UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jodie Skellie on behalf of J.D.N.

v. Case No. 14-cv-00010-PB Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Jodie Skellie, on behalf of her minor son, J.D.N., seeks

judicial review of a ruling by the Social Security

Administration denying her application for supplemental security

income (“SSI”). For the reasons set forth below, I deny

Skellie’s request and affirm the decision of the Commissioner.

I. BACKGROUND

A. Stipulated Facts

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a joint statement of material facts, which is part of

the court’s record (Doc. No. 18). The facts relevant to the

disposition of this matter are discussed below. B. Procedural History

On April 15, 2011, Skellie applied for SSI on behalf of

J.D.N., alleging a disability beginning July 24, 2002, due to

attention deficit hyperactivity disorder (“ADHD”), a learning

disability, spina bifida occulta, and asthma. J.D.N. was eight

years old at the time the application was filed. Skellie

requested a hearing before an administrative law judge (“ALJ”).

On October 10, 2012, Skellie and J.D.N. testified at a hearing

before an ALJ.

On October 18, 2012, the ALJ issued an Unfavorable

Decision, finding that J.D.N. was not disabled within the

meaning of the Social Security Act. The ALJ followed the

sequential three-step process for determining whether a child is

disabled. See

. First, she determined that

J.D.N. was not engaged in substantial gainful activity. Second,

she found that he had the following severe impairments:

“attention deficit hyperactivity disorder, learning disability,

spina bifida occulta with chronic constipation, and asthma.”

Tr. at 15. Third, the ALJ found that J.D.N. did not have an

impairment or combination of impairments that met, medically

equaled, or functionally equaled the listed impairments in 20

2 C.F.R. Part 404, Subpart P, Appendix 1. Accordingly, she

concluded that J.D.N. was not disabled. On November 7, 2013,

the Appeals Council denied Skellie’s request for review of the

ALJ’s decision.

II. STANDARD OF REVIEW

Under

(g), I am authorized to review the

pleadings submitted by the parties and the administrative record

and enter a judgment affirming, modifying, or reversing the

“final decision” of the Commissioner. My review “is limited to

determining whether the ALJ used the proper legal standards and

found facts [based] upon the proper quantum of evidence.” Ward

v. Comm’r of Soc. Sec.,

(1st Cir. 2000).

Findings of fact made by the ALJ are accorded deference as long

as they are supported by substantial evidence.

Substantial

evidence to support factual findings exists “‘if a reasonable

mind, reviewing the evidence in the record as a whole, could

accept it as adequate to support his conclusion.’” Irlanda

Ortiz v. Sec’y of Health & Human Servs.,

(1st

Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of Health &

Human Servs.,

(1st Cir. 1981)). If the

3 substantial evidence standard is met, factual findings are

conclusive even if the record “arguably could support a

different conclusion.” Id. at 770. Findings are not

conclusive, however, if they are derived by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts.”

Nguyen v. Chater,

(1st Cir. 1999) (per curiam).

The ALJ is responsible for determining issues of credibility and

for drawing inferences from evidence in the record. Irlanda

Ortiz,

. It is the role of the ALJ, not the

court, to resolve conflicts in the evidence.

III. ANALYSIS

Skellie contends that the ALJ erred by finding that

J.D.N.’s ADHD (1) does not meet a listed impairment, (2) does

not medically equal a listed impairment, and (3) does not

functionally equal a listed impairment.

A. Entitlement to Children’s Disability Benefits

With respect to children, the Social Security Act provides:

An individual under the age of 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

4 to last for a continuous period of not less than 12 months.

42 U.S.C. § 1382c(a)(3)(C)(i).

To evaluate whether a child is entitled to SSI benefits, an

ALJ engages in a three-part inquiry that largely mirrors the

first three questions of the five-part inquiry for adults: (1)

whether the child is engaged in substantial gainful activity,

(2) if not, whether the child has a medically determinable

impairment that is severe, and (3) whether the impairment meets,

medically equals, or functionally equals one of the impairments

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the

regulations. See

(b)-(d).

At the third step, if the ALJ finds that the child’s

impairment does not meet or medically equal a listed impairment,

the ALJ must determine whether the child’s impairment

functionally equals a listed impairment. See

(d). To determine functional equivalence, the ALJ

considers the child’s functioning in 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.”

5 416.926a(b)(1). An impairment “functionally equal[s] the

listings” if it results in “marked” limitations in at least two

domains or an “extreme” limitation in one domain.

.926a(a).

B. Does J.D.N.’s impairment meet or medically equal a listed impairment?

Skellie contends that the ALJ erred in determining that

J.D.N.’s impairment did not meet or medically equal a listed

impairment. She focuses her arguments on Listing 112.11, which

describes ADHD.

1. Listing 112.11: ADHD

With respect to a child (like J.D.N.), Listing 112.11

requires a marked degree of inattention, impulsiveness, and

hyperactivity as well as a marked impairment in age-appropriate

function in at least two of the following categories: (a)

cognitive/communicative function, (b) social functioning, (c)

personal functioning, and (d) maintaining concentration,

persistence, or pace. 20 C.F.R. pt. 404, subpt. P, app’x 1, pt.

B, ¶¶ 112.02, 112.11. “Marked” means “more than moderate but

less than extreme.” Id. ¶ 112.00(C).

2. The ALJ’s Decision

The ALJ determined that J.D.N.’s impairment did not meet or

6 medically equal Listing 112.11.1 Tr. at 15. The ALJ found that

since November 2010, when J.D.N. was prescribed Concerta to

treat his ADHD, his symptoms abated.2 Tr. at 17-18. She pointed

to Skellie’s own reports in December 2010 that J.D.N. was doing

“absolutely great” on his medication and that the medication was

the “missing piece.” Tr. at 17-18 (quoting Tr. at 316). The

ALJ also relied on January 2011 office notes from Dr. Erin

Jackson, which noted that J.D.N. had improved in school and “had

been able to focus easier and had fewer interruptions in class.”

Tr. at 18 (citing Tr. at 317). Similarly, she noted that J.D.N.

experienced “less active and . . . impulsive behavior” at home.

Tr. at 18 (citing Tr. at 317).

1 The ALJ summarily stated that J.D.N.’s impairments did not meet or medically equal a listed impairment without further discussion under that heading. Tr. at 15. Skellie does not argue that the findings must be reported directly under a specific heading and I am not aware of any regulation requiring it. I find that the ALJ’s finding is supported by substantial evidence in another part of her decision. See Tr. at 17-18; see also Fiske v. Astrue, No. 10-40059-TSH,

, at *9 (D. Mass. Mar. 27, 2012)(“[T]he focus must be on whether there exists substantial evidence in the decision as a whole for the step three determination.”). 2 The ALJ stated that J.D.N. began taking Concerta in October 2010, but the record shows and the parties agree that he was prescribed Concerta on November 16, 2010. Doc. No. 18 at 9 (citing Tr. at 589, 591). 7 3. Does J.D.N.’s impairment “meet” a listed impairment?

To meet a listed impairment, the claimant must show that

the impairment matches each of the listed medical criteria.

Sullivan v. Zebley,

(1990). “An impairment

that manifests only some of those criteria, no matter how

severely, does not qualify.”

Skellie contends that the ALJ erred in finding that

J.D.N.’s impairments did not “meet” Listing 112.11 because she

ignored four categories of evidence: (1) the diagnoses of ADHD

by J.D.N.’s treating therapist, treating psychiatrist, and

treating physician; (2) Skellie’s reports about J.D.N.’s

behavior; (3) treatment notes describing J.D.N.’s behavior; and

(4) assessments completed by J.D.N.’s treating therapist,

Iphigenia Hatt. Doc. No. 14-1 at 9-10, 12, 14-15. I disagree

with each argument.

First, a diagnosis of ADHD is insufficient to show that

J.D.N. met the listing for ADHD. The regulations state that an

impairment “cannot meet the criteria of a listing based only on

a diagnosis. To meet the requirements of a listing, you must

have a medically determinable impairment(s) that satisfies all

of the criteria of the listing.”

(d); see

8 Batista-Canales v. Sec’y of Health & Human Servs.,

,

No. 94-1638,

(1st Cir. Nov. 10, 1994)

(table opinion) (“The diagnosis of bronchial asthma standing by

itself is insufficient to establish claimant’s entitlement to

disability benefits.”). Moreover, in this case, the ALJ

determined that after the diagnosis, J.D.N.’s symptoms abated

with the use of medication. Tr. at 17-18; see

.924a(b)(9)(i) (the ALJ may consider the effects of

medications on symptoms).

Second, Skellie’s reports to doctors about J.D.N.’s

behavioral issues do not undermine the ALJ’s conclusion.

Skellie points to various pieces of evidence in an apparent

effort to demonstrate the facts that the ALJ allegedly ignored.

Doc. No. 14-1 at 10-15. Much of the evidence that she

highlights, however, describes J.D.N.’s symptoms before he was

prescribed Concerta on November 16, 2010, and therefore is

consistent with the ALJ’s finding that J.D.N.’s behavior

improved after he was prescribed Concerta. See Tr. at 359-64,

379, 413, 414, 589-91. With respect to post-prescription

reports, Skellie points to various occasions during the spring

of 2011 when she reported to Ms. Hatt that J.D.N. was

9 inattentive or having trouble following directions. Doc. No.

14-1 at 12-14 (citing Tr. at 380, 381, 383, 385, 393, 395, 400,

405). Skellie does not articulate, however, how these reports

demonstrate the “marked” levels of inattention, impulsiveness,

and hyperactivity necessary to meet Listing 112.11. See Young

v. Colvin,

(finding substantial evidence

supported the ALJ’s conclusion that a child’s condition did not

meet a listed impairment where, “[a]side from simply summarizing

[the child’s] medical history, [the claimant] failed to point to

specific evidence that meets the [listed criteria]”). Moreover,

on each of those occasions, Ms. Hatt noted that J.D.N.’s

relative changes in “Mood/Affect,” “Thought

Process/Orientation,” and “Behavior/Functioning” were

“Unremarkable,” except for one occasion on which she did not

assess his condition. See Tr. at 380, 381, 383, 385, 393, 395,

400, 405.

Third, treatment notes describing J.D.N.’s behavior

similarly do not undermine the ALJ’s conclusion. Like Skellie’s

reports, most of the treatment notes to which Skellie points

describe symptoms before J.D.N. was prescribed Concerta and

therefore they are consistent with the ALJ’s finding that

10 J.D.N.’s behavior improved with medication. See Tr. at 414-15,

417-20, 422, 424-25, 427-29, 431, 438-41, 444, 447, 452, 455,

457, 548-49. The remaining treatment notes consist of eleven

pages, which are handwritten and difficult to decipher. See Tr.

at 392-402. Contrary to Skellie’s assertions, these pages

largely support the ALJ’s finding that J.D.N.’s behavior

improved with medication. See, e.g., Tr. at 392 (“[J.D.N.] is

following direction [with] more frequency. . . .”), 399

(“[M]edication is working well.”), 400 (“[J.D.N.] has

demonstrated consistent improvement in school. He has brought

four of his academic grades up [from] needs improvement to

satisfactory progress.”) Even the passages that support

Skellie’s contentions fail to demonstrate the “marked” levels of

inattention, impulsiveness, and hyperactivity necessary to meet

Listing 112.11. See, e.g., Tr. at 395 (“[J.D.N.] is not very

cooperative [or] following directions currently. He is not

being very attentive.”), 400 (“Transitions are difficult for

[J.D.N.] and boundary issues and issues of appropriate

behaviors. . . come into effect.”). Accordingly, these

treatment notes do not undermine the ALJ’s finding.

11 Fourth, Ms. Hatt’s January 2010 and January 2011

assessments of J.D.N. also do not undermine the ALJ’s

conclusion. In January 2010, Ms. Hatt completed an assessment

noting J.D.N.’s anxiety, distractability, hyperactivity, and

impulsiveness. See Tr. at 359. This assessment is consistent

with the ALJ’s finding that J.D.N.’s behavior only improved

after he was prescribed Concerta in November 2010. See Tr. at

17-18. Skellie also points to Ms. Hatt’s January 2011

assessment, in which Ms. Hatt checked the boxes to indicate that

J.D.N. suffered from the following relevant symptoms:

“Aggression, physical,” “Aggression, verbal,” “Angry outbursts,”

“Anxiety,” “Distractibility,” “Hyperactive,” “Impulsive,”

“Interpersonal problems,” “Self-esteem, low.” Doc. No. 14-1 at

13 (citing Tr. at 365-70). I agree with Skellie that this

evidence supports her contention and also that the ALJ did not

discuss this assessment in her opinion. Nonetheless, the ALJ

supported her conclusion with substantial evidence showing that

J.D.N.’s behavior had in fact improved by the time of the

January 2011 assessment. See Tr. at 17-18. Accordingly,

because remand is not necessary “if it will amount to no more

than an empty exercise,” I do not find the ALJ’s failure to

12 discuss this assessment to require remand. See Ward,

.

4. Does J.D.N.’s impairment “medically equal” the listings?

An impairment “medically equals” a listing if “it is at

least equal in severity and duration to the criteria of any

listed impairment.”

(a); see Young v.

Colvin,

. The ALJ is responsible for

determining whether an impairment medically equals a listed

impairment. SSR 96-6p,

, at * 3 (July 2, 1996).

According to Social Security Ruling 96-6p, “longstanding policy”

requires the ALJ to obtain evidence from a state agency

physician or psychologist on the issue of equivalence and assign

that expert opinion evidence appropriate weight.

Ultimately, however, the ALJ is not bound by a finding of a

medical or psychological consultant.

In some circumstances, the ALJ is required to obtain an

updated medical opinion from a medical expert.

Specifically, an update is required “[w]hen additional medical

evidence is received that in the opinion of the [ALJ] may change

the State agency medical or psychological consultant’s finding

that the impairment(s) is not equivalent in severity to any

13 impairment in the Listing of Impairments.” Id. at *4. That is,

the ALJ retains discretion to determine whether newly-acquired

evidence would change the State agency consultant’s opinion.

See id.

Here, the ALJ concluded that J.D.N. did not have an

impairment or combination of impairments that medically equaled

a listed impairment. Tr. at 15. The ALJ relied on the May 31,

2011 evaluations of State agency medical consultant Dr. Diana

Dorsey and State agency psychological consultant Dr. Michael

Schneider. See Tr. at 23. They both reviewed the available

evidence in the record at the time. Doc. No. 18 at 6. Dr.

Schneider and Dr. Dorsey opined that J.D.N.’s mental and

physical impairments did not meet or medically equal a listed

impairment. Tr. at 54. With respect to functional equivalence,

neither doctor opined that J.D.N. had more than a “less than

marked” limitation in any of the six domains. Tr. at 55-56.

Invoking Social Security Ruling 96-6p, the ALJ accorded these

opinions “great weight.” Tr. at 23.

Skellie contends that the ALJ erred because she did not

require the medical consultants to update their opinions. Doc.

No. 14-1 at 16. She lists several exhibits that contain

14 evidence that post-date May 31, 2011, but she does not identify

a single piece of evidence in those exhibits that undermine the

ALJ’s decision not to update the expert opinions. Id. at 16-17.

Accordingly, I find that the ALJ did not err in relying on Dr.

Dorsey and Dr. Schneider’s May 2011 opinions.

C. Does J.D.N.’s impairment “functionally equal” the listings?

If an ALJ determines that a child’s impairments do not meet

or medically equal a listed impairment, the ALJ must then

evaluate whether the impairments nonetheless functionally equal

the listings.

.926a(a). To demonstrate

functional equivalence, the child must have a marked limitation

in two functional domains or an extreme limitation in one

functional domain.

Here, the ALJ found that J.D.N.’s impairments did not

functionally equal the listings. Tr. at 15. Specifically, she

found that J.D.N. had “less than marked” limitation in five of

six domains and “no limitation” in the remaining domain. Tr. at

18-23.

Skellie argues that it was error for the ALJ to find that

J.D.N. did not have marked impairments in the domains of (1)

acquiring and using information, (2) interacting and relating to

15 others, and (3) caring for oneself. Because Skellie merely

recites factual information that supports her version of the

story rather than addressing any errors in the ALJ’s findings, I

disagree with each of her contentions. See Irlanda Ortiz,

.

First, Skellie contends that the ALJ erred in finding that

J.D.N. has a less than marked limitation in acquiring and using

information. See Doc. No. 14-1 at 18-19. In support of her

argument, she points to J.D.N.’s scores on the “Weschler

Intelligence Scale for Children – IV” and the comments of school

psychologist Cheryl Gamble related to that testing. See

Instead of showing that the ALJ’s finding was not supported by

substantial evidence, however, the test results largely support

the ALJ’s finding. For example, Skellie notes that the tests

show that J.D.N.’s “general cognitive ability is Average” and

that “[h]is ability in processing simple or routine visual

material w/o error is Average.” Id. at 18. Rather than

undermining the ALJ’s decision, these test results reinforce

that J.D.N. did not have a marked limitation in acquiring and

using information.

Second, Skellie argues that the ALJ’s finding that J.D.N.

16 had a less than marked limitation in “interacting and relating

to others” was error. See id. at 19. In support of this

argument, she points to his Individualized Education Plan, which

notes that J.D.N. meets the reading level expectation for the

end of first grade, but does not meet the expectation for the

end of second grade. Id. (citing Tr. at 146). The domain of

interacting and relating to others “consider[s] how well you

initiate and sustain emotional connections with others, develop

and use the language of your community, cooperate with others,

comply with rules, respond to criticism, and respect and take

care of the possessions of others.”

.926a(i).

Whatever relation J.D.N.’s reading ability may have to this

domain, Skellie has failed to articulate it. Therefore, Skellie

has not shown that the ALJ erred in finding a less than marked

limitation in interacting and relating with others.

Third, Skellie contends that the ALJ erred in finding that

J.D.N. had a less than marked limitation in his ability to care

for himself. See Doc. No. 14-1 at 19. To support this

contention, Skellie argues that the ALJ “neglected to include

her testimony regarding [J.D.N.’s] lack of awareness of how he

angers his peers and gets himself into trouble and fights.”

17 Despite this argument, an ALJ need not discuss every piece of

evidence in the record when the finding is otherwise supported

by substantial evidence. See Rodriguez v. Sec’y of Health &

Human Servs., No. 90-1039,

(1st Cir. Sept.

11, 1990); Lord v. Apfel,

(D.N.H. 2000).

IV. CONCLUSION

For the foregoing reasons, I grant the Commissioner’s

motion to affirm (Doc. No. 17) and deny Skellie’s motion to

reverse (Doc. No. 14). The clerk is directed to enter judgment

accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

February 27, 2015

cc: Judith E. Gola T. David Plourde

18