Brown v. Callahan

UNITED STATES COURT OF APPEALS

Tenth Circuit

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80294

(303) 844-3157

Patrick J. Fisher, Jr. Elisabeth A.Shumaker

Clerk Chief Deputy Clerk

September 3, 1997

TO: All recipients of the captioned opinion

RE: 96-5253, Brown v. Callahan

August 13, 1997

Please be advised of the following correction to the captioned decision:

In the second full paragraph on page four of the opinion, “adjudicated” is

misspelled. Please make the correction.

Very truly yours,

Patrick Fisher, Clerk

Susie Tidwell

Deputy Clerk

F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

AUG 13 1997

UNITED STATES COURT OF APPEALS

PATRICK FISHER

Clerk

TENTH CIRCUIT

GERTRUDE BROWN, for Khilarney

Wallace, a minor,

Plaintiff-Appellant,

No. 96-5253

v.

JOHN J. CALLAHAN, Acting

Commissioner of Social Security, *

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 95-CV-675-W)

Submitted on the briefs:

Paul F. McTighe, Jr. and Gayle L. Troutman, Tulsa, Oklahoma, for

Plaintiff-Appellant.

Stephen C. Lewis, United States Attorney, Frank V. Smith, III, Acting Chief

Counsel, Region VI, Linda H. Green, Assistant Regional Counsel, for

Defendant-Appellee.

Before ANDERSON, LOGAN, and EBEL, Circuit Judges.

*

John J. Callahan, Acting Commissioner of the Social Security

Administration, is substituted for the former commissioner, Shirley S. Chater.

See Fed. R. App. P. 43(c).

EBEL, Circuit Judge.

Claimant Gertrude Brown appeals from the district court’s order affirming

the decision of the Commissioner of Social Security denying Child’s

Supplemental Security Income Benefits under Title XVI of the Social Security

Act to her daughter, Khilarney Wallace. 1 Ms. Brown applied for benefits in 1991,

alleging that Khilarney was disabled due to asthma and a speech impediment. Her

requests for benefits were denied administratively, both initially and upon

reconsideration.

Ms. Brown requested and received a hearing before an administrative law

judge (ALJ), at which she testified concerning Khilarney’s alleged impairments.

In addition to the complaints about asthma and a speech impairment urged in her

application for benefits, she also testified that Khilarney suffered from eye

problems and emotional and nervous symptoms.

The statutory and regulatory criteria in effect at the time of the ALJ’s

decision required the decisionmaker to apply a four-step evaluation process to Ms.

Brown’s claim. See 42 U.S.C. § 1382c(a)(3)(A)(1994), as implemented by 20

1

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. 34.1.9. The case

is therefore ordered submitted without oral argument.

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C.F.R. § 416.924(b)(1994). 2 The ALJ denied benefits at step four of this process.

He determined that Khilarney’s only severe impairment was mild asthma, and that

her asthma, considered in combination with her other nonsevere impairments,

neither met the Listings, nor was of comparable severity to an impairment which

would disable an adult.

The Appeals Council denied review, and Ms. Brown filed suit in federal

district court. The parties consented to adjudication by a magistrate judge, who

affirmed the agency’s decision.

We have jurisdiction over this appeal pursuant to 42 U.S.C. § 405(g) and 28

U.S.C. § 1291. “We review the district court’s decision de novo and therefore

must independently determine whether the [agency’s] decision (1) is free of legal

error and (2) is supported by substantial evidence.” Smolen v. Chater, 80 F.3d

1273, 1279 (9th Cir. 1996) (child’s benefit case). Substantial evidence is “such

2

First, he had to determine whether the claimant was engaged in

substantial gainful activity. See 20 C.F.R. § 416.924(c). If so, she was not

disabled. See id. If the claimant was not engaged in substantial gainful activity,

the ALJ had to determine whether she had a severe impairment. See id. §

416.924(d). If not, she was not disabled. See id. If the claimant had a severe

impairment, the ALJ had to determine whether that impairment met or equaled an

impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1 (Listings). See id. §

416.924(e). If a Listing was met or equaled, the claimant would be deemed

disabled. See id. If no Listing was met, the evaluation would proceed to the

fourth step, where an individualized functional assessment (IFA) would be made

to determine whether the claimant had an impairment or impairments of

comparable severity to that which would prevent an adult from engaging in

substantial gainful activity. See id. § 416.924(f).

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

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (further quotation

omitted).

Subsequent to the ALJ’s decision, Congress passed the Personal

Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193,

110 Stat. 2105. The Act amended the relevant substantive standard for evaluating

children’s disability claims, found at 42 U.S.C. § 1382c(a)(3)(C), to read as

follows:

An individual under the age of 18 shall be considered disabled

. . . 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.

Section 211(d)(1) of the Act, found in the notes following 42 U.S.C.A.

§ 1382c, states that the new standard for evaluating children’s disability claims

applies to all cases which have not been finally adjudicated as of the effective

date of the Act, August 22, 1996, including those cases in which a request for

judicial review is pending. Thus, we apply the new version of the Act to this

case.

The new version of the Act eliminates the fourth step in the analysis:

determining whether the child has an impairment or impairments of comparable

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severity to that which would disable an adult. The Commissioner’s new

regulations implementing the Act reflect this change by providing that if the

child’s impairment or impairments do not meet, medically equal, or functionally

equal in severity a listed impairment, the child is not disabled. See 20 C.F.R.

§ 416.924(d)(2)(1997). In reviewing the Commissioner’s decision, therefore, we

do not concern ourselves with his findings at step four of the analysis; we ask

only whether his findings concerning the first three steps are supported by

substantial evidence.

Ms. Brown mounts two challenges to the ALJ’s findings. She first argues

that the ALJ failed to make specific findings, tied to the medical evidence, about

the credibility of her testimony concerning Khilarney’s impairments. In disability

cases where the child is unable to adequately describe her symptoms, the

Commissioner accepts the testimony of a person most familiar with the child’s

condition, such as a parent. See 20 C.F.R. § 416.928(a). In such cases, the ALJ

must make specific findings concerning the credibility of the parent’s testimony,

just as he would if the child were testifying for herself. Cf. Williams ex rel.

Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) (reversing and

remanding for benefits where ALJ failed to make credibility findings concerning

testimony of mother and daughter).

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In evaluating credibility, “[b]ased on a consideration of all of the evidence

in the case record, the adjudicator may find all, only some, or none of an

individual’s allegations to be credible.” S.S.R. 96-7p, 1996 WL 374186, at *4.

Here, the ALJ accepted Ms. Brown’s testimony concerning Khilarney’s eye

problems, her slurred speech, and the nervous problems she suffered while taking

Phenergan. However, he went on to explain why none of these problems could be

considered disabling. His findings on these points are supported by substantial

evidence.

The ALJ specifically rejected Ms. Brown’s testimony concerning

Khilarney’s alleged emotional and nervous problems, concluding that they were

unsupported by the medical evidence. See Kepler v. Chater, 68 F.3d 387, 391

(10th Cir. 1995) (ALJ must make specific findings once impairments have been

medically established). Because there is no medical evidence in the record to

establish a mental or nervous impairment, the ALJ properly rejected Ms. Brown’s

testimony.

The ALJ also rejected Ms. Brown’s testimony concerning the severity of

Khilarney’s problems with asthma. She testified that Khilarney was sick with

asthma three to four times a month for two or three days each time, and had

missed a significant amount of school as a result. The ALJ noted, however, that

most of the medical records characterized Khilarney’s asthma as mild. She had

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visited the hospital emergency department only seven times over a two-year

period; three of these seven visits were for pneumonia and occurred within a four-

day period. The ALJ accepted Ms. Brown’s assertions that Khilarney’s

kindergarten attendance had been “limited,” Appellant’s App. Vol. II at 18, due in

part to her asthma, but noted that Khilarney had made satisfactory progress in

spite of her absences. Moreover, Ms. Brown testified at the hearing that

Khilarney’s first grade attendance had improved: as of October 5, 1993,

Khilarney had missed only two days of school due to illness. Ms. Brown further

testified that Khilarney had been prescribed a wide variety of medications for

treatment of her asthma. The ALJ determined that the medical records did not

reflect that Khilarney had been prescribed all of the medications for daily dosage,

as indicated on the medication list discussed at the hearing. This finding is

supported by substantial evidence.

In sum, the ALJ made proper credibility findings concerning Ms. Brown’s

testimony at the hearing. He considered her testimony concerning each of the

impairments which she alleged, made permissible findings concerning the

credibility of her testimony, and provided proper evidentiary support for each

such finding.

Ms. Brown also argues that the ALJ failed to consider Khilarney’s

impairments in combination. This argument lacks merit. The ALJ specifically

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concluded, at step three of his decision, that Khilarney did not have an

impairment, or combination of impairments, listed in or equivalent to those

contained in 20 C.F.R. § 404, Subpt. P, App. 1. See 20 C.F.R. § 416.924(d)

(describing listing equivalence requirements for childhood disability). Ms.

Brown’s attack on the wording of the ALJ’s step-four finding fails, because as

mentioned, step four findings are no longer a required part of the ALJ’s analysis.

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

of Oklahoma is AFFIRMED.

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