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


12-24-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1665




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                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                           No. 03-1665




                        DONNELL SYKES

                                 v.

                 *JO ANNE B. BARNHART,
           COMM ISSIONER OF SOCIAL SERCURITY

                      ADMINISTRATION
                *(Pursuant to Rule 43(c) F.R.A.P.)


                 Yvonne Hall o/b/o Donnell Sykes,

                                      Appellant


                            *(Pursuant to Rule 12(a) F.R.A.P.)




            Appeal from the United States District Court
              for the Eastern District of Pennsylvania
               (D.C. Civil Action No. 01-cv-01096)
             District Judge: Honorable Jan E. DuBois


                     Argued October 27, 2003

Before: SCIRICA, Chief Judge, NYGAARD and AMBRO, Circuit Judges

                (Opinion filed December 24, 2003)
                                        Alida Rife Shatzer, Esquire (Argued)
                                        Shatzer & Sheridan
                                        4800-02 Baltimore Avenue
                                        Philadelphia, PA 19143

                                               Attorney for Appellant

                                        Patrick L. Meehan
                                          United States Attorney
                                        Joan K. Garner
                                          Assistant United States Attorney
                                        United States Attorney’s Office
                                        Eastern District of Pennsylvania
                                        615 Chestnut Street
                                        Philadelphia, PA 19106

                                        James A. Winn
                                          Regional Chief Counsel
                                        Thomas C. Buchanan (Argued)
                                          Assistant Regional Counsel
                                        Office of the General Counsel
                                        Social Security Administration
                                        Post Office Box 41777
                                        Philadelphia, PA 19101

                                               Attorneys for Appellee


                                      OPINION


AM BRO, Circuit Judge

      Yvonne Hall, on behalf of her grandson Donnell A. Sykes, appeals the District

Court’s order granting summary judgment in favor of the Commissioner of the Social

Security Administration (the “Commissioner”), who denied Sykes’s application for

Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42

                                           2
U.S.C. §§ 1381-83f. Because we conclude that the Commissioner’s decision is supported

by substantial evidence, we affirm.

                                  I. Factual Background

        Sykes was born to a drug addict mother and was in custody of his grandmother,

Hall, since he was two years old. In December 1995, when Sykes was six years old, Hall

applied for SSI, alleging that Sykes was disabled since he was four because of his

learning, emotional and visual problems. The Commissioner denied the application

initially and upon reconsideration. In October 1996, Hall filed a new application also

alleging Sykes’s hyperactive and violent behavior, asthma, speech and memory problems.

The Commissioner again denied the application initially and upon reconsideration. Hall

requested a hearing before an Administrative Law Judge (ALJ), which was held in July

1998.

        At the hearing, Hall testified that Sykes was violent and did not get along with his

friends and siblings. Hall also emphasized that Sykes was not keeping up with his

classes. Other evidence the ALJ considered is summarized below.

        In January 1995, Sykes began weekly therapy sessions with Jennifer Smith, M.A.

After treating him for a year, Smith diagnosed Sykes with attention deficit disorder.

        In December 1995, Sykes’s first-grade teacher Dorothy Clemens reported that

Sykes had adequate ability to follow instructions, keep up with class pace, and complete




                                              3
all assignments. 1 She further noted that Sykes was cooperative and got along with his

classmates.

       In February 1996, Ely Sapol, Ph.D., reported that, despite some immaturity,

Sykes’s academic functioning was not a significant problem. Sapol also concluded that

Sykes’s personal independence and social responsibility were within normal limits.

       In June 1996, Sykes was prescribed Ritalin for his hyperactivity. Ritalin is known

to have a stabilizing effect in children with attention deficit and hyperactivity disorder

(“ADHD”).

       In July 1996, Stephanie Maroney, Ph. D., conducted a psychological assessment of

Sykes. She reported that his overall intellectual capabilities were within the low average

range with a IQ of 81. She noted that Sykes might suffer from ADHD given the

fluctuations in his ability to focus.

       In September 1996, while Sykes was in regular second-grade class, the school

report determined that Sykes’s reading skills were at the beginning first-grade level and

his math skills at the mid first-grade level.

       In March 1997, Henry Weeks, Ph.D, completed a Childhood Disability Evaluation

Form in which he concluded that Sykes’s attention deficit disorder was not severe and



   1
    Hall claims that Sykes received all Ds in his first year. However, a “school copy” of
the report card shows that he had Bs, Cs and no Ds. Hall claims that a “parent copy”
showing all Ds is a “corrected” report card. However, the District Court suggested that
the parent copy might have been altered by hand because the lines underneath the
corrected grades appear to have been partially whited out.

                                                4
resulted in “less than marked” limitation in his functioning.

       The school report in May 1998 recommended that Sykes be placed in full-time

learning support for his academic classes. But the report noted that Sykes had good

attendance and was liked by his peers.

       On July 16, 1998, the ALJ issued a decision in which he concluded that Sykes was

not disabled. After the Appeals Council denied her request for review, Hall filed a

complaint in the District Court for the Eastern District of Pennsylvania. Both parties

moved for summary judgment, and the District Court granted summary judgment in favor

of the Commissioner. Hall appeals.

                                 II. Standard of Review

       “Although our review of the District Court’s order for summary judgment is

plenary, ‘our review of the ALJ’s decision is more deferential as we determine whether

there is substantial evidence to support the decision of the Commissioner.’” Fargnoli v.

Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (quoting Knepp v. Apfel, 204 F.3d 78, 83 (3d

Cir. 2000)). “‘Substantial evidence’ has been defined as ‘more than a mere scintilla. It

means such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981) (quoting Richardson v.

Perales, 402 U.S. 398, 401 (1971)). Thus, the issue before us is to determine whether

there is substantial evidence in the record that supports the ALJ’s finding that Sykes was

not disabled.



                                             5
                                       III. Discussion

                                              A.

       To qualify for SSI, a child must be disabled under the Social Security Act. The

Act provides that a child under the age of 18 is disabled if s/he “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 follows a three step sequential process in determining

childhood disability. 20 C.F.R. § 416.924. The Commissioner must consider: (1)

whether the child is doing substantial gainful activity; (2) if not, whether the child has a

medically determinable severe impairment; (3) if so, whether the child’s severe

impairment meets, medically equals, or functionally equals the severity of a set of criteria

for an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. Id.

       In this case, the ALJ found that, although Sykes was not doing substantial gainful

activity and his ADHD was a severe impairment, his condition did not meet, medically

equal, or functionally equal the severity of impairments listed in the regulations.

Accordingly, the ALJ concluded that Sykes was not disabled under the Act.

                                              B.

       Hall initially argues that we are unable to review the ALJ’s finding that Sykes’s



                                              6
impairment did not meet or medically equal a listed impairment because the ALJ did not

set forth his reasoning in the decision. We disagree.

          In Burnett v. Commissioner of Social Security Administration, we held that the

ALJ must provide the reasons for his decision. 220 F.3d 112, 119 (3d Cir. 2000). The

ALJ in Burnett merely stated in one sentence that the claimant’s condition did not meet or

equal to a listed impairment without giving any reason. Id. We concluded that we had no

way to review such a conclusionary statement and therefore remanded the case, requiring

the ALJ to “fully develop the record and explain his findings.” Id. at 120.

          Here, the ALJ determined that Sykes’s condition did not meet or medically equal

in severity the criteria for a listed impairment. The ALJ then identified listed impairments

he considered, one of which was listing 112.11, pertaining to ADHD. Hall claims that

merely identifying impairments in the listing is insufficient because the ALJ did not give

any reason why Sykes’s ADHD did not meet or medically equal listing 112.11.

          A closer look, however, at listing 112.11,2 reveals that, to meet or medically equal



   2
       This provision states in pertinent part:
          112.11 Attention Deficit Hyper Activity 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. M arked hyperactivity;
                B. ... [F]or childeren (age 3 to attainment of age 18), resulting in at least
                two of the appropriate age-group criteria in paragraph B2 of 112.02.

                                                7
the listed impairment, the child must have impairment-related functional limitations.

Specifically, listing 112.11 requires the child to show marked functional limitations in

two of the areas set forth in listing 112.02.3 The ALJ, while explaining why Sykes’s

condition is not functionally equivalent to the listed impairment, carefully evaluated

Sykes’s limitations in all of the four areas of functioning included in 112.02. Thus we

have at least enough reasoning to enable us to determine whether the ALJ’s conclusion is

supported by substantial evidence.

                                                 C.

          Hall further challenges the ALJ’s finding that Sykes’s ADHD is not functionally

equivalent in severity to the listed impairment. She argues that the finding is not

supported by substantial evidence. Again we disagree.

          The ALJ evaluated Sykes’s functional limitations in several areas of function and



          20 C.F.R. pt. 404, subpt. P, app. 1.
   3
       112.02 provides in relevant part:
         112.02 Organic Mental Disorder
                B. Select the appropriate age group to evaluate the severity of impairment:
                       2. For children (age 3 to attainment of age 18), resulting in at least
                       two of the following:
                               a. Marked impairment in age-appropriate
                               cognitive/communicative function . . . .
                               b. Marked impairment in age-appropriate social function . . . .
                               c. Marked impairment in age-appropriate personal function . .
                               ..
                               d. Marked difficulties in maintaining concentration,
                               persistence, or pace . . . .
         20 C.F.R. pt. 404, subpt. P, app. 1.

                                                 8
found that Sykes had: (1) moderate limitations in cognitive/communicative development;

(2) slight limitations in motoring functioning; (3) marked limitations in social

functioning; (4) slight limitations in personal functioning; (5) and moderate limitations in

concentration, persistence, or pace. Since the child’s condition must result in either

“extreme” limitations in one area or “marked” limitations in two areas to be functionally

equivalent to the listed impairment, the ALJ determined that Sykes’s condition does not

meet the criteria. 20 C.F.R. §416.926a(a). Hall challenges the ALJ’s findings in

cognitive/communicative development, social functioning, and concentration, persistence,

or pace.

       First, Hall asserts that the evidence does not support a finding that Sykes had

moderate limitations in cognitive/communicative development. She emphasizes that

Sykes was placed in a full-time learning support program at school.

       The ALJ decision did mention, however, that Sykes was in special education class.

The ALJ also discussed the psychological assessment report by Dr. Maroney. She

determined Sykes’s IQ as 81, which put him in low average intelligence. The records

also show that another psychologist, Dr. Sapol, reported that Sykes’s academic

functioning was not a significant problem.

       In addition, under the regulations the ALJ may give more weight to the

standardized test than Sykes’s school performance. They provide that “cognitive function

can be measured by standardized tests of intelligence, although the appropriate instrument



                                             9
may vary with age. A primary criterion for limited cognitive function is a valid verbal,

performance, or full scale IQ of 70 or less.” 20 C.F.R. Pt. 404, Subpt. P, App. 1. On the

other hand, “although grades and the need for special education placement are relevant

factors which must be considered in reaching a decision . . . , they are not conclusive.

There is too much variability from school district to school district in the expected level

of grading and in the criteria for special education placement to justify reliance solely on

these factors.” 20 C.F.R. Pt. 404, subpt. P, App. 1. Thus, substantial evidence supports

the ALJ’s finding that Sykes’s cognitive/communicative function is moderately limited.

       Next, Hall contends that Sykes’s social function is extremely limited, not markedly

limited as the ALJ determined. She testified during the ALJ hearing that Sykes was

violent and did not get along with his siblings or friends.

       In his decision, the ALJ properly considered this testimony but noted Hall’s

acknowledgment that some of Sykes’s fights with his siblings were triggered by teasing.

Hall’s own testimony also shows that Sykes often exhibits destructive behavior after his

drug addict mother’s visits. More importantly, the school reports submitted to the ALJ

inform that Sykes was “cooperative,” “got along with his classmates,” and was “liked by

peers.” The regulation guideline provides that “problems in social functioning, especially

in the area of peer relationships, are often observed firsthand by teachers and school

nurses . . . . [S]chool records are an excellent source of information concerning function

and standardized testing and should always be sought for school-age children.” 20 C.F.R.



                                             10
Pt. 404, subpt. P, App. 1. Accordingly, the ALJ had ample justification to find that

Sykes’s social functioning is not extremely limited.

       Hall finally argues that Sykes’s ability to concentrate, persist at a task, and his pace

doing his tasks are more than moderately limited. Again, the ALJ discussed Hall’s

testimony that she had to supervise Sykes closely in completing household chores. But he

gave considerable weight to the school reports stating that Sykes had adequate ability to

complete his assignments and did do so.

                                         * * * * *

       In sum, the ALJ’s opinion indicates that he considered and properly weighed all

pertinent evidence. Based on substantial evidence he set out, the ALJ determined that,

although Sykes’s function was limited in some areas because of his ADHD, it did not rise

to the level of a disabling limitation. Accordingly, we affirm the decision of the District

Court upholding the Commissioner’s denial of SSI.


TO THE CLERK:


       Please file the foregoing opinion.


                                            By the Court,


                                            /s/ Thomas L. Ambro, Circuit Judge




                                              11
