* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### December 5, 2005

Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

STARLA SMITH, on behalf of E.S.D, a minor child,

Plaintiff-Appellant,

v. JO ANNE B. BARNHART, Commissioner of the Social Security Administration,

Defendant-Appellee. No. 05-6006 (D.C. No. 04-CV-193-P) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , ANDERSON , and BRORBY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.-2-

On October 24, 2001, Plaintiff Starla Smith filed an application for Supplemental Security Income benefits (“SSI”) underTitle XVI of the Social Security Act on behalf of her minor daughter, E.S.D ., who was born in 1986. The application alleged disability on the basis of a le arning disability that limits E.S.D.’s daily activities by making her confused an d unable to communicate fully. Aplt. App. Vol. II, at 49. The claimed onset date is listed in the record as January 1, 1995, or September 12, 1997. Id. at 41, 49. The Social Security Administration denied the appli cation initially and on reconsideration. An administrative law judge (“ALJ”) held a hearing at which Smith testified but E.S.D. did not. In a written d ecision dated May 28, 2003, the ALJ determined that E.S.D. had borderline intellectual functioning that was severe but did not meet or medically or functionall y equal the criteria for any impairment listed in 20 C.F.R., Part 404, Subpart P , Appendix 1 (the “listings”). Therefore, the ALJ concluded that E.S.D. was not di sabled. The Appeals Council denied review, making the ALJ’s decision the Commissioner’s final decision. See 20 C.F.R. § 416.1481. The district court affirmed, and Smith appealed. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we REVERSE

. This court reviews “the Commissioner’s decision to determine whether the factual findings are supported by substantial evide nce in the record and whether the correct legal standards were applied.” Watkins v. Barnhart , 350 F.3d 1297,-3-

1299 (10th Cir. 2003). “Substantial evidence is such relevant evidence a s a reasonable mind might accept as adequate to supporta conclusion.” Hamlin v. Barnhart , 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation o mitted). “[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 th e record fairly detracts from its weight.’” Id. (quoting Washington v. Shalala , 37 F.3d 1437, 1439 (10th Cir. 1994). “We may neither reweigh the evidence nor su bstitute our discretion for that of the [Commissioner].” Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995). On appeal, Smith argues that the ALJ (1) made an in sufficient credibility determination concerning her testimony, (2) ignoredsignificant probative evidence, and (3) made a conclusory finding that E. S.D.’s learning disability did not meet a listed impairment. She also argues thatthe evidence the ALJ ignored shows that E.S.D. meets or functionally equals one of the listings; therefore, the ALJ’s contrary conclusion is not supported by subst antial evidence.

I. General Regulatory Background A child is considered disabled if she has “a medica lly determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expe cted to cause death or that has lasted or can be expected to last for a continuous period of not less than 12-4-

months.” 20 C.F.R. § 416.906. A child’s disability claim is evaluated in a three-step process. Briggs ex rel. Briggs v. Massanari , 248 F.3d 1235, 1237 (10th Cir. 2001). The parties do not dispute that E.S.D. is not working and has severe impairments, thus satisfying the first two s teps, see id. At step three of the process, the agency considers whether the child has an impairment that “meets, medically equals, or functionally equals the listin gs.” 20 C.F.R. § 416.924(a). If she does and the duration requirement is met, the a gency will find the child disabled. Id. The parties focus on one specific listing, § 112.05 (E) of 20 C.F.R., Part 404, Subpart P, Appendix 1, Part B (“listing 112.05 (E)” or “§ 112.05(E)”). To meet listing 112.05(E), a child between the ages of three and eighteen must have a “valid verbal, performance, or full scale IQ of 60 through 70.” § 112.05(E). In addition, the child must have a marked limitation o r difficulty in one of three functional areas described in another listing. See § 112.05(E)(2). Those areas are (i) social functioning, (ii) personal functioning, and (iii) concentration, persistence, or pace. 20 C.F.R., Part 404, Subpt. P, App. 1, Part B, § 112.02(B)(2)(b)-(d). In the context of the listi ngs, a limitation is “marked” if “several activities or functions are impaired, or e ven when only one is impaired, as long as the degree of limitation is such as to i nterfere seriously with the ability1 We note that medical equivalence is not at issue inthis case.

2 “Domains” are “broad areas of functioning intended to capture all of what a child can or cannot do.” 20 C.F.R. § 416.926a(b)(1 ). -5- to function (based upon age-appropriate expectation s) independently, appropriately, effectively, and on a sustained basi s.” Id., § 112.00(C). Functional equivalence 1 is determined by analyzing six domains: 2 “(i) Acquiring and using information; (ii) Attendin g and completing tasks; (iii) Interacting and relating with others; (iv) Mo ving about and manipulating objects; (v) Caring for yourself; and . . . (vi) He alth and physical well-being.” 20 C.F.R. § 416.926a(b)(1). If the child is extrem ely limited in one domain, or markedly limited in two domains, the impairment is functionally equivalent to the relevant listing, id. § 416.926a(a), and the child is disabled, id. § 416.924(a). As used in the functional equivalency determination, alimitation is marked if the “impairment(s) interferes seriously with [the] abil ity to independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(2)(i). A limitation is extreme if the “impairment(s) interferes very seriously with [the] ability to independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(3)(i). Day-to-day functioning may be seriously or very seriously limi ted when an impairment either “limits only one activity or when the interactive and cumulative effects of [the] impairment(s) limit several activities.” Id. §§ 416.926a(e)(2)(i), 416.926a(e)(3)(i).-6-

Here, the ALJ found that E.S.D.’s impairment did no t meet any listing. He also found that it was not functionally equal to any listing because she was markedly limited in only one domain, acquiring and using information, less than markedly limited in two other domains, attending to and completing tasks and interacting and relating to others, and not limitedin the other three domains. II. Credibility Finding The sole statement in the ALJ’s decision concerning credibility is set forth in the list of findings: “Subjective complaints ar e considered credible only to the extent that they are supported by the evidence of r ecord as summarized in the text of this decision.” Aplt. App. Vol. II, at 19. Smi th argues that this is a legally insufficient finding regarding the credibility of h er testimony about E.S.D.’s functioning, and correctly observes that the ALJ re ferred to her testimony only once, in relation to the fifth domain: “The claima nt’s mother testified at the hearing that the claimant could care for her person al needs when reminded to do
so.” Id. at 17. Her testimony, however, also includes stat ements that E.S.D. does poorly in school, completes assignments at a much s lower pace than a “normal person,” is unable to write a letter because she cannot focus that long, is unable to remember and carry out two assigned chores, is unab le to procure items on a list from a store because she forgets the list is in herpocket, cannot stay on task, does not participate in any sports or hobbies but likes to sit in her room and “just3 We note that, although it was the parent who was th e “person most familiar

with the child’s condition” in Briggs , this might not always be the case. -7- look,” has no friends, has disciplinary problems atschool, does not get along with her classmates, and never leaves the house by herself. Id. at 136-143. The Commissioner responds that the ALJ was not requ ired to make a credibility finding at all because Smith did not ra ise subjective complaints inconsistent with the record and the disability det ermination was not substantially based on the credibility of subjective complaints. She also argues that, because the testimony was consistent with the record, the A LJ took it into account, evidencing that he did not reject or discredit it. A threshold question, then, is whether or not the ALJ was required to make a credi bility finding.
In Briggs , we considered an ALJ’s statement that the testimo ny of the claimant and his mother was “unconvincing, not subs tantiated by objective medical findings, and credible only to the extent that claimant’s impairments have not produced marked and severe limitations.” Briggs , 248 F.3d at 1239 (quotation omitted). We held that, when a claimantis a child who cannot “adequately describe h[er] symptoms, the ALJ must a ccept the testimony of the person most familiar with the child’s condition. 2 0 C.F.R. § 416.928(a). In such a case, the ALJ must make specific findings concern ing the credibility of the parent’s testimony, 3 just as he would if the child were testifying.” Id. (alteration-8-

and footnote added). We concluded that the ALJ’s f inding was insufficient to meet his burden because it lacked explanation and asignificant portion of the record supported the testimony. Id. Contrary to the Commissioner’s position, we conclud e that the ALJ was required to make a credibility determination regard ing Smith’s testimony. Consistent with 20 C.F.R. § 416.928(a), the ALJ acc epted Smith’s testimony. Under Briggs , therefore, the ALJ was required to “make specific findings concerning the credibility of the parent’s testimony, just as he would if the child were testifying.” Id. Social Security Ruling (“SSR”) 96-7p provides gui delines for credibility assessments and “emphasizes” the fo llowing: When the existence of a medically determinable phys ical or mental impairment(s) that could reasonably be expected to produce the symptoms has been established, the intensity, persi stence, and functionally limiting effects of the symptoms must be evaluated to determine the extent to which the symptoms affect the individual’s ability to do basic work activities. This requires the adjudicator to make a finding about the credibility of the individ ual’s statements about the symptom(s) and its functional effects. SSR 96-7p, 1996 WL 374186, at *1. Here, E.S.D.’s e stablished borderline intellectual functioning and learning disability, w hich the ALJ found to be severe, could reasonably be expected to produce the limitat ions on her functioning that Smith described. Therefore, the ALJ was required t o consider the effect of those symptoms on E.S.D.’s functioning, which in turn req uired a credibility finding.-9-

Although we agree that subjective complaints were n ot at issue, we are not persuaded that a credibility determination was unne cessary. Credibility determinations concern statements about symptoms, w hich are “an individual’s own description of his or her physical or mental impairments.” Id. at *2 (citing 20 C.F.R. § 416.928(a)). Smith testified about herobservations of E.S.D.’s functioning, the central focus of the disability determination. Under Briggs , the ALJ was required to accept that testimony as if E.S .D. were supplying it. Whether Smith testified credibly is an inquiry thatmust be made in conjunction with determining the weight, if any, to accord to that testimony. Nor are we persuaded that a credibility determinati on is unnecessary when testimony is consistent with the record evidence. This was precisely the case in Briggs , where we stated that the ALJ was required to expl ain why he found testimony not credible because significant portions of the record supported it. Briggs , 248 F.3d at 1239. We also refuse to read an acce ptance of Smith’s testimony into the body of the ALJ’s decision basedon an alleged consistency between the record evidence and the testimony. Smi th’s statements concerning E.S.D.’s slowness or inability to complete tasks is contrary to the sole piece of evidence the ALJ relied on in support of his findin g that E.S.D. is less than markedly limited in the second domain, attending an d completing tasks. As discussed more fully below, this part of the testim ony is consistent with a 1997-10-

assessment that the ALJ did not address properly. Also, portions of Smith’s testimony related to the third domain, interacting and relating with others, evidence limitations that are not described in the same detail or reflected to the same degree elsewhere in the record. It is apparent that the ALJ did not accept Smith’s testimony in its entirety because he did no t resolve these inconsistencies. Having concluded that the ALJ was required to make a credibility determination regarding Smith’s testimony, we turn to the second part of our inquiry on this issue: whether the ALJ’s credibili ty determination was adequate. “Credibility determinations are peculiarly the prov ince of the finder of fact, and we will not upset such determinations when supporte d by substantial evidence.” Diaz v. Sec’y of Health & Human Servs. , 898 F.2d 774, 777 (10th Cir. 1990). However, a credibility determination “should be clo sely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.” Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted). Where “[a] significant portion of the record evidence supports the testimony, . . . the ALJ must explain why he has determined that the testimo ny is not credible. Standard boilerplate language will not suffice.” Briggs , 248 F.3d at 1239. See also SSR 96-7p, 1996 WL 374186, at *4 (stating that cred ibility determinations “must be grounded in the evidence and articulated in the determination or decision”).-11-

The ALJ’s finding, quoted above, is not “closely an d affirmatively linked to substantial evidence,” but is the type of “conclusi on in the guise of findings” that we have rejected. See Kepler , 68 F.3d at 391. Furthermore, it is evident that his finding is not related to Smith’s testimony at all because it pertains to the credibility of “subjective complaints.” As the Com missioner argues and we agree, Smith’s testimony did not concern subjective complaints. Instead, it concerned Smith’s observations of E.S.D.’s function ing. The purported credibility finding simply has no meaning as applie d to Smith’s testimony. Rather, it is the type of “standard boilerplate lan guage” that renders meaningful review impossible. See Briggs , 248 F.3d at 1239.

III. Ignoring Contradictory Evidence Smith next argues that the ALJ erred by ignoring si gnificant probative evidence that contradicted his findings. Although an ALJ need not consider every piece of evidence in the record, he must “discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996). Stated d ifferently, “[i]t is improper for the ALJ to pick and choose am ong . . . reports, using evidence favorable to his position while ignoring other evidence.” Hardman v. Barnhart , 362 F.3d 676, 681 (10th Cir. 2004). Nonetheless, “the need for express4 The Commissioner argues that there is evidence in the record that a

previous application for benefits was denied on February 8, 1999, see Aplt. App. Vol. II, at 68 (disability report indicating such d enial), and that whether or not E.S.D. was disabled prior to that date is barred byres judicata pursuant to 20 C.F.R. § 416.1457(c)(1). That regulation provid es that an ALJ may refuse to consider any issue on which the agency has made a p revious determination or decision about a claimant’s rights that has become final. We find it impossible to determine, based on the record, whether a previous application was denied and, if so, whether it was on any of the same issues. Ther efore, we see no res judicata bar to the use of records from 1997 in our analysis . Additionally, the ALJ relied on the 1997 report to support his findings and neve r referred to a prior application. Although an SSI applicant must show d isability during the pendency of the application, see 20 C.F.R. §§ 416.330, 416.335, evidence concerning the chronic nature of a mental impairment is a factor i n the evaluation of mental impairments, see id. § 416.920a(c)(1). -12- analysis is weakened” when an ALJ does not have to reject or weigh evidence unfavorably. Howard v. Barnhart , 379 F.3d 945, 947 (10th Cir. 2004). We agree with Smith as to most, but not all, of the disputed evidence, several pieces of which are related. The ALJ relie d on portions of a 1997 multidisciplinary evaluation to support his finding that E.S.D. is markedly limited in the first domain, acquiring and using informatio n, but overlooked other portions stating that E.S.D. worked “more slowly th an others in class,” had poor response for following directions, and had difficul ty staying on task and completing assignments. 4Aplt. App. Vol. II, at 126-27. The ALJ also fail ed to discuss portions of Smith’s testimony concerning E. S.D.’s inability to complete tasks. These observations are relevant to the seco nd domain, attending and completing tasks, as well as to the consideration o f E.S.D.’s concentration,-13-

persistence, or pace relevant to listing 112.05(E). Relying on a report prepared by Dr. Lynch, Ph. D., concerning the results of a 2002 IQ test, the ALJ stated that E.S.D. “retained letter-symbol combinations in imme diate recall and did not require back referencing, [and] she completed tasks well within the timeframe allowed.” Id. at 17. This was the only evidence the ALJ cited i n his discussion of the second domain. His failure to reject or wei gh unfavorably the contrary 1997 assessment and Smith’s testimony was a legal e rror. Smith also contends that the ALJ erred by relying o nly on the one portion of Dr. Lynch’s report discussed above because the r emainder of his report indicates great difficulty in completing tasks. We disagree. The ALJ discussed the remainder of Dr. Lynch’s report in some detail at the outset of his discussion of the evidence, see id. at 15. Nothing in that report indicates that E.S. D. has great difficulty completing tasks. Dr. Lynch’s opi nion that E.S.D. has “noticeable weaknesses in verbal skills,” id. at 129, appears relevant to the first domain, acquiring and using information, not the second, be cause it concerns E.S.D.’s verbal skills, not her attention and ability to complete tasks. This opinion is consistent with the other evidence of record relate d to the first domain, and we conclude that, other than the relationship of Dr. L ynch’s opinion to evidence the ALJ overlooked, the ALJ properly considered the opi nion.-14-

The third piece of evidence that Smith points to is a May 2002 individualized education program assessment, denote d as Exhibit 1F in the record. The ALJ referred to this assessment in support of h is determination that E.S.D. has marked limitations in the first domain, acquiri ng and using information: “Claimant has problems remembering and comprehendin g information (Exhibits 1F and 2F).” Id. at 17. We conclude that, to the extent Exhibit 1F is relev ant to the first domain, the ALJ properly considered it. However, informati on contained in this exhibit appears relevant to the third domain, interacting and relating to others, and the social functioning area relevant to listing 112.05( E). The extent of the ALJ’s third domain analysis reads: “Claimant has some co mmunication problems, and has received counseling on social skills to partici pate in community activities. School records show she is free to participate in e xtra-curricular activities (Exhibit 2F).” Id. The assessment indicates that E.S.D. has “numerou s behavior problems. . . . [S]he has a difficult time followi ng directions, she is often tardy to class . . . [and] seems to want to do as she please s irregardless of class rules and procedures.” Id. at 82. The ALJ did not reference this part of the assessme nt in his discussion of the third domain or listing 112.05(E), or in his pr eliminary recitation of the evidence. We find it to be significantly probative evidence that the ALJ was-15-

required to reject or weigh unfavorably. It is notmerely consistent with the other evidence the ALJ cited in his third domain analysis . Instead, the assessment provides information about E.S.D.’s ability to coop erate with others and comply with rules, which, as the ALJ recognized, are components of the third domain, id. at 17. Likewise, the ALJ overlooked portions of Sm ith’s testimony describing E.S.D.’s ability to interact with others that have significant probative value to the third domain analysis and listing 112.05(E)’s socia l functioning area. IV. Disability Findings Smith’s remaining arguments are related. She conte nds that, without any analysis, the ALJ determined E.S.D. did not meet li sting 112.05(E), and that the evidence he ignored, discussed in the preceding sec tion, shows that E.S.D. meets or functionally equals the listing. Therefore, she concludes, substantial evidence does not support his conclusion that E.S.D. is not disabled. In his decision, the ALJ discussed some of the evid ence and then stated: The claimant does not have an impairment that meets or medically equals the criteria of any of the listed impairment s of Appendix 1. The undersigned has considered the listings in gene ral and specifically listing 112.05. The claimant alleged a learning disability since January 1, 1995. Testing in January 2002 rev ealed a verbal IQ of 60, which indicates a verbal learning disabilitymay be present. Her full-scale performance is in the borderline ran ge (Exhibit 4F). There is no evidence to indicate the claimant has a n impairment of listing level severity. Aplt. App. Vol. II, at 16.-16-

It is evident that the ALJ concluded E.S.D.’s verba l IQ score of 60 met the first prong of listing 112.05(E), but failed to add ress the second prong, whether E.S.D. is markedly limited in one of the three func tional areas relevant to the listings: social functioning, personal functioning , or concentration, persistence,
or pace, see 20 C.F.R., Part 404, Subpt. P, App. 1, Part B, § 1 12.02(B)(2)(b)-(d). The last sentence of the foregoing quote does not f ulfill the ALJ’s requirement to “make a specific finding as to the degree of limitation in each of the functional areas” used to determine whether a mental impairment meets a listing, 20 C.F.R. § 416.920a(e), and is “a bare conclusion [that] is beyond meaningful judicial review,” Clifton , 79 F.3d at 1009. Furthermore, the discussion of the functional equivalence domains does not serve as a substitute for the requisite analysis of the three functional areas. As the Commissioner explai ned in publishing revised final rules for determining childhood disability claims, the “domains are specifically designed for determining functional equivalence andare completely delinked from the mental disorders and other listings .” 65 Fed. Reg. 54747, 54755 (Sept. 11, 2000) (emphasis added). In any event, the ALJ’s fu nctional equivalency findings themselves are flawed because, as discussed above, he did not address some of the significantly probative evidence properly. Based on the foregoing, we conclude that substantia l evidence does not support the ALJ’s determination because he failed t o address the second prong of-17-

listing 112.05(E), and he overlooked evidence that “fairly detracts” from the weight to be accorded to the evidence he relied on in making his functional equivalency findings, see Hamlin , 365 F.3d at 1214. However, we do not weigh the evidence ourselves to determine whether E.S.D.’ s impairment meets or functionally equals a listed impairment. That is f or the ALJ to determine on remand.
Conclusion The judgment of the district court is REVERSED , and the case is-18-

REMANDED to the district court with directions to remand th e case to the agency for further proceedings consistent with this Order and Judgment.

Entered for the Court
Stephen H. Anderson Circuit Judge