Barnett Ex Rel. D.B. v. Commissioner of Social Security

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0535n.06
Case No. 13-4391 FILED
Jul 22, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
STEPHANIE BARNETT ex rel. D.B., a )
minor, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE NORTHERN DISTRICT OF
) OHIO
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant-Appellee. )
)
BEFORE: MOORE, SUTTON and ALARCÓN, Circuit Judges.
SUTTON, Circuit Judge. Stephanie Barnett appeals an administrative law judge’s
decision to deny her application for supplemental security income. We affirm.
Barnett’s school-aged son D.B. suffers from asthma and three developmental disorders.
Claiming that these ailments qualify him for disability benefits, she applied for supplemental
security income on his behalf. The Social Security Administration denied her application, as did
an ALJ. Both the Social Security Appeals Council and the district court agreed with the ALJ.
Barnett appealed.

The Honorable Arthur L. Alarcón, Senior Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Case No. 13-4391
Barnett v. Comm’r of Soc. Sec.
In disability cases, we give fresh review to the district court’s decision, asking whether
the ALJ applied the correct legal rules to reach a decision supported by substantial evidence. See
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 374 (6th Cir. 2013).
Under federal law, a parent may seek supplemental security income on behalf of a
disabled child “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 last
for a continuous period of not less than [twelve] months.” 42 U.S.C. § 1382c(a)(3)(C)(i). In
implementing this statute, the Commissioner of the Social Security Administration assesses
childhood-disability claims based on three inquiries: Does the child engage in substantial and
gainful employment? Does the child suffer from one or more severe impairments? Do the
impairments “meet, medically equal, or functionally equal” any of the nearly 100 disabilities
listed in the Code of Federal Regulations? See 20 C.F.R. § 416.924(a)–(d). The parties and the
ALJ agree that D.B., age eleven, does not have a job, and they agree that he suffers from four
severe impairments: asthma, borderline intellectual functioning, mixed receptive-expressive
language disorder, and attention deficit hyperactivity disorder. They part ways over whether
these impairments “meet” or “functionally equal” the listing requirement.
Does the impairment “meet” or “medically equal” one of the listings? Barnett claims
that these impairments meet or medically equal the criteria of Listing 112.05(D), which covers
mental retardation (called intellectual impairment today). Listing 112.05(D) has four
requirements. Two appear in Listing 112.05’s introductory clause: “significantly subaverage
general intellectual functioning” with “deficits in adaptive functioning.” 20 C.F.R. Pt. 404,
Subpt. P., App. 1, § 112.05. The other two appear in section D itself: an IQ score between
60 and 70 and “a physical or other mental impairment imposing an additional and significant
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limitation of function.” Id. § 112.05(D). D.B. must meet “all of [a listing’s] specified medical
criteria” to be considered disabled under its terms. Sullivan v. Zebley, 493 U.S. 521, 530 (1990);
see also 20 C.F.R. § 416.925(c)(3) (“We will find that your impairment(s) meets . . . a listing
when it satisfies all of the criteria of that listing, including any relevant criteria in the
introduction.”).
The key problem with Barnett’s argument is that D.B.’s general intellectual functioning is
not “significantly subaverage.” No “evaluating mental health professional” or “school
psychologist[]” has ever diagnosed D.B. with mental retardation. R. 12 at 19. Every
psychological expert, to the contrary, concluded that he fell within the “borderline” (and not
“significantly subaverage”) range. Id. at 19. D.B.’s teachers had similar reactions. D.B.’s pre-K
teacher reported that “she had greater concerns about [his] behavior than [his] academic ability.”
Id. at 21. His first-grade teacher reported that he “was meeting standards in first grade
mathematics, progressing adequately in writing, and . . . performing slightly below grade level in
reading.” Id. His second-grade teacher reported only that he was “below grade level”
academically. Id. at 22. And although the Cleveland Municipal School District assigned him to
a special-education classroom, it did so on the basis of “average,” “below-average,” or “low-
average” performance in six of seven academic subjects and “borderline” performance in the
seventh. Id. So long as substantial evidence shows that D.B. does not suffer from the
“significantly subaverage general intellectual functioning” that Listing 112.05(D) demands, as it
does here, the ALJ’s finding must be affirmed.
Barnett offers three rejoinders to this conclusion. First, she points out that D.B.’s verbal
and perceptual IQ scores of 65 and 92, respectively, place him in the first and thirtieth percentiles
of his peers. These low scores, she claims, satisfy 112.05(D)’s first requirement as a matter of
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law. But this interpretation collapses the Listing’s first requirement (significantly subaverage
general intellectual functioning) into its third (an IQ score between 60 and 70). It therefore runs
afoul of the interpretive canon that requires us to try to give meaning to every word in a statute
or regulation. See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989).
This argument also contradicts our precedents, published and unpublished alike.
Consider Elam ex rel. Golay v. Commissioner of Social Security, 348 F.3d 124 (6th Cir. 2003), a
nearly identical case. The child’s IQ scores in Elam were low enough to support a finding of
mental retardation, but evaluating experts concluded that she demonstrated borderline
intellectual functioning. Id. at 126–27. Highlighting the experts’ opinions, we affirmed the
denial of benefits because it was supported by substantial evidence. Id. at 127; see also Hayes v.
Comm’r of Soc. Sec., 357 F. App’x 672, 675–76 (6th Cir. 2009); Cooper v. Comm’r of Soc. Sec.,
217 F. App’x 450, 452 (6th Cir. 2007).
To be clear, an ALJ may consult IQ scores in evaluating intellectual functioning. But
equating a low IQ score with “significantly subaverage” intellectual functioning overstates the
relevance of the score. The regulations make clear that, when “considering the validity of a test
result, [the ALJ] should note and resolve any discrepancies between formal test results and the
child’s customary behavior . . . .” 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 112.00(D)(8).
Barnett’s invitation would replace this nuanced evaluation process with a number, and in the
process would overlook a core canon of interpretation and several on-point precedents. We must
decline the offer.
Second, Barnett makes the more modest point that D.B.’s IQ scores are low enough to
justify a finding of “significantly subaverage general intellectual functioning.” App’t Br. at 22–
23. But this argument enters the forbidden field of re-weighing the evidence. We must “accept
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the agency’s factual finding[]” when it is supported by substantial evidence, even when
substantial evidence could justify a different result. Arkansas v. Oklahoma, 503 U.S. 91, 113
(1992). The ALJ’s decision fell within the zone of substantial evidence.
Third, Barnett faults the ALJ for thinking that a diagnosis of mental retardation is the
only way to satisfy 112.05(D)’s first prong. Yet the ALJ did no such thing. He surveyed the
record and found that every expert had described D.B.’s intellectual functioning as “borderline,”
not “significantly subaverage.” R. 12 at 19. Crediting those descriptions, he then permissibly
found that D.B.’s “borderline intellectual functioning” could not meet Listing 112.05(D)’s
criteria. Id.
Does the impairment “functionally equal” a listing? D.B. still may qualify for benefits if
his impairments “functionally equal” the disabilities itemized in the listings. See 20 C.F.R.
§ 416.926a. To determine functional equivalence, the ALJ examines the effects of a claimant’s
impairments on six behavioral domains: acquiring and using information, attending and
completing tasks, interacting and relating with others, moving about and manipulating objects,
caring for oneself, and health and physical well-being. Id. A claimant is disabled if his
impairments result in an “extreme” limitation in at least one domain or “marked” limitations in at
least two. Id. The ALJ denied benefits because he found that D.B. had a “marked” limitation in
just one domain: “acquiring and using information.” R. 12 at 24. On appeal, Barnett argues that
the ALJ should have found D.B. markedly limited in “attending and completing tasks.” App’t
Br. at 27. Substantial evidence, however, supports the ALJ’s finding that D.B.’s limitations were
“less than marked” in that area.
The ALJ’s finding turned on this insight: D.B.’s “inattentive, impulsive, and hyperactive
behavior” was mostly attributable to ADHD. R. 12 at 25. He supported that insight with four
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facts: that ADHD medication made D.B.’s symptoms more manageable; that some of his
disruptive behaviors stemmed from his desire for attention; that he could “maintain attention
when motivated” and when “working one-on-one”; and that he put in “good effort” and managed
to complete formal psychological testing. Id. at 25–26. Regrettably for Barnett, these facts
suffice to provide substantial evidence in support of the ALJ’s finding.
For these reasons, we affirm.
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