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Case: 4:12-cv-00674-TCM Doc. #: 24 Filed: 09/19/13 Page: 1 of 23 PageID #: 417






Commissioner of Social Security,1


) Case number 4:12cv0674 TCM


This 42 U.S.C. § 405(g) action for judicial review of the final decision of Carolyn W.

Colvin, the Acting Commissioner of Social Security (the Commissioner), denying the

application filed on behalf of C.S. (Plaintiff) by his mother, Mary Ann Scotino, for

supplemental security income benefits (SSI) under Title XVI of the Social Security Act, 42

U.S.C. § 1381-1383b, is before the undersigned for a review and final disposition pursuant

to the written consent of the parties. See 28 U.S.C. § 636(c).

Procedural History

Ms. Scotino applied for SSI on Plaintiff's behalf in August 2009, alleging Plaintiff was

disabled since June 1, 2008, 2 when he was almost nine years old, due to attention deficit

1Carolyn W. Colvin became the Acting Commissioner of Social Security in February 2013 and is
hereby substituted for Michael J. Astrue as defendant. See 42 U.S.C. § 405(g).

2An earlier claim was denied on May 30, 2008, following a hearing.

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hyperactivity disorder (ADHD) and borderline intellectual functioning. (R. 3 at 100-102.)

This application was denied initially and following an administrative hearing held in June

2010 before Administrative Law Judge (ALJ) F. Terrell Eckert, Jr. (Id. at 7-11, 25-45, 48-

52.) After reviewing additional evidence submitted by Plaintiff, see pages 17 to 18, infra,

the Appeals Council denied a request for review, effectively adopting the ALJ's decision as

the final decision of the Commissioner. (Id. at 1-4.)

Testimony Before the ALJ

Ms. Scotino, represented by counsel, testified at the administrative hearing.4

Plaintiff has been seeing Dr. Robinson for counseling. 5 (Id. at 30.) Dr. Robinson

informed Ms. Scotino that counseling for ADHD does not help. (Id.) Because her 22-year

old son has Asperger's, Ms. Scotino thought Plaintiff might also. (Id. at 31.) Dr. Robinson

did not rule out Asperger's; rather, he said to see how Plaintiff develops. (Id. ) Plaintiff is

seeing his regular pediatrician, Dr. Sakmar, for his ADHD. (Id.)

Asked what concerns her about Plaintiff's functioning, Ms. Scotino explained that he

is a "follower." (Id.) He wants to act like whoever is in the room acts; wants to please; is

impulsive; and never thinks before he does anything. (Id. at 31-32.) For instance, if he is

3References to "R." are to the administrative record electronically filed by the Commissioner with her

4Plaintiff testified only briefly. His testimony is not relevant.

5See note 9, supra.

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playing tag, he'll jump off the porch over a bush.(Id. ) He will not look when crossing the

street and has had cars honk at him. (Id.)

He is able to handle eating utensils, although Ms. Scotino cuts his meat for him

because of his problems with fine motor skills. (Id. at 32-33.) He has problems with writing

and putting snapping toys together. (Id. at 33.) He is in occupational therapy at school. (Id.)

He needs help with belts and tying his shoes, but not with buttons. (Id. at 34.) He can pick

up coins. (Id.) He has no problem with gross motor skills. (Id.) He needs help bathing and

with the toilet. (Id. at 42.) He will be eleven years old in November. (Id.) He does not like

to change clothes. (Id. at 43.)

Plaintiff has a hard time adjusting to a new routine at the start of a school year. (Id.

at 35.) He has difficulties completing his homework. (Id.) It is harder as he gets older. (Id.

at 36.) He is in third grade. (Id.)

Also, Plaintiff has trouble paying attention. (Id. ) His teachers report that he has

trouble sitting still in class. (Id.) When she sees that he is getting to a point where he will

get into trouble at school, she has him "take a day off." (Id. at 37.) She can tell when this

is necessary because he starts not doing anything she asks. (Id.) After he stays at home for

a day, he is okay at school the next day. (Id.) This happens approximately four times a year.

(Id. at 37-38, 40.) Six or seven times a school year, he is reprimanded for something. (Id.

at 40.) When this happens, she goes to the school and tries to intervene so he can complete

the day. (Id.)

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Plaintiff has friends in the neighborhood. (Id. at 38.) If the other children are his age

or close to it, he will tend to do what they tell him to do. (Id. at 38-39.) Ms. Scotino also

testified that Plaintiff continues to wear a glove on his right hand although one of the older

children she referred to stopped wearing a glove. (Id. at 43.)

Two days a week, he goes to a Boy's Club for five hours. (Id.

at 39.) Half-way

through his day there, he will call her to come get him and will sit by the door and watch for

her. (Id.)

Ms. Scotino estimates that Plaintiff is one and one-half years behind others at school.

(Id. at 41.) She thinks he might be two and one-half years behind in math. (Id. at 42.) He

was promoted to the next grade at the end of the school year. (Id. at 41.) He is not in an

extended summer program. (Id.) She promises him the summer off so they can get through

the school year. (Id.) His teachers have told her that a summer program is not mandatory.

(Id. at 42.)

Medical, School, and Other Records Before the ALJ

The records before the ALJ included reports Ms. Scotino completed as part of the

application process, school records, and medical records.

When applying for SSI for Plaintiff, Ms. Scotino completed a Disability Report. (Id.

at 128-35.) Plaintiff was then 4 feet 11 inches tall and weighed 62 pounds. (Id. at 128.) His

disabling illnesses are allergies, ADHD, a learning disability, and disruptive behavior

disorder. (Id. at 129.) He was in third grade, and was in special education and speech

therapy. (Id. at 133.)

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On a Function Report form for children ages six to twelve, Ms. Scotino reported that

Plaintiff does not have any problems seeing or hearing. (Id.

at 115-24.) His ability to

communicate is not limited. (Id. at 117-18.) His ability to progress in learning is limited in

that he can not write longhand, spell most three to four letter words, write a simple story with

six to seven sentences, add and subtract numbers over ten, make correct change, or tell time.

(Id. at 119.) His physical abilities are not limited. (Id. at 120.) His impairments affect his

behavior with other people in that he does not have friends his own age, cannot make new

friends, and does not play team sports. (Id. at 121.) He sometimes has difficulties getting

along with his mother and other adults. (Id.) His impairments also affect his ability to help

himself and cooperate with others in taking care of his personal needs. (Id.

at 122.)

Specifically, he does not button his clothes by himself, tie his shoes, take a bath, brush his

teeth, comb or brush or wash his hair, choose his own clothes, hang up his clothes, obey

safety rules, or accept criticism or correction. (Id.) His ability to pay attention and stay on

tasks is limited, i.e., he does not work on arts and crafts projects or complete his homework.

(Id. at 123.) He does complete his chores most of the time, keep busy on his own, and finish

what he starts. (Id.)

Ms. Scotino completed a Disability Report – Appeal form after the initial denial of

Plaintiff's SSI application. (Id. at 213-17.) There were no new concerns or illnesses and no

changes in Plaintiff's limitations since the initial report had been completed. (Id. at 213.)

Also since that time, he had not seen any doctors for any conditions at issue. (Id. at 214.)

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Plaintiff's school records before the ALJ begin with those of a May 2006 meeting of

an evaluation team at the end of Plaintiff's kindergarten year at Shenandoah School, part of

the St. Louis Public Schools system. (Id. at 138-56.) It was noted that Plaintiff had been

having difficulty learning to write and with completing written work. (Id.

at 138.) He

appeared to have a fine motor problem and, possibly, visual perceptual and visual motor

planning problems. (Id.) Ms. Scotino described Plaintiff as "easy-going, fun-loving, and

considerate," but lacking in maturity. (Id. at 139.) She was concerned about his progress in

reading and math skills and his ability to complete written work. (Id.) She reported that he

gave up easily, sought attention, was passive, and disobeyed rules. (Id.) His developmental

history was normal for such physical abilities as crawling and walking, but was delayed in

speech. (Id.) He was exposed to lead when he was four years old. 6 (Id.) Screening tests

showed no concerns with Plaintiff's "vision, hearing, speech/language, or

social/emotional/behavior." (Id.) Plaintiff's kindergarten teacher estimated that he was

functioning at kindergarten level in reading and mathematics and at preschool level in written

expression. (Id.) He consistently followed directions, completed assigned tasks, completed

and turned in homework, and contributed to discussion and activities. (Id.

) He

inconsistently worked independently. (Id.) He sometimes needed to be reminded to practice

self-control. (Id.) His adaptive behavior was considered to be below average. (Id. at 140.)

To help Plaintiff as the year progressed, accommodations were made of modified

handwriting sheets; individual attention when writing, coloring, or cutting; and being allowed

6The Court notes that later tests showed Plaintiff's lead levels to be normal. See id. at 28.

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to dictate answers when he was unable to correctly form letters and numbers. (Id. at 139,

140.) His poor written language skills were assessed as having a negative impact on his

academic development. (Id. at 140.)

Before the team met, Plaintiff was given several tests. His scores on the Wechsler

Preschool and Primary Scale of Intelligence – Third Edition were in the low average range,

i.e., a verbal intelligence quotient (IQ) of 86, a performance IQ of 82, a processing speed IQ

of 78, and a full scale IQ of 81. (Id. at 140, 152.) It was thought that his processing speed

IQ was lower than the other scores because of his poor motor skills and his deficits in visual

processing. (Id. at 140.) Because of his poor motor skills, Plaintiff was also given the

Comprehensive Test of Nonverbal Intelligence. (Id. ) The results of this test included a

nonverbal IQ of 91, a pictorial nonverbal IQ of 87, and a geometric nonverbal IQ of 91. (Id.

at 140, 152.) His adaptive behavior as described by Ms. Scotino to the social worker and

reported on the Vineland Adaptive Behavior Scale – Interview Edition placed him in the age

equivalence of five years; Plaintiff was then six years six months old. (Id. at 140-41, 152.)

Plaintiff's writing difficulties were also evident when Plaintiff was forming his letters and

numbers. (Id. at 141.) His classroom work was below that of his grade peers in the areas

of reading, mathematics, and written expression. (Id.) A comparison of his scores on two

tests of academic achievement indicated that his achievements in the areas of reading and

mathematics were commensurate with his cognitive abilities in reading and mathematics, but

not in written expression. (Id.

at 141, 142, 152-53.) It was concluded that "although

[Plaintiff's] cognitive ability is within the normal range, his achievement significantly lags

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behind his ability, thus jeopardizing day to day classroom functioning and academic progress

. . . ." (Id. at 142.)

As part of his evaluation, Plaintiff also underwent an occupational therapy evaluation.

(Id. at 149-51.) It was noted that "[h]e needed much positive reinforcement" and "was able

to follow verbal directions." (Id. at 149.) On a test to assess gross and fine motor skills, the

Bruininks-Oseretsky Test of Motor Proficiency, Plaintiff was above average in response

speed (how quickly he could respond to a moving stimulus), below average in visual-motor

control, and average in upper limb speed and dexterity. (Id.

) In the latter area, "he

complete[d] timed tasks with good speed but decreased accuracy." (Id. at 150.) His score

on the Developmental Test of Visual-Motor Integration was "very low for his age." (Id. )

His score on the Motor-Free Visual Perception Test – Third Edition was "significantly low

for his age." (Id.) The examiner concluded that Plaintiff had average fine motor skills, but

"very low" visual-motor and visual perceptual skills. (Id. at 151.) She recommended that

he be allowed increased time for written work and that accommodations be considered for

his decreased visual perceptual skills, e.g., not being penalized for penmanship. (Id.)

The team concluded that Plaintiff should be allowed increased time for written

assignments; be read to everyday; be instructed in word decoding skills and building a sight

vocabulary; be given opportunities to practice his math skills, for instance, play board games;

be given opportunities to keep a journal; be in a highly-structured classroom seated close to

the teacher and facing the instructional activity; and be given short, one-step directions. (Id.

at 154-55.)

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Acting on the team's recommendations, an Individualized Education Program (IEP)

was developed for Plaintiff when he was in the first grade. (Id. at 158-70.) His annual goals

included writing letters and numbers in a legible manner with 80 percent accuracy;

increasing his written expression by writing simple sentences with correct mechanics with

80 percent accuracy; increasing his visual motor skills to be able to cut square shapes with

sharp corners and circle shapes with smooth edges on two out of three tries; and

independently copying a triangle and diamond shape with 75 percent accuracy on two out

of three tries. (Id. at 161-64.) Plaintiff was to be in a regular class at least 80 percent of the

time. (Id. at 167.)

A record from the Mehlville School District indicates that, when Plaintiff was in the

third grade, he was given lunch detention for fighting. (Id. at 233.)

Also when Plaintiff was in the third grade, in December 2009, three of his teachers

completed a Conners' Teacher Rating Scale – Revised, assessing the frequency of various

problems listed, including arguing, short attention span, excitable. 7 (Id. at 237- 45.) Two

teachers reported no oppositional behaviors, six cognitive problems/inattention behaviors,

three hyperactivity behaviors, and thirteen ADHD behaviors. (Id. at 238, 241.) The third

teacher reported no oppositional behaviors, twelve cognitive problems/inattention behaviors,

no hyperactivity behaviors, and fourteen ADHD behaviors. (Id. at 244.)

7This rating scale is "used to assess or evaluate attention deficit and hyperactivity disorder in children
and adolescents." Abreu ex rel. A.M. v. Comm'r of Social Security, 2012 WL 3927061, *2 n.2
(D. N.J. 2012).

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The medical records before the ALJ begin with those of a March 2008 visit to Sandra

G. Zakroff, M.D., for a possible medication change for Plaintiff's ADHD. (Id. at 248.49.)

Plaintiff had changed schools, had an IEP in place, and "was doing much better." (Id.


248.) His teachers had noticed that Plaintiff did well on his medication in the morning, but

had trouble staying focused after lunch. (Id.) The previously-prescribed twenty milligram

dosage of Adderall was changed to a prescription for ten milligrams to be taken in the

morning and ten in the afternoon. (Id.)

In June, Plaintiff saw Douglas A. Sakmar, M.D. (Id. at 252-61.) His mother reported

that Plaintiff had had an unusual body odor for the past two weeks and encopresis

(involuntary passage of feces) for the past three days. (Id. at 252-61.) Lab tests indicated

a normal lead level and borderline anemia, for which a multivitamin was recommended. (Id.

at 258, 260.) Ms. Scotino was to call if there were any concerns, if Plaintiff was not better,

or if the symptoms had not resolved. (Id. at 253.) She did not.

Plaintiff again saw Dr. Sakmar in October for a well-child visit. (Id. at 264-66.) Ms.

Scotino was concerned because Plaintiff's twenty-year old brother had recently been

diagnosed with Asperger's Syndrome and Plaintiff had some of the same symptoms, i.e., fine

motor delay and being easily angered or scared. (Id.

at 264.) In terms of his attention

problem, Plaintiff was doing "reasonably well" in the morning, but not in the afternoon. (Id.


On examination, he was healthy. (Id. at 265.) His prescription for Adderall was renewed,

with ten milligrams to be taken in the morning and fifteen milligrams to be taken at lunch.

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(Id. at 264.) Plaintiff was referred to a neurologist for an evaluation of whether he had

Asperger's. (Id. at 267.)

Plaintiff's prescription for Adderall was routinely reissued in November, January

2009, February, April, May, and August. (Id. at 269-70, 272-73, 277-88.) When requesting

the first four refills, Ms. Scotino routinely answered "No" to the question whether Plaintiff

had any problems with moodiness, appetite changes, or sleep. (Id. at 269-70, 272-73, 277-

80.) In May, she reported that Plaintiff was "not eating like he should." (Id. at 281.) His

hunger increased with his activity level. (Id.) Also, she was concerned about the effect of

Plaintiff changing schools on his medication regimen. (Id. ) Ms. Scotino again expressed

concern about Plaintiff's decreased appetite when requesting a refill of his medication in

August. (Id. at 285.)

Ms. Scotino and Plaintiff did not keep an August 29, 2009, appointment with Dr.

Sakmar. (Id. at 290, 311.) They did see him the next month. (Id. at 312-14.) Plaintiff's

symptoms at school were described as "significantly improved." (Id. at 312.) His symptoms

at home and in social settings were "improved." (Id.

) He continued to struggle with

homework. (Id.) Plaintiff's dosage of Adderall extended release was increased to twenty

milligrams. (Id. at 313.) He was also prescribed melatonin to be taken at bedtime to help

him fall asleep faster. (Id.)

Plaintiff's Adderall prescription was refilled in November. (Id. at 315-16.)

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Later that month, Plaintiff returned to Dr. Sakmar for his annual well-child visit. (Id.

at 319-22.) Listed as a diagnosis was behavior disorder. 8 (Id. at 319.) Elsewhere in the

record of that visit the only behavioral problem listed is ADHD. (Id.

) Ms. Scotino had

concerns with Plaintiff's behavior (uncooperative, defiant) and school work. (Id. at 320.)

She did not have any concerns with his behavior with peers. (Id.) On examination, he was

active, alert, cooperative, social, and in no distress. (Id.) His growth parameters were age-

appropriate. (Id.) His prescription for Adderall was renewed. (Id. at 322.) Plaintiff was to

follow-up in one year. (Id. at 321.)

Plaintiff's prescription for Adderall was refilled in January 2010 and March. (Id. at

324-27.) Ms. Scotino's only concern in January was Plaintiff's lack of appetite. (Id. at 324.)

In March, Ms. Scotino expressed concern that Plaintiff was easily agitated and stayed up too

late. (Id. at 326.)

The ALJ also had before him two assessments of Plaintiff functioning abilities

completed pursuant to his SSI application.

Plaintiff was evaluated in November 2009 by Alison Burner, M.A., a licensed

psychologist. (Id. at 293-96.) Ms. Burner noted that Plaintiff was then in third grade and

had repeated first grade. (Id. at 293.) He had a diagnosis of ADHD, for which he took

Adderall. (Id.) Because the medication decreased his appetite to the extent that he would

8Dr. Sakmar lists a code of 312.9 for the behavior disorder. This is the code for disruptive behavior
disorder, not otherwise specified. Diagnostic and Statistical Manual of Mental Disorders, 103 (4th
ed. Text Rev. 2000) (DSM-IV-TR ). "This category is for disorders characterized by conduct or
oppositional defiant behaviors that do not meet the criteria for Conduct Disorder or Oppositional
Defiant Disorder." Id.

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not eat all day, he did not take it when not in school. (Id.

) He also had an IQ of 78,

indicative of borderline intellectual functioning. (Id. ) When Plaintiff does not take his

medication, he cannot sit still, has a very short attention span, is impulsive, does not finish

what he starts, and avoids chores. (Id. at 294.) He is not defiant or oppositional. (Id. )

School records indicated that Plaintiff received support in all academic areas. (Id.) He had

significant difficulties in organization and work completion. (Id.) He was distracted. (Id.)

Ms. Burner also noted that Plaintiff had seen a psychologist due to his mother's concerns that

he has Asperger's Syndrome,

9 and neither the psychologist nor the school personnel

diagnosed such. (Id.)

Plaintiff had not taken any medication the day of the exam. (Id.) When Ms. Burner

was interviewing Ms. Scotino, Plaintiff could not sit still, constantly interrupted, constantly

touched things in the office, and played with Ms. Scotino's hair or glasses. (Id.) When he

was interviewed, he was cooperative and had clear speech, normal social language, and

appropriate eye contact and affect. (Id.) His thought content was rational and organized.

(Id.) His immediate, past, and remote memory were all intact. (Id.

) His responses to

arithmetic questions were "primarily correct." (Id. ) His abstract thinking, insight, and

judgment were not within normal limits. (Id.) "His thinking [was] very literal and concrete."

(Id. at 295.) Although he was easily redirected during the exam, he could maintain attention

9Dr. Sakmar's records reflect a telephone call from Dr. Robinson with St. John's Child Developmental
Center requesting that documentation that Dr. Sakmar was treating Plaintiff for ADHD be faxed to
him. Dr. Robinson was reportedly treating Plaintiff for Autism Spectrum. There are no records from
Dr. Robinson in the administrative record.

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for only approximately sixty seconds at a time. (Id.) He had no difficulties with adaptive

functioning. (Id.) He could care for his hygiene and do age-appropriate chores. (Id.) Ms.

Scotino reported that it was difficult to get places on time because of Plaintiff's

disorganization and distractability. (Id.) He had friends in the neighborhood, but they were

primarily younger children. (Id. ) His school records did not include any concerns with

Plaintiff's ability to get along and interact with others. (Id.)

Ms. Burner concluded that ADHD was an appropriate diagnosis. (Id.

) With

medication and educational support, Plaintiff "should be able to function adequately within

society at a level commensurate with his ability." (Id.

) Without medication, Plaintiff's

symptoms were moderate and "significantly negatively affect[ed] his overall functioning,

primarily at school." (Id. at 295-96.) "Without medication, [Plaintiff's] impulsivity and

hyperactivity will likely negatively impact him [sic] social, emotional, educational, and

adaptive functioning to a moderate degree and likely would interfere with is [sic] peer

relations and education functioning due to inattention, off task behavior, difficulty with task

completion, and low frustration tolerance." (Id.

at 296.) She diagnosed Plaintiff with

ADHD, combined type, 10 and borderline intellectual functioning. (Id.) "[A]llergies" was

10ADHD, combined type, "should be used if six (or more) symptoms of inattention and six (or more)
symptoms of hyperactivity-impulsivity have persisted for at least 6 months. Most children and
adolescents with the disorder have the Combined Type." DSM-IV-TR at 87.

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also listed as a diagnosis. (Id.) She evaluated his Global Assessment of Functioning11 (GAF)

as 60.12 (Id.)

A Childhood Disability Evaluation Form (CDEF) was completed by Kyle DeVore,

Ph.D., after he received Ms. Burner's report. (Id. at 297-302.) Plaintiff's listed impairments

were allergies, ADHD, learning disability, and disruptive behavior. (Id. at 297.) Dr. DeVore

assessed these impairments, singly or in combination, as being severe, but not so severe as

to meet or medically equal an impairment of listing-level severity. (Id.

) Specifically,

Plaintiff was found to have less than marked limitations in the domains of acquiring and

using information, attending and completing tasks, and caring for himself. (Id. at 299.) He

had no limitations in the domains of interacting and relating with others, moving about and

manipulating objects, and health and physical well-being. (Id.) Dr. DeVore noted that there

was no medical evidence to support any disabling limitations caused by allergies and that

there were "multiple telephone/walk-ins" reflected in the 2009 medical records of Dr.

Sakmar, but no other office visits. (Id. at 301.)

11"According to the [DSM-IV-TR], the Global Assessment of Functioning Scale is used to report 'the
clinician's judgment of the individual's overall level of functioning,'" Hudson v. Barnhart, 345 F.3d
661, 663 n.2 (8th Cir. 2003); accord Juszczyk v. Astrue, 542 F.3d 626, 628 n.2 (8th Cir. 2008), and
consists of a number between zero and 100 to reflect that judgment, Hurd v. Astrue, 621 F.3d 734,
737 (8th Cir. 2010).

12A GAF score between 51 and 60 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV-TR at 34.

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The ALJ's Decision

After noting that Plaintiff, a school-age child, had clearly not engaged in substantial

gainful activity at any relevant time, the ALJ concluded that he had severe impairments of

ADHD and borderline intellectual functioning. (Id. at 13.) He did not have an impairment

or combination of impairments that met or medically equaled an impairment of listing-level

severity. (Id.)

After reviewing Ms. Scotino's testimony and Plaintiff's medical and school records,

the ALJ addressed his ability to function in the six domains, finding that he had a less than

marked limitation in the domains of acquiring and using information, of moving about and

manipulating objects, of caring for himself, and of health and physical well being. (Id. at 14-

19.) Plaintiff had a marked limitation13 in the domain of attending and completing tasks and

no limitations in the domain of interacting and relating with others. (Id. at 19.) The ALJ

explained his reasoning as to his assessment of Plaintiff's less than marked limitation in the

domain of acquiring and using information as follows.

[Plaintiff] is 10 years old and had to repeat the 1st grade, but he has otherwise
progressed from one school year to the next year even without the need for
summer school programs. He has been diagnosed as having [ADHD] and
borderline intellectual functioning. He has qualified for special education
services through an IEP. He gets daily school support and assistance from a
special education teacher and gets modified assignments. A portion of the
day, he gets to work outside the regular classroom with more individualized
teaching geared for his specific needs. With this assistance, he is making

13A child has a "marked" limitation in a domain when his impairment seriously interferes with his
ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2). A
marked limitation is "a limitation that is 'more than moderate' but 'less than extreme.'" Id.

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adequate progress and development in his learning and achievements, such that
he is not markedly impaired.


Because Plaintiff did not have an impairment or combination thereof that resulted in

either marked limitations in two or more domains of functioning or in extreme limitations

in one domain, Plaintiff's impairments were not of listing-level severity. (Id. at 20.)

Plaintiff was not, therefore, disabled within the meaning of the Act. (Id.)

Additional Records Before the Appeals Council

After the ALJ rendered his decision, Plaintiff's counsel submitted records from Psych

Care Consultants to the Appeals Council.

In June 2011, Plaintiff had a psychosocial evaluation by a practitioner 14 with Psych

Care Consultants. (Id. at 332-34.) Plaintiff was then eleven years old. (Id. at 332.) Ms.

Scotino reported that he had "been very impulsive lately." (Id.) He had a learning disability,

fine motor skills problems, and "problems all around." (Id.) He was showing symptoms of

oppositional defiant disorder (ODD). (Id. ) He had been diagnosed in kindergarten with

ADHD and was taking Adderall. (Id.) On examination, he was well-groomed, cooperative,

labile, and expansive. (Id. at 333.) His concentration, insight, and judgment were "poor"

14The signature is illegible.

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(Id. at 334.) He was diagnosed with ODD and ADHD. (Id.) His GAF was 65.15 (Id.) Ms.

Scotino and Plaintiff did not keep the next two appointments. (Id. at 331.)

Legal Standards

Title 42 U.S.C. § 1382c(a)(3)(C)(i) provides that "[a]n individual under the age of 18

shall be considered to be disabled for the purposes of [SSI] 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."

The Commissioner's decision denying a child SSI benefits is reviewed by this Court

to determine whether it is supported by substantial evidence. Neal ex rel. Walker v.

Barnhart, 405 F.3d 685, 688 (8th Cir. 2005); Brown ex rel. Williams v. Barnhart, 388

F.3d 1150, 1152 (8th Cir. 2004); Garrett ex rel. Moore v. Barnhart , 366 F.3d 643, 646

(8th Cir. 2004). "'Substantial evidence is relevant evidence which a reasonable mind would

accept as adequate to support the Commissioner's decision.'" Neal, 405 F.3d at 688 (quoting

Black v. Apfel, 143 F.3d 383, 385 (8th Cir. 1998)). It is "more than a scintilla of evidence."

Id. When reviewing the record to determine whether the Commissioner's decision is

supported by substantial evidence, however, the Court must also take into account whatever

in the record fairly detracts from that decision. England v. Astrue, 490 F.3d 1017, 1019

15A GAF score between 61 and 70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild
insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy,
or theft within the household), but generally functioning pretty well, has some meaningful
interpersonal relationships." DSM-IV-TR at 34 (emphasis omitted).

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(8th Cir. 2007); Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999); Baker v. Apfel,

159 F.3d 1140, 1144 (8th Cir. 1998). The Court may not reverse that decision merely

because substantial evidence would also support an opposite conclusion. Tate v. Apfel, 167

F.3d 1191, 1196 (8th Cir. 1999); Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998).

Under the Act, the ALJ inquires into (1) whether the child is currently engaged in

substantial gainful activity; (2) whether the child suffers severe impairments or a

combination of severe impairments; and (3) whether the child's impairments meet or equal

any listed impairments. 20 C.F.R. § 416.924(a)-(d); Neal, 405 F.3d at 688; Garrett, 366

F.3d at 647; Brown, 388 F.3d at 1151-52. If the ALJ finds at step two of the evaluation that

a child's impairments are severe, as in the instant case, then the question at step three is

whether those severe impairments (a) cause "marked" limitations in two of six domains and

or an "extreme" limitation in one and (b) meet the duration requirement of at least one year.

20 C.F.R. § 416.926a(a); accord England, 490 F.3d at 1020. The six domains are (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. 20 C.F.R. § 416.926a(b)(1).


Plaintiff argues that the ALJ erred by not finding that he has at least a marked

limitation in the domain of acquiring and using information. Considerations in this domain

are of "how well [the claimant] acquire[s] or learn[s] information, and how well [he] use[s]

the information [he] ha[s] learned." 20 C.F.R. § 416.926a(g). "This domain considers more

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than just assessments of cognitive ability as measured by intelligence tests, academic

instruments, or grades in school." Social Security Ruling 09-3p , 2009 WL 396025, *2

(S.S.A. 2009). For a child of Plaintiff's age at the time of the hearing, the following is


When [the claimant] [is] old enough to go to elementary and middle school,
[he] should be able to learn to read, write, and do math, and discuss history
and science. [He] will need to use these skills in academic situations to
demonstrate what [he] ha[s] learned; e.g., by reading about various subjects
and producing oral and written projects, solving mathematical problems,
taking achievement tests, doing group work, and entering into class
discussions. [He] will also need to use these skills in daily living situations at
home and in the community (e.g., reading street signs, telling time, and making
change). [He] should be able to use increasingly complex language
(vocabulary and grammar) to share information and ideas with individuals or
groups, by asking questions and expressing [his] own ideas, and by
understanding and responding to the opinions of others.

20 C.F.R. § 416.926a(g)(2)(iv).

Citing selected portions, Plaintiff contends that the observations of his teachers on the

Teacher Rating Scale are indicative of at least a marked limitation in the domain of acquiring

and using information. This scale is used to assess Plaintiff's ADHD. See note 7, supra. See

also Guthrie v. Astrue , 2011 WL 7583572, *3 (S.D. Ohio 2011) (finding that teacher's

observations on Conners' Rating Scale did not require remand; report was "merely a

screening tool" and plaintiff's "cherry pick[ing]" of several observations did not support her

position that ALJ had erred when assessing the degree of her limitations in several domains).

Three months before the teachers completed the scale, Plaintiff's ADHD symptoms were

described as being significantly improved. The month following their assessment, the only

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concern Ms. Scotino expressed to Dr. Sakmar was the effect of the Adderall on Plaintiff's

appetite. Additionally, she testified the following summer that Plaintiff had been promoted

to the next grade and that his teachers did not require a summer school program, nor did she

elect to enroll him in one. See Coleman v. Astrue, 2012 WL 5392256, *4 (E.D. Ark 2012)

(finding that ALJ's determination that claimant had less than a marked limitation in the

domain of acquiring and using information was supported by promotion to first and second

grades after having to repeat kindergarten (Plaintiff had been promoted to second and third

grade after having to repeat first grade), by her placement in regular education classes, and

by observations of her teacher and her doctor that her behavior had improved).

Plaintiff argues that his need of an IEP and receipt of special education services is

indicative of at least a marked limitation in the domain of acquiring and using information.

Receipt of special education services does not mandate that degree of limitation. See 20

C.F.R. § 416.924a(b)(7)(iv) (noting that placement in special education services is not

determinative of disability). Moreover, the ALJ properly considered that the only IEP before

him provided that Plaintiff was to spend 80 percent of his time in a regular classroom. See

England, 490 F.3d at 1022 (holding that ALJ did not err in finding that claimant had less

than marked impairment in the domain of acquiring and using information when, among

other things, claimant had progressed through school when "taking at least some general

education classes").

Additionally, the records of Dr. Sakmar indicate that Plaintiff improved on Adderall.

"An impairment that is controllable does not support a finding of a disability." Scales v.

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Barnhart, 363 F.3d 699, 705 (8th Cir. 2004). See Pepper ex rel. Gardner v. Barnhart,

342 F.3d 853, 855-56 (8th Cir. 2003) (rejecting argument that claimant had more than a

moderate limitation in the domain of acquiring and using information when mother and

teacher reported that claimant's behavior and attention improved with medication and

behavioral counseling). See also N.R.R. ex rel. Davenport v. Astrue, 2013 WL 1090397,

*6 (E.D. Mo. Mar. 15, 2013) (holding in child ADHD case that "[i]t is proper for an ALJ to

consider whether a claimant's impairments can be treated with medication when determining

whether a claimant has an impairment in a functional equivalence domain").

Plaintiff correctly notes that Social Security Ruling 09-1p provides that "[i]n general,

if a child needs a person, medication, treatment, device, or structured, supportive setting to

make his functioning possible or to improve the functioning, the child will not be as

independent as same-age peers who do not have impairments. Such a child will have a

limitation, even if he is functioning well with the help or support." Social Security Ruling

09-1p, 2009 WL 396031, *6 (S.S.A. 2009). This Ruling does not require that a marked

limitation be found under the listed circumstances. Rather, it requires that a limitation be

found. The ALJ found a limitation; however, the limitation he found was a less than marked

one. That finding is "within the available zone of choice" and is not to be reversed because

there is also evidence to support a different conclusion. Buckner v. Astrue, 646 F.3d 549,

556 (8th Cir. 2011).

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For the reasons set forth above, the ALJ's decision that Plaintiff did not have at least

a marked limitation in the domain of acquiring and using information is supported by

substantial evidence on the record as a whole. Accordingly,

IT IS HEREBY ORDERED that the Commissioner's decision is AFFIRMED and

the case is DISMISSED.

An appropriate Order of Dismissal shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III

Dated this 19th day of September, 2013.

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