The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SEMEITOUS FRANCIS o/b/o A.B. CIVIL ACTION
VERSUS NO. 18-13862
ANDREW SAUL, COMMISSIONER OF THE SECTION: “G”(4)
SOCIAL SECURITY ADMINISTRATION
ORDER AND REASONS
Before the Court are Plaintiff Semeitous Francis’ (“Plaintiff”) objections1 to the Report
and Recommendation of the United States Magistrate Judge assigned to the case.2 Plaintiff filed
this action pursuant to 42 U.S.C. § 405(g) for review of the final decision of Defendant, the
Commissioner of the Social Security Administration (the “Commissioner” or “Defendant”),
denying her claim on behalf of her minor daughter, A.B., for supplemental security income (“SSI”)
under the Social Security Act (the “Act”).3 The Magistrate Judge recommended that the
Administrative Law Judge’s (“ALJ”) decision denying SSI benefits be affirmed.4 Plaintiff objects,
arguing that the Magistrate Judge applied the wrong standard of review, and the ALJ’s decision
should be reversed.5 Having considered Plaintiff’s objections, the Magistrate Judge’s Report and
Recommendation, the record, and the applicable law, for the following reasons, the Court sustains
1 Rec. Doc. 20.
2 Rec. Doc. 19.
3 Rec. Doc. 1.
4 Rec. Doc. 19 at 17.
5 Rec. Doc. 20.
Plaintiff’s objections,, rejects the Magistrate Judge’s Report and Recommendation and remands
this case to the ALJ.
I. Background
A. Procedural History
Plaintiff filed an application for SSI on behalf of her minor child, A.B., on March 31, 2016,
due to A.B.’s Attention Deficit Hyperactivity Disorder (“ADHD”).6 After Plaintiff’s claim was
denied at the agency level, Plaintiff requested a hearing before an ALJ, which was held on October
24, 2017.7 Plaintiff and A.B. testified at the hearing.8
The ALJ analyzed Plaintiff’s claim pursuant to the three-step sequential evaluation process
used to determine whether an individual under the age of 18 is disabled.9 At step one, the ALJ
found that A.B. had not engaged in substantial gainful activity since March 31, 2016, the
application date.10 At step two, the ALJ determined that A.B. has the following severe
impairments: “Attention Deficit Hyperactivity Disorder and Conduct Disorder.”11
At step three, the ALJ held that A.B. does not have an impairment or combination of
impairments that meets or medically equals the severity of the impairment listed at 20 C.F.R.
6 Adm. Rec. at 121–23. The application is dated April 18, 2016, but the ALJ used March 31, 2016 as the
application date. Id.
7 Id. at 25–51.
8 Id.
9 “For a child to be disabled under the meaning of the Act, the child must: (1) not be engaged in substantial
gainful activity; (2) have an impairment that is ‘severe’; and (3) have an impairment that ‘meets, medically equals, or
functionally equals’ the impairments listed in the disability regulations.” Richard ex rel. Z.N.F. v. Astrue, 480 F. App’x
773, 776 (5th Cir. 2012) (citing 20 C.F.R. § 416.924(a)–(d)).
10 Adm. Rec. at 11–12.
11 Id. at 14.
2
§ 404. Supbpt. P., Appendix 1.12 At step three, the ALJ also considered six functional equivalence
domains and determined that A.B. did not have an impairment or combination of impairments that
functionally equals the severity of the listing.13 The ALJ determined that A.B. had marked
limitations in one domain––attending and completing tasks.14 The ALJ found that A.B. had “less
than marked” limitations in the following three domains: (1) acquiring and using information;15
(2) interacting and relating with others;16 and (3) health and physical well-being.17 The ALJ
determined that Plaintiff had no limitations in the following two domains: (1) moving about and
manipulating objects;18 and (2) caring for herself.19 Therefore, the ALJ concluded that A.B. was
not disabled as defined by the Act.20
Plaintiff requested review by the Appeals Council. The ALJ’s decision became the final
decision of the Commissioner for purposes of this Court’s review after the Appeals Council denied
review on October 10, 2018.21 On December 14, 2018, Plaintiff filed a complaint in this Court
12 Id.
13 Id. at 14–21.
14 Id. at 17–18.
15 Id. at 16–17.
16 Id. at 18–19.
17 Id. at 24.
18 Id. at 19–20.
19 Id. at 20.
20 Id. at 21.
21 Id. at 1–5.
3
seeking judicial review pursuant to Section 405(g) of the Act.22 This matter was referred to a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B). On May
22, 2019, the Commissioner answered the Complaint.23
On July 2, 2019, Plaintiff filed a memorandum raising the following assignments of error;
(1) the ALJ erred in failing to find that A.B.’s borderline intellectual functioning is a severe
impairment; (2) the ALJ erred in determining A.B.’s impairments did not meet or medically equal
Listing 112.08 or 112.11; and (3) the ALJ erred in failing to find that A.B. has a marked limitation
in the acquiring and using information domain.24 On August 7, 2019, the Commissioner filed a
memorandum arguing: (1) the ALJ properly determined A.B.’s severe impairments; (2) A.B.’s
impairments, individually or in combination, do not meet the requirements of Listings 112.08 or
112.11; and (3) A.B.’s impairments do not result in a marked limitation in acquiring and using
information.25
B. The Magistrate Judge’s Report and Recommendation
On March 2, 2020, the Magistrate Judge recommended that this Court affirm the ALJ’s
decision denying Plaintiff’s application for SSI on behalf of A.B.26 The Magistrate Judge cited the
five-step sequential evaluation process used to determine whether an individual over the age of 18
22 Rec. Doc. 1.
23 Rec. Doc. 12.
24 Rec. Doc. 15.
25 Rec. Doc. 17.
26 Rec. Doc. 19 at 17.
4
is disabled, rather than the three-step sequential evaluation process used to determine whether an
individual under the age of 18 is disabled.27
First, the Magistrate Judge addressed Plaintiff’s argument that A.B.’s borderline
intellectual functioning was a severe impairment.28 The Magistrate Judge noted that A.B.
“demonstrated relative strength nonverbal intelligence and was able to show improved focus on
task orientation, spatial reasoning which approximates low average range.”29 Therefore, the
Magistrate Judge found that the medical record did not support Plaintiff’s assertion that A.B.’s
borderline intellectual functioning was a severe impairment.30
Second, the Magistrate Judge addressed Plaintiff’s claim that A.B.’s impairments meet
Listing Level 112.08 and 112.11.31 The Magistrate Judge reviewed the medical evidence, and
found that “the ALJ’s decision that A.B.’s Attention Deficit Hyperactivity and Conduct Disorder
does not meet all the requirements of Listing 112.11 is based upon substantial evidence.”32
Third, the Magistrate Judge addressed Plaintiff’s argument that the ALJ erred by failing to
find that A.B. has a marked limitation in the acquiring and using information domain.33 The
Magistrate Judge noted that Plaintiff stopped giving A.B. medications that were prescribed to her
27 Id. at 4–7.
28 Id. at 10.
29 Id.
30 Id.
31 Id.
32 Id. at 12–14.
33 Id. at 14.
5
by her doctor.34 The Magistrate Judge stated that “[i]n order to get benefits, the claimant [m]ust
follow treatment prescribed by her physician if the treatment can restore ability to work.”35 The
Magistrate Judge determined that “A.B.’s noncompliance is not the result of her mental
impairment and there is no evidence of an acceptable reason for not providing her with the
medication.”36 Therefore, the Magistrate Judge recommended that the Court affirm the ALJ’s
decision denying Plaintiff’s claim for SSI on behalf of A.B.37
II. Objections
A. Plaintiff’s Objections
Plaintiff timely filed objections to the Magistrate Judge’s Report and Recommendation.38
Plaintiff argues the Magistrate Judge erred in recommending that the ALJ’s decision be affirmed.39
Plaintiff asserts that the Magistrate Judge improperly relied on the adult standard concerning the
ability to work throughout the Report and Recommendation.40 Because A.B. is a minor child,
Plaintiff asserts that the Magistrate Judge should have applied the “whole child standard.”41
Accordingly, Plaintiff argues that this Court should decline to adopt the Magistrate Judge’s Report
and Recommendation, sustain Plaintiff’s objections, and remand the case to the Commissioner for
34 Id. at 16.
35 Id.
36 Id.
37 Id. at 17.
38 Rec. Doc. 20.
39 Rec. Doc. 20-2 at 1.
40 Id.
41 Id.
6
another hearing.42 Plaintiff reiterates her prior argument that the ALJ erred by: (1) failing to find
that A.B.’s borderline intellectual functioning is a severe impairment; (2) determining A.B.’s
impairments did not meet or medically equal Listings 112.08 or 112.11; and (3) failing to find that
A.B. has a marked limitation in the acquiring and using information domain.43
First, Plaintiff asserts that the ALJ failed to consider A.B.’s serious impairment of
borderline intellectual functioning.44 Plaintiff asserts that A.B.’s borderline intellectual functioning
“more than minimally affect A.B.’s ability to function.”45 Therefore, she argues that these
impairments must be considered serious.46
Second, Plaintiff contends that the ALJ committed reversible error in determining that
A.B.’s impairments did not meet or medically equal Listing 112.08 or Listing 112.11.47 Plaintiff
argues that A.B. has abnormalities in cognitive processing, deficits in attention or impulse control,
low frustration tolerance, difficulty with organizing, and deficits in social skills.48 Plaintiff notes
that A.B.’s teacher stated she learns as a disabled person, and A.B. has impaired insight and
42 Id. at 2.
43 Id. at 12–18.
44 Id. at 12–13 (citing Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985)).
45 Id. at 13.
46 Id.
47 Id.
48 Id.
7
judgement.49 Therefore, Plaintiff argues that A.B.’s impairments meet Listing 112.08 and Listing
112.11.50
Third, Plaintiff contends that the ALJ erred by failing to find that A.B. has a marked
limitation in the acquiring and using information domain.51 In support of this contention, Plaintiff
asserts that A.B. scored two deviations below the mean in Reading and Academic Skill, requires
special education and learning interventions, and performs below her grade level.52 Regarding her
ability to interact with others, Plaintiff argues that A.B. is easily distracted, speaks loudly, and is
often interfering in other students’ affairs.53 Thus, Plaintiff contends that A.B. has a marked
impairment in the acquiring and using information domain and in the attending to and completing
tasks domain.54
B. The Commissioner’s Response
In response, the Commissioner acknowledges that “the Magistrate Judge’s Report and
Recommendations implements the incorrect provisions of regulations related to Social Security
claims.”55 However, the Commissioner contends that the recommendation to affirm the ALJ’s
decision should be adopted as substantial evidence supports the decision.56 Accordingly, the
49 Id. at 13–14.
50 Id. at 14.
51 Id.
52 Id.
53 Id. at 18.
54 Id. at 14–15.
55 Rec. Doc. 22 at 1.
56 Id.
8
Commissioner argues that the ALJ’s decision should be affirmed for the reasons set forth in the
initial brief filed before the Magistrate Judge.57
In the initial brief, the Commissioner argues: (1) the ALJ properly determined A.B.’s
severe impairments; (2) A.B.’s impairments, individually or in combination, do not meet the
requirements of Listings 112.08 or 112.11; and (3) A.B.’s impairments do not result in a marked
limitation in acquiring and using information.58
First, the Commissioner asserts that the ALJ properly determined that A.B.’s ADHD and
conduct disorder were severe impairments.59 Although Plaintiff contends that A.B. exhibited
severe borderline intellectual functioning, the Commissioner asserts that the record does not
support such finding.60 For example, the Commissioner notes that a consultative examiner, Scuddy
Fontenelle, Ph.D., examined A.B. on two occasions and noted that at age six, A.B. was able to
touch and name six out of six body parts; identify and name six out of six colors; and was able to
count from 1 to 30.61 According to the Commissioner, when Dr. Fontenelle examined A.B. at age
nine she exhibited reality based thoughts; she remained able to complete the same tasks she did at
the previous evaluation; and she was able to add and subtract.62 The Commissioner asserts that
57 Id.
58 Rec. Doc. 17.
59 Id. at 6.
60 Id.
61 Id. (citing Adm. Rec. at 162).
62 Id. (citing Adm. Rec. at 169).
9
such evidence does not support Plaintiff’s allegation of severe borderline intellectual functioning.63
Furthermore, the Commissioner argues that Plaintiff has not met her burden of showing that A.B.’s
alleged impairment is severe.64 Thus, the Commissioner contends that the ALJ made the proper
finding at step two of the three-step sequential evaluation process.65
Second, the Commissioner asserts that A.B.’s impairments, individually or in combination,
do not meet the requirements of Listings 112.08 (personality and impulse-control disorders) and
112.11 (neurodevelopmental disorders).66 The Commissioner notes that Plaintiff did not brief any
argument concerning Listing 112.08.67 As for Listing 112.11, the Commissioner asserts that
Plaintiff failed to cite evidence to support her assertion that A.B. met all of the criteria of the listed
impairment.68
Third, the Commissioner argues that A.B.’s impairments do not result in a marked
limitation in acquiring and using information.69 The Commissioner notes that Plaintiff relies
heavily on test results indicating that A.B. scored “two deviations below the mean.”70 However,
the Commissioner asserts that no single piece of information taken in isolation can establish
63 Id.
64 Id.
65 Id.
66 Id. at 6–7.
67 Id. at 7.
68 Id.
69 Id. at 8.
70 Id.
10
whether [A.B. has] a marked or extreme limitation in a domain.”71 The Commissioner points to
the September 2016 consultative examination by Dr. Fontenelle, finding that A.B. could add and
subtract, was learning multiplication, understood vocabulary, and could “understand and
comprehend routine school activity.”72 Furthermore, the Commissioner notes that Dr. Fontenelle
also noted that A.B. exhibited many traits of ADHD that could be remedied by medication—
treatment that Plaintiff has declined to administer to A.B.73 According to the Commissioner,
education records show that while A.B. was behind a grade level in reading and language arts, she
performed at her grade level in math,74 and a behavioral health assessment in October 2017
revealed that A.B. had normal memory and normal intellectual functioning.75 Therefore, taking all
evidence into consideration, the Commissioner asserts that A.B. exhibited “less than marked”
limitation in the domain of acquiring and using information.76
III. Standard of Review
A. Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to a Magistrate Judge to provide
a Report and Recommendation. A district judge “may accept, reject, or modify the recommended
71 Id. (citing 20 C.F.R. § 416.926a(e)(4)).
72 Id. at 9 (citing Adm. Rec. at 169–70).
73 Id. (citing Adm. Rec. at 169–70).
74 Id. (citing Adm. Rec. at 175–77).
75 Id. (citing Adm. Rec. at 204).
76 Id.
11
disposition” of a magistrate judge on a dispositive matter.77 The district judge must “determine de
novo any part of the [Report and Recommendation] that has been properly objected to.”78 A district
court’s review is limited to plain error of parts of the report which are not properly objected to.79
B. Standard of Review of Commissioner’s Final Decision on SSI Benefits
Under 42 U.S.C. § 405(g) the district court has the power to enter “a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”80 Appellate review of the Commissioner’s denial of SSI
benefits is limited to determining whether the decision is supported by substantial evidence in the
record and whether the proper legal standards were used in evaluating the evidence.81 “Substantial
evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”82 The Court must review the
whole record to determine if such evidence exists.83 However, the district court cannot “reweigh
the evidence in the record, try the issues de novo, or substitute its judgment for the
77 Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
78 Id.
79 See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
80 42 U.S.C. § 405(g).
81 Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Waters v. Barnhart, 276 F.3d 716, 716 (5th Cir.
2002); Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
82 Richardson v. Perales, 402 U.S. 389, 401 (1971); Perez, 415 F.3d at 461; Loza, 219 F.3d at 393; Villa,
895 F.2d at 1021–22 (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983); Randall v. Sullivan, 956 F.2d
105, 109 (5th Cir. 1992)).
83 Singletary v. Bowen, 798 F.2d 818, 822–23 (5th Cir. 1986).
12
Commissioner’s.”84 The ALJ is entitled to make any finding that is supported by substantial
evidence, regardless of whether other conclusions are also permissible.85
IV. Law and Analysis
A. Law Applicable to Qualification for SSI for Children Under Age 18
For a child under the age of 18, the Act defines disability as “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.”86 “For a child to be disabled under the meaning of
the Act, the child must: (1) not be engaged in substantial gainful activity; (2) have an impairment
that is ‘severe’; and (3) have an impairment that ‘meets, medically equals, or functionally equals’
the impairments listed in the disability regulations.”87
In the instant case, the ALJ found that A.B. satisfied the first two steps of the analysis
because she had not engaged in substantial gainful activity since March 31, 2016, and she has the
following severe impairments: “Attention Deficit Hyperactivity Disorder and Conduct
Disorder.”88 At step three, the ALJ held that A.B. does not have an impairment or combination of
84 Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
85 See Arkansas v. Oklahoma, 503 U.S. 91 (1992).
86 42 U.S.C. § 1382c(a)(3)(C)(i).
87 Richard ex rel. Z.N.F. v. Astrue, 480 F. App’x 773, 776 (5th Cir. 2012) (citing 20 C.F.R. § 416.924(a)-
(d)).
88 Adm. Rec. at 11–14.
13
impairments that meets or medically equals the severity of the impairment listed at 20 C.F.R.
§ 404. Supbpt. P., Appendix 1.89
In determining whether an impairment or combination of impairments functionally equals
the listing, the ALJ must “assess the interactive and cumulative effects of all of the impairments
for which we have evidence, including any impairments [] that are not ‘severe.’”90 In making this
determination, the ALJ must consider the child’s functioning in terms of six domains: (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 yourself; and (6) health and physical
well-being.91 To functionally equal a listing, a child must have an impairment or combination of
impairments that result in “marked” limitations in two domains of functioning, or an “extreme”
limitation in one domain of functioning.92
A “marked” limitation interferes “seriously” with the “ability to independently initiate,
sustain, or complete activities.”93 A limitation will be considered “marked” if standardized testing
scores are at least two, but less than three, standard deviations below the mean, or for children
under the age of three years old where the child is “functioning at a level that is more than one-
half but not more than two-thirds of [the child’s] chronological age.”94 An “extreme” limitation
89 Id.
90 See 20 C.F.R. § 416.926a(a).
91 20 C.F.R. § 416.926a(b)(1).
92 20 C.F.R. § 416.926a(d).
93 20 C.F.R. § 416.926a(e)(2)(i).
94 20 C.F.R. § 416.926a(e)(2)(i)–(ii).
14
interferes “very seriously” with the “ability to independently initiate, sustain, or complete
activities.”95 A limitation will be considered “extreme” if standardized testing scores are at least
three standard deviations below the mean, or for children under the age of three years old where
the child is “functioning at a level that is one-half of [the child’s] chronological age or less.”96
In this case, the ALJ found that A.B. had marked limitations in one domain––attending and
completing tasks.97 The ALJ found that A.B. had “less than marked” limitations in the following
three domains: (1) acquiring and using information;98 (2) interacting and relating with others;99
and (3) health and physical well-being.100 The ALJ determined that Plaintiff had no limitations in
the following two domains: (1) moving about and manipulating objects;101 and (2) caring for
herself.102 Therefore, the ALJ concluded that A.B. was not disabled as defined by the Act.103 The
Court may disturb that finding only if the ALJ lacked “substantial evidence” to support it.104
95 20 C.F.R. § 416.926a(e)(3)(i).
96 20 C.F.R. § 416.926a(e)(3)(i)–(ii).
97 Adm. Rec. at 17–18.
98 Id. at 16–17.
99 Id. at 18–19.
100 Id. at 24.
101 Id. at 19–20.
102 Id. at 20.
103 Id. at 21.
104 See Perez, 415 F.3d at 461
15
B. Analysis
Plaintiff argues the Magistrate Judge erred in recommending that the ALJ’s decision be
affirmed.105 Plaintiff asserts that the Magistrate Judge improperly relied on the adult standard
concerning the ability to work throughout the Report and Recommendation.106 In response, the
Commissioner acknowledges that “the Magistrate Judge’s Report and Recommendations
implements the incorrect provisions of regulations related to Social Security claims.”107 Because
the Magistrate Judge relied on the incorrect standard, the Court rejects the Report and
Recommendation and will review Plaintiff’s claims de novo.108
1. Whether the ALJ erred by failing to find that A.B.’s borderline intellectual
functioning was a severe impairment
First, Plaintiff asserts that the ALJ failed to consider A.B.’s serious impairment of
borderline intellectual functioning.109 Plaintiff asserts that A.B.’s borderline intellectual
functioning “more than minimally affect A.B.’s ability to function.”110 Therefore, she argues that
these impairments must be considered serious.111 In response, the Commissioner asserts that the
record does not support a finding that A.B. exhibited severe borderline intellectual functioning.112
105 Rec. Doc. 20-2 at 1.
106 Id.
107 Rec. Doc. 22 at 1.
108 See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
109 Rec. Doc. 20-2 at 12–13 (citing Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985)).
110 Id. at 13.
111 Id.
112 Rec. Doc. 17 at 6.
16
In support, the Commissioner cites the consultative examinations performed by Dr. Scuddy
Fontenelle, Ph.D.113 The Commissioner asserts that such evidence does not support Plaintiff’s
allegation of severe borderline intellectual functioning.114
“The term borderline intellectual functioning describes a group of people who function on
the border between normal intellectual functioning and intellectual disability, between 1 and 2
standard deviations below the mean on the normal curve of the distribution of intelligence, roughly
an IQ between 70 and 85.”115
Dr. Fontenelle examined A.B. on May 6, 2013, when she was six years old.116 At that time,
A.B. was able to touch and name six out of six body parts; identify and name six out of six colors;
and was able to count from 1 to 30.117 Dr. Fontenelle administered the Leiter International
Performance Scale-Revised, and found that Plaintiff had a full scale IQ of 78.118 He determined
that A.B. had relative strengths in non-verbal intelligence and demonstrated spatial reasoning in
the low average range.119 Dr. Fontenelle opined that A.B.’s intelligence was within “the Borderline
to Low Average” range.120
113 Id.
114 Id.
115 Jannelien Wieland and Frans G. Zitman, BJPsych Bull. 2016 Aug; 40(4): 204–206, “It is Time to Bring
Borderline Intellectual Functioning Back into the Main Fold of Classification Systems,”
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4967780.
116 Adm. Rec. at 160–62.
117 Id. at 162.
118 Id. at 161.
119 Id.
120 Id. at 162.
17
Dr. Fontenelle examined A.B. again on September 2, 2016.121 At that time, A.B. was nine
years old, she exhibited reality based thoughts; she remained able to complete the same tasks she
did at the previous evaluation; and she was able to add and subtract.122 Dr. Fontenelle opined that
A.B.’s cognitive ability was within “the low average range.”123
A.B. underwent an education evaluation at ReNew Schaumburg Elementary in 2016
because she was experiencing difficulties with reading and writing.124 The evaluator found that
A.B. exhibited “inadequate reading and math skills [and] a slow rate of learning and difficulty
retaining the material previously taught.”125 The evaluator found that A.B. qualified “for the
classification of Specific Learning Disability based on an academic deficit in the area[s] of basic
reading, reading comprehension, and written language.”126 The evaluator determined that A.B.,
who was nine years old, needed remediation in reading and written language at the first grade level
and remediation in math skills at the second grade level.127
121 Id. at 168–70.
122 Id.
123 Id. at 170.
124 Id. at 175–188.
125 Id. at 181.
126 Id. at 186.
127 Id.
18
Natalie Ambrose, LPC, completed a behavioral health assessment of A.B. on October 9,
2017.128 Ms. Ambrose found that A.B.’s intellectual functioning to be within the “normal/avg.”
range.129
Review of the ALJ’s opinion reveals that although he did not find that A.B.’s borderline
intellectual functioning was a severe impairment, the ALJ did thoroughly consider the medical
records.130 The ALJ gave the opinion of Dr. Fontenelle great weight.131 The ALJ found that Dr.
Fontenelle “gave accurate assessments of [A.B’s] thought process, thought content, mood and
affect, sensorium and cognition, judgement and insight, and functional capabilities.”132 The ALJ
found that Dr. Fontenelle’s “opinions are right on point with the rest of the objective evidence of
record and clearly assesses [A.B’s] condition.”133
Even assuming that the ALJ should have found that borderline intellectual functioning was
a severe impairment, this error alone does not demand reversal of the ALJ’s decision. As the Fifth
Circuit has explained, when an ALJ proceeds to subsequent steps of the sequential evaluation
analysis and denies benefits on that basis, any alleged error in not finding a specific impairment
severe is harmless.134 In Dise v. Colvin, the ALJ found that the plaintiff suffered from a severe
128 Id. at 198–205.
129 Id. at 204.
130 Id. at 11–21.
131 Id. at 16.
132 Id.
133 Id.
134 Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987); Dise v. Colvin, 630 F. App’x. 322, 324 (5th Cir.
2015) (per curiam).
19
mental impairment of oppositional defiant disorder (“ODD”).135 On appeal, the plaintiff argued
that the ALJ erred in failing to address whether the plaintiff’s depression was also a severe
impairment.136 The Fifth Circuit found that this argument was meritless because “[t]he remainder
of the opinion clearly reflects that the ALJ considered all of [the plaintiff’s] claimed impairments
(including depression) in his assessment of [the plaintiff’s] disability, even though he only
mentioned ODD at step two. In short, ‘this case did not turn on whether or not [the plaintiff’s
depression] impairment was severe,’ but on subsequent steps in the analysis.”137
As was the case in Dise, here, the ALJ’s opinion clearly reflects that the ALJ considered
all of A.B.’s claimed impairments in his assessment of A.B.’s disability. The ALJ’s determination
did not turn on whether A.B.’s intellectual functioning was severe but on subsequent steps in the
analysis. Specifically, the ALJ determined that A.B. was not disabled at step three because A.B.
did not have marked or extreme limitations in the six domains used to assess a child’s functioning.
Therefore, Plaintiff’s argument that the ALJ’s opinion should be reversed on this basis is without
merit.
2. Whether the ALJ erred by determining A.B.’s impairments did not meet or
medically equal Listing 112.08 or 112.11
Plaintiff contends that the ALJ committed reversible error in determining that A.B.’s
impairments did not meet or medically equal Listing 112.08 or Listing 112.11.138 Plaintiff argues
135 Dise, 630 F. App’x. at 326.
136 Id.
137 Id. (quoting Chaparro v. Bowen, 815 F.2d 1008, 1011 (5th Cir. 1987)).
138 Rec. Doc. 20-2 at 13.
20
that A.B. has abnormalities in cognitive processing, deficits in attention or impulse control, low
frustration tolerance, difficulty with organizing, and deficits in social skills.139 Plaintiff notes that
A.B.’s teacher stated she learns as a disabled person, and A.B. has impaired insight and
judgement.140 Therefore, Plaintiff argues that A.B.’s impairments meet Listing 112.08 and Listing
112.11.141 In response, the Commissioner notes that Plaintiff did not brief any argument
concerning Listing 112.08.142 As for Listing 112.11, the Commissioner asserts that Plaintiff failed
to cite evidence to support her assertion that A.B. met all of the criteria of the listed impairment.143
Listing 112.08 applies to personality and impulse-control disorders.144 To meet or
medically equal Listing 112.08, the claimant must present medical documentation showing: (1)
distrust and suspiciousness of others; (2) detachment from social relationships; (3) disregard for
and violation of the rights of others; (4) instability of interpersonal relationships; (5) excessive
emotionality and attention seeking; (6) feelings of inadequacy; (7) excessive need to be taken care
of; (8) preoccupation with perfectionism and orderliness; or (9) recurrent, impulsive, aggressive
behavioral outbursts.145 The claimant must also have extreme limitation in one, or marked
limitation in two, of the following areas: (1) understanding, remembering or applying information;
139 Id.
140 Id. at 13–14.
141 Id. at 14.
142 Rec. Doc. 17 at 7.
143 Id.
144 20 C.F.R. § 404, Subpt. P, App. 1 § 112.08.
145 Id.
21
(2) interacting with others; (3) concentrating, persisting, or maintaining pace; or (4) adapting and
managing oneself.146
Listing 112.11 applies to neurodevelopmental disorders.147 To meet or medically equal
Listing 112.11, the claimant must present medical documentation showing: (1) frequent
distractibility, difficulty sustaining attention, and difficulty organizing tasks, and/or hyperactive
and impulsive behavior; (2) significant difficulties learning and using academic skills; or (3)
recurrent motor movement or vocalization.148 The claimant must also have extreme limitation in
one, or marked limitation in two, of the following areas: (1) understanding, remembering or
applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining
pace; or (4) adapting and managing oneself.149
The Social Security Regulations define “extreme” impairments as those that “interfere[]
very seriously with [the child’s] ability to independently initiate, sustain, or complete activities.”150
Extreme limitation is the rating given to the worst limitations, but “does not necessarily mean a
total lack or loss of the ability to function.”151 An extreme limitation is equivalent to the level of
146 Id.
147 20 C.F.R. § 404, Subpt. P, App. 1 § 112.11.
148 Id.
149 Id.
150 20 C.F.R. § 416.926a(e)(3)(i).
151 Id.
22
functioning one “would expect to find on standardized testing with scores that are at least three
standard deviations below the mean.”152
The regulations define “marked” as “more than moderate but less than extreme.”153 A
marked limitation “interferes seriously with [the child’s] ability to independently initiate, sustain,
or complete activities.”154 The regulations provide that a child will have a “marked” limitation if
she has “a valid score that is two standard deviations or more below the mean, but less than three
standard deviations, on a comprehensive standardized test designed to measure ability or
functioning in that domain, and [her] day-to-day functioning in domain-related activities is
consistent with that score.”155
The ALJ’s opinion summarily concluded that A.B.’s impairments do not meet or medically
equal the severity of Listing 112.08.156 However, the ALJ’s opinion does not discuss Listing
112.11.157
In Audler v. Astrue, the Fifth Circuit found that the “explicit terms” of the Act require that
an ALJ “discuss the evidence offered in support of [the] claim for disability and to explain why
[the ALJ] found [the claimant] not to be disabled at that step.”158 The Court noted that “the ALJ
152 Id.
153 20 C.F.R. § 416.926a(e)(2)(i) (internal quotation marks omitted).
154 Id.
155 20 C.F.R. § 416.926a(e)(2)(iii).
156 Adm. Rec. at 14.
157 Id.
158Audler v. Astrue, 501 F.3d 446, 448 (2007).
23
is not required to do an exhaustive point-by-point discussion,” but it is an error for the ALJ to offer
no evidence in support of a conclusion.159 However, even if an ALJ erred in failing to state any
reasons for an adverse determination, the reviewing court “must still determine whether this error
was harmless.”160 “‘Procedural perfection in administrative proceedings is not required’ as long as
‘the substantial rights of a party have not been affected.’”161 In Audler, the Fifth Circuit found that
“[a]bsent some explanation from the ALJ to the contrary” the claimant appeared to have met her
burden of demonstrating that she met the listing requirements, “and therefore her substantial rights
were affected by the ALJ’s failure to set out the bases for her decision at step three.”162
Accordingly, the Fifth Circuit remanded the case to the district court with directions to remand to
the Commissioner for further proceedings.163
Here, the ALJ’s opinion does not include any analysis as to whether A.B.’s impairments
meet or medically equal the severity of Listing 112.11. Courts have recognized that “different
methods are employed for determining whether an impairment meets or medically equals a listing
as opposed to whether the impairment is functionally equivalent to a listing.”164 However, some
courts have found a “significant overlap between the two in the context of a childhood ADHD
impairment.”165 In this case, there is significant overlap between the arguments Plaintiff makes
159 Id.
160 Id. (citing Morris v. Bowen, 864 F.2d 333, 334 (5th Cir. 1988)).
161 Id. (quoting Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)).
162 Id. at 449.
163 Id.
164 Magee v. Astrue, No. 09-620, 2011 WL 1226011, at *4 (S.D. Miss. Mar. 29, 2011).
165 Id. (citing Rossi v. Commissioner of Social Security, No. 10-97, 2010 WL 5313771, at 5 n. 6 (N.D.N.Y.
24
with respect to whether A.B. meets the requirements of Listing 112.11 and the ALJ’s
determinations regarding the acquiring and using information domain. Accordingly, the Court will
look to the ALJ’s analysis of whether A.B.’s impairments are functionally equivalent to the listing
in determining whether substantial evidence supports the ALJ’s finding that her impairments do
not meet or medically equal the listing.
3. Whether the ALJ erred by failing to find that A.B. has a marked limitation in
the acquiring and using information domain
Plaintiff contends that the ALJ erred by failing to find that A.B. has a marked limitation in
the acquiring and using information domain.166 In support of this contention, Plaintiff asserts that
A.B. scored two deviations below the mean in Reading and Academic Skill, requires special
education and learning interventions, and performs below her grade level.167 Regarding her ability
to interact with others, Plaintiff argues that A.B. is easily distracted, speaks loudly, and is often
interfering in other students’ affairs.168 Thus, Plaintiff contends that A.B. has a marked impairment
in the acquiring and using information domain.169
In response, the Commissioner argues that A.B.’s impairments do not result in a marked
limitation in acquiring and using information.170 The Commissioner notes that Plaintiff relies
Dec. 2, 2010)).
166 Rec. Doc. 20-2 at 17.
167 Id.
168 Id. at 18.
169 Id. at 14–15.
170 Rec. Doc. 17 at 8.
25
heavily on test results indicating that A.B. scored “two deviations below the mean.”171 However,
the Commissioner asserts that no single piece of information taken in isolation can establish
whether [A.B. has] a marked or extreme limitation in a domain.”172 The Commissioner points to
the September 2016 consultative examination by Dr. Fontenelle, finding that A.B. could add and
subtract, was learning multiplication, understood vocabulary, and could “understand and
comprehend routine school activity.”173 According to the Commissioner, education records show
that while A.B. was behind a grade level in reading and language arts, she performed at her grade
level in math,174 and a behavioral health assessment in October 2017 revealed that A.B. had normal
memory and normal intellectual functioning.175 Therefore, taking all of the evidence into
consideration, the Commissioner asserts that A.B. exhibited “less than marked” limitation in the
domain of acquiring and using information.176
The acquiring and using information domain concerns how well a child acquires or learns
information, and how well a child uses the information she has learned.177 The Social Security
Regulations provide that school-age children (age 6 to attainment of age 12) without an impairment
“should be able to learn to read, write, and do math, and discuss history and science.”178 The child
171 Id.
172 Id. (citing 20 C.F.R. § 416.926a(e)(4)).
173 Id. at 9 (citing Adm. Rec. at 169–70).
174 Id. (citing Adm. Rec. at 175–77).
175 Id. (citing Adm. Rec. at 204).
176 Id.
177 20 C.F.R. § 416.926a(g).
178 20 C.F.R. § 416.926a(g)(2)(iv).
26
will need to use these skills in academic situations and in daily living situations at home and in the
community.179 The child should be able to use increasingly complex language to share information
and ideas with individuals or groups, by asking questions and expressing her own ideas, and by
understanding and responding to the opinions of others.180
Examples of limited functioning in acquiring and using information include: (1) failure to
demonstrate understanding of words about space, size, or time; (2) inability to rhyme words or the
sounds in words; (3) difficulty recalling important things learned in school the day before; (4)
difficulty solving mathematics questions or computing arithmetic answers; and (5) ability to talk
only in short, simple sentences and difficulty explaining what she means.181
The regulations define “marked” as “more than moderate but less than extreme.”182 A
marked limitation “interferes seriously with [an individual’s] ability to independently initiate,
sustain, or complete activities.”183 The regulations provide that a child will have a “marked”
limitation if she has “a valid score that is two standard deviations or more below the mean, but less
than three standard deviations, on a comprehensive standardized test designed to measure ability
or functioning in that domain, and [her] day-to-day functioning in domain-related activities is
consistent with that score.”184
179 Id.
180 Id.
181 20 C.F.R. § 416.926a(g)(3).
182 20 C.F.R. § 416.926a(e)(2)(i) (internal quotation marks omitted).
183 Id.
184 20 C.F.R. § 416.926a(e)(2)(iii).
27
In this case, the ALJ determined that A.B. had a less than marked limitation in acquiring
and using information.185 The ALJ noted that Dr. Fontenelle found that A.B.’s thoughts were
reality based.186 The ALJ opined that A.B.’s thought content was focused on her interests in
cartoons and movies.187 He further opined that if A.B. liked school more and took her medication,
she would improve in the domain of acquiring and using information.188 He noted that A.B. was
in regular classes.189 He opined that A.B.’s school results would improve if her behavior
improved.190 Although A.B. was talkative, fidgety, and restless at times, the ALJ found that those
conditions could improve with medication.191
The ALJ gave great weight to the opinion of Dr. Fontenelle, a consultative examiner.192 As
discussed above, Dr. Fontenelle examined A.B. on May 6, 2013, when she was six years old.193
A.B. was able to touch and name six out of six body parts; identify and name six out of six colors;
and was able to count from 1 to 30.194 Dr. Fontenelle administered the Leiter International
185 Adm. Rec. at 17.
186 Id.
187 Id.
188 Id.
189 Id.
190 Id.
191 Id.
192 Id. at 16.
193 Adm. Rec. at 160–62.
194 Id. at 162.
28
Performance Scale-Revised, and found that Plaintiff had a full scale IQ of 78.195 He determined
that A.B. had relative strengths in non-verbal intelligence and demonstrated spatial reasoning in
the low average range.196 Dr. Fontenelle opined that A.B.’s intelligence was within “the Borderline
to Low Average” range.197 He found her speech communication skills to be within normal
limits.198 He found that A.B. showed significant characteristics of ADHD-Combined Type, and
recommended that A.B. take her medication on a daily basis, as prescribed.199
Dr. Fontenelle examined A.B. again on September 2, 2016.200 At that time, A.B. was nine
years old, she exhibited reality based thoughts; she remained able to complete the same tasks she
did at the previous evaluation; she was able to add and subtract; and she was learning
multiplication.201 Dr. Fontenelle opined that A.B.’s cognitive ability was within “the low average
range.”202 Dr. Fontenelle opined that A.B.’s thought content was focused on her interest in cartoon
shows and movies.203 He also noted that A.B.’s speech skills were within normal range.204 He
195 Id. at 161.
196 Id.
197 Id. at 162.
198 Id.
199 Id.
200 Id. at 168–70.
201 Id. at 169.
202 Id. at 170.
203 Id. at 169.
204 Id. at 170.
29
recommended that she use medication to manage her ADHD, and opined that she would benefit
from behavior counseling sessions.205
The ALJ’s opinion does not discuss the education evaluation A.B. underwent at ReNew
Schaumburg Elementary in March 2016.206 The evaluator found that A.B. exhibited “inadequate
reading and math skills [and] a slow rate of learning and difficulty retaining the material previously
taught.”207 The evaluator stated that A.B. “is learning like a student with a disability.”208 The
evaluator found that A.B. qualified “for the classification of Specific Learning Disability based on
an academic deficit in the area[s] of basic reading, reading comprehension, and written
language.”209 The evaluator recommended that A.B. receive special education services, and she
determined that A.B. needed remediation in reading and written language at the first grade level
and remediation in math skills at the second grade level.210
Plaintiff asserts that the education evaluation reflects that A.B. scored “two deviations
below the mean.”211 In response, the Commissioner points out that the regulations provide that the
Social Security Administration (“SSA”) will not rely on test scores alone to establish a marked
limitation, as “no single piece of information taken in isolation can establish whether [the child
205 Id.
206 Id. at 175–188.
207 Id. at 181.
208 Id.
209 Id. at 186.
210 Id.
211 Rec. Doc. 20-2 at 10.
30
has] a marked or extreme limitation in a domain.”212 Rather, the SSA “will consider [the child’s]
test scores together with other information . . . about [the child’s] functioning.”213 Additionally,
the child’s day-to-day functioning in domain-related activities must be consistent with that
score.214
The regulations also provide that the SSA must consider the effects of treatment (including
medications) on the child’s functioning.215 If a child’s symptoms or signs are reduced by
medications, the Commissioner will consider: (a) any of the child’s functional limitations that may
nevertheless persist, even if there is improvement from the medications; (b) whether the child’s
medications create any side effects that cause or contribute to the child’s functional limitations;
(c) the frequency of the child’s need for medication; (d) changes in the child’s medication or the
way the child’s medication is prescribed; and (e) any evidence over time of how medication helps
or does not help the child to function compared to other children of a similar age who do not have
impairments.216 Treatment or intervention may prevent, eliminate, or reduce functional
limitations.217
212 20 C.F.R. § 416.926a(e)(4)(i).
213 20 C.F.R. § 416.926a(e)(4)(ii).
214 20 C.F.R. § 416.926a(e)(2)(iii).
215 20 C.F.R. § 416.924a(b)(9)(i).
216 Id.
217 20 C.F.R. § 416.924a(b)(9)(iii).
31
Social Security Ruling 09-1P provides interpretations and information about the “whole
child” approach for determining whether a child’s impairments functionally equal the listing.218
With regard to rating severity, the Ruling states:
It is important to determine the extent to which an impairment(s) compromises a
child’s ability to independently initiate, sustain, and complete activities. To do so,
we consider the kinds of help or support the child needs in order to function. In
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.219
The Ruling acknowledges that the more help or support, of any kind, that a child receives, the less
independent the child is in functioning, and the more severe the SSA will find the limitation to
be.220
In the case of an adult seeking to recover SSI, the Fifth Circuit has recognized that “[a]
medical condition that can reasonably be remedied either by surgery, treatment, or medication is
not disabling.”221 Numerous courts have also applied this rule to children seeking SSI.222 The ALJ
218 Title XVI: Determining Childhood Disability Under the Functional Equivalence Rule-the "Whole Child"
Approach, SSR 09-1P (S.S.A. Feb. 17, 2009)
219 Id. at *6.
220 Id. at *7.
221 Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987) (citing 20 C.F.R. §§ 404 .1530(a), (b) and 416.930(a),
(b) (1986)) (additional citations omitted). See also Muckelroy v. Astrue, 277 F. App’x 510, 511–12 (5th Cir. 2008);
Hebert v. Barnhart, 197 F. App’x 320, 323 (5th Cir. 2006).
222 McGrew ex rel. K.M. v. Colvin, No. 13-237, 2014 WL 68766, at *11–12 (E.D. La. Jan. 8, 2014)
(Wilkinson, M.J.) (adopted by Milazzo, J.) (citing Richardson v. Barnhart, 136 F. App’x 463, 466 (3d Cir. 2005);
Scales v. Barnhart, 363 F.3d 699, 705 (8th Cir. 2004); Scotino v. Colvin, No. 4:12cv0674, 2013 WL 5291722, at * 10
(E.D. Mo. Sept.19, 2013); Luna ex rel. A.L. v. Astrue, No. 11–1137, 2013 WL 358883, at * 19–20 (D. Minn. Jan.8,
2013); T.C. ex rel. Z.C. v. Comm’r of Soc. Sec., No. 10–5229, 2011 WL 3235735, at *7 (D.N.J. July 26, 2011); L.B
.M. ex rel. Motley v. Astrue, No. 1:08–CV–1354–WTL–DML, 2010 WL 1190326, at *21 (S.D. Ind. Mar 23, 2010);
Thomas v. Astrue, No. H–07–2043, 2008 WL 4279397, at *17 (S.D. Tex. Sept.16, 2008)).
32
suggests that A.B’s ability to acquire and use information would improve with medication. When
Dr. Fontenelle evaluated A.B. in 2016, he found that she needed medication management for
ADHD.223 However, Dr. Fontennelle noted that A.B. discontinued taking the medication due to its
side effects.224 During the hearing, Plaintiff testified that the medication caused drowsiness, but
Plaintiff planned to consult with A.B.’s doctor about trying a lesser dosage of the medication.225
The ALJ must consider whether the child’s medications create any side effects that cause or
contribute to the child’s functional limitations.226 The ALJ did not consider the side effects of the
medication in assessing A.B.’s limitations.
The ALJ found that A.B. could focus on topics that interest her, including watching
cartoons and movies. However, the ALJ did not consider the education evaluation in determining
whether A.B. had a marked limitation in the acquiring and using information domain. The ALJ
noted that A.B. was in regular classes, but the education evaluation found that A.B. should be
receiving special education services.227 The evaluator recommended that A.B. receive special
education services, and she determined that A.B. needed remediation in reading and written
223 Adm. Rec. at 170.
224 Id. at 169.
225 Id. at 36–37, 48–49.
226 20 C.F.R. § 416.924a(b)(9)(i).
227 Id. at 186.
33
language at the first grade level and remediation in math skills at the second grade level.”® The
evaluator stated that A.B. “is learning like a student with a disability.”””°
This Court cannot reweigh the evidence or substitute its judgment for the ALJ.7°° However,
the ALJ erred by failing to address the education evaluation, which suggests that A.B. may have a
marked limitation in the domain of acquiring and using information. Accordingly, the Court will
sustain Plaintiff's objection, and will remand this case to the ALJ pursuant to 42 U.S.C. § 405(g)
for further consideration.
V. Conclusion
For the reasons set forth in this Order and Reasons, the Court remands this case to the ALJ
for further consideration consistent with this opinion. Accordingly,
IT IS HEREBY ORDERED that the Court SUSTAINS Plaintiff's objections and
REJECTS the Report and Recommendation.
IT IS FURTHER ORDERED that the case is REMANDED to the ALJ pursuant to 42
U.S.C. § 405(g) for consideration of the record consistent with this Court’s Order and Reasons.
NEW ORLEANS, LOUISIANA, this 30th day of March, 2020.
Mgrvettn alunite Broun
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
228 Td.
229 Adm. Rec. at 181.
230 Newton, 209 F.3d at 452.
34