                      UNITED STATES COURT OF APPEALS
Filed 1/15/97
                             FOR THE TENTH CIRCUIT



    RHONDA HOUSTON, for Delilah M.
    Houston, a minor,

                Plaintiff-Appellant,
                                                         No. 96-6223
    v.                                             (D.C. No. CV-95-1552-M)
                                                         (W.D. Okla.)
    SHIRLEY S. CHATER,
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before TACHA, EBEL, and BRISCOE, Circuit Judges.




         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




*
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff Rhonda Houston, on behalf of her daughter, Delilah M. Houston,

appeals from an order of the district court affirming the final decision of the

Commissioner of Social Security denying her January 20, 1993 application for

child’s supplemental security income benefits. Delilah, born February 2, 1987,

has been treated for asthma since she was eight months old. In an opinion that

now stands as the final decision of the Commissioner, the Administrative Law

Judge (ALJ) found that Delilah’s asthma was once quite severe but that, at all

times relevant to his determination, the child did not have an impairment meeting,

equaling, or functionally equaling the criteria of any listed impairment.

Moreover, the ALJ determined that Delilah’s asthma was not comparable to an

impairment that would disable an adult.

      Ms. Houston appealed to the district court. The magistrate judge, to whom

the matter was referred for findings and a recommendation, concluded that

substantial evidence supported the denial of benefits. The district judge reviewed

the matter de novo and adopted the findings and recommendation of the

magistrate judge.

      We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We

review the Commissioner’s decision to determine whether it is supported by


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substantial evidence and whether the correct legal standards were applied.

Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Substantial

evidence is relevant evidence that “a reasonable mind might accept to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (further quotations

omitted).

      On appeal, Ms. Houston contends that the child’s impairment is

substantially equivalent to those specified in the listing, see 20 C.F.R. Pt. 404,

Subpt. P., App. 1, § 103.03 (1994), 1 or, alternatively, that it was of comparable

severity to an impairment that would disable an adult, 20 C.F.R. § 416.924.


1
       Between the protective filing date of January 20, 1993 and the ALJ’s
decision of December 21, 1994, two slightly different versions of § 103.03 were
in effect. Ms. Houston’s argument on appeal is based solely on the version in
effect as of April 1, 1994.

      In pertinent part, the relevant listing requires

             Attacks (as defined in 3.00C), in spite of prescribed treatment
      and requiring physician intervention, occurring at least once every 2
      months or at least six times a year. Each inpatient hospitalization for
      longer than 24 hours for control of asthma counts as two attacks, and
      an evaluation period of at least 12 consecutive months must be used
      to determine the frequency of attacks.

20 C.F.R. Pt. 404, Subpt. P., App. 1, § 103.03.

       “Attacks” are defined as “prolonged symptomatic episodes lasting one or
more days and requiring intensive treatment, such as intravenous bronchodilator
or antibiotic administration or prolonged inhalation bronchodilator therapy in a
hospital, emergency room or equivalent setting.” Id. § 3.00C.


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       Substantial evidence supports the ALJ’s decision that Delilah’s asthma

does not equal the listing of impairment for children’s bronchial asthma.

Equivalence to a listed impairment must be based on medical findings. Id.

§ 404.1526. The medical records indicate that Delilah was doing well on her

medication. Moreover, contrary to Ms. Houston’s argument, the administration of

home nebulizer treatments is not the equivalent of treatment requiring physician

intervention, see 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 103.03, or intensive

treatment, see id. § 3.00C.

      Although Delilah did not have an impairment equaling a listed impairment,

she nonetheless could be found disabled if she were found to have an impairment

of comparable severity to an impairment that would disable an adult. In order to

qualify, the impairment must substantially reduce a child’s ability to

      (1) Grow, develop, or mature physically, mentally, or emotionally
      and, thus, to attain developmental milestones at an age appropriate
      rate; or

      (2) Grow, develop, or mature physically, mentally, or emotionally
      and, thus, to engage in age-appropriate activities of daily living in
      self-care, play and recreation, school and academics, community
      activities, vocational settings, peer relationships, or family life; or

      (3) Acquire the skills needed to assume roles reasonably expected of
      adults.

20 C.F.R. § 416.924(a) (cross-references omitted).




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      The evidence showed that, while Delilah’s asthma restricted some of her

activities, it did not limit her ability to function independently, appropriately, and

effectively for her age. She attended school regularly, did satisfactory academic

work, and got along well with other children. The evidence supports the decision

that Delilah is not disabled, and we therefore affirm the denial of benefits.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.



                                                      Entered for the Court



                                                      Mary Beck Briscoe
                                                      Circuit Judge




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