After examining the briefs and appellate record, this panel has determined *

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3. 

The Honorable Wesley E. Brown, Senior District Judge, District of Kansas, **

sitting by designation.

F I LED

United States Court of Appeals

Tenth Circuit

November 9, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBIN M. MILLER, on behalf of

Melissa N. Thompson, a minor,

 Plaintiff-Appellant,

 v.

JO ANNE B. BARNHART,

Commissioner of the Social Security

Administration,

 Defendant-Appellee.

No. 06-5083

(D.C. No. 04-CV-777-FHM)

(N.D. Okla.)

ORDER AND JUDGMENT

*

Before O’BRIEN and BRORBY, Circuit Judges, and BROWN, District Judge. **

In this Social Security case, the administrative law judge (ALJ) determined

that the minor daughter of Robin Miller suffers from the severe impairments of
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attention deficit/hyperactivity disorder, a central auditory processing disorder

(CAPD), and oppositional/defiant disorder. Evaluating the case under the

Commissioner’s childhood disability standards, the ALJ determined that

Ms. Thompson’s impairments did not meet, medically equal, or functionally equal

a listed impairment, and he denied Ms. Thompson’s claim for Supplemental

Security Income benefits. The Appeals Council denied review, making the ALJ’s

decision the Commissioner’s final decision. The district court affirmed, and

Mrs. Miller appealed on Ms. Thompson’s behalf. We have jurisdiction under 42

U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.

Standard of Review

The standard of review in Social Security cases is (1) whether substantial

evidence supports the Commissioner’s decision; and (2) whether the decision

comports with relevant legal standards. See McNamar v. Apfel, 172 F.3d 764, 766

(10th Cir. 1999). Substantial evidence is “‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Winfrey v. Chater, 92

F.3d 1017, 1019 (10th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389,

401 (1971)). “[B]ecause our review is based on the record taken as a whole, we

will meticulously examine the record in order to determine if the evidence

supporting the agency’s decision is substantial, taking into account whatever in

the record fairly detracts from its weight.” Hamlin v. Barnhart, 365 F.3d 1208,

1214 (10th Cir. 2004) (quotation omitted). “We may neither reweigh the
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evidence nor substitute our discretion for that of the [Commissioner].” Kelley v.

Chater, 62 F.3d 335, 337 (10th Cir. 1995). 

Analysis

In children’s disability cases, the ALJ follows a three-step process in

determining whether the child meets the criteria for a qualification of disability: 

(1) whether the child is engaged in substantial gainful activity; (2) whether the

child has an impairment or combination of impairments that is or are severe; and

(3) whether the child’s impairment(s) meets, medically equals, or functionally

equals the listings in 20 C.F.R., Part 404, Subpart P, Appendix 1. See 20 C.F.R.

§ 416.924(a) (2004). Mrs. Miller argues that the ALJ erred in his determinations

at Steps 2 and 3 and in evaluating her credibility.

I.

Mrs. Miller first contends that the ALJ erred at Step 2 by not assessing

borderline intellectual functioning as one of Ms. Thompson’s severe impairments. 

She points to several IQ test scores in the 70s and low 80s and argues that such

scores, within the borderline range, require the ALJ to find a severe impairment

as a matter of law. See Cockerham v. Sullivan, 895 F.2d 492, 496 (8th Cir. 1990).

Cockerham, however, addressed “[a] claimant whose alleged impairment is

an IQ of 70-79 inclusive.” Id. Some of Ms. Thompson’s scores are within that

range, but there is substantial evidence in the record that her intelligence is not

necessarily borderline, but low average. See Aplt. App. Vol. 2 at 316 (stating
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Full-Scale IQ of 81 on the WISC-III puts Ms. Thompson in the “Low Average

range of intellectual ability”); 303 (Iowa Tests of Basic Skills Results showing

her performance in many categories was within the average range of the national

percentile ranks); 184 (stating she has “a low average IQ of 81”); 273 (reporting

IQ score of 92 on the Test of Non-Verbal Intelligence and noting the WISC-III

results may have been affected by her CAPD). Further, none of the tests was

taken within two years before the relevant period, so none is valid under the

regulations. See 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 112.00D10 (2004)

(stating that results of IQ tests administered between ages 7 and 16 are valid for

two years when tested IQ is above 40). It is not this court’s task to reweigh the

evidence to prefer particular scores and test results over others, but only to ensure

that the ALJ’s decision finds support in the evidence. See Kelley, 62 F.3d at 337;

Glenn v. Shalala, 21 F.3d 983, 987-88 (10th Cir. 1994). We find no reversible

error in the ALJ’s failure to assess borderline intelligence as one of

Ms. Thompson’s severe impairments. 

II.

Mrs. Miller next argues that the ALJ erred at Step 3 by not specifically

identifying the listed impairments that he considered and by underrating

Ms. Thompson’s limitations in the domain of acquiring and using information. 

See 20 C.F.R. § 416.926a(b)(1) (2004) (explaining that the Commissioner has
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classified activities into six domains for purposes of evaluating functional

equivalence).

A.

As the district court held, the regulations do not require the ALJ to refer to

specific listed impairments in determining whether an impairment functionally

equals the listings, but rather to evaluate the child’s functioning in each of six

domains. See id. § 416.926a(d) (2004). This regulation, however, addresses only

the third of the evaluations an ALJ undertakes at Step 3; before determining

whether an impairment functionally equals a listing, the ALJ must determine the

impairment does not meet or medically equal a listing. See id. § 416.924(a)

(2004). Arguably, the ALJ erred in failing to identify specific listings with regard

to these two initial inquiries. See id. § 416.926(a) (2004) (stating that, in

determining medical equivalence, the Commissioner compares the medical

evidence to “the corresponding medical criteria shown for any listed

impairment”).

In Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996), this court

determined that a decision was “beyond meaningful judicial review” where “the

ALJ did not discuss the evidence or his reasons for determining that appellant was

not disabled at step three, or even identify the relevant Listing or Listings; he

merely stated a summary conclusion that appellant’s impairments did not meet or

equal any Listed Impairment.” In Fischer-Ross v. Barnhart, 431 F.3d 729, 730
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(10th Cir. 2005), however, “[w]e reject[ed] a construction of Clifton that, based

on a reading of the ALJ’s decision as a whole, would lead to unwarranted

remands needlessly prolonging administrative proceedings.” We continued,

“[w]here an ALJ provides detailed findings, thoroughly reviewed and upheld by

the district court, that confirm rejection of the listings in a manner readily

reviewable, requiring reversal would extend Clifton beyond its own rationale.” 

Id. at 734. Here, although the ALJ did not identify the specific listings, his

analysis contained detailed discussion of the record. Mrs. Miller alleges that the

ALJ did not discuss Ms. Thompson’s inattention, impulsiveness, or hyperactivity,

but the ALJ’s decision does reflect consideration of such factors. See, e.g., Aplt.

App. Vol. 2 at 18 (discussing allegedly impulsive behavior and school reports

regarding her need for redirection and tendency to rush to complete tasks); 19

(noting report that she would begin working without understanding directions); 20

(noting teachers’ report of her behavior at school); 25 (assessing Ms. Thompson

with “marked” limitations in the domain of attending and completing tasks). In

contrast to Clifton, the ALJ thoroughly reviewed the record evidence in his

decision. We find no reversible error.

B.

If an ALJ finds that a claimant has marked limitations in at least two of the

six domains, or extreme limitations in any of the domains, then the claimant’s

impairment(s) functionally equal(s) the listings. 20 C.F.R. § 416.926a(d) (2004). 
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The ALJ determined that Ms. Thompson has marked limitations in the domain of

attending and completing tasks, but that she has less than marked limitations in

the domains of acquiring and using information and interacting and relating with

others. Mrs. Miller contends that the ALJ erred in finding less than marked

limitations in the domain of acquiring and using information, so that Ms.

Thompson must be considered disabled under § 416.926a(d) by virtue of having

marked limitations in at least two domains. 

A “marked” limitation occurs when an impairment(s) “interferes seriously

with [the claimant’s] ability to independently initiate, sustain, or complete

activities.” Id. § 416.926a(e)(2)(i) (2004). “‘Marked’ limitation also means a

limitation that is ‘more than moderate’ but ‘less than extreme.’” Id. In the

domain of acquiring and using information, the Commissioner considers how well

the claimant learns information and how well the claimant uses the information

learned. Id. § 416.926a(g). 

Mrs. Miller points to Ms. Thompson’s academic difficulties and the several

accommodations provided to her at school as proof that she has marked

limitations in acquiring information. The record does support the inference that

Ms. Thompson’s impairments affect her ability to learn, and that she struggles in

some subjects, particularly mathematics. The record does not, however, compel a

finding that her limitations are necessarily “marked” rather than “moderate.” 

There is substantial evidence that Ms. Thompson can learn and can use the
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information she has learned. See, e.g., Aplt. App. Vol. 2 at 222 (April 1999

examination stating Ms. Thompson’s “academic achievement scores suggest

below average skills in mathematics reasoning and applications and mathematics

concepts. Otherwise, her scores are within normal limits for her age.”); 325-26

(October 2002 notation that Ms. Thompson is able to do the same things as other

students in her class, and the probable cause of failure to achieve at expected

level was her choice to neglect her work); 328-29 (November 2002 examination

indicating she knew basic facts, had mildly impaired performance with short-term

memory, and knew abstractions); see also id. at 248 (progress report showing 4

Bs and 2 Cs, and noting that her grades had declined slightly); 244 (report card

showing 1 B, 3 Cs, and 2 Ds, and promotion to seventh grade); 236 (report card

showing 1 A-, 1 B, 1 B-, 1 C, and 1 D and promotion to eighth grade); 132 (report

card showing grades were generally A, B, C, and passing); 128 (progress report

showing 2 Bs, 3 Cs, and 1 F, and noting that she is capable of doing better work). 

In addition, three consulting sources rated her with “less than marked” limitations

in this domain. Id. at 334, 341, 348. Given the presence of substantial evidence

to support the ALJ’s determination, we will not reverse, even though we might

have made a different finding were we the factfinders. See White v. Barnhart,

287 F.3d 903, 908 (10th Cir. 2002). 
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III.

Finally, Mrs. Miller complains that the ALJ discounted the credibility of

her testimony. The ALJ determined that Mrs. Miller’s testimony at the hearing

contradicted the totality of the evidence with regards to Ms. Thompson’s

impairments. 

“Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial

evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation

omitted). But “findings as to credibility should be closely and affirmatively

linked to substantial evidence and not just a conclusion in the guise of findings.”

Id. (alteration and quotation omitted). 

Here, the ALJ discussed testimony that was not corroborated by other

evidence in the record, identifying particular examples, and stated that

Mrs. Miller had made contradictory statements about Ms. Thompson’s ability to

get along with friends and family. Mrs. Miller disputes the ALJ’s view of the

evidence and relies on evidence to the contrary, but again, it is not this court’s

task to reweigh the evidence. As this court stated in another case: 

After examining the record as a whole, we are persuaded that the

ALJ’s credibility findings are closely and affirmatively linked to

substantial evidence. Plaintiff’s argument to the contrary constitutes

an invitation to this court to engage in an impermissible reweighing

of the evidence and to substitute our judgment for that of the

Commissioner, an invitation we must decline. 
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Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).

Conclusion

The judgment of the district court is AFFIRMED.

Entered for the Court

Wesley E. Brown

District Judge