T.C. Ex Rel. Z.C. v. Commissioner of Social Security , 497 F. App'x 158 ( 2012 )


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  •                                                                    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 11-3593
    _____________
    T.C., on behalf of Z.C., a minor child,
    Appellant
    v.
    COMMISSIONER OF SOCIAL SECURITY
    ____________
    On Appeal from the United States District Court
    for the District of New Jersey
    (No. 2-10-cv-05229)
    District Judge: Hon. William J. Martini
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
    September 11, 2012
    ____________
    Before: SMITH, CHAGARES, and GARTH, Circuit Judges.
    (Filed: September 17, 2012)
    ____________
    OPINION
    ___________
    CHAGARES, Circuit Judge.
    T.C., on behalf on her minor son Z.C., appeals the District Court‟s affirmance of
    an Administrative Law Judge‟s (“ALJ”) conclusion that Z.C. was not disabled within the
    meaning of section 1614(a)(3)(C) of the Social Security Act, 42 U.S.C. § 1382c(a)(3)(C).
    For the reasons that follow, we will affirm the order of the District Court. 1
    I.
    We write for the parties‟ benefit and recite only the facts essential to our
    disposition. T.C. protectively filed an application for supplemental security income on
    behalf of Z.C. on August 16, 2007, alleging disability due to a learning disability and
    asthma.2 He was later diagnosed with attention deficit hyperactivity disorder (ADHD).
    Appendix (“App.”) 93. Z.C.‟s claim was denied initially and upon reconsideration on
    July 8, 2008. Upon Z.C.‟s request, the ALJ held a hearing on November 13, 2009. At
    the hearing, the ALJ heard testimony from T.C. about Z.C.‟s ability to follow instructions
    and to focus, both at home and in school. In addition to T.C.‟s testimony, the ALJ relied
    on medical and other non-medical evidence in the record.
    The ALJ issued his opinion on December 10, 2009, finding that Z.C. had not been
    under a disability within the meaning of the Social Security Act since his application was
    filed on August 16, 2007. Z.C. requested review by the Appeals Council, which on
    August 12, 2010 denied the request for review; thus, the ALJ‟s decision was the final
    agency decision. T.C., on behalf of Z.C., then filed suit in District Court. The District
    Court affirmed the ALJ‟s decision. This appeal followed. 3
    1
    We note with gratitude that T.C. was represented in this matter by the Child Advocacy
    Clinic at Rutgers School of Law – Newark.
    2
    The ALJ concluded that Z.C. did not have a severe impairment for asthma and T.C. does
    not challenge that conclusion on appeal.
    3
    We received a motion to supplement the record from T.C. and will deny it primarily
    because the period for which T.C. is seeking relief is 2007 to 2009, while the documents
    2
    II.
    The District Court had jurisdiction pursuant to 42 U.S.C. §§ 405 and 1383(c)(3).
    We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the factual findings of the
    Commissioner to determine whether the administrative record contains substantial
    evidence for its findings. Schaudeck v. Comm‟r of Soc. Sec. Admin., 
    181 F.3d 429
    , 431
    (3d Cir. 1999). Substantial evidence means “„more than a mere scintilla‟” and is
    evidence which “„a reasonable mind might accept as adequate to support a conclusion.‟”
    Richardson v. Perales, 
    402 U.S. 389
    , 401 (1971) (quoting Consol. Edison Co. v. NLRB,
    
    305 U.S. 197
    , 229 (1938)).
    The Federal Supplemental Security Income program provides benefits to disabled
    individuals who meet certain statutory income and resource limitations. 42 U.S.C. §
    1381. The statute provides that a child under 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 to last for
    a continuous period of not less than 12 months.
    42 U.S.C. § 1382c(a)(3)(C)(i). The Commissioner‟s regulations require a three-step
    analysis to determine whether a child is disabled: (1) that the child is not working; (2)
    that the child had a “severe” impairment or combination of impairments; and (3) that the
    impairment, or combination of impairments, was of Listing-level severity, meaning the
    impairment(s) met, medically equaled or functionally equaled the severity of an
    with which T.C. sought to supplement the record pertain to a subsequent finding of a
    disability commencing in 2011.
    3
    impairment in the Listings. 20 C.F.R. § 416.924(a). The regulations provide that
    functional equivalence to the severity of an impairment in the Listings may be
    determined based on domains of functioning. 20 C.F.R. § 416.926a. A medically
    determinable impairment or combination of impairments functionally equals a listed
    impairment if it “result[s] in „marked‟ limitations in two domains of functioning or an
    „extreme‟ limitation in one domain.” Id. § 416.926a(a). A child‟s functional limitations
    are considered in terms of 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.” Id. § 416.926a(b)(1). A limitation is “marked” when it “interferes seriously
    with your ability to independently initiate, sustain, or complete activities” and marked
    means “more than moderate but less than extreme.” Id. § 416.926a(e)(2)(i).
    The ALJ found that Z.C. was not working at step one. At step two, the ALJ found
    that Z.C. had two severe impairments: ADHD and a learning disorder. Administrative
    Transcript (“Tr.”) 26. 4 At step three, the ALJ found that Z.C. did not have an
    impairment or combination of impairments that met, medically equaled or functionally
    equaled one of the listed impairments. Tr. 29. The ALJ specifically considered whether
    Z.C.‟s ADHD met Listing 112.11 for ADHD and found that it did not. Tr. 29.
    T.C., on behalf of Z.C., raises four issues on appeal. We address each in turn.
    4
    T.C. submitted an appendix that she asserts contains the same documents as were
    contained in the administrative record. T.C. Reply Br. 5 n.1. For the sake of clarity and
    consistency, however, we cite to the certified administrative transcript filed by the
    Commissioner.
    4
    A.
    T.C. argues that the District Court erred in affirming the ALJ because the ALJ
    failed to consider the effects of structured and supportive settings on the effects of Z.C.‟s
    impairments on his functioning, pursuant to 20 C.F.R. § 416.924a(b)(5). We do not
    agree.
    The District Court held that the ALJ “adequately considered the structured setting
    in which Z.C. had been placed along with Z.C.‟s ability to function outside of such
    settings.” App. 21. The District Court noted the ALJ‟s statement that he “evaluated the
    „whole child‟ in making findings regarding functional equivalent,” pursuant to 20 C.F.R.
    § 416.924a(b). Tr. 30. The ALJ noted “I have first evaluated how the child functions in
    all settings and at all times, as compared to other children the same age who do not have
    impairments.” Tr. 30. We reject T.C.‟s argument that the District Court erred in
    affirming the ALJ because the ALJ did not consider the effects of a structured setting on
    Z.C.‟s functioning and how Z.C. functioned without the structured setting because the
    District Court correctly found that the ALJ recognized that: “(1) Z.C. had been referred
    to his school‟s resource center for assistance, (2) „had difficulty with functioning
    independently,‟ (3) had „trouble following instructions and focusing in school and at
    home,‟ (4) had been given a „full time aide to assist him in school‟ and (5) that „he is
    attending speech and occupational therapy two times per week in a self-contained special
    education classroom.‟” App. 21 (quoting Tr. 28-30). We hold that the District Court did
    not err in finding that the ALJ sufficiently analyzed Z.C.‟s function both inside and
    outside of a structured environment and, thus, will affirm on this ground.
    5
    B.
    The ALJ examined whether Z.C. met the listing severity for ADHD, Listing
    112.11, which provides
    Attention Deficit Hyperactivity Disorder: Manifested by developmentally
    inappropriate degrees of inattention, impulsiveness, and hyperactivity.
    The required level of severity for these disorders is met when the
    requirements in both A and B are satisfied.
    A. Medically documented findings of all three of the following:
    1. Marked inattention; and
    2. Marked impulsiveness; and
    3. Marked hyperactivity;
    And B. . . . for children (age 3 to attainment of age 18), resulting in
    at least two of the appropriate age-group criteria in paragraph B2 of
    112.02.
    20 C.F.R. pt. 404, subpt. P, App. 1, Listing 112.11. The ALJ found that Z.C. did not
    meet Listing 112.11.
    T.C. argues that the ALJ‟s analysis amounted to a “conclusory statement . . .
    beyond meaningful judicial review.” Burnett v. Comm‟r of Soc. Sec. Admin., 
    220 F.3d 112
    , 119-20 (3d Cir. 2000) (“Because we have no way to review the ALJ‟s hopelessly
    inadequate . . . ruling, we will vacate and remand the case for a discussion of the
    evidence and an explanation of reasoning supporting a determination that Burnett‟s
    „severe‟ impairment does not meet or is not equivalent to a listed impairment.”); see T.C.
    Reply Br. 1. However, this Court has noted that “Burnett does not require the ALJ to use
    particular language or adhere to a particular format in conducting his analysis. Rather the
    function of Burnett is to ensure that there is sufficient development of the record and
    explanation of findings to permit meaningful review.” Jones v. Barnhart, 
    364 F.3d 501
    ,
    505 (3d Cir. 2004). In this case, the ALJ provided a synopsis of his findings, which the
    6
    District Court held was sufficient for meaningful judicial review. We agree. Read as a
    whole, the ALJ‟s synopsis provides adequate explanation of the factors the ALJ used to
    determine whether Z.C.‟s ADHD did not meet Listing 112.11 and the ALJ‟s conclusion
    was supported by substantial evidence.
    T.C. also argues the ALJ‟s finding that Z.C. did not functionally equal the listing
    because he had less than marked limitation or no limitation in the domains of completing
    tasks, and interacting and relating with others, was not supported by substantial evidence.
    We disagree. As the District Court noted, the record is “rife with examples of Z.C.‟s
    ability to successfully interact with his peers and adults.” App. 23. Further, the ALJ
    recognized that while Z.C. had “some difficulty focusing and completing tasks . . . . [h]e
    is able to complete his work with proper focus.” Tr. 33. In support of this conclusion,
    the ALJ cited Exhibit 10F, which contained school records for Z.C., which the ALJ
    discussed in detail earlier in his opinion. The ALJ also noted that the doctor from
    disability determination services (“DDS”) assessed Z.C.‟s functional domains and the
    ALJ held that the medical and non-medical record was consistent with that assessment.
    Tr. 31. Read as a whole, the ALJ‟s conclusion that Z.C.‟s impairments did not
    functionally equal the listed impairment is supported by substantial evidence.
    C.
    T.C. next argues that the ALJ failed to give greater weight to Z.C.‟s treating
    physicians, as provided in 20 C.F.R. § 416.927(d)(2) (2011) (“Generally, we give more
    weight to opinions from your treating sources, since these sources are likely to be the
    medical professionals most able to provide a detailed, longitudinal picture of your
    7
    medical impairment(s) . . . .”).5 This Court has held that “[t]reating physicians‟ reports
    should be accorded great weight, especially „when their opinions reflect expert judgment
    based on a continuing observation of the patient's condition over a prolonged period of
    time.‟” Plummer v. Apfel, 
    186 F.3d 422
    , 429 (3d Cir. 1999) (quoting Rocco v. Heckler,
    
    826 F.2d 1348
    , 1350 (3d Cir. 1987)).
    The District Court properly found that the ALJ gave appropriate weight to Z.C.‟s
    treating physicians. The ALJ noted Z.C.‟s ADHD and learning disability diagnoses. Tr.
    31. The ALJ discussed Dr. Nazareth‟s evaluation of Z.C., who, as the Commissioner
    notes, treated Z.C. only once. Tr. 27-28. The ALJ also noted Z.C.‟s assessments at the
    Family Center at Monclair, as well as assessments by teachers and school psychologists.
    Tr. 26-28. Importantly, the ALJ noted that the medical and non-medical evidence was
    consistent with the DDS assessment of Z.C.‟s functional domains. Tr. 31. Thus, we
    agree that the ALJ afforded the proper weight to Z.C.‟s treating physicians and we will
    affirm on this ground.
    D.
    Finally, T.C. contends that nine pages of the fourteen pages of Exhibit 6F were
    missing from the Social Security Administration record. T.C. contends that she brought
    the missing pages to the attention of the ALJ in her letter brief before the November 13,
    2009 hearing. The Commissioner contends that the ALJ noted at the beginning of the
    hearing that additional documents had been submitted and were part of the record. Tr.
    5
    20 C.F.R. § 416.927 was amended as of March 26, 2012, so that the treating relationship
    section now appears as § 416.927(c)(2). There was no change to the language of the
    section.
    8
    48. The Commissioner, thus, argues that T.C. cannot support her conclusion that the ALJ
    did not consider the missing pages.
    However, even assuming arguendo that the ALJ did not consider the missing
    pages, we see no need to remand on this basis. T.C. argues that the failure to include
    these pages violated Z.C.‟s right to have the record be fully and fairly developed.
    However, the Commissioner correctly argues that, even assuming the ALJ did not review
    the nine pages, they are insufficient to support remand. To support a “new evidence”
    remand,
    the evidence must first be “new” and not merely cumulative of what is
    already in the record. Second, the evidence must be “material;” it must be
    relevant and probative. Beyond that, the materiality standard requires that
    there be a reasonable possibility that the new evidence would have changed
    the outcome of the Secretary‟s determination . . . . Finally the claimant
    must demonstrate good cause for not having incorporated the new evidence
    into the administrative record.
    Szubak v. Sec‟y of Health & Human Servs., 
    745 F.2d 831
    , 833 (3d Cir. 1984) (citations
    omitted).
    Exhibit 6F contains records from the Family Center at Monclair. The first five
    missing pages contain drug information for Adderall. App. 561-65. The next missing
    page is an undated Medication Information Form, noting that Z.C. was prescribed 15 mg
    of Adderall. App. 566. One page from the exhibit is unreadable. App. 568. The last
    missing page is another Medication Information Form dated March 20, 2008, prescribing
    18 mg of Concerta. The Commissioner notes that a May 2008 prescription for Concerta
    was already in the record. Tr. 271. The only page that might be considered material is a
    psychiatric evaluation form for Z.C. in which the doctor described Z.C. in the exam as
    9
    “constantly running around.” App. 567. However, the Commissioner correctly notes that
    this fact is consistent with other facts in the record, namely the referral to the Family
    Center was for hyperactivity and Z.C. showed heightened activity in another examination
    in the record. Tr. 265, 343. Because the missing pages were not new and were not
    material, we need not remand for the ALJ to consider them, if, in fact, he did not.
    III.
    Based on the foregoing, we will affirm the order of the District Court.
    10