                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 21 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    JOYCE JEFFERSON, on behalf of
    Ray Lee Jefferson,

                Plaintiff-Appellant,

    v.                                                   No. 02-5115
                                                   (D.C. No. 01-CV-291-M)
    JO ANNE B. BARNHART,                                 (N.D. Okla.)
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before LUCERO , McKAY , and BALDOCK , 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(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      This order and judgment is not binding precedent, except under the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. 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.
       Joyce Jefferson filed an application for Supplemental Security Income on

behalf of her minor son Ray Lee Jefferson. The Commissioner denied benefits

and the district court   1
                             affirmed the decision. Ms. Jefferson appeals. Our

jurisdiction arises under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We reverse

and remand for further proceedings.

       Ray Lee was born on July 9, 1989. He was nine years old when the

application for benefits was filed, and he was ten at the time of the hearing before

an administrative law judge (ALJ). The ALJ took testimony from Ray Lee and

his mother and received documentary evidence, including records from Tulsa

Public Schools and a developmental psychological report by A. Owen Fonkalsrud,

M.A., the consulting expert. The ALJ denied benefits, concluding that Ray Lee

had a learning disability that qualified as a severe impairment, but his impairment

did not meet or equal a listing.

       On appeal, Ms. Jefferson challenges the ALJ’s determination that

Ray Lee’s disability did not meet a listing. She also maintains that the ALJ

improperly discounted her testimony.

      We review de novo the district court’s judgment; therefore, we

independently evaluate the agency’s decision to determine whether it is free of



1
      The parties consented to proceed before a magistrate judge, pursuant to
28 U.S.C. § 636(c)(1).

                                             -2-
legal error and supported by substantial evidence.     Briggs ex rel. Briggs v.

Massanari , 248 F.3d 1235, 1237 (10th Cir. 2001). Substantial evidence

“is adequate relevant evidence that a reasonable mind might accept to support

a conclusion.”   Kepler v. Chater , 68 F.3d 387, 388-89 (10th Cir. 1995). The ALJ’s

decision, affirmed by the Appeals Council, is the final agency decision.     Id. at 388.


                                   I. THE LISTINGS

                       A. Statutory and Regulatory Framework

       A child under age eighteen is “disabled” if he or she “has a medically

determinable physical or mental impairment, which results in marked and severe

functional limitations, and which can be expected to . . . last for a continuous

period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). An ALJ

applies a three-step process to evaluate (1) whether the child is engaged in

substantial gainful activity, (2) whether the child has an impairment or

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

or equals an impairment listed in Appendix 1, Subpart P of 20 C.F.R. Pt. 404.

20 C.F.R. § 416.924(a).

       Ms. Jefferson asserts that Ray Lee meets the requirements of listing 112.05,

the listing for mental retardation. She argues that her son meets the criteria for

sub-listings 112.05A, 112.05D, and 112.05E. Each sub-listing requires

“significantly subaverage general intellectual functioning with deficits in adaptive

                                            -3-
functioning.” 20 C.F.R. Pt. 404, App. 1, Subpt. P, Part B, § 112.05. For

sub-listing 112.05A, the child must also exhibit “marked” impairment   2
                                                                           in at least

two of the following areas: cognitive/communicative functioning, social

functioning, personal functioning, or maintaining concentration, persistence,

or pace.

       Sub-listing 112.05D requires an IQ of “60 through 70 and a physical or

other mental impairment imposing an additional and significant limitation of

function.” Listing 112.05D. The additional limitation must be “severe” to meet

this sub-listing.   Id. 112.00(A).

       Sub-listing 112.05E requires an IQ of 60 through 70 and marked impairment

in at least one of the following areas: social functioning, personal functioning,

and maintaining concentration, persistence, or pace.

                                     B. Discussion

       The ALJ evidently determined that Ray Lee met the threshold requirement

for listing 112.05 (significantly subaverage general intellectual functioning with

deficits in adaptive functioning) and then evaluated Ray Lee’s functioning in the

other areas identified above. He found that Ray Lee had (1) moderate, but less


2
       “Marked” applies when the “impairment(s) interferes seriously with [the]
ability to independently initiate, sustain, or complete activities.” 20 C.F.R.
§ 416.926a(e)(2)(i). It is equivalent to the functioning expected on standardized
testing “with scores that are at least two, but less than three, standard deviations
below the mean.” Id.

                                          -4-
than marked limitation of functioning in the cognitive/communicative area,

(2) no limitation of motor functioning, (3) no limitation of social functioning,

(4) no limitation of personal functioning, and (5) moderate, but less than marked

limitation of concentration, persistence, and pace. R. Vol. II, at 17-19. He also

found that Ray Lee had an IQ of 70.      See id. at 16. The ALJ provided only very

limited reasoning and analysis, thus hampering our review of his decision.

       “‘It is well settled that administrative agencies must give reasons for their

decisions.’” Kepler , 68 F.3d at 391 (quoting      Reyes v. Bowen , 845 F.2d 242, 244

(10th Cir. 1988)). The ALJ is required to consider carefully all relevant evidence

and to link his findings to specific evidence.     Drapeau v. Massanari , 255 F.3d

1211, 1213 (10th Cir. 2001). Although the ALJ is not required to discuss every

item of evidence, the record must show that he considered all of the evidence.

Clifton v. Chater , 79 F.3d 1007, 1009-1010 (10th Cir. 1996). The ALJ “may not

ignore evidence that does not support his decision, especially when the evidence

is significantly probative.”   Briggs , 248 F.3d at 1239 (quotation omitted).

       Ms. Jefferson challenges the ALJ’s findings regarding Ray Lee’s limitations

in the areas of cognitive/communicative functioning, social functioning, and

maintaining concentration, persistence, or pace.




                                             -5-
                         (i) Cognitive/communicative functioning

       The ALJ’s finding that Ray Lee had moderate, but less than marked

limitation of functioning in the cognitive/communicative area was based on the

ALJ’s determination that he “scored IQ’s within the borderline range of

intellectual functioning, requiring part time special education classes.” R. Vol. II,

at 17. Although “[p]lacement in a special education program is a relevant factor,

[it] is not conclusive because of the variability in school districts as to their

criteria for special education placement.”    Briggs , 248 F.3d at 1238 n.5. The ALJ

apparently determined that Ray Lee’s cognitive and communicative functioning

was moderately limited because he was in special education classes only part time.

But even in special education classes, “[h]is progress, even with individual

attention[,] has been limited.” R. Vol. II, at 88. He was described as often being

“lost” in class.   Id.

       The ALJ interpreted as evidence of nondisability a statement in a school

report that Ray Lee’s “measured achievement [was] near to above expectancy.”

Id. at 132. The statement can reasonably be interpreted to mean that Ray Lee was

achieving as expected for a mentally retarded child. But Ray Lee’s abilities and

limitations must be compared to those of children his age who do not have

impairments. 20 C.F.R. § 416.924a(b)(3). Therefore, on remand, the ALJ should

consider and discuss whether this statement is evidence of nondisability.


                                             -6-
       The record contains standardized test results that Ms. Jefferson alleges

demonstrated that Ray Lee’s functioning was two standard deviations below the

mean, which qualified as marked limitations.       See 20 C.F.R. § 416.926a(e)(2)(i).

In assessing the severity of a child’s limitations, “[t]he use of standardized tests is

the preferred method of documentation if such tests are available.”       20 C.F.R.

Pt. 404, App. 1, Subpt. P, Part B, § 112.00(C). When he was a fifth-grader,

Ray Lee’s standardized test scores were in the first percentile for reading, with

only two scores above the ninth percentile. R. Vol. II, at 130. Accordingly, in

addition to the other evidence pertaining to Ray Lee’s cognitive and

communicative functioning, on remand the ALJ should evaluate whether the

standardized test scores were two or more standard deviations below the mean.

                                  (ii) Social functioning

       The record contains several references to Ray Lee’s limitations in social

functioning. His mother testified that he had no friends. R. Vol. II, at 39. His

fourth grade special education teacher wrote that Ray Lee tended “to play by

himself or stand and watch others,” although he was thoughtful and eager to

please. Id. at 86. She referred to “one good friend that helps him remain

‘on task,’” and that student was a peer tutor.     Id. A public school referral for

multidisciplinary services noted that Ray Lee had no discipline problems, but he

exhibited “an extreme lack of social judgment.”       Id. at 88. A comprehensive


                                             -7-
assessment report noted that one of Ray Lee’s relative weaknesses was “social

judgment.” Id. at 112. On remand, the ALJ should evaluate and discuss the

evidence pertaining to Ray Lee’s social functioning.

                      (iii) Concentration, persistence, and pace

      The ALJ assessed Ray Lee’s limitation in concentration, persistence, and

pace as moderate, but less than marked, relying on a contradiction between

Ms. Jefferson’s statement that Ray Lee had behavioral problems,      3
                                                                         and the

consulting expert’s finding that his Attention Deficit Hyperactivity Disorder was

“only ‘mild.’” R. Vol. II, at 19. The record contains statements by Ray Lee’s

public school teachers and evaluators that he had difficulty concentrating, he gave

up easily and he required additional time and supervision to complete assignments.

See id. at 86-87, 95, 113. “[S]chool records are an excellent source of information

concerning function . . . .” 20 C.F.R. Pt. 404, App. 1, Subpt. P, Part B,

§ 112.00(C)(3). In addition, Ms. Jefferson testified that Ray Lee required close

supervision to perform household chores and homework. R. Vol. II, at 39-40.

Mr. Fonkalsrud also reported that Ray Lee was distracted and “gave up quickly”

when the examiner refused to give him test items to take home.       Id. at 116.

Mr. Fonkalsrud described Ray Lee’s attention span as “fair.”       Id. at 117.


3
      The ALJ did not explain what “behavioral problems” Ms. Jefferson
reported. She testified at the hearing that Ray Lee had no problems with behavior
at school. R. Vol. II, at 39.

                                           -8-
On remand, the ALJ should discuss and evaluate the evidence pertaining to Ray

Lee’s limitations on concentration, persistence, and pace.


                       II. CREDIBILITY OF CHILD’S PARENT

       If the child claimant is unable adequately to describe his symptoms, the

ALJ must accept the description provided by testimony of the person most familiar

with the child’s condition, such as a parent. 20 C.F.R. § 416.928(a). “In such

a case, the ALJ must make specific findings concerning the credibility of

the parent’s testimony, just as he would if the child were testifying.”    Briggs ,

248 F.3d at 1239.

       In this case, the ALJ made no findings about Ms. Jefferson’s credibility.

He simply rejected it as “credible only to the extent that [it was] supported by the

evidence of record as summarized in the text of [his] decision.” R. Vol. II, at 20.

This “[s]tandard boilerplate language will not suffice” as an explanation for

finding Ms. Jefferson’s testimony not credible, particularly since her testimony

was supported by other evidence in the record.       Briggs , 248 F.3d at 1239.




                                             -9-
      The judgment of the United States District Court for the Northern District of

Oklahoma is REVERSED and REMANDED. The district court is directed to

remand the case to the Commissioner for further proceedings consistent with this

order and judgment.
                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




                                        -10-
