               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0325n.06

                                          No. 13-5929

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                              Apr 25, 2014
ALICIA SARAI SMITH,                                    )
                                                                        DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellant,                            )
                                                       )   ON APPEAL FROM THE UNITED
v.                                                     )   STATES DISTRICT COURT FOR
                                                       )   THE WESTERN DISTRICT OF
COMMISSIONER OF SOCIAL SECURITY                        )   TENNESSEE
ADMINISTRATION,                                        )
                                                       )
       Defendant-Appellee.                             )


       BEFORE: GRIFFIN, WHITE, and STRANCH, Circuit Judges.

       PER CURIAM. Alicia Sarai Smith appeals the district court’s judgment affirming the

denial of her application for supplemental security income (SSI) benefits.

       In 2008, Smith’s mother filed an application for SSI benefits on her behalf, alleging that

Smith had been disabled due to borderline retardation and attention deficit disorder since her

birth on November 1, 1993. PID 164. After the Social Security Administration denied the

application, Smith requested a hearing before an administrative law judge (ALJ). The ALJ

denied Smith relief, and the Appeals Council declined to review the case. The district court

affirmed the denial of Smith’s application. PID 55.

       On appeal, Smith raises the following arguments: (1) the ALJ erred by concluding that

she did not meet or equal the regulatory listing for attention deficit hyperactivity disorder

(ADHD); (2) the ALJ erred in discounting the medical opinion of examining psychologist

Dr. David Pickering, who concluded that Smith had significant functional limitations; (3) the
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Smith v. Comm’r of Soc. Sec. Admin.

ALJ erred by failing to properly address the credibility of Smith’s mother’s testimony; and

(4) the ALJ’s denial was not supported by substantial evidence.

                                           Background

       In her early years, Smith showed several signs that she was struggling in school. In

October of 2000, her first-grade teacher recommended Smith be given a psychoeducational

evaluation, after noting that she was performing below grade level, had difficulty recalling the

letters of the alphabet and their respective sounds, and had math skills below grade level. PID

225. The evaluation included an IQ test indicating that Smith fell within the borderline range of

intellectual functioning. PID 226. Smith was in special education classes from first through

third grades. PID 342. However, in 2003, Smith was placed in regular classes. Id. School

records from Jackson-Madison Middle School indicate that in 2006-2007, Smith was in seventh

and eighth grades, earning A’s, B’s, and C’s in her primary subjects, an “E” in “Computer,” and

“S” in other subjects. PID 251. Her report card for grade eight indicates she was taking Honors

Language and Honors Algebra. Id. In March 2008, Smith took a series of tests showing she was

proficient in reading and language arts, below proficient in science, proficient in social studies,

and partially proficient in math. PID 445–48. In 2008, before high school, Smith’s mother

decided to begin homeschooling Smith through the Gateway program. PID 40–41.

       Smith underwent counseling at Quinco Mental Health Center beginning in September of

2008, where she initially reported that she became “overwhelmed with a lot of work,” had “some

trouble falling asleep” and “used to argue with teachers a lot.” PID 289–91. Records from

Quinco note in October of 2008 that Smith was hyperactive and often in trouble at school for

being restless and disruptive, but as she got older, these behaviors lessened. PID 285. In

November of 2008, Smith’s mother reported success with the medication Adderall, stating she


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Smith v. Comm’r of Soc. Sec. Admin.

was surprised by “how much of an improvement she had seen immediately.” PID 298. It was

also reported that Smith completed a challenging puzzle, and, though she had difficulty, she did

not give up or become distracted. Id. In December 2008, Smith’s focus was “much better,” her

grades were improving, her mood was stable, and she tolerated her medication well. PID 283.

In June of 2009, Smith’s mother reported that Smith’s grades with Gateway were good, she

could “tell the difference when Smith takes her meds” and reported that Smith was able to

complete an entire Gateway lesson in one sitting (rather than the four pages required). PID 384.

In January of 2009, Smith had been out of medication for three weeks. PID 281. Her mother

indicated that her medication was working, expressed concerns that Smith was not focusing as

well, and requested that Smith restart medication at her current dose. Id. Smith’s mood was

stable, with satisfactory sleep and appetite. Id. Her medication was restarted. Id. As of January

27, 2010, Smith was still being homeschooled with Gateway, was participating in church and

community activities, had no problems with Adderall, and her sleep and appetite were good.

PID 357.

       On February 17, 2009, a state agency psychological consultant, Dr. Rebecca Joslin,

reviewed Smith’s file and determined that she had less than marked limitations in the functional

domains of acquiring and using information, attending and completing tasks, interacting and

relating with others, and caring for herself. PID 319–322. Dr. Joslin also reported that while

Smith had difficulty focusing when not on medication, Smith improved when she took her

medications, noting Smith’s improved focus, grades, mood stabilization, sleep, and appetite. Id.

Dr. Joslin concluded that when on medication, Smith does not meet, medically equal, or

functionally equal the Listings. PID 319, 324. On April 6, 2009, another state psychological

consultant, Dr. Larry Welch, reviewed Smith’s file and affirmed Dr. Joslin’s conclusion. PID


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Smith v. Comm’r of Soc. Sec. Admin.

327–332. He further determined that Smith has no limitations in moving about or manipulating

objects, or in health and physical well-being. PID 330. He noted that there was no allegation of

a worsening of any previously documented mental impairment or any new mental impairment.

PID 332.

       The Commissioner, in his discretion, did not order a consultative examination.1 Smith’s

legal representative sent her for an “independent record review and consultative examination”

with Dr. David Pickering, PhD in Child Psychology, Diplomate in Clinical Psychology, and

Member of the American College of Forensic Evaluators. Appellant’s Br. at 6; PID 436–37. Dr.

Pickering evaluated Smith and reviewed her file in April 2010. PID 431–35. He diagnosed

Smith with attention deficit hyperactivity disorder, predominantly inattentive type, anxiety

disorder not otherwise specified, and borderline intellectual functioning. PID 431. He noted that

according to Quinco, Smith, and her mother, Smith was “responding well” to Adderall. Id. He

also noted that her school records from an early age to her most recent evaluation within the

school system document that her intellectual ability falls within the borderline range. Id. He

noted Smith was unduly anxious, and, although she denied she was anxious, she sat on the edge

of her chair, leaned forward “as if ready to bolt for the door,” and kept her arms wrapped around

herself. Id. He noted that Smith’s mother reported Smith engages in excessive hand washing.

Id.

       Dr.    Pickering   completed     a    form    indicating   that   Smith    has    marked

inattention/impulsiveness, marked impairment in age-appropriate cognitive/communicative

functioning and social functioning, and marked difficulties maintaining concentration,


1
 See 20 C.F.R. § 416.917 (“If your medical sources cannot or will not give us sufficient medical
evidence about your impairment for us to determine whether you are disabled or blind, we may
ask you to have one or more physical or mental examinations or tests.”).
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Smith v. Comm’r of Soc. Sec. Admin.

persistence, or pace. PID 433. At the bottom of the form, Dr. Pickering states: “Primary dx of

ADHD,      predominantly      inattentive   type     with    comorbid     anxiety     d/o,   which

complicates/exacerbates attention, concentration problems.” Id. He also determined Smith had a

“marked” impairment in the domains of acquiring and using information, attending and

completing tasks, “moderate to marked” impairment in interacting and relating to others, and

“moderate” impairment in health and physical well-being. PID 434–35. He stated that Smith is

homeschooled due to difficulties in relating to peers in public high school and that she needs a

degree of supervision/reminders. Id. He further noted that Smith reports she is sometimes

noncompliant with medication, which he noted has been confirmed by documentation from

Quinco. Id.

       Smith testified on April 20, 2010. She is 16, in homeschool, testified homeschool is “ok”

and that her right eye is blurry. PID 33. She testified that she is taking Adderall and it is

controlling her ADHD. PID 34. She further testified that while in school, she had problems with

being late for class, speaking out, getting up, and disrupting other students. PID 35. She was

sometimes able to keep up with classwork and earned “more about B’s and C’s.” Id. She

testified that she was in special education until Fourth grade and began homeschooling because

she “didn’t want to go to Northside.” PID 36. When asked if she has any problems with nerves

or being anxious, she testified that she does. Id. When asked if that was related to Northside,

she testified, “[p]robably a little bit.” Id. Smith further testified that she has trouble with math

and English and has trouble remembering things. PID 37. She testified that in regular classes,

she had trouble getting homework done, but that she does better by herself with one-on-one

attention. PID 38. Smith goes to Quinco Medical Center approximately once per month. Id.




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        Smith further testified that she has no difficulty sitting, standing or walking, and that she

does chores at home such as washing dishes and taking out the trash. PID 33. When asked if she

has physical problems that prevent her from doing what every other sixteen year old can do, she

testified “[n]ot that I can think of.” PID 34. She further testified that she goes out with other

kids to the mall, the skating rink, Wal-Mart, “other random places,” and has several friends from

church. PID 37–38.

       Smith’s mother, Yolanda Carmon, also testified on April 20, 2010. Ms. Carmon testified

that she took Smith out of school because she was “constantly” at the school “almost every day”

because Smith was “unnecessarily getting out of class.” PID 40. Smith did well in small groups,

but did not do well in bigger groups. Id. Ms. Carmon decided to take her out of school because

she didn’t want her to go to high school where she wouldn’t get time with her teachers. Id. Ms.

Carmon further testified that Smith was suspended only approximately three times but was in

detention frequently for disrupting class. PID 40–41. She testified that Smith’s grades were “B,

C, D” and she “knew she could do more,” but the classes were too large to give Smith one-on-

one attention. PID 41.

       In addition, Ms. Carmon testified that Smith has problems paying attention,

understanding oral instructions, and a serious problem with comprehending written material.

PID 41–42. She further testified that Smith has a serious problem with math and with recalling

previously-learned material, requiring Ms. Carmon to start over or remind Smith what they were

talking about. PID 42–43. When Smith is given a test at home, she is given more time to study

than the limited time at school. Id. When asked if Smith still has a problem paying attention

when Ms. Carmon speaks to her, Ms. Carmon testified that if it’s simple, such as one instruction,

she does not, but if she is given multiple instructions, Smith needs some of them repeated. PID


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44. She further testified that Smith has a very serious problem refocusing. Id. When asked

whether Smith would be able to return to regular school and compete with other students, Ms.

Carmon testified: “It’s 50-50. I see how she is doing in school, how she doing at home, but I

know that’s because I took her out and she has meds and, plus, it’s a smaller group.” PID 45.

Smith has not been back in school since taking Adderall. Id.

       The ALJ found that Smith had less than marked limitations in acquiring and using

information, attending and completing tasks, interacting and relating with others, and caring for

herself. He found no limitations in moving about and manipulating objects or physical health

and well-being. PID 63–68. Accordingly, the ALJ denied disability to Smith. PID 69.

                                             Analysis

        “Our review of the ALJ’s decision is limited to whether the ALJ applied the correct legal

standards and whether the findings of the ALJ are supported by substantial evidence.” Blakley v.

Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009). “The substantial-evidence standard is

met if a reasonable mind might accept the relevant evidence as adequate to support a

conclusion.” Id. at 406 (internal quotation marks and citation omitted). The substantial-evidence

standard presupposes that there is a zone of choice within which the decisionmakers can go

either way, without interference by the courts.” Id. Therefore, if substantial evidence supports

the ALJ's decision, this Court defers to that finding even if there is substantial evidence in the

record that would have supported an opposite conclusion. Id. “We give de novo review to the

district court’s conclusions on each issue.” Id.

       A child is disabled when she has a lasting and severe impairment that meets, medically

equals, or functionally equals a regulatory listing. 20 C.F.R. § 416.924(a). The regulatory listing

for ADHD requires medically documented findings of marked inattention, impulsiveness, and


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Smith v. Comm’r of Soc. Sec. Admin.

hyperactivity and at least two of the following: (1) marked impairment in cognitive or

communicative functioning; (2) marked impairment in social functioning; (3) marked

impairment in personal functioning; and (4) marked difficulty in maintaining concentration,

persistence, or pace. 20 C.F.R. § 404, subpt. P, app. 1, § 112.11. To functionally equal a listing,

a child must have marked limitations in two specified domains of functioning or an extreme

limitation in one domain. 20 C.F.R. § 416.926a(a)-(b).        “For a claimant to show that his

impairment matches a listing, it must meet all of the specified medical criteria. An impairment

that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan v.

Zebley, 493 U.S. 521, 530 (1990). “For a claimant to qualify for benefits by showing that his

unlisted impairment, or combination of impairments, is ‘equivalent’ to a listed impairment, he

must present medical findings equal in severity to all the criteria for the one most similar listed

impairment.” Id.

       Substantial evidence supported the ALJ’s conclusion that Smith did not have the marked

impairments required to meet or equal the listing for ADHD. Smith’s testimony and her medical

and school records demonstrated that her ADHD symptoms improved considerably with

medication and that, as she got older, Smith’s mood stabilized, her ability to concentrate and

focus increased, and she made significant progress in her academic performance and social

functioning. See 20 C.F.R. § 404, subpt. P, app. 1, § 112.11; 20 C.F.R. § 416.926a(g)-(i). The

plaintiff herself testified that medicine reduces the symptoms of her ADHD. See Hardaway v.

Secretary, 823 F.2d 922, 927 (6th Cir. 1987) (evidence that medical issues can be improved

when using prescribed drugs supports denial of disability benefits); 20 C.F.R. § 416.924a(b)(9)(i)

(the ALJ may consider the effects of medications on symptoms).             Further, there was no

significant evidence that Smith had difficulty with moving about, manipulating objects, or caring


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for herself or that there were deficits in her health and physical well-being. See 20 C.F.R.

§ 416.926a(j)-(l). The opinions of the state agency psychologists, experts in Social Security

disability evaluation, also indicate that Smith’s impairments did not functionally equal the

Listings. PID 319–24, 327–32. See 20 C.F.R. § 416.927(e)(2)(i).

       In addition, despite Smith’s argument to the contrary, the ALJ properly considered Dr.

Pickering’s medical opinion and gave valid reasons for discounting it.            See 20 C.F.R.

§ 416.927(c). In deciding the weight to give a medical opinion, the ALJ considers the following

factors: 1) examining relationship; 2) treatment relationship; 3) supportability; 4) consistency;

5) specialization; and 6) any other factors which tend to support or contradict the opinion.

20 C.F.R. § 404.1527(c); 416.927(c). The ALJ reasonably explained that he gave little weight to

Dr. Pickering’s conclusions because he only examined Smith once,2 his conclusions were based

primarily on subjective allegations rather than objective medical findings, and his conclusions

conflicted with Smith’s treatment records and other substantial evidence in the record. As the

ALJ explained, Smith received extensive treatment from Quinco Mental Health Center, where

she was not diagnosed with anxiety or a mood disorder. PID 62. At Quinco, she was prescribed

Adderall and her ADHD symptoms “improved considerably with compliance with medication


2
 Because Dr. Pickering only examined Smith once, he is not, as she argues, her “treating source.”
See 20 C.F.R. § 416.902 (“We will not consider an acceptable medical source to be your treating
source if your relationship with the source is not based on your medical need for treatment or
evaluation, but solely on your need to obtain a report in support of your claim for disability. In
such a case, we will consider the acceptable medical source to be a nontreating source.”) Rather,
the ALJ found that Smith received ongoing treatment from Quinco Mental Health Center. Smith
argues that greater weight should have been given to Dr. Pickering’s conclusion because his
examination of Smith was a year later than the state agency psychological consultants. While
that is correct, there is record evidence of ongoing treatment from Quinco through January of
2010 showing evident improvement, and Smith testified before the ALJ in April of 2010 that
Adderall controls her ADHD. Dr. Pickering’s own evaluation indicates that both Smith and Ms.
Carmon reported that Smith responds well to Adderall. PID 431. Moreover, the ALJ has the
ultimate responsibility for assessing functional equivalence. See 20 C.F.R. § 416.926a(n).
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and were noted to have lessened as she has gotten older.” PID 63. ALJ’s must give “good

reasons” for not giving the opinions of treating physicians controlling weight. See White v.

Comm’r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009). However, Dr. Pickering was not

Smith’s treating physician; rather, Smith was sent to Dr. Pickering by her representative prior to

her hearing. Appellant’s Br. at 14. Moreover, even when weighing the opinion of treating

physicians, “the ultimate decision of disability rests with the administrative law judge.” White,

572 F.3d at 286 (holding the ALJ did not err in discounting the assessment of a physician where

the assessment was in tension with another evaluation, it lacked detail, and it conflicted with

other evidence in the record indicating the claimant’s sustained improvement).         Moreover,

“[b]ecause subjective complaints do not constitute objective medical findings,” this Court defers

to the ALJ’s assessment of a doctor’s opinion where nothing in the record supports his findings.

Walton v. Comm’r of Soc. Sec., 60 F. App’x 603, 610 (6th Cir. 2003); see also Keeler v. Comm’r

of Soc. Sec., 511 F. App’x 472, 473 (6th Cir. 2013) (substantial evidence supported the ALJ’s

decision not to give controlling weight to a physician’s opinion because it conflicted with her

findings, was contradicted by other evidence in the record, and appeared to be based primarily on

the claimant’s subjective complaints).

       Finally, the ALJ adequately addressed the credibility of Smith’s mother, who testified

that Smith had academic and behavioral problems and difficulties with oral instructions, recall,

and focus. The ALJ reasonably explained that he discounted the testimony to the extent that it

was inconsistent with the majority of objective medical evidence and other evidence in the

record demonstrating significant improvement in Smith’s academic performance, behavior, and

cognitive ability. See White, 572 F.3d at 287. For example, the ALJ correctly held that while

Smith’s mother testified that Smith received grades “B” and “D,” her report cards for seventh


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and eighth grade show higher grades as well as enrollment in Honors Algebra. PID 61–62. The

ALJ further noted that most of the behavior problems described by Smith’s mother occurred

primarily in the past, prior to adherence to medication, and current medical records reflect that

Smith is cooperative and well-behaved. Id. Moreover, the ALJ correctly held that Smith’s

mother’s claims were inconsistent with the evidence from Quinco showing strong focus and

attention when on medication. PID 62. Where the medical record is contrary to the assertions of

a witness, the ALJ does not err in finding that their testimony is not fully credible. White, 572

F.3d at 287 (upholding credibility determination where, contrary to the witness’s assertions, the

medical record showed that she responded well to medications and therapy).

       Accordingly, we affirm the district court’s judgment.




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