                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2005

Richardson v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3548




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                                                    NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                          No. 04-3548




                   FLORENCE RICHARDSON,
         on behalf of Maxwell D. Richardson, III, a minor,
                                                     Appellant

                                v.

                JO ANNE B. BARNHART,
           COMMISSIONER OF SOCIAL SECURITY




         On Appeal from the United States District Court
                 for the District of Delaware
              D.C. Civil Action No. 02-cv-00373
                   (Honorable Kent Jordan)


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                         May 23, 2005

Before: SCIRICA, Chief Judge, ALITO and ROSENN, Circuit Judges

                      (Filed June 8, 2005)




                   OPINION OF THE COURT
SCIRICA, Chief Judge.

       Petitioner Florence Richardson, on behalf of her son Maxwell D. Richardson, III,

appeals the denial of child Supplemental Security Income benefits under Title XVI of the

Social Security Act.1

                                              I.

       In February 2000, Florence Richardson filed an application for child Supplemental

Security Income (SSI) on behalf of her son, Maxwell D. Richardson, III, who was born in

1989. Richardson claimed that her son is disabled because of Attention Deficit

Hyperactive Disorder (ADHD) and developmental disabilities present since birth.

       Maxwell had a long history of treatment, including physical, occupational, and

speech therapy, for delays in motor functioning and delays in speech and language

development. Since April 1996, Maxwell has been treated for ADHD by William

Houston, M.D. from the A.I. duPont Institute. Maxwell’s ADHD is managed through

medication, initially Ritalin and currently, Adderall.

       Richardson’s initial application was denied by an administrative law judge who

determined that Maxwell’s impairments did not meet, medically equal, or functionally

equal the severity of the applicable impairments. The district court affirmed the ALJ’s

order that Maxwell was not entitled to child’s SSI.


   1
    This case does not include a review by the Appeals Council because the case was
selected randomly to test an experimental, modified disability determination process that
does not include such review.

                                              2
                                             II.

       We exercise jurisdiction over the District Court’s grant of summary judgment

under 28 U.S.C. § 1291. We employ a substantial evidence standard to review a

Commissioner’s final denial of benefits. Substantial evidence is defined as “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000) (quoting Plummer v. Apfel, 186 F.3d

422, 422 (3d Cir. 1999)). However, we have the “responsibility to scrutinize the entire

record and to reverse or remand if the [Commissioner]’s decision is not supported by

substantial evidence.” Morales, 225 F.3d at 317 (quoting Smith v. Califano, 637 F.2d

968, 970 (3d Cir. 1981)).

                                             III.

       For a child under the age of 18 to be considered disabled and eligible for SSI under

the Social Security Act, he or she must have 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 to last for a continuous

period of not less than 12 months.” 42 U.S.C. § 1382c (a) (3) (C) (i) (2004). The

Regulations outline a three-step sequential evaluation process to determine a child’s

eligibility for SSI. 20 C.F.R. § 416.924 (2001). Under this analysis, a child will be found

disabled if he or she is not working or engaged in substantial gainful activity; if he or she

has a medically determinable impairment or combination of impairments that is severe;



                                              3
and if the impairment(s) meets, medically equals, or functionally equals the severity of

impairments listed in 20 C.F.R. § 404, subpt. P, app. 1 (2004). For an impairment to be

functionally equal in severity, a child must show “marked” limitations in two domains of

functioning or “extreme” limitation in one domain. 20 C.F.R. § 416.926 a (a) (2005).

The six development and functioning domains include: acquiring and using information;

attending to and completing tasks; interacting and relating with others; moving about and

manipulating objects; caring for oneself; and health and physical well-being. 20 C.F.R. §

416.926 a (b) (1) (i) - (vi) (2005).

       If there is substantial evidence in the record to support the Commissioner’s

findings, we are bound by such determination. Morales, 225 F.3d 310 at 316. Evidence

is not substantial if the Commissioner failed to consider all relevant evidence or failed to

resolve conflicts created by countervailing evidence, particularly that of a treating

physician. Id. at 317. In all disability determinations, evidence offered by a treating

physician must be accorded great weight. Id. An ALJ is allowed to reject a treating

physician’s conclusions so long as the rejection is based on other medical evidence, not

on personal inferences or speculation. Id. at 317-18. The ALJ must consider multiple

impairments in combination if none alone qualifies as a listed impairment or its

equivalent. Burnett v. Commissioner, 220 F.3d 112, 122 (3d Cir. 2000).




                                              4
                                               IV.

       At steps one and two of the disability analysis, the ALJ found that Maxwell, then

a seventh-grader, was not working or engaged in substantial activity and that his ADHD,

learning disabilities, and developmental delays qualified as severe because they caused

“more than minimal functional limitations.” However, at step three, the ALJ determined

that Maxwell’s disabilities failed to meet or medically or functionally equal the severity

of the listed impairments.2

       The ALJ’s detailed opinion demonstrates that he considered Maxwell’s disability

in light of his special education placement and his medication. The fact that Maxwell was

in special education does not in itself constitute a statutory disability. See 20 C.F.R. §

416.924a (b) (7) (2005) (stating that “The fact that you do or do not receive special

education services does not, in itself, establish . . . actual limitations or abilities.”). The

ALJ found that Maxwell’s medication, when monitored and administered properly,

adequately controlled his disability and determined that any limitations that persisted did


   2
    Some mention is made in the record about whether Maxwell has cerebral palsy based
on a medical notation from Dr. Fred A. Fow during Maxwell’s visit to the emergency
room when he put his arm through door glass and subsequent notations from Dr.
Raymond E. Dahl and Dr. Suken A. Shah from the Department of Orthopaedics.
However, since there is no substantial medical evidence and no conclusive diagnosis of
cerebral palsy by a neurologist, the ALJ concluded that Maxwell had not been diagnosed
with cerebral palsy. Additionally, Maxwell had asthma, but it was not raised as material
to his disability nor has his asthma resulted in any hospitalizations or frequent medical
visits during the previous year considered by the ALJ. The ALJ found based on medical
evidence that Maxwell’s asthma was effectively controlled through the use of Intal and
did not constitute a severe limitation.

                                                5
not create marked inattention, hyperactivity, or hyperactivity as outlined in evaluations

and reports from evaluating professionals. See 20 C.F.R. § 416.924 (b) (9) (i) (A) (2005)

(requiring consideration of “functional limitations that may nevertheless persist, even if

there is improvement from the medications.”). See also 20 C.F.R. pt. 404, subtp. P, app.

1 § 112.11 (listing the required criteria for ADHD).

       The ALJ based his determination on treatment notes of treating physician, William

Houston, M.D., his final letter urging the ALJ to find Maxwell disabled, and evidence

from Maxwell’s teachers and other examining physicians and professionals. The ALJ

declined to assign controlling weight to Dr. Houston’s final letter in light of several years

of treatment notes indicating that Maxwell’s ADHD was generally under control when

taking medication and that lapses in progress had been treated with adjustments in

medication brand and dosage.

       The ALJ also considered a report from Dr. Patricia Lifrak, the state agency

consultant, who reviewed Maxwell’s record and determined that he exhibited no marked

behavior problems at home and that Adderall helped him focus and complete tasks. Dr.

Lifrak noted Maxwell’s low average to borderline functioning with a normal attention

span and found little evidence of hyperactivity or anxiety. Dr. Lifrak found Maxwell to

be sociable and agreeable to peers, teachers, and other adults with whom he had contact.

Dr. Lifrak noted that Maxwell’s mother reported few behavioral problems at home. A




                                              6
report from Dr. I.L. Lifrak 3 determined that Maxwell was within the normal range for all

physical aspects of functioning. The ALJ also relied on a report by Heidi Grieb-Ginn,

M.S., a speech/language pathologist, who determined that Maxwell’s oral motor skills

and articulation were within functional limits and that he performed tasks with little

assistance.4 Finally, the ALJ considered the reports of two state agency psychological

consultants who ultimately concluded that Maxwell’s limitations did not meet the

statutory requirements of severity.

       Maxwell’s school reports reflected his academic difficulties and often below grade

levels but showed consistently average performances in most subjects including his

mainstream art classes. The ALJ concluded that, with the exception of one quarter in the

seventh grade, academic reports recognized Maxwell’s limitations and special educational

placement and were indicative of his general ability to function. Maxwell’s teachers, Ms.

Williams and Mr. Hendel, both indicated that Maxwell’s scholastic performance was

below grade, but neither teacher found him to be a discipline problem nor unable to

complete most tasks. The ALJ considered Mr. Hendel’s final letter, which suggested

Maxwell had marked limitations, but afforded the contemporaneously written reports

more weight.



   3
    For the sake of clarity, we note that Dr. Patricia Lifrak and Dr. I.L. Lifrak are two
different people, who performed separate evaluations of Maxwell.
   4
    Ms. Grieb-Ginn found Maxwell to have moderate to moderate/severe delays in
receptive/expressive vocabulary and language respectively.

                                              7
       The ALJ also considered the testimony and reports of Florence Richardson,

Maxwell’s mother. The ALJ concluded that the reports were generally consistent in

finding that Maxwell has functional limitations but that with appropriate drug therapy,

Maxwell remained focused, able to complete tasks, and generally well-behaved. The ALJ

found that reported deviations in Maxwell’s appropriate behavior were consistent with

behavior of other children his age. Furthermore, the ALJ found that Maxwell socialized

with at least three friends and appropriately engaged in dribbling a basketball, playing

video games, and watching television.

       The ALJ focused his analysis on whether Maxwell’s combined conditions

functionally equaled a listed impairment. Only the ALJ’s findings in domains one

(acquiring and using information), two (attending to and completing tasks), three

(interacting and relating with others), and five (caring for oneself) have been raised on

appeal.

       The ALJ did not dispute that Maxwell’s learning disability impaired his ability to

acquire and use information. However, the ALJ found based on questionnaires by

Maxwell’s teachers, academic progress reports, and conclusions of evaluating

professionals, that in spite of his limitations, Maxwell demonstrated progress in learning

and obtaining knowledge. The ALJ concluded that Maxwell did not exhibit an extreme

or marked limitation in this domain.




                                             8
       In domain two, the ALJ relied on the same information from Maxwell’s teachers

and evaluating professionals to conclude that Maxwell could remain focused and

complete tasks especially when he took his medication as prescribed. Maxwell’s fifth

grade teacher assessed Maxwell’s ability to complete tasks at one hundred percent.

Taken as a whole, there is substantial evidence to support the ALJ’s conclusion that

Maxwell did not have a marked or extreme limitation in domain two.

       Domain three measures a child’s ability to interact and relate to others.

Throughout all reports from Maxwell’s teachers, evaluating professionals, and his

mother, Maxwell was most often described as outgoing, cooperative, social, and happy.

Maxwell had limitations in his language development, but based on the record, there is

substantial evidence to show that Maxwell did not have marked or extreme limitations in

this domain.

       The ALJ concluded that in domain five, caring for oneself, Maxwell possessed the

same ability as most boys his age who must be reminded to bathe or perform household

chores. Dr. Patricia Lifrak also noted in her report that Maxwell possessed the ability to

adequately address his daily needs. The record demonstrates substantial evidence that

Maxwell did not have marked or extreme limitations in this domain.

                                             V.

       For the reasons set forth above, we will affirm the judgment of the District Court.




                                             9
