Hilson v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 21 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
KIM HILSON, o/b/o Megan Phelps,
Plaintiff-Appellant,
v. No. 01-7142
(D.C. No. 00-CV-466-P)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY and HOLLOWAY , Circuit Judges, and BRORBY , Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Kim Hilson appeals the denial of Social Security disability benefits to her
child, claimant Megan Phelps, which denial was affirmed by the district court.
We have jurisdiction over this appeal by virtue of 28 U.S.C. § 1291. Our review
of the agency’s decision that claimant is not disabled is limited to a determination
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).
Children’s disability claims are evaluated using a three-step process. Id.Here, it is undisputed that claimant is not working and has severe impairments,
satisfying the first two steps. See id. At the third step, the agency must
determine whether claimant’s impairments meet, medically equal, or functionally
equal a listed impairment. See 20 C.F.R. § 416.924(a). Appellant does not
challenge the ALJ’s determination that claimant’s impairments do not meet or
medically equal a listed impairment. The focus of this appeal is whether
claimant’s impairments are the functional equivalent of a listed impairment, i.e.,
whether those impairments result in a “marked” limitation in two domains of
functioning or an “extreme” limitation in one domain. At the time the ALJ heard
claimant’s case, children were evaluated in five different domains. 1
1
The ALJ was operating under interim final rules promulgated following the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which
(continued...)
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Here, the ALJ determined that claimant had a marked limitation in the
domain of social functioning. However, he determined that claimant’s limitation
in concentration, persistence, and pace was only moderate. Appellant challenges
this determination, contending that the degree of limitation in this domain should
be marked. She presents two arguments in support of this position.
First, appellant contends that the ALJ failed to properly assess the
credibility of her testimony at the hearing on claimant’s disability claim. She
argues that the ALJ must always expressly address such credibility, citing Briggs ,
248 F.3d at 1239. In her reply brief, she further contends that the failure to
consider her testimony is legal error. Appellant appears to be arguing that,
because the ALJ did not find claimant’s limitations in this domain to be marked,
he must have ignored or discredited her testimony. We disagree. The ALJ clearly
considered appellant’s testimony in reaching his conclusions. Her testimony was
consistent with some of the medical testimony that the ALJ discussed in
connection with claimant’s concentration problems. The ALJ’s conclusion that
claimant’s limitations in this domain were moderate, not marked, does not
1
(...continued)
altered the standards for children’s eligibility to disability benefits. Final rules,
which became effective on January 2, 2001, reorganized the functional areas of
assessment into six domains, and renamed them. See 20 C.F.R. § 416.926a(b)(1).
The final rules did not affect any substantive changes in this case; we use the
interim rules’ domain designations here.
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evidence a rejection or discrediting of appellant’s hearing testimony. Therefore,
in contrast to Briggs , there was no error in the ALJ’s failure to expressly address
credibility as to her testimony on this specific domain.
Second, appellant contends that substantial evidence does not support the
ALJ’s conclusion that the limitation in this domain was only moderate. She lists
the evidence demonstrating claimant’s concentration problems, and contends that
the ALJ ignored comments in the medical reports, selectively relying on other
parts of the reports. Again, we disagree with this characterization of the ALJ’s
decision. The ALJ’s determination that the problems in this domain were
moderate instead of marked does not demonstrate that he ignored any of the
evidence. The record contains evidence both positive and negative about
claimant’s concentration problems, and therefore does not compel a determination
that claimant’s limitations in this domain were marked. We cannot reweigh the
evidence. See Hamilton v. Sec’y of Health & Human Servs. , 961 F.2d 1495, 1498
(10th Cir. 1992). Appellant’s final argument in her reply brief, regarding
claimant’s IQ, was not presented to the district court and, accordingly, will not be
considered. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). In any case,
appellant’s argument does not demonstrate that claimant’s IQ is proof of marked
limitations in concentration, persistence, or pace.
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After a careful review of the record, we conclude that substantial evidence
exists in support of the ALJ’s determinations and ultimate conclusion that
claimant is not disabled under applicable law, and that the correct legal standards
were applied. The judgment of the United States District Court for the Eastern
District of Oklahoma is AFFIRMED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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