                                                                   NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 11-3593
                                    _____________

                         T.C., on behalf of Z.C., a minor child,

                                       Appellant

                                           v.

                     COMMISSIONER OF SOCIAL SECURITY
                               ____________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                                 (No. 2-10-cv-05229)
                       District Judge: Hon. William J. Martini

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                September 11, 2012
                                  ____________

             Before: SMITH, CHAGARES, and GARTH, Circuit Judges.

                              (Filed: September 17, 2012)
                                     ____________

                                      OPINION
                                     ___________

CHAGARES, Circuit Judge.

      T.C., on behalf on her minor son Z.C., appeals the District Court‟s affirmance of

an Administrative Law Judge‟s (“ALJ”) conclusion that Z.C. was not disabled within the
meaning of section 1614(a)(3)(C) of the Social Security Act, 42 U.S.C. § 1382c(a)(3)(C).

For the reasons that follow, we will affirm the order of the District Court. 1

                                              I.

       We write for the parties‟ benefit and recite only the facts essential to our

disposition. T.C. protectively filed an application for supplemental security income on

behalf of Z.C. on August 16, 2007, alleging disability due to a learning disability and

asthma.2 He was later diagnosed with attention deficit hyperactivity disorder (ADHD).

Appendix (“App.”) 93. Z.C.‟s claim was denied initially and upon reconsideration on

July 8, 2008. Upon Z.C.‟s request, the ALJ held a hearing on November 13, 2009. At

the hearing, the ALJ heard testimony from T.C. about Z.C.‟s ability to follow instructions

and to focus, both at home and in school. In addition to T.C.‟s testimony, the ALJ relied

on medical and other non-medical evidence in the record.

       The ALJ issued his opinion on December 10, 2009, finding that Z.C. had not been

under a disability within the meaning of the Social Security Act since his application was

filed on August 16, 2007. Z.C. requested review by the Appeals Council, which on

August 12, 2010 denied the request for review; thus, the ALJ‟s decision was the final

agency decision. T.C., on behalf of Z.C., then filed suit in District Court. The District

Court affirmed the ALJ‟s decision. This appeal followed. 3


1
  We note with gratitude that T.C. was represented in this matter by the Child Advocacy
Clinic at Rutgers School of Law – Newark.
2
  The ALJ concluded that Z.C. did not have a severe impairment for asthma and T.C. does
not challenge that conclusion on appeal.
3
  We received a motion to supplement the record from T.C. and will deny it primarily
because the period for which T.C. is seeking relief is 2007 to 2009, while the documents
                                              2
                                             II.

       The District Court had jurisdiction pursuant to 42 U.S.C. §§ 405 and 1383(c)(3).

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the factual findings of the

Commissioner to determine whether the administrative record contains substantial

evidence for its findings. Schaudeck v. Comm‟r of Soc. Sec. Admin., 181 F.3d 429, 431

(3d Cir. 1999). Substantial evidence means “„more than a mere scintilla‟” and is

evidence which “„a reasonable mind might accept as adequate to support a conclusion.‟”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,

305 U.S. 197, 229 (1938)).

       The Federal Supplemental Security Income program provides benefits to disabled

individuals who meet certain statutory income and resource limitations. 42 U.S.C. §

1381. The statute provides that a child under 18

       shall be considered disabled for the purposes of this subchapter if that
       individual has 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). The Commissioner‟s regulations require a three-step

analysis to determine whether a child is disabled: (1) that the child is not working; (2)

that the child had a “severe” impairment or combination of impairments; and (3) that the

impairment, or combination of impairments, was of Listing-level severity, meaning the

impairment(s) met, medically equaled or functionally equaled the severity of an


with which T.C. sought to supplement the record pertain to a subsequent finding of a
disability commencing in 2011.
                                             3
impairment in the Listings. 20 C.F.R. § 416.924(a). The regulations provide that

functional equivalence to the severity of an impairment in the Listings may be

determined based on domains of functioning. 20 C.F.R. § 416.926a. A medically

determinable impairment or combination of impairments functionally equals a listed

impairment if it “result[s] in „marked‟ limitations in two domains of functioning or an

„extreme‟ limitation in one domain.” Id. § 416.926a(a). A child‟s functional limitations

are considered in terms of six domains: “(i) Acquiring and using information; (ii)

Attending and completing tasks; (iii) Interacting and relating with others; (iv) Moving

about and manipulating objects; (v) Caring for yourself; and, (vi) Health and physical

well-being.” Id. § 416.926a(b)(1). A limitation is “marked” when it “interferes seriously

with your ability to independently initiate, sustain, or complete activities” and marked

means “more than moderate but less than extreme.” Id. § 416.926a(e)(2)(i).

       The ALJ found that Z.C. was not working at step one. At step two, the ALJ found

that Z.C. had two severe impairments: ADHD and a learning disorder. Administrative

Transcript (“Tr.”) 26. 4 At step three, the ALJ found that Z.C. did not have an

impairment or combination of impairments that met, medically equaled or functionally

equaled one of the listed impairments. Tr. 29. The ALJ specifically considered whether

Z.C.‟s ADHD met Listing 112.11 for ADHD and found that it did not. Tr. 29.

       T.C., on behalf of Z.C., raises four issues on appeal. We address each in turn.


4
 T.C. submitted an appendix that she asserts contains the same documents as were
contained in the administrative record. T.C. Reply Br. 5 n.1. For the sake of clarity and
consistency, however, we cite to the certified administrative transcript filed by the
Commissioner.
                                             4
                                             A.

         T.C. argues that the District Court erred in affirming the ALJ because the ALJ

failed to consider the effects of structured and supportive settings on the effects of Z.C.‟s

impairments on his functioning, pursuant to 20 C.F.R. § 416.924a(b)(5). We do not

agree.

         The District Court held that the ALJ “adequately considered the structured setting

in which Z.C. had been placed along with Z.C.‟s ability to function outside of such

settings.” App. 21. The District Court noted the ALJ‟s statement that he “evaluated the

„whole child‟ in making findings regarding functional equivalent,” pursuant to 20 C.F.R.

§ 416.924a(b). Tr. 30. The ALJ noted “I have first evaluated how the child functions in

all settings and at all times, as compared to other children the same age who do not have

impairments.” Tr. 30. We reject T.C.‟s argument that the District Court erred in

affirming the ALJ because the ALJ did not consider the effects of a structured setting on

Z.C.‟s functioning and how Z.C. functioned without the structured setting because the

District Court correctly found that the ALJ recognized that: “(1) Z.C. had been referred

to his school‟s resource center for assistance, (2) „had difficulty with functioning

independently,‟ (3) had „trouble following instructions and focusing in school and at

home,‟ (4) had been given a „full time aide to assist him in school‟ and (5) that „he is

attending speech and occupational therapy two times per week in a self-contained special

education classroom.‟” App. 21 (quoting Tr. 28-30). We hold that the District Court did

not err in finding that the ALJ sufficiently analyzed Z.C.‟s function both inside and

outside of a structured environment and, thus, will affirm on this ground.

                                              5
                                             B.

       The ALJ examined whether Z.C. met the listing severity for ADHD, Listing

112.11, which provides

       Attention Deficit Hyperactivity Disorder: Manifested by developmentally
       inappropriate degrees of inattention, impulsiveness, and hyperactivity.
              The required level of severity for these disorders is met when the
              requirements in both A and B are satisfied.
              A. Medically documented findings of all three of the following:
                      1. Marked inattention; and
                      2. Marked impulsiveness; and
                      3. Marked hyperactivity;
              And B. . . . for children (age 3 to attainment of age 18), resulting in
              at least two of the appropriate age-group criteria in paragraph B2 of
              112.02.

20 C.F.R. pt. 404, subpt. P, App. 1, Listing 112.11. The ALJ found that Z.C. did not

meet Listing 112.11.

       T.C. argues that the ALJ‟s analysis amounted to a “conclusory statement . . .

beyond meaningful judicial review.” Burnett v. Comm‟r of Soc. Sec. Admin., 220 F.3d

112, 119-20 (3d Cir. 2000) (“Because we have no way to review the ALJ‟s hopelessly

inadequate . . . ruling, we will vacate and remand the case for a discussion of the

evidence and an explanation of reasoning supporting a determination that Burnett‟s

„severe‟ impairment does not meet or is not equivalent to a listed impairment.”); see T.C.

Reply Br. 1. However, this Court has noted that “Burnett does not require the ALJ to use

particular language or adhere to a particular format in conducting his analysis. Rather the

function of Burnett is to ensure that there is sufficient development of the record and

explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501,

505 (3d Cir. 2004). In this case, the ALJ provided a synopsis of his findings, which the

                                             6
District Court held was sufficient for meaningful judicial review. We agree. Read as a

whole, the ALJ‟s synopsis provides adequate explanation of the factors the ALJ used to

determine whether Z.C.‟s ADHD did not meet Listing 112.11 and the ALJ‟s conclusion

was supported by substantial evidence.

       T.C. also argues the ALJ‟s finding that Z.C. did not functionally equal the listing

because he had less than marked limitation or no limitation in the domains of completing

tasks, and interacting and relating with others, was not supported by substantial evidence.

We disagree. As the District Court noted, the record is “rife with examples of Z.C.‟s

ability to successfully interact with his peers and adults.” App. 23. Further, the ALJ

recognized that while Z.C. had “some difficulty focusing and completing tasks . . . . [h]e

is able to complete his work with proper focus.” Tr. 33. In support of this conclusion,

the ALJ cited Exhibit 10F, which contained school records for Z.C., which the ALJ

discussed in detail earlier in his opinion. The ALJ also noted that the doctor from

disability determination services (“DDS”) assessed Z.C.‟s functional domains and the

ALJ held that the medical and non-medical record was consistent with that assessment.

Tr. 31. Read as a whole, the ALJ‟s conclusion that Z.C.‟s impairments did not

functionally equal the listed impairment is supported by substantial evidence.

                                            C.

       T.C. next argues that the ALJ failed to give greater weight to Z.C.‟s treating

physicians, as provided in 20 C.F.R. § 416.927(d)(2) (2011) (“Generally, we give more

weight to opinions from your treating sources, since these sources are likely to be the

medical professionals most able to provide a detailed, longitudinal picture of your

                                             7
medical impairment(s) . . . .”).5 This Court has held that “[t]reating physicians‟ reports

should be accorded great weight, especially „when their opinions reflect expert judgment

based on a continuing observation of the patient's condition over a prolonged period of

time.‟” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Rocco v. Heckler,

826 F.2d 1348, 1350 (3d Cir. 1987)).

       The District Court properly found that the ALJ gave appropriate weight to Z.C.‟s

treating physicians. The ALJ noted Z.C.‟s ADHD and learning disability diagnoses. Tr.

31. The ALJ discussed Dr. Nazareth‟s evaluation of Z.C., who, as the Commissioner

notes, treated Z.C. only once. Tr. 27-28. The ALJ also noted Z.C.‟s assessments at the

Family Center at Monclair, as well as assessments by teachers and school psychologists.

Tr. 26-28. Importantly, the ALJ noted that the medical and non-medical evidence was

consistent with the DDS assessment of Z.C.‟s functional domains. Tr. 31. Thus, we

agree that the ALJ afforded the proper weight to Z.C.‟s treating physicians and we will

affirm on this ground.

                                             D.

       Finally, T.C. contends that nine pages of the fourteen pages of Exhibit 6F were

missing from the Social Security Administration record. T.C. contends that she brought

the missing pages to the attention of the ALJ in her letter brief before the November 13,

2009 hearing. The Commissioner contends that the ALJ noted at the beginning of the

hearing that additional documents had been submitted and were part of the record. Tr.

5
 20 C.F.R. § 416.927 was amended as of March 26, 2012, so that the treating relationship
section now appears as § 416.927(c)(2). There was no change to the language of the
section.
                                             8
48. The Commissioner, thus, argues that T.C. cannot support her conclusion that the ALJ

did not consider the missing pages.

       However, even assuming arguendo that the ALJ did not consider the missing

pages, we see no need to remand on this basis. T.C. argues that the failure to include

these pages violated Z.C.‟s right to have the record be fully and fairly developed.

However, the Commissioner correctly argues that, even assuming the ALJ did not review

the nine pages, they are insufficient to support remand. To support a “new evidence”

remand,

       the evidence must first be “new” and not merely cumulative of what is
       already in the record. Second, the evidence must be “material;” it must be
       relevant and probative. Beyond that, the materiality standard requires that
       there be a reasonable possibility that the new evidence would have changed
       the outcome of the Secretary‟s determination . . . . Finally the claimant
       must demonstrate good cause for not having incorporated the new evidence
       into the administrative record.

Szubak v. Sec‟y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984) (citations

omitted).

       Exhibit 6F contains records from the Family Center at Monclair. The first five

missing pages contain drug information for Adderall. App. 561-65. The next missing

page is an undated Medication Information Form, noting that Z.C. was prescribed 15 mg

of Adderall. App. 566. One page from the exhibit is unreadable. App. 568. The last

missing page is another Medication Information Form dated March 20, 2008, prescribing

18 mg of Concerta. The Commissioner notes that a May 2008 prescription for Concerta

was already in the record. Tr. 271. The only page that might be considered material is a

psychiatric evaluation form for Z.C. in which the doctor described Z.C. in the exam as

                                             9
“constantly running around.” App. 567. However, the Commissioner correctly notes that

this fact is consistent with other facts in the record, namely the referral to the Family

Center was for hyperactivity and Z.C. showed heightened activity in another examination

in the record. Tr. 265, 343. Because the missing pages were not new and were not

material, we need not remand for the ALJ to consider them, if, in fact, he did not.

                                             III.

       Based on the foregoing, we will affirm the order of the District Court.




                                              10
