that
“interferes very seriously with [the] ability to independently initiate, sustain, or
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complete activities,” but “does not necessarily mean a total lack or loss of ability to
function.” Id. § 416.926a(e)(3)(i).
Substantial evidence supports the ALJ’s finding that Henry’s impairments
are not functionally equal to the requirements of section 112.05D of the Listings
for mental retardation. Evidence that Henry is able to do her homework, complete
her class work, and participate in the science fair, supports the ALJ’s finding that
she does not have a marked or severe limitation in the first domain, acquiring and
using information. Additionally, an examination of Henry found that her thought
process was logical. Although Henry may need some assistance with reading, her
teacher reported that she has a good attention span, is on task in class, and
completes all of her assignments on time, supporting the ALJ’s finding that she
does not have a limitation in attending or completing task under the second
domain. Henry does not have marked or severe limitations in the third domain of
interacting with others; her teacher noted she gets along with her peers and
teachers, and Dr. Tocci’s evaluation showed she was cooperative and passive and
demonstrated normal eye contact. As for the domain of moving about and
manipulating objects, her motor activity was unremarkable. In the domain of
caring for herself, Henry’s mother stated that she is able to do so. Finally, in the
domain of health and physical well-being, her mother reported, and the record
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shows, no physical problems.
Finally, Henry argues that the ALJ did not give proper weight to Henry’s
treating psychologist, Dr. Reynolds’s, opinion. “The testimony of a treating
physician must ordinarily be given substantial or considerable weight unless good
cause is shown to the contrary. The [ALJ] must specify what weight is given to a
treating physician's opinion and any reason for giving it no weight, and failure to
do so is reversible error.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986).
The ALJ did not explicitly state what weight he gave to Dr. Reynolds’s
opinion. However, the ALJ properly rejected Dr. Reynolds’s interpretation of the
I.Q. scores, finding that Henry was actually functioning at a higher level. See
Popp, 779 F.2d at 1499-1500. Additionally, contrary to Henry’s position, Dr.
Reynolds did not provide a firm diagnose of mental retardation, but rather gave a
“provisional” diagnosis of mild retardation. The ALJ did not dispute Dr.
Reynolds’s opinion that Henry has ADHD, and thus, the ALJ implicitly gave great
weight to that diagnosis. Accordingly, the ALJ did not err in the weight he gave to
Dr. Reynolds’s opinion.
Because we conclude from the record that the ALJ’s findings are supported
by substantial evidence, we affirm the district court’s order affirming the
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Commissioner’s denial of Henry’s application for SSI benefits.
AFFIRMED.
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