                                                                              FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                      UNITED STATES COURT OF APPEALS                   July 11, 2008
                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT
                                                                       Clerk of Court


    LILLIAN HUFFMAN, on behalf of
    B.H.,

                Plaintiff-Appellant,                     No. 07-5186
                                                  (D.C. No. 4:06-CV-672-SAJ)
    v.                                                   (N.D. Okla.)

    MICHAEL J. ASTRUE,
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         Lillian Huffman appeals from an opinion and order entered by a United

States Magistrate Judge 1 affirming the decision of the Commissioner of Social

Security (Commissioner) denying childhood disability benefits to her minor child,


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
         The parties consented to the jurisdiction of the magistrate judge.
B.H. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and

we reverse and remand for an immediate award of benefits.

                                          I

      B.H. was born on August 27, 1996. His mother filed for benefits on July 1,

2002, alleging B.H. was disabled as of January 1, 2002, as a result of attention

deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD).

The medical records also contain diagnoses of anxiety, post traumatic stress

disorder, a possible learning disability, and possible Asperger’s syndrome.

      The application was administratively denied, and on November 24, 2003,

Ms. Huffman and B.H. appeared at a hearing before an administrative law judge

(ALJ). In a May 15, 2004, decision, the ALJ denied benefits, and Ms. Huffman’s

request for review was denied by the Appeals Council. On appeal to the district

court, however, the magistrate judge reversed and remanded the case for further

proceedings because the ALJ’s decision failed to adequately discuss

Ms. Huffman’s credibility.

      The ALJ conducted a second hearing on September 12, 2006, and denied

benefits in a decision dated October 12, 2006. On appeal to the district court, this

time the magistrate judge entered an opinion and order affirming the

Commissioner’s denial of benefits. This appeal followed.




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                                         II

      “We review the district court’s decision de novo and therefore must

independently determine whether the agency’s decision (1) is free of legal error

and (2) is supported by substantial evidence. Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir.

2001) (quotation marks omitted).

      Relevant here, “[a] sequential three-step process guides the Commissioner’s

determination of whether a child [under age eighteen is disabled].” Id. The ALJ

determines in the following order, (1) whether the child is engaged in substantial

gainful activity, (2) whether the child has an impairment or combination of

impairments that is severe, and (3) whether the child’s impairment meets or

equals an impairment listed in Appendix 1, Subpart P of 20 C.F.R. pt. 404.

Id. (citing 20 C.F.R. § 416.924(a)).

      Ms. Huffman claims the ALJ (1) failed to adequately explain why B.H.’s

impairments did not meet a listed impairment, (2) erred in finding that his

impairments did not functionally meet a listed impairment, and (3) improperly

evaluated her credibility. We agree that the ALJ’s conclusion at step three of the

sequential evaluation process as to whether B.H.’s impairments meet a listing is

“a bare conclusion . . . beyond meaningful judicial review,” Clifton v. Chater,

79 F.3d 1007, 1009 (10th Cir. 1996), and must be reversed. Because we are

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remanding for an award of benefits instead of further proceedings, we do not

address the other contentions of error.

      The ALJ concluded that B.H. “does not have an impairment or combination

of impairments that meets or medically equals one of the listed impairments in

20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and

416.926).” Aplt. App. Vol. II at 200. In concluding that the impairments did not

meet or equal a listed impairment, the ALJ found “[B.H.’s] medical records do

not support a finding that either his ADHD or ODD includes any two of the

marked impairments required at paragraph B2 of 112.02 [Organic Mental

Disorders]. These are marked impairments in age-appropriate

cognitive/communicative functioning, social functioning, and personal

functioning.” Id. Setting aside the fact that paragraph B contains four criteria –

not three as stated by the ALJ – “[i]n the absence of ALJ findings supported by

specific weighing of the evidence, we cannot assess whether relevant evidence

adequately supports the ALJ’s conclusion that [B.H.’s] impairments did not meet

or equal any [l]isted [i]mpairment . . . .” Clifton, 79 F.3d at 1009.

      The Commissioner argues that the lack of specific findings concerning

whether B.H.’s impairments meet a listed impairment is saved by the ALJ’s

detailed discussion of the six domains used to measure functional equivalency.

We disagree. To meet listing 112.02, the claimant must demonstrate medically

documented persistence of at least one of ten symptoms, and marked impairment

                                          -4-
in at least two of the following areas: (1) cognitive/communicative functioning;

(2) social functioning; (3) personal functioning; or (4) concentration, persistence,

or pace. By comparison, an impairment functionally equals a listing if it results

in marked limitations in two, or extreme limitations in one of six domains:

(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. 20 C.F.R.

§ 416.926a(b)(1)(i)-(vi). To be sure, the categories are similar; however, the

Commissioner’s rules for determining childhood disability claims explain that the

six “domains are specifically designed for determining functional equivalence and

are completely delinked from the mental disorders and other listings.” 65 Fed.

Reg. 54746, 54755 (Sept. 11, 2000). And although the argument might have

merit if the ALJ had mentioned the four categories in the context of his discussion

concerning the six domains used to determine functional equivalency, he did not

do so. As such, his determination that B.H.’s impairments did not meet a listing

is “beyond meaningful judicial review.” Clifton, 79 F.3d at 1009.

                                         III

      Six years have passed since Ms. Huffman filed for benefits on July 1, 2002.

The case has already been reversed and remanded once and our resolution of this

appeal would require yet further proceedings. “Whether or not to award benefits

is a matter of our discretion.” Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir.

                                         -5-
2006). “[One] of the relevant factors we consider [is] the length of time the

matter has been pending.” Id. Given the lengthy delay that has occurred from the

Commissioner’s erroneous disposition of the matter, we exercise our discretion to

award benefits.

      We REVERSE and REMAND this case to the district court with

instructions to remand to the Commissioner for an immediate award of benefits.


                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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