### 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 th e captioned decision: In the second full paragraph on page four of the op inion, “adjudicated” is misspelled. Please make the correction. Very truly yours, Patrick Fisher, Clerk

Susie Tidwell Deputy Clerk* John J. Callahan, Acting Commissioner of the Social Security

Administration, is substituted for the former commi ssioner, Shirley S. Chater. See Fed. R. App. P. 43(c). 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 13 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GERTRUDE BROWN, for Khilarney Wallace, a minor,

Plaintiff-Appellant,

v. JOHN J. CALLAHAN, Acting Commissioner of Social Security, *

Defendant-Appellee. No. 96-5253

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 Regio nal Counsel, for Defendant-Appellee.
Before ANDERSON, LOGAN, and EBEL, Circuit Judges.1 After examining the briefs and appellate record, th is panel has

determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. -2- EBEL, Circuit Judge.

Claimant Gertrude Brown appeals from the district c ourt’s order affirming the decision of the Commissioner of Social Securitydenying Child’s Supplemental Security Income Benefits under Title X VI 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 Khil arney’s alleged impairments. In addition to the complaints about asthma and a sp eech impairment urged in her application for benefits, she also testified that K hilarney 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 b y 202 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 ga inful activity, the ALJ had to determine whether she had a severe i mpairment. 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 i mpairment 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 c laimant would be deemed disabled. See id. If no Listing was met, the evaluation would proce ed to the fourth step, where an individualized functional ass essment (IFA) would be made to determine whether the claimant had an impairmentor impairments of comparable severity to that which would prevent an adult from engaging in substantial gainful activity. See id. § 416.924(f). -3- C.F.R. § 416.924(b)(1994). 2The ALJ denied benefits at step four of this proc ess. He determined that Khilarney’s only severe impairme nt was mild asthma, and that her asthma, considered in combination with her othe r nonsevere impairments, neither met the Listings, nor was of comparable sev erity to an impairment which would disable an adult. The Appeals Council denied review, and Ms. Brown fi led suit in federal district court. The parties consented to adjudicat ion by a magistrate judge, who affirmed the agency’s decision. We have jurisdiction over this appeal pursuant to 4 2 U.S.C. § 405(g) and 28 U.S.C. § 1291. “We review the district court’s dec ision 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-4-

relevant evidence as a reasonable mind might acceptas 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 subst antive 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 consider ed disabled . . . if that individual has a medically determinab le physical or mental impairment, which results in marked and severe func tional limitations, and which can be expected to result indeath 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 fo llowing 42 U.S.C.A. § 1382c, states that the new standard for evaluatin g children’s disability claims applies to all cases which have not been finally ad judicated as of the effective date of the Act, August 22, 1996, including those c ases in which a request for judicial review is pending. Thus, we apply the newversion of the Act to this

case. The new version of the Act eliminates the fourth st ep in the analysis: determining whether the child has an impairment or impairments of comparable-5-

severity to that which would disable an adult. The Commissioner’s new regulations implementing the Act reflect this chang e by providing that if the child’s impairment or impairments do not meet, medi cally 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 Commission er’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 thre e steps are supported by substantial evidence. Ms. Brown mounts two challenges to the ALJ’s findin gs. She first argues that the ALJ failed to make specific findings, tiedto the medical evidence, about the credibility of her testimony concerning Khilarn ey’s impairments. In disability cases where the child is unable to adequately descr ibe her symptoms, the Commissioner accepts the testimony of a person mostfamiliar 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 credibil ity of the parent’s testimony, just as he would if the child were testifying for h erself. Cf. Williams ex rel. Williams v. Bowen , 859 F.2d 255, 260-61 (2d Cir. 1988) (reversing an d remanding for benefits where ALJ failed to make cre dibility findings concerning testimony of mother and daughter).-6-

In evaluating credibility, “[b]ased on a considerat ion of all of the evidence in the case record, the adjudicator may find all, o nly some, or none of an individual’s allegations to be credible.” S.S.R. 9 6-7p, 1996 WL 374186, at *4. Here, the ALJ accepted Ms. Brown’s testimony concerning Khilarney’s eye problems, her slurred speech, and the nervous probl ems 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 testimonyconcerning 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 o nce impairments have been medically established). Because there is no medica l evidence in the record to establish a mental or nervous impairment, the ALJ p roperly rejected Ms. Brown’s testimony. The ALJ also rejected Ms. Brown’s testimony concern ing the severity of Khilarney’s problems with asthma. She testified th at 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-7-

visited the hospital emergency department only seve n times over a two-year period; three of these seven visits were for pneumo nia and occurred within a fourday period. The ALJ accepted Ms. Brown’s assertion s 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 ma de satisfactory progress in spite of her absences. Moreover, Ms. Brown testifi ed at the hearing that Khilarney’s first grade attendance had improved: a s 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 t he medications for daily dosage, as indicated on the medication list discussed at th e hearing. This finding is supported by substantial evidence. In sum, the ALJ made proper credibility findings co ncerning Ms. Brown’s testimony at the hearing. He considered her testim ony concerning each of the impairments which she alleged, made permissible fin dings concerning the credibility of her testimony, and provided proper e videntiary support for each such finding. Ms. Brown also argues that the ALJ failed to consid er Khilarney’s impairments in combination. This argument lacks me rit. The ALJ specifically-8-

concluded, at step three of his decision, that Khil arney did not have an impairment, or combination of impairments, listed i n or equivalent to those contained in 20 C.F.R. § 404, Subpt. P, App. 1. Se e 20 C.F.R. § 416.924(d) (describing listing equivalence requirements for ch ildhood disability). Ms. Brown’s attack on the wording of the ALJ’s step-fou r finding fails, because as mentioned, step four findings are no longer a requi red part of the ALJ’s analysis. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.