                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                     September 19, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
NATHANIEL VERGARA,*

             Plaintiff-Appellant,

v.                                                         No. 13-2020
                                                 (D.C. No. 1:11-CV-00764-WDS)
CAROLYN W. COLVIN, Acting                                   (D. N.M.)
Commissioner of Social Security
Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT**


Before TYMKOVICH, ANDERSON, and MATHESON, Circuit Judges.




      *
         In accordance with Fed. R. App. P. 43(b), Nathaniel Vergara is substituted
for Marion Loera, on behalf of N.V., as the plaintiff-appellant in this action.
Plaintiff-Appellant’s counsel has advised this court that the caption should include
Mr. Vergara’s full name. Further, in accordance with Fed. R. App. P. 43(c)(2),
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in
this action.
      **
         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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
       Nathaniel Vergara (“Claimant”) appeals from a district court order issued by a

magistrate judge under 28 U.S.C. § 636(c). The order upheld the Commissioner’s

decision to deny supplemental security income (SSI) benefits based on childhood

disability.

       We independently review the Commissioner’s decision to determine whether it

is free of legal error and supported by substantial evidence. Krauser v. Astrue,

638 F.3d 1324, 1326 (10th Cir. 2011). Exercising jurisdiction under 28 U.S.C.

§§ 636(c)(3) and 1291, we reverse and remand for further proceedings.

                                  I. BACKGROUND

       In April 2005, when Claimant was eleven years old, his mother applied for SSI

benefits on his behalf. She alleged that he became disabled in February 2001 due to

a learning disability that caused him difficulties in school. The agency denied

benefits initially and on reconsideration. Claimant’s mother then requested and

received a hearing before an administrative law judge (ALJ).

       The ALJ issued an unfavorable ruling, finding Claimant not disabled at step

three of the three-step sequential evaluation process for determining childhood

disability. See Adams ex rel. D.J.W. v. Astrue, 659 F.3d 1297, 1298 (10th Cir. 2011)

(citing 20 C.F.R. § 416.924); cf. Sullivan v. Zebley, 493 U.S. 521, 526 (1990)

(observing that “test for determining whether a child claimant is disabled is an

abbreviated version of the adult [5-step] test”). The Appeals Council, however,




                                         -2-
issued an order vacating the ALJ’s decision and remanding the case for further

proceedings.

       The ALJ held a second hearing and, in September 2009, again denied benefits

at step three. Under the three steps, a child under eighteen years of age is “disabled”

and eligible for SSI benefits if the child (1) is not doing substantial gainful activity

(SGA); (2) has a medically determinable impairment or combination of impairments

that is severe; and (3) the impairment or combination of impairments meets,

medically equals, or functionally equals the listings for disability (20 C.F.R. Part

404, Subpart P, Appendix 1 (the listings)), and otherwise meets the applicable

duration requirement. 20 C.F.R. § 416.924(a)-(d); see also id. § 416.906 (specifying

duration requirement).

       Here, the ALJ found at step one that Claimant had not engaged in SGA at any

time relevant to his application for benefits. At step two, the ALJ assessed Claimant

with a severe combination of attention deficit hyperactivity disorder (ADHD),

hearing loss, and a learning disorder. But at step three, the ALJ concluded that

Claimant did not have an impairment or combination of impairments that meets,

medically equals, or functionally equals the listings. The ALJ therefore found

Claimant not disabled and denied benefits.

       The Appeals Council denied review, making the ALJ’s 2009 decision the

Commissioner’s final decision for judicial review. Krauser, 638 F.3d at 1327. The

Appeals Council accepted and considered additional evidence (dated April 2008 to


                                           -3-
July 2010) submitted by Claimant’s mother, but concluded that the additional

evidence did not provide a basis for altering the ALJ’s determination. Aplt. App.

at 90-91, 93. The district court upheld the denial of benefits, and this appeal

followed. Claimant challenges the ALJ’s step-three determination that his severe

impairments do not result “in limitations that functionally equal the listings.”

20 C.F.R. § 416.926a.1

                                      II. DISCUSSION

A. Legal Background on Functional Equivalency

      Title 20 C.F.R. § 416.926a governs functional equivalence. When a child’s

“severe impairment or combination of impairments . . . does not meet or medically

equal any listing,” the ALJ “will decide whether it results in limitations that

functionally equal the listings.” Id. § 416.926a(a). Cf. id. § 416.926a(d) (explaining

that ALJ does “not compare [the child’s] functioning to the requirements of any

specific listing” (emphasis added)). A “severe impairment or combination of

impairments” “functionally equals the listings” if it causes “marked limitations” in at

least two of the six domains of functioning or an “extreme limitation” in at least one

of the six domains. Id. § 416.926a(a) (internal quotation marks omitted).2


      1
        Claimant does not challenge the ALJ’s step-three conclusion that he does not
have an impairment or combination of impairments that meets or medically equals
any one of the listings. The ALJ considered listings sections 112.11 (ADHD), 102.00
(Hearing Loss), and 112.00 (Learning Disorder).
      2
       The ALJ will find a “‘marked’ limitation in a domain when [the child’s]
impairment(s) interferes seriously with [his] ability to independently initiate, sustain,
                                                                             (continued)
                                         -4-
       The ALJ first considers how the child functions as a whole. This consists of

looking at all of the child’s “activities,” which include everything the child does “at

home, at school, and in [his] community,” and evaluating “how appropriately,

effectively, and independently” he functions compared to children the same age who

do not have impairments. Id. § 416.926a(b); see also id. § 416.926a(c) (“[W]e will

look first at [the child’s] activities and [his] limitations and restrictions.”); Social

Security Ruling (SSR) 09-1p, 2009 WL 396031, *1 (Feb. 17, 2009) (explaining that

first step in functional-equivalence evaluation is assessing “child’s functioning

without considering the domains or individual impairments”).

       Among other things, the ALJ evaluates what the child cannot do, has difficulty

doing, needs help doing, or is restricted from doing because of the child’s

impairment(s), 20 C.F.R. § 416.926a(a); how well he initiates, sustains, and

completes his activities, id. § 416.924a(b)(5); and the effects of medication,

id. § 416.924a(b)(9)(i)(E). See also id. § 416.926a(a) (observing that ALJ “will

assess the interactive and cumulative effects of all of the [child’s] impairments . . . .,

including any impairments” the child has “that are not ‘severe’”).

       The ALJ then evaluates the impact of the child’s impairment(s) by rating the

degree to which the impairment(s) limit(s) functioning (in other words, “activities”)



or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i) (emphasis added). The ALJ
will find “an ‘extreme limitation’ in a domain,” when the child’s “impairment(s)
interferes very seriously with [his] ability to independently initiate, sustain, or
complete activities.” Id. § 416.926a(e)(3)(i) (emphasis added).

                                            -5-
in the following six domains of functioning: (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 oneself, and (6) health and

physical well-being. Id. § 416.926a(b); SSR 09-1p, 2009 WL 396031, *2 (After

identifying which of the child’s “activities . . . are limited, we determine which

domains are involved in those activities. We then determine whether the child’s

impairment(s) could affect those domains and account for the limitations. . . .

[Finally,] we . . . rate the severity of the limitations in each affected domain.”).

B. ALJ Decision and Claimant’s Issues

       Here, the ALJ determined that Claimant’s impairments result in “marked

limitations” in only one of the six domains—acquiring and using information.

Aplt. App. at 115. The ALJ found Claimant’s impairments result in “less than

marked limitations” in the domains of attending and completing tasks, interacting and

relating with others, and health and physical well-being. Id. at 116-17, 120. He

found Claimant’s impairments result in “no limitations” in the domains of moving

about and manipulating objects and the ability to care for oneself. Id. at 118-19.

       On appeal, Claimant asserts that the ALJ’s findings in two domains,

(1) attending and completing tasks and (2) interacting and relating to others, “were

based on incorrect legal standards and not supported by substantial evidence.” Aplt.

Opening Br. at 21. He contends that the ALJ failed to resolve evidentiary conflicts

and ignored contradictory evidence.


                                           -6-
          We reach only the attending-and-completing-tasks domain and, in doing so,

reach only one of the pieces of evidence Claimant cites in support of his position:

the opinion of state agency psychiatry consultant E. Chiang, M.D. Dr. Chiang opined

that Claimant’s severe impairments cause “marked” limitations in the domain of

attending and completing tasks. Aplt. App. at 379.

C. Attending and Completing Tasks and Dr. Chiang’s Opinion

          Attending and completing tasks refers to how well a child is able to focus and

maintain attention, and how well the child begins, carries through, and finishes

activities, including the pace the child performs activities and the ease the child

changes activities. 20 C.F.R. § 416.926a(h); see also SSR 09-4p, 2009 WL 396033

(Feb. 18, 2009) (“consolidate[ing] information . . . about the functional equivalence

domain of ‘Attending and completing tasks’”). The regulations also describe

age-appropriate behaviors and expectations relevant to this domain. 20 C.F.R.

§ 416.926a(h)(2)(iv) (“age 6 to attainment of age 12”); id. § 416.926a(h)(2)(v) (“age

12 to attainment of age 18”).

          In finding Claimant’s limitations in this domain “less than marked,” the ALJ

stated:

          The claimant’s mother testified at the [2009] hearing that her son was
          doing better in completing his homework, cleaning his room, and caring
          for and feeding his dog, but he still had to be prompted. Based on an
          October 3, 2008 evaluation [entitled Los Lunas Schools Individualized
          Education Program], the examiner wrote that the claimant . . . works
          well in class some days and is very capable of completing work, and
          identified this as a great potential that needs to be harnessed in a
          positive manner. Further, she said that the claimant gets along well

                                            -7-
      with peers and teachers most of the time. He also helps neighbors with
      their yards. She also stated that he can be lazy.

Aplt. App. at 116.

      Claimant submits that the record contains evidence contradicting the ALJ’s

less-than-marked finding in the attending-and-completing-tasks domain and argues

that the ALJ failed to follow applicable rules of law in weighing particular types of

evidence. In particular, Claimant asserts that the ALJ erroneously failed to discuss

Dr. Chiang’s opinion. We agree.

      ALJs must consider all medical opinions in the record. See 20 C.F.R.

§ 416.927(c). “State agency medical and psychological consultants and . . . other

medical specialists are highly qualified” and serve as “experts in Social Security

disability evaluation.” Id. § 416.927(e)(2)(i). “Therefore, administrative law judges

must consider findings and other opinions of State agency medical and psychological

consultants . . . and other medical specialists as opinion evidence,” and “evaluate

[their] findings using the relevant factors in paragraphs (a) through (d) of

[§ 416.927].” Id. § 416.927(e)(2)(i), (ii).

      “Unless a treating source’s opinion is given controlling weight,”3 the ALJ

“must explain in the decision the weight given to the opinions of a State agency

medical or psychological consultant . . . or other medical specialist.” Id.

§ 416.927(e)(2)(i), (ii) (emphasis added); see also SSR 96-6p, 1996 WL 374180, *2

      3
        In this case, the ALJ did not explicitly give controlling weight to a treating
source’s opinion.

                                          -8-
(July 2, 1996) (observing that ALJs “are not bound by findings made by State agency

or other program physicians and psychologists, but they may not ignore these

opinions and must explain the weight given to the opinions in their decisions”)

(emphasis added)).

      In this case, the ALJ did not mention Dr. Chiang’s opinion.4 Claimant asserts

that the ALJ’s failure to discuss Dr. Chiang’s opinion violates the regulatory

requirement that the ALJ explain the weight given to a state agency medical

consultant’s opinion. We agree. “In the absence of ALJ findings supported by

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

adequately supports the ALJ’s conclusion . . ., and whether he applied the correct

legal standards to arrive at that conclusion.” Clifton v. Chater, 79 F.3d 1007, 1009

(10th Cir. 1996); see also id. at 1009-10 (remanding for ALJ to weigh evidence and

give reasons for rejecting medical evidence). Accordingly, we reverse and remand

for the ALJ to explain what weight should be given to Dr. Chiang’s opinion.

See Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (observing that failure

to apply the correct legal standards is grounds for reversal).5


      4
        We note that in 2008, when the Appeals Council vacated the ALJ’s first
decision, it instructed the ALJ on remand to “address and explain the weight given to
the opinion evidence (20 CFR 416.927).” Aplt. App. at 181 (emphasis added).
      5
         Because additional proceedings on remand may affect the ALJ’s severity
ratings in each affected domain, we do not reach Claimant’s other arguments that the
ALJ should have found marked limitations in the domains of attending and
completing tasks and interacting and relating to others. Our reasoning is two-fold.
                                                                           (continued)
                                         -9-
                                   III.    CONCLUSION

      We reverse and remand this case to the district court with directions to remand

to the Commissioner for further proceedings consistent with this order and judgment.

                                                   Entered for the Court



                                                   Scott M. Matheson, Jr.
                                                   Circuit Judge




First, on remand the ALJ “should consider the impact of the new evidence” that
Claimant’s mother submitted to the Appeals Council after the ALJ’s 2009 decision
“on the determination of disability.” Krauser, 638 F.3d at 1329. Second, because
determining functional equivalence accounts for “the interactive and cumulative
effects” of the child’s impairments, a revised severity rating on remand in one
domain may affect the ALJ’s rating(s) in other domain(s). SSR 09-1p, 2009 WL
396031, *2; see also 20 C.F.R. § 416.926a(c) (“Any given activity may involve the
integrated use of many abilities and skills; therefore, any single limitation may be the
result of the interactive and cumulative effects of one or more impairments. And any
given impairment may have effects in more than one domain . . . .”).


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