IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

SHONTALE L. HOLSTON )

O/B/O BJH, )

 )

) Civil Action No. 2:06-CV-635-TFM

Plaintiff, )

)

v. )

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Shontale L. Holston (“Holston”) applied for supplemental security income under Title XVI,

42 U.S.C. §§ 1381 et seq., on behalf of her minor son, B.J.H. (“BJH”), who is now 8 years old.

After the administrative denial of his application, BJH petitioned for and received a requested

hearing before an administrative law judge (“ALJ”). On January 28, 2005, the ALJ ruled against

BJH. Specifically, the ALJ held that BJH was not under a “disability” as defined in the Social

Security Act at any relevant time in issue. (R15-23). Further, the ALJ found the impairments of

BJH did not amount to “marked and severe “functional limitations. (R12-23). On May 19, 2006,

the Appeals Council rejected review, thus, the ALJ’s decision became the final decision of the

Commissioner of Social Security (“Commissioner”). (R4-6). Judicial review proceeds pursuant to

42 U.S.C. § 405(g) and 28 U.S.C. § 636 (c). 

After careful scrutiny of the record and briefs, the court AFFIRMS THE

COMMISSIONER’S DECISION.

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I. STANDARD OF REVIEW

Judicial review of the Commissioner’s decision to deny benefits is limited. The court

cannot conduct a de novo review or substitute its own judgment for that of the Commissioner.

Walden v. Schweiker, 672 F.2d 835 (11 Cir. 1982). The Commissioner’s decision must stand th

conclusive “if it is supported by substantial evidence and the correct legal standards were applied.”

Kelley v. Apfel, 185 F. 3d 1211, 1213 (11 Cir. 1999), citing Graham v. Apfel, 129 F. 3d 1420, 1422 th

(11 Cir. 1997). th

Substantial evidence is less than a preponderance; instead, it is considered such relevant

evidence as a reasonable person would accept as adequate to support a conclusion. Crawford v.

Commissioner of Soc. Sec., 363 F.3d 1155, 1158-59 (11 Cir. 2004); Falge v. Apfel, 150 F.3d 1320, th

1323 (11 Cir. 1998). As substantial evidence is “more than a scintilla,” Hale v. Bowen, 831 F.2d th

1007, 1011 (11 Cir. 1987), it “must do more than merely create a suspicion of the existence of the th

fact to be established.” McRoberts v. Bowen, 841 F.2d 1077, 1080 (11 Cir. 1988). The court must

th

examine the evidence as a whole, taking into account evidence favorable as well as unfavorable to

the decision. Foote v. Chater, 67 F.3d 1553, 1560 (11 Cir. 1995). th

The district court will reverse a Commissioner’s decision on plenary review if the decision

applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning

to determine the Commissioner properly applied the law. Keeton v. Department of Health and

Human Services, 21 F.3d 1064, 1066 (11th Cir. 1994). 

II. ADMINISTRATIVE FINDINGS

BJH was age 7 during the January 28, 2005 hearing wherein the ALJ ruled against BJH. 

Holston alleges BJH suffers from seizures which render BJH disabled within the meaning of the

Case 2:06-cv-00635-TFM Document 17 Filed 01/16/07 Page 2 of 9
R. 16-23. The ALJ’s disability analysis followed the three-step sequential evaluation process

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applicable for childhood disability cases set forth in 20 C.F.R. §§ 404.1382c and 416.924 and

summarized in Shinn v. Commissioner of Social Security, 391 F. 3d 1276, 1278-79 (11 Cir. 2004): th

The process begins with the ALJ determining whether the child is ‘doing substantial

gainful activity’ in which case she is considered ‘not disabled’ and is ineligible for

benefits. 20 C.F.R. §416.924(a),(b). The next step is for the ALJ to consider the

child’s ‘physical and mental impairments’ to determine if she has an ‘impairment or

combination of impairments that is severe’. Id. §§416.924(a)(c)...For an applicant

with a severe impairment, the ALJ next addresses whether the impairment ‘causes

marked and severe functional limitations’ for the child. 20 C.F.R. §§416.924(b),

416.924(d). Limitations arising from pain count in this determination. Id.

§416.924(a)...A child’s impairment is recognized as causing ‘marked and severe

functional limitations’ if those limitations ‘meet[], medically equal[], or functionally

equal[] the Listings.’ Id. §416.911(b)(1); see also §§416.902, 416.924(a)...Assuming

that the limitations stemming from a child’s severe impairment meet, medically

equal, or functionally equal the limitations specified in the Listings, the ALJ

concludes by ensuring that the impairment ‘meets the duration requirement’

specified in the federal regulations. Id. §416.924(a). This ‘duration requirement’ is

that the impairment must ‘be expected to cause death or...has lasted or can be

expected to last for a continuous period of not less than 12 months.’ 20 C.F.R.

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Social Security Act. BJH has not engaged in substantial gainful work since January 1, 2000, the

alleged onset date of disability. (R 16). At the time of the hearing, BJH was repeating the first grade

due to reading delays. (R110, 179). Consequently, BJH attended special education in a resource

room for speech and language impairment (R71-95 ,105-126). The ALJ found the subjective

allegations of the mother were “not fully credible” (R. 22). The ALJ found the alleged

impairments– seizure disorder and speech impairment– to be “medically determinable severe

impairments”. (R 16). More importantly, the ALJ determined that BJH suffered no “impairment

or combination of impairments which meet or medically or functionally equals in severity one set

forth in the Listing of Impairments” and thus found BJH’s impairments did not result in “marked

and severe” functional limitations. Accordingly, the ALJ found BJH was not disabled within the

meaning of the Social Security Act.1

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§416.906; see also id. §416.909.

Brief and Argument of Plaintiff at 5 and 7 (“Pl.’s Br.”)(Doc. 13, filed November 28, 2006). 2

4

III. ISSUES

Holston presents two issues for judicial review:2

1. whether the ALJ erred in applying the regulation on medical and functional

equivalence for children found at 20 CFR §416.926 and §416.926a. 

2. whether the ALJ made proper credibility findings.

IV. DISCUSSION

On appeal, BJH challenges the ALJ’s functional equivalency assessment that BJH does not

have marked or extreme limitations in the domains of acquiring and using information, attending

and completing tasks, and physical well being. 

The parties do not dispute the applicable law. To functionally equal the Listings, a severe

impairment or a combination of impairments must result in “marked” limitations in two of the

following domains of functioning or an “extreme” limitation in one of the following 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 oneself; and (6) health and

physical well-being. 20 C.F.R. §416.926a(a); 20 C.F.R. §416.926a(b)(1). A “marked” limitation

occurs when the impairment(s) interferes seriously with the ability to independently initiate, sustain,

or complete activities while an “extreme” limitation occurs when the impairment(s) interferes very

seriously with the ability to independently initiate, sustain, or complete activities. 20 C.F.R.

Case 2:06-cv-00635-TFM Document 17 Filed 01/16/07 Page 4 of 9
 A “marked” limitation also means a limitation that is “more than moderate” but “less than

3

extreme.” An “extreme” limitation also means a limitation that is “more than marked.” 20 C.F.R.

§416.926a(e).

5

§416.926a(e). 

3

Holston contends that BJH demonstrated “marked limitations in the domain of acquiring and

using information because BJH had to repeat first grade. The Commissioner responds that the ALJ’s

decision clearly demonstrates the ALJ properly considered all evidence of record and his findings

are supported by substantial evidence. The court agrees. 

In the domain of acquiring and using information, BJH cites his retention in first grade and

his attendance of special education classes for speech and language. The record shows the grounds

cited by BJH are not sufficient, alone or in combination, to rise to the level of a marked limitation.

BJH attends special education classes less than six hours per week. (R. 113) Further, BJH repeated

first grade due to reading delays. (R. 110). The Star diagnostic report shows BJH is only slightly

behind his peer groups in reading but is an emergent reader.(R. 115). Notably, BJH earned no less

than a B or S in any academic subject. (R. 116).

With respect to the domain of attending and completing tasks, BJH relies upon the medical

records submitted by Dr. Sanchez and Dr. Alexander which document that BJH suffers from petit

mal seizures. BJH alleges the seizures affect the ability to concentrate thus rendering him unable

to attend to and complete tasks. The Commissioner agrees BJH has seizure disorder but the disorder

does not affect the ability of BJH to attend and complete tasks to the degree alleged by BJH. The

Court agrees with the ALJ.

In fact, the court finds that the most credible and telling evidence before the ALJ was the

Teacher Questionnaire. (R. 96). BJH is described in the Teacher Questionnaire as not significantly

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different from other students (R. 97). BJH is further described as being able to satisfactorily attend

and complete tasks on time at his grade level. (R.96, 99). Holston answered “no” to the question

which asked whether BJH had limited ability to pay attention and stick with a task. (R. 54). 

 Finally, BJH argues the ALJ wrongly found less than marked limitations in the domain of

health and well being because a medical expert is necessary to determine medical equivalence. (Pl.

Br. p.7). This contention is simply wrong as a matter of law and fact. Expert medical testimony

is one means to determine medical equivalence but the ALJ may consider all evidence in the case

record to determine medical equivalence. 20 CFR § 416.926(c). Further, Percy Sullivan, M.D.,

authored a medical review consistent with the ALJ findings. (R. 145). 

The medical evidence of record reveals BJH had his first, afebrile seizure when he was 8

months old, but the physician did not prescribe anti-convulsant medication or perform a work up.(R.

155). BJH suffered his second seizure almost 5 years later.(R. 155). No work up or medications

were prescribed for BJH after the second seizure.(R. 155). Holston, the mother of BJH, reported that

BJH has staring episodes where BJH appears to be looking up blankly accompanied by slight

shaking of one hand. During the staring episodes it appears BJH has alteration of consciousness.

(R. 155). Each episode is brief, lasting less than 10 minutes, and occurs once every one to two

months. (R 155). Holston discontinued seizure medications because of the side effects on BJH. (R

151). Holston had no follow up medical appointments until September 30, 2004.(R. 171). The

foregoing findings do not alone or in combination overcome the hurdle for BJH to receive benefits.

The parties implicitly and explicitly agree BJH has a seizure disorder but the rest of the

record establishes BJH missed only 5 days during 170 school days.(R. 108). Four of the five

absences were excused absences but assuming all 5 absences were related to seizure disorder, BJH

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cannot show that his seizure disorder is frequent or intense enough to establish marked limitations

in the domain of health and well being. 20 CFR § 416.926(a). Holston admits in the medical

records and other documents in the record before the ALJ, the effects of the seizures upon BJH are

very brief. (R. 183, 185-186 ) . As described by Holston, the seizures and side effects are not

frequent enough or of sufficient duration to establish marked limitations in the health and well being

domain. 20 CFR § 416.926a (e)(2)(iv). 

Finally, BJH argues the ALJ did not make proper credibility findings to discount Holston’s

subjective allegations. The credibility findings are moot and do not merit detailed analysis because

the ALJ had substantial evidence to support his findings. Even if the credibility findings were not

moot, the ALJ conducted enough fact finding to allow meaningful review. Foote v. Chater, 67 F.

Ed 15533, (11 Cir. 1995). Chater stands for the proposition that if proof of disability is based on th

subjective evidence and a credibility determination is, therefore, critical to the decision, the ALJ

must either explicitly discredit such testimony or the implication must be so clear as to amount to

a specific finding. The ALJ found the claimant’s subjective allegations were not fully credible. (R.

22). Implicit in the holding is the finding Holston’s allegations regarding BJH were not fully

credible as well. Holston completed the application plus documents related to the application and

testified at the hearing. (R. 46-55, 178-193). To the extent Holston gave testimony and reports

related to BJH’s limitations in the two disputed domains, such evidence does not dictate a finding

that BJH had a marked limitation in either of the disputed domains. 

In an SSI case where the child is unable to adequately describe his symptoms, the ALJ must

make specific findings concerning credibility of a parent’s testimony, just as he would if the child

testified. 20 C.F.R. §416.928(a)(2006). The ALJ found Holston’s allegations not credible. (R. 22).

Case 2:06-cv-00635-TFM Document 17 Filed 01/16/07 Page 7 of 9
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Holston testified she was told to gradually take BJH off his medication because of side effects. (R.

21, 181-182). The medical records indicate Holston was noncompliant with the treatment regime

and took BJH off the medication by her own initiative. (R21-161). Noncompliance with the medical

treatment regime is a factor the ALJ may consider in discrediting a claimaint’s testimony. Ellison

v. Barnhart, 355 F. 3d 1272, 1275 (11 Cir. 2003). Further, testimony by a claimant at the hearing th

inconsistent with statements made by the claimant in the written records is another factor the ALJ

may consider in drawing credibility findings adverse to the claimant. see McCray v. Massanari, 175

F. Supp. 2d 1329, 1338 (M.D. Ala 2001). The ALJ may also consider the lack of or substantial gaps

in seeking medical treatment to draw credibility findings adverse to the claimant. Moad v.

Massanari, 260 F. 3d 887, 890 (8 Cir. 2001). th

In the disputed domains, BJH merely attempts to weigh anew the evidence and draw his own

conclusions. While BJH may disagree with the manner in which the ALJ took account of the

evidence, the court cannot reweigh the evidence. Sewell v. Bowen, 792 F. 2d 1065, 1067 (11 Cir. th

1986). Nor can the court decide the facts anew or substitute its judgment for that of the ALJ. See

Phillips v. Barnhart, 357 F. 3d 1232, 1240 n. 8 (11 Cir. 2004). Although this court may have th

reached a contrary result as the finder of fact, it must affirm the decision if it is supported by

substantial evidence. Edwards v. Sullivan, 937 F. 2d 580, 584 n. 3 (11 Cir. 1991). Consequently, th

substantial evidence supports the ALJ’s decision and remand or reversal is not warranted.

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V. CONCLUSION

For the reasons set forth supra, the decision of the Commissioner is AFFIRMED.

Done this 16th day of January, 2007.

/s/ Terry F. Moorer

TERRY F. MOORER

UNITED STATES MAGISTRATE JUDGE

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