                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 7 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JASON MURRAY, By and through
    his next friend, LaVon Bohannon,

                Plaintiff-Appellant,

    v.                                                   No. 97-5043
                                                   (D.C. No. 95-CV-481-W)
    KENNETH S. APFEL, Commissioner,                      (N.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before BRORBY, BARRETT, 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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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. 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.
      Claimant, Jason Murray, brought this action by and through his mother,

LaVon Bohannon. He appeals the district court’s affirmance of the

Commissioner’s denial of his application for supplemental security income

benefits. The claim was denied initially and upon reconsideration. Claimant

requested a hearing, and the Administrative Law Judge (ALJ) also denied

benefits. The Appeals Council denied review, and the ALJ’s denial of benefits

became the Commissioner’s final decision. Claimant brought an action in the

United States District Court for the Northern District of Oklahoma, and the

parties consented to having a magistrate judge conduct the proceedings and enter

judgment in the case. We affirm.

      We review the district court’s order de novo. See Brown v. Callahan, 120

F.3d 1133, 1135 (10th Cir. 1997). To that end, we must independently determine

whether the Commissioner’s decision is both supported by substantial evidence in

the record and free of legal error. See id. Substantial evidence is “such relevant

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

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted).




                                         -2-
      The ALJ evaluated the benefits claim pursuant to a four-step process in

effect at that time. See 42 U.S.C. § 1382(a)(3)(A) (1994), as implemented by

20 C.F.R. § 416.924 (1994). 1 After the ALJ issued his decision, Congress

changed the evaluation process for children’s disability claims and, because

claimant’s request for judicial review was still pending, we apply the new law.

See Brown, 120 F.3d at 1135; notes following 42 U.S.C. § 1382c.

      The revised statute eliminates the fourth step of the prior analysis.

Accordingly, the new regulation provides that if the child’s impairment or

impairments do not meet or equal a listing at the third step of the evaluation, the

child is not disabled. See 20 C.F.R. § 416.924(d)(2) (1997). Consequently, we

will not review the ALJ’s findings or decision at step four of the evaluation, and

the sole issue in this appeal is whether the ALJ’s finding that claimant did not

meet or equal a listing is supported by substantial evidence. See Brown, 120 F.3d

at 1135.




1
      First, the ALJ determined that claimant was not engaged in substantial
gainful activity. Because he was not, the ALJ went on to the second step and
determined that claimant did have a severe impairment. At step three, the ALJ
decided that claimant’s impairment did not meet or equal an impairment listed in
20 C.F.R. pt. 404, subpt. P, app. 1 (listings). Finally, the ALJ considered the
individualized functional assessment (IFA) prepared by the medical expert and
concluded that claimant’s impairment was of comparable severity to that which
would prevent an adult from engaging in substantial gainful activity. See App. at
26.

                                         -3-
       Claimant was born on May 10, 1985. He filed his application for benefits

on September 15, 1992. Claimant has been diagnosed with attention deficit

hyperactivity disorder (ADHD) and, at the time of the hearing, was taking 20 mg.

of Ritalin three times a day. It is because of this affliction that he claims

disability. The relevant listing identifies ADHD as “manifested by

developmentally inappropriate degrees of inattention, impulsiveness, and

hyperactivity.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 112.11 To meet or equal

§ 112.11, claimant must satisfy both parts A and B. Part A requires medically

documented findings of marked inattention, marked impulsiveness, and marked

hyperactivity. See id. Part B requires that two of the criteria in § 112.02B2 be

met:

       a. Marked impairment in age-appropriate cognitive/communicative
       function, documented by medical findings (including consideration
       of historical and other information from parents or other individuals
       who have knowledge of the child, when such information is needed
       and available) and including, if necessary, the results of appropriate
       standardized psych[o]logical tests, or for children under age 6, by
       appropriate tests of language and communication; or

       b. Marked impairment in age-appropriate social functioning,
       documented by history and medical findings (including consideration
       of information from parents or other individuals who have knowledge
       of the child, when such information is needed and available) and
       including, if necessary, the results of appropriate standardized tests;
       or

       c. Marked impairment in age-appropriate personal functioning,
       documented by history and medical findings (including consideration
       of information from parents or other individuals who have knowledge

                                          -4-
      of the child, when such information is needed and available) and
      including, if necessary, appropriate standardized tests; or

      d. Deficiencies of concentration, persistence, or pace resulting in
      frequent failure to complete tasks in a timely manner.

The ALJ made no specific finding regarding whether claimant satisfied part A of

the listing, although there is evidence to support that claimant exhibited marked

inattention, impulsiveness, and hyperactivity. Nevertheless, even if we assume

that, based on the medical expert, Dr. Kisher’s, testimony, the ALJ found that

claimant met the first part of the listing, the ALJ clearly detailed his findings

relevant to the part B requirements and his conclusion that claimant exhibited no

marked limitations in any of those areas. Relevant to part B, however, the ALJ

referred to the IFA completed by Dr. Kisher and specifically found that claimant

had no limitation of communicative development; less than moderate limitation in

cognitive development; moderate limitation of social development; moderate

limitation of personal/behavioral development; and less than moderate limitation

of concentration, persistence, and pace. Because claimant did not have marked

limitations in even one of these areas, his impairment was not of the required

level of severity to meet or equal the listing. Substantial evidence in the record,

including the medical expert’s testimony, supports these findings.

      The district court accurately and thoroughly summarized the record

evidence, and we will not repeat those details here. Suffice it to say, the record


                                          -5-
evidence bears out the medical expert’s insistent conclusion 2 that claimant has no

more than moderate limitations in any of the areas referenced in part B of

§ 112.11. The record shows that claimant’s mother thought of claimant as an

active child and noted that he completed regular household chores, played with

and helped his younger sister, and even when he burned his sister once, it was not

maliciously.

      The medical evidence support’s claimant’s diagnosis of ADHD, but it also

shows improvement in his behavioral problems with proper medication. The

testing and medical opinions also indicate average to above-average intelligence

and performance. Similarly, claimant’s teachers and other school evaluators

noted instances of specific behavioral problems only when claimant did not take

his medication. The record shows significant improvement in claimant’s school

behavior over time, average or above-average academic achievement, and

behavior appropriate for school and in line with age expectations. Claimant was

eventually main streamed for reading, art, music, P.E., recess, and lunch.

      The record contains substantial evidence supporting the ALJ’s conclusion

that claimant’s limitations in the areas referenced in part B of § 112.11 are not



2
       We note the apparent facial inconsistencies in the medical expert’s
testimony, but it is clear from reading his testimony as a whole that he was of the
indisputable opinion that claimant suffered from no more than moderate
limitations in any of the IFA areas, which mirror the part B listing areas.

                                         -6-
marked. The ALJ’s decision at step three that claimant’s impairment did not meet

or equal the listings is supported by substantial evidence, and claimant was,

therefore, not disabled.

      AFFIRMED.



                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




                                         -7-
