                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-3881




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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  No. 02-3881


                             MARY ANN GLENN,
                                   o/b/o
                             JASON NORFLEET

                                       v.

                THE COMM ISSIONER OF SOCIAL SECURITY

                                 Jason Norfleet,
                                      Appellant


                   Appeal from the United States District Court
                      for the Western District of Pennsylvania
                            (D.C. Civil No. 02-cv-00526)
               District Court Judge: Honorable William L. Standish


                   Submitted Under Third Circuit LAR 34.1(a)
                                May 16, 2003

            Before: RENDELL, SMITH and ALDISERT, Circuit Judges

                              (Filed May 28, 2003)


                          OPINION OF THE COURT


RENDELL, Circuit Judge.
       Mary Ann Glenn,1 on behalf of her son Jason Norfleet, appeals the District Court’s

grant of summary judgment for the Commissioner of Social Security and affirmance of

the Commissioner’s denial of her claim for child’s Supplemental Security Income

Benefits. We will affirm.

       In January 2000, Glenn filed an application for benefits on behalf of her son under

Title XVI of the Social Security Act, 42 U.S.C. § 1381, alleging that Jason had been

disabled since December 1999 due to attention deficit hyperactivity disorder (“ADHD”).

Benefits were denied initially and on reconsideration. Glenn then requested a hearing

before an Administrative Law Judge (“ALJ”).

       Glenn and Jason arrived at the hearing without counsel. At the opening of the

hearing, the ALJ advised Glenn that Jason had a right to counsel because there were legal

issues involved. The ALJ further explained that the benefits decision would not be based

upon whether Jason had an attorney or not, and that the proceedings were informal and

were simply intended to allow the ALJ to gather information that might have a bearing on

Jason’s application. The ALJ then stated that if Glenn wanted to obtain counsel, it would

be necessary to reschedule the hearing. He asked Glenn if she wanted to proceed under

these circumstances, and she said yes. R146.

       The ALJ then asked Glenn if she had had an opportunity to review the file. Glenn




       1
         Because Glenn is really the actor in these proceedings, we will treat her as the
plaintiff in this discussion.

                                              2
responded that she had not. The ALJ asked if the file had been made available to her

prior to the hearing, to which Glenn had “no audible response.” R147. Finally, the ALJ

asked if she had any objection to his consideration of any of the material in Jason’s file in

deciding the case, to which Glenn responded, no. Id.

       The ALJ then proceeded with the hearing, first explaining to Glenn that he would

be looking at Jason’s functioning in five broad areas, then asking her questions about

Jason’s progress in school, his Individualized Education Plan (“IEP”), speech therapy

classes, motor skills, friends, outside activities, personal safety, household tasks, ability to

maintain attention, and his reaction to the medication Ritalin. R149-54. Glenn stated that

Jason was hyper and would sometimes become angry when he lost at games or was told

to do chores, but that he could play games like normal kids, had friends, plays football

and basketball, could dress himself and put his things away, loves to draw and write, and

had been calmed down by the Ritalin. The ALJ then asked Jason questions about his

teacher, his friends, and his activities, and offered Glenn the opportunity to add anything

further that she thought relevant.

       After the hearing, the ALJ denied benefits. First, the ALJ found that Jason was a

minor and had never performed substantial gainful activity. Then, the ALJ considered

whether Jason had a disability such that he was entitled to benefits. The ALJ found that

Jason’s ADHD was a severe impairment, but that Jason’s low average intelligence was

not a severe impairment. In coming to the conclusion that Jason had low average



                                               3
intelligence, the ALJ credited the most recent IQ score rather than a lower score from an

earlier test. The ALJ later explained that the higher IQ score was more reliable because

the testing was performed more recently, under the supervision of a highly qualified staff,

and the results were more consistent with Jason’s current performance in school. A40.

       Having found that Jason’s ADHD was a severe impairment, the ALJ then

evaluated whether Jason’s subjective complaints established a totally disabling

impairment, whether his impairment met or equaled any of the Listed Impairments, and

whether Jason had any marked or extreme limitations in any area of functioning or any

impairments that were functionally equivalent to any of the Listed Impairments. The ALJ

considered medical evidence including the two intelligence evaluations discussed above

and a doctor’s diagnosis of ADHD; a report from Jason’s first grade teacher that he had

some difficulties in reading and math but was working at the early first grade level, had

been better able to stay on task after being put on Ritalin, and worked well with others; a

Children’s Activities Questionnaire indicating that Jason was working below school level

and was receiving speech therapy; Jason’s current IEP, which indicated that Jason would

be participating in the regular general education curriculum with some modifications, that

he was well-behaved and enjoyed drawing, but needed to improve his reading skills; and

finally, Glenn’s testimony and Jason’s behavior during the hearing. Taking all of this

evidence into consideration, the ALJ determined that Jason was not disabled as defined in

the Social Security Act.



                                             4
         Glenn appealed the ALJ’s decision to the Appeals Council, which affirmed the

decision. Glenn then filed a complaint in the District Court for review of the

Commissioner’s final determination denying her claim. Both parties filed motions for

summary judgment. The District Court granted summary judgment in favor of the

Commissioner and affirmed the denial of benefits. Glenn appeals.

         The District Court had jurisdiction under 42 U.S.C.§ 405(g). We exercise

jurisdiction over the final order of the District Court pursuant to 28 U.S.C. § 1291.

         On appeal, Glenn presents three bases for reversal or remand: 1) that her waiver of

counsel was not knowing and voluntary, 2) that the ALJ’s denial is not supported by

substantial evidence, and 3) that the ALJ did not fulfill his duty of fully and fairly

developing the record, as he is required to do when the applicant is an unrepresented

minor.

         We find all three arguments without merit. First, we find that Glenn’s waiver of

counsel on Jason’s behalf was knowing and voluntary. Glenn was notified of Jason’s

right to counsel in notices mailed to her prior to the hearing and again by the ALJ at the

start of the hearing. R27, 33, 146. Her repeated statements in her brief that she never

received notice of the right to counsel, of the availability of counsel at a reduced fee, or of

the fact that Jason’s file was available for review are blatantly contradicted by the record.

See id. She was adequately informed of the right and chose not to exercise it.

Furthermore, before we will remand for lack of counsel, we require a showing of clear



                                              5
prejudice or unfairness, see Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979),

neither of which Glenn has shown.

       Second, Glenn urges us to find that the ALJ’s decision was not supported by

substantial evidence. Our review of the ALJ’s determination is deferential. We

determine only whether the ALJ’s findings are supported by “such relevant evidence as a

reasonable mind might accept as adequate.” Plummer v. Apfel, 186 F.3d 422, 427 (3d

Cir. 1999).

       Glenn does not challenge the ALJ’s enunciation of the proper legal standard, rather

she suggests that the evidence does not support the ALJ’s determination of no disability.

We disagree. As detailed above, the ALJ conducted a thorough hearing, questioning both

Glenn and Jason about Jason’s behavior, activities, friends, and functioning. The ALJ

also thoroughly reviewed the presented medical evidence and school reports. The ALJ’s

determination that Jason is not disabled is supported by Jason’s low average intelligence,

his enrollment in regular classes at school, the fact that he is well-behaved and a good

worker, his ability to play football, draw, and color, his having a number of friends and

interacting appropriately with them, and his ability to concentrate while taking Ritalin.

A43-44.

       Glenn attacks the ALJ’s decision to credit the later, higher IQ score over the

earlier, lower one, arguing that the ALJ did not provide any reasoning for his decision.

We require an ALJ to “give some indication of the evidence that he rejects and his



                                             6
reasons for discounting the evidence.” Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir.

2001). Here, the ALJ did so; his explanation that the higher IQ score was more recent,

was administered by a highly qualified staff, and was more consistent with Jason’s

current performance in school is adequate.

       Glenn also argues that the ALJ should have inquired about more medical evidence

and/or sent Jason to another doctor for more testing, but she does not provide any

indication of what probative evidence the ALJ might have been able to uncover, and

therefore cannot demonstrate any prejudice. Absent a clear showing of prejudice, we will

not remand. Dobrowolsky, 606 F.2d at 407.

       Finally, Glenn argues that the ALJ did not live up to his duty to fully and fairly

develop the record. We have disapproved of an ALJ’s passivity when faced with an

unrepresented claimant. See id. (remanding where ALJ failed to pursue the possibility of

claimant’s meeting the listing for heart disease where claimant’s medical history included

hospitalization for “coronary insufficiency” and claimant testified that he had “sharp

pains” when moving his arms). Here, however, the ALJ conducted a full hearing and

thoroughly reviewed the medical evidence, reports, and testimony. The ALJ asked Glenn

and Jason questions about Jason’s daily functioning that are very close to the questions

Glenn suggests an attorney would have asked. See App. Br. at 31. The ALJ fulfilled his

responsibilities; his conduct here was thorough and far from the lackadaisical type of

conduct we have previously found to be prejudicial.



                                              7
       Because we find that Glenn knowingly and voluntarily waived the right to counsel,

that the ALJ’s denial was supported by substantial evidence, and that the ALJ fulfilled his

duty to fully and fairly develop the record, we will affirm the District Court’s grant of

summary judgment in favor of the Commissioner and the denial of benefits.

__________________________




                                              8
TO THE CLERK OF COURT:

    Please file the foregoing not precedential opinion.




                                              /s/ Marjorie O. Rendell
                                               Circuit Judge




                                          9
