1In this Report and Recommendation, we will refer to Ms.

Laracuente as the “plaintiff” and her son as “E” as he is

identified in the caption. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JUANITA LARACUENTE, : CIVIL ACTION

o/b/o E, a minor, :

Plaintiff :

:

VS. :

:

JO ANNE B. BARNHART, :

Commissioner of :

Social Security, :

Defendant : NO. 04-2278

 REPORT AND RECOMMENDATION

LINDA K. CARACAPPA

UNITED STATES MAGISTRATE JUDGE

Juanita Laracuente, mother of “E”1, brought this action on his

behalf under 42 U.S.C. § 405(g), seeking judicial review of the

final decision of the Commissioner of Social Security

(Commissioner) denying plaintiff's claim for supplemental security

income (SSI) (children's benefits) under Title XVI of the Social

Security Act (Act). The parties have filed cross-motions for

summary judgment. For the reasons which follow, it is recommended

that summary judgment be granted in favor of the Commissioner. 

 BACKGROUND AND PROCEDURAL HISTORY

E is a fifteen-year-old male born on May 24, 1990 (Tr. 67).

Case 2:04-cv-02278-BWK Document 14 Filed 07/29/05 Page 1 of 24
2This matter was randomly selected by the Social Security

Administration to test modifications to the disability

determination process. See 20 C.F.R. § 416.1406 (b)(4)(2000). 

Accordingly, there was no reconsideration level of review.

2

Plaintiff applied for SSI on his behalf on October 8, 1998. This

application was denied upon initial review and plaintiff did not

seek further review (Tr. 49-52). She again applied for SSI on

October 25, 1999 alleging disability as of May 24, 1992 due to

attention deficit hyperactivity disorder (ADHD), a learning

disability, and a speech and language deficit (Tr. 53).

Plaintiff’s application was denied initially and a hearing

before an administrative law judge (ALJ) was requested.2 A hearing

was held on March 22, 2001, at which, E, represented by counsel,

testified with the aid of an interpreter along with his mother

(Tr. 28-46). In a decision rendered April 26, 2001, the ALJ

determined that E has “attention deficit/hyperactivity disorder and

a learning disability, which are severe impairments.” The ALJ,

however, further determined that E’s impairments do not equal or

functionally equal any of the listed impairments in Appendix 1,

Subpart P, Regulations No. 4 (20 C.F.R. § 416.924(d)). Thus, he

was found to be not eligible for benefits (Tr. 12-21).

The ALJ's findings became the final decision of the

Commissioner when the Appeals Council denied plaintiff's request

for review on July 13, 2001 (Tr. 3-5). Plaintiff then appealed to

this court. On September 19, 2002, the District Court ruled that

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3

the ALJ’s decision should be vacated and remanded to the ALJ for

consideration of additional issues. Another hearing was held on

February 26, 2003, at which, E, represented at an attorney,

testified along with his mother with the aid of a Spanish

interpreter. 

In a decision dated March 24, 2003, the ALJ determined that E

has a “medically determinable learning disorder, an attention

deficit hyperactivity disorder, an adjustment disorder with mixed

emotional features, a borderline intellectual functioning disorder,

and a speech and language deficit disorder” which are severe

impairments. The ALJ, however, again determined that such did not

meet or equal a listed impairment, and E was found to be not

entitled to benefits. Plaintiff appealed to the Appeals Council

who denied jurisdiction on April 7, 2004. Presently, plaintiff has

appealed that decision to this court. 

 JUDICIAL REVIEW

 The role of this court, on judicial review, is to determine

whether the Commissioner's decision is supported by substantial

evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389

(1971); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986); Newhouse

v. Heckler, 753 F.2d 283, 285 (3d Cir. 1985). Therefore, the issue

in this case is whether there is substantial evidence to support

the Commissioner's conclusion that the plaintiff is not disabled.

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4

Substantial evidence is relevant evidence viewed objectively

as adequate to support a decision. Richardson v. Perales, supra at

401; Kangas v. Bowen, 823 F.2d 775 (3d Cir. 1987); Dobrowolsky v.

Califano, 606 F.2d 403 (3d Cir. 1979). 

The provision of the Social Security Act concerning children's

benefits, as amended in August 1996, provides:

“An individual under the age of eighteen shall be 

considered disabled for the purposes of this subchapter if

that individual has a medically determined physical or mental

impairment which results in marked or severe functional

limitations, and which can be expected to last for a

continuous period of not less than 12 months.”

42 U.S.C. § 1382c(a)(3)(C)(I).

To determine whether a child is eligible for SSI, a three-step

sequential evaluation is followed. The Commissioner considers, in

sequence, whether the child: (1) is engaging in substantial gainful

activity; (2) has a medically determinable impairment or

combination of impairments that is severe; and, if so, (3) whether

the child's impairment(s) meets, medically equals, or functionally

equals in severity any of the listed impairments in 20 C.F.R. pt.

404, subpt. P, app. 1. 20 C.F.R. § 416.924(d).

In this case, the Commissioner followed the three-step

sequential evaluation process and found that E's impairment did not

medically equal, meet, or functionally equal in severity the

criteria for a listed impairment.

Case 2:04-cv-02278-BWK Document 14 Filed 07/29/05 Page 4 of 24
3Attention-Deficit/Hyperactivity Disorder- a childhood mental

disorder characterized by inattention (such as distractibility),

forgetfulness, not finishing tasks, and not appearing to listen),

by hyperactivity and impulsivity (such as fidgeting and

squirming, difficulty in remaining seated, excessive running or

climbing, feelings of restlessness, difficulty awaiting one’s

turn, interrupting others, and excessive talking) or by both

types of behavior.” Dorland’s Illustrated Medical Dictionary,

Twenty-ninth Edition, 2000, p. 528. 

5

 MEDICAL HISTORY

The relevant evidence in this case consists of medical reports

and testimony which are summarized as follows:

E had a psychiatric evaluation at the Wedge Medical Center on

February 15, 1998 at the age of seven. His intelligence was found

to be subnormal, mood anxious, insight poor, behavior agitated,

thought content unremarkable, perception normal, and memory poor.

His diagnosis was given as ADHD3 with mixed emotion features (Tr.

209-210). 

E was given a mental status exam at the Albert Einstein

Healthcare Network on October 20, 1998. His behavior was described

as being easily distracted, impulsive, and restless. His mood was

neutral, cognitive memory impaired and below average, and his

judgment impaired (Tr. 230-231, 236).

The record contains several visit notes from the Ambulatory

Pediatric Clinic. On October 20, 1998, it was reported that E’s

mother indicated that he was threatening to kill himself and was

setting things on fire. When evaluated, E denied wanting to hurt

himself or setting fires. He did state that he has auditory

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6

hallucinations where he hears a man’s voice telling him to kill

cats, but he has not acted on it (Tr. 199-201). 

On February 24, 1999, E, age 8 years, nine months, was given

a clinical and intellectual evaluation by Dr. Stephen Rosenfield at

the request of the Pennsylvania Bureau of Disability Determination.

E’s mother informed him that E takes Ritalin three times a day for

ADHD, but she had been too busy to give it to him prior to coming

to the evaluation. Dr. Rosenfield described E’s general activity

to be somewhat excessive and his attention span distractable. His

degree of cooperation was “fairly reasonable.” His mood “seemed

somewhat tense and nervous as well as perhaps depressed.” He also

exhibited a “full range of affect from depression to elevated

anxiety.” In the Leiter International Performance Scale, E earned

a mental age of 6 years and 3 months in comparison to his

chronological age of 8 years, 9 months. He had an IQ of 76 which

placed him at the borderline range of intellectual functioning.

Dr. Rosenfield added that E’s “overall concentration, persistence

and pace appear to be rather distractable especially when not using

his current medication regimen.” Diagnoses were given as Attention

Deficit Hyperactivity Disorder, adjustment disorder with mixed

emotional features, and borderline intellectual functioning (Tr.

240-243).

Dr. J.J. Kowalski filled out a Childhood Disability Evaluation

form on March 16, 1999. He indicated that E has ADHD, an

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7

adjustment disorder, and borderline intellectual functioning that

do not meet or equal the severity of a listed impairment. He

opined that E has “no evidence of a limitation” in the areas of

motor, social, and personal functioning, to have “less than marked”

limitation in cognitive/communicative functioning and

concentration, persistence and pace (Tr. 244-247).

Plaintiff was given a psychological evaluation on January 26,

1999 by a bilingual psychologist, Jaime Loyola, Ph.D., for the

School District of Philadelphia. Dr. Loyola found E’s overall

cognitive functioning to be “within the lower part of the average

range. Visual-motor coordination skills were within expected

level. In the math area, Elias was able to do simple addition and

subtraction with single digits. On the other hand, he displayed a

total lack of knowledge with addition and subtraction with two

digit numerals.” In the reading area, he was able to identify

letters by name or sound. “His rate of retention and acquisition

indicate that he is making progress in the reading area. Dr.

Loyola recommended that E be considered a “non-exceptional

student,” be taught at his instructional level, increase his

reading fluency by practicing at home, and be considered for

tutoring (Tr. 269-271).

On January 11 and 21, 2000, E was given a psychological

evaluation by Karen Dybner-Madero, Psy.D., of the Children’s Crisis

Treatment Center. Dr. Dybner-Madero noted that E had a history of

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8

hearing voices, but not presently, and was no longer taking

Ritalin. He was presently doing poorly in school. His skills are

not as developed as they should be and he is unable to complete his

work. His language abilities seem to be hindering his progress in

this area. Dr. Dybner-Madero added that E “struggled to work in a

concentrated manner, though he was able to complete most tasks as

required. While Elias seemed compliant in regard to directions,

there was a pervading sense of boredom and sadness in him and

restricted affect.” E also told Dr. Dybner-Madero that auditory

and visual hallucinations were no longer a problem (Tr. 273-274).

Intelligence tests were administered by Dr. Dybner-Madero and

E received a test composite score of 74 which indicated borderline

intelligence. His verbal reasoning was 69(borderline),

abstract/visual reasoning 94 (average), quantitative reasoning 86

(low average), and short-term memory 64 (deficient) (Tr. 276).

Dr. Dybner-Madero summarized that scores fluctuated from the

mentally deficient to the average range and there was a significant

discrepancy between his verbal and non-verbal abilities, “but this

seems due more to the fact that the verbal section relies on strong

English language and American cultural base. Therefore, it is

likely that Elias’s verbal abilities are actually stronger, given

that his verbal skills are not thought to be as poor as they appear

from this measure. On a measure of academic achievement, he

demonstrated significant weakness in the areas of spelling, reading

Case 2:04-cv-02278-BWK Document 14 Filed 07/29/05 Page 8 of 24
9

and arithmetic. While Elias may have a weakness with short-term

abilities, which appears to hinder his overall ability to take in

and process new information, he does not seem to be learning at the

expected rate for his estimated intellectual ability” (Tr. 279).

Dr. Dybner-Madero continued that E’s emotional functioning

appeared quite poor. “He is viewed as a sensitive boy who is

having significant trouble managing his feelings and impulses. He

is quite insecure about himself and has trouble expressing his

feelings, not to mention his thought and ideas. This leads him to

often act out his feelings . . . He appears to meet the criteria

for ADHD, though his parents view symptoms consisting in

difficulties with hyperactivity, while his teacher views his

trouble as more to do with inattention.” Dr. Dybner-Madero then

recommended that E receive special education classes, neurological

testing to better understand the nature of his short-term memory

deficits, and individual therapy to help him explore his underlying

sadness (Tr. 279-280).

On February 12, 2000, E was given a psychological disability

evaluation by Daniel Schwarz, Ph.D., at the request of the

Pennsylvania Bureau of Disability Determination. Dr. Schwarz noted

that E’s mother reported that he was no longer taking Ritalin as he

did not benefit from it and continued to see a therapist twice a

month at the Wedge Community Center. Plaintiff was currently

attending regular classes earning D’s and F’s in all subjects. His

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10

general activity level is seen as hyperactive and restless, and his

attention span poor with a high level of distract ability and

difficulty remaining on task. Dr. Schwarz found E to have some low

self esteem, but no other significant mood or affect problems. He

does not have “any clear perceptual disturbances. Personality

functioning is seen to be a nine-year old, sweet, Puerto Rican

male, who manifests only slightly regressed behavior.” He added

that [C]learly there are acculturation issues for this claimant and

his family. He has a need to improve his English skills and needs

parental support in order for this to happen. 

Dr. Schwarz concluded that E’s prognosis was “fair as long as

the claimant continues to attend his outpatient psychiatric and

psychological therapies.” He also recommended that E’s parents

pursue the IEP recommendations at school and learn English

themselves to create a positive role model for him to learn the

language (Tr. 281-283).

Martha Jimenez, a teacher at E’s school, the Potter Thomas

Bilingual School, completed a Teacher/Counselor Questionnaire on

December 1, 2002. She indicated that she had known E for four

years. She was previously his reading teacher and currently was

his 5th grade everyday teacher. She stated that E receives special

education in math, speech therapy, and counseling. He has a short

temper and talks too much, but cooperates with the teacher and

others, and “when he is in a good mood he’s very attentive.” He

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11

cannot easily remember a concept the first time and things must be

explained to him again. “He works at the class pace, except for

some occasions when he complains frustrated because he doesn’t

understand. But mostly he keeps up with the rest of the class

pace. He does complete assignments. He receives special reading

and math help, but works with the rest of the class in the other

subjects. In response to the question of whether E has become

disruptive in class or started to fail tests, Ms. Jimenez circled

“no,” and wrote that once or twice his temper acts up, but after

talking to his mother this stops. She wrote further that [H]is

behavior is an average behavior for his age (Tr. 333-337). 

In addition, Ms. Jimenez completed a Child Functioning

Questionnaire on January 28, 2003. She checked off that E “often”

has difficulties learning new material, remembering instructions,

and using appropriate vocabulary, “always” has difficulties

demonstrating problem-solving skills, and “sometimes” has

difficulties recalling previously learned material, demonstrating

short-term recall, understanding verbal instructions, following

verbal instructions, comprehending written instructions, following

instructions, counting or spelling, and learning in comparison to

same-age unimpaired children. She explained that E “need[s]

individual help most of the time, but he is very motivated to

learn. He receives help in reading and math by specialist

teachers” (Tr. 353).

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12

In the area of interacting and relating, Ms. Jimenez indicated

that plaintiff gets along with other children and authority

figures. He shares and takes turns, never displays unprovoked

hostility, and is never aggressive. She summarized that E “gets

along with his peers. He has a good approach to them. He was

aggressive on a rare occasion because he felt he was treated

unfair. This behavior does not occur often. He does his glasswork

and home work” (Tr. 354).

Regarding attending and completing tasks, Ms. Jimenez checked

off that E “often” is easily distracted and needs “supervision all

the time.” He only has difficulties “sometimes” waiting to take

turns, blurting out answers, following through on instructions,

carrying out simple instructions, becoming frustrated, keeping pace

with other children, completing tasks on time, and being without

supervision for short periods. She wrote that his “attention span

is short unless he is well motivated. Most of the time he finishes

the tasks without teacher intervention. But when it comes to

spelling, [and] math, he needs coaching and supervision (Tr. 355).

She also stated that E acts “like a normal boy. He plays and

follows instructions very well. Outdoor recess, he gets along with

peers. Participating in group activities interacting very good.

His problem is in comprehension, retention skills at school.” He

also has no difficulties with motor skills and coordination (Tr.

356-357). Ms. Jimenez further noted that E was not using any

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13

medications (Tr. 358). 

At the first administrative hearing before the ALJ, E's mother

testified that he lived in a house with his parents and three

siblings (Tr. 35). E was able to express himself to her, his

teachers, and his friends (Tr. 38). His daily activities included

attending school, doing his homework, playing basketball on a team,

and serving as an altar boy at church (Tr. 39-40). E testified

that he liked his teachers, has friends in school, and gets along

with his siblings (Tr. 43). He testified that, after school, he

did his homework and then went outside to play basketball (Tr. 43).

He rides a bike and watches television (Tr. 43-44).

 DISCUSSION

The Commissioner's findings must be affirmed if they are

supported by substantial evidence. 42 U.S.C. § 405(g); Richardson

v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971). The

role of this court is to determine whether there is substantial

evidence to support the Commissioner's decision. Williams v.

Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507

U.S. 924, 113 S. Ct. 1294 (1993).

In coming to a decision, it is the ALJ's responsibility to

resolve conflicts in the evidence and to determine credibility and

the relative weights to be given to the evidence. Richardson v.

Perales, supra; 659 F.3d 1071 (3d Cir. 1981).

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14

In this case, the ALJ found that E has a “medically

determinable learning disorder, an attention deficit hyperactivity

disorder, and adjustment disorder with mixed emotional features,

a borderline intellectual functioning disorder, and a speech and

language disorder, impairments which are severe,” but are not of a

severity to meet or equal a listed impairment. E was, thus,

determined to be not disabled under the Act (Tr. 327). For the

reasons which follow, this court finds that the ALJ's decision is

supported by substantial evidence and summary judgment should be

granted in favor of the Commissioner.

As mentioned in the procedural history above, this action was

previously before this court on appeal from a final decision of the

Commissioner on July 13, 2001. In a Report and Recommendation

dated August 26, 2002, we recommended that the matter be remanded

back to the Commissioner. Specifically, we found that the ALJ

failed to properly consider whether E suffered with an emotional or

mental impairment since the record contained some evidence

indicating that he may suffer with such a condition.

We further determined that the ALJ failed to consider evidence

concerning a speech impairment. We concluded that “it was

incumbent upon the ALJ to explicitly consider the evidence

suggesting a possible mental or emotional impairment; and that

substantial evidence does not support the ALJ’s determination that

Martinez does not have a medically determinable speech impairment.”

Case 2:04-cv-02278-BWK Document 14 Filed 07/29/05 Page 14 of 24
4The six domains are: 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

yourself; and 6) health and physical well-being. 20 C.F.R. §

416.926a(b)(1)(2004).

5

"Marked"-- “We will find that you have a ‘marked’ limitation in

a domain when your impairment(s) interferes seriously with your

ability to independently initiate, sustain, or complete

activities. Your day-to-day functioning may be seriously limited

when your impairment(s) limits only one activity or when the

interactive and cumulative effects of your impairment(s) limit

several activities. ‘Marked’ limitation also means a limitation

that is ‘more than moderate’ but ‘less than extreme.’ It is the

equivalent of the functioning we would expect to find on

standardized testing with scores that are at least two, but not

less than three, standard deviations below the mean. 20 C.F.R. §

15

We directed that [U]pon remand the ALJ should consider the above

evidence and determine whether Martinez’s impairments, either alone

or in combination, meet a listing, medically equal a listing, or a

functionally equivalent to a listing. Should the ALJ decide to

discount or reject this evidence, he must provide a sufficient

explanation with valid reason for rejection.” See Juanita

Laracuente o/b/o Elias Martinez, C.A. 01-4675, Report and

Recommendation, filed August 26, 2002 at 14-15. The Honorable

Edmund V. Ludwig, subsequently, adopted this Report and

Recommendation and it was remanded back to the Commissioner. 

In her present summary judgment motion, plaintiff claims that

the ALJ erred in failing to find that E’s impairments are

“functionally equivalent” to a listed impairment. Under the

regulations, this is measured under six domains.4 To be

“functionally equivalent,” E would have to have “marked”5

Case 2:04-cv-02278-BWK Document 14 Filed 07/29/05 Page 15 of 24
416.926a(e)(2)(i).

6See 20 C.F.R. § 416.926a (e)(2)(i)(2004).

16

limitations in at least two of these domains, or “extreme”

limitations in one domain6.

Here, the ALJ concluded that E does not have an “extreme”

functional limitation in any domain, has a “marked” limitation in

the domain of “acquiring and using information,” has “less than

marked” functional limitations in the domains of “attending and

completing tasks” and “interacting and relating with others,” and

has no functional limitations in the domains of “moving about and

manipulating objects,” “caring for one’s self,” and “health and

physical well-being.” Accordingly, since he determined that E did

not have an “extreme” limitation in at least one domain or a

“marked” limitation in at least two domains, the ALJ concluded that

E’s impairments are not functionally equivalent in severity to the

listings.

Plaintiff asserts that the ALJ failed to consider the

“cumulative and interactive effect” of all of E’s impairments as

required under 20 C.F.R. § 416.926a(c).

This section provides:

“When we evaluate your functioning and decide which

domains may be affected by your impairment(s), we will first

look at your activities and your limitations and restrictions.

Any given activity may involve the integrated use of many

abilities and skills; therefore, any single limitation may be

the result of the interactive and cumulative effects of one or

more impairments. Any given impairment may have effects in

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17

more than one domain; therefore, we will evaluate the

limitations from your impairment(s) in any affected

domain(s).” 

Specifically, plaintiff asserts that had the ALJ properly

considered the cumulative and interactive effects of all of E’s

impairments, the ALJ should have found that his impairments

interfere seriously with his functioning when compared with sameage, unimpaired children in several other domains, namely Attending

and Completing Tasks and Caring for Yourself.

We will first address the domain of Attending and Completing

Tasks. In his decision, the ALJ recognized that in determining the

severity of E’s limitations in this domain, “consideration is given

as to how well the claimant is able to focus and maintain

attention, and how well the claimant begins, carries through, and

finishes activities, including the pace at which the claimant

performs the activities, and the ease with which they are changed”

(Tr. 324). See 20 C.F.R. § 416.926a(h).

He then determined that E demonstrates more than minimal

functional limitations in that he “displays poor memory and limited

focus of attention, and exhibits difficulty in sustaining

attention, concentration, mental control, and working memory,

indicative of a highly impulsive and poorly regulated response

style” (Tr. 324-325). The ALJ, however, concluded that E “displays

no more than a moderate degree of symptoms or difficulty, as

indicated by GAF scores of 55; that the claimant’s symptomatology

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18

has improved when the claimant has been compliant with recommended

treatment regimens; and that the claimant has been described as

‘working at the class pace, except for some occasions’, and

‘regularly’ completing class assignments” (Tr. 325).

A review of the record indicates that E certainly has had

focus and attention problems in his young life. However, the

evidence does not establish that they are of a “marked” or

“extreme” severity. E was diagnosed in February 1998 at age 7 at

the Wedge Medical Center as having ADHD (Tr. 209-210). In October

1998, a mental exam at the Albert Einstein Healthcare Network

described his behavior as being easily distracted, impulsive, and

restless (Tr. 230-231). At age 8 years, nine months, in February

1999, Dr. Stephen Rosenfield stated that E’s “overall

concentration, persistence and pace appear to be rather

distractable especially when not using his current medication

regimen.” He diagnosed him with ADHD (Tr. 240-243). A year later

in January 2000, Dr. Karen Dybner-Madero gave E a psychological

evaluation and commented that he “struggled to work in a

concentrated manner, though he was able to complete most tasks as

required (Tr. 273-274).

The reports from E’s teachers in 2002 and 2003, however,

indicate that while he has had some attention and focus problems in

school, they do not cause him to have “marked” limitations in this

Case 2:04-cv-02278-BWK Document 14 Filed 07/29/05 Page 18 of 24
720 C.F.R. § 416.926a(e)(1)(i) states in part:

“When we decide whether you have a ‘marked’ or an

‘extreme’ limitation, we will consider your functional

limitations resulting from all your impairments, including

their interactive and cumulative effects. We will consider

all the relevant information in your case record that helps

us determine your functioning, including your signs,

symptoms, and laboratory findings, the descriptions we have

about your functioning from your parents teachers, and other

people who know you. . .”

19

domain.7 In December 2002, Martha Jimenez, a teacher at E’s

school, completed a teacher/counselor questionnaire. She noted

that she had been E’s reading teacher and was presently his

everyday 5th grade teacher. She stated that “[H]e works at class

pace, except for some occasions when he complains frustrated

because he doesn’t understand. But mostly he keeps up with the

rest of the class pace. He does complete assignments. He receives

special reading and math help, but works with the rest of the class

in the other subjects” (Tr. 333-337).

Ms. Jimenez also completed a Child Functioning Questionnaire

in January 2003. On the area of the form concerning attending and

completing tasks, she checked off that E is “often” easily

distracted, but he only “sometimes” has difficulties following

through on instructions, carrying out simple instructions, becoming

frustrated, keeping pace with other children, completing tasks on

time, and being without supervision for short periods. She

commented that “[M]ost of the time he finishes tasks without

Case 2:04-cv-02278-BWK Document 14 Filed 07/29/05 Page 19 of 24
20

teacher intervention” (Tr. 355).

Plaintiff next asserts that E has marked limitations in the

domain of caring for yourself. In this domain, the ALJ is required

to consider how well the child maintains a healthy emotional and

physical state, including how well he/she gets physical and

emotional wants and needs, how a child copes with stress and

changes in his/her environment, and whether he/she takes care of

his/her own health, possessions, and living area. 20 C.F.R. §

416.926a(k)(1).

In his decision, the ALJ stated that plaintiff did not “allege

the existence of any significant limitations in this area of

functioning, nor have any medical or educational sources indicated

or suggested the existence of any such limitations” (Tr. 325-326).

Plaintiff, however, argues in her summary judgment motion that the

ALJ’s finding of no limitations in this domain is contrary to other

findings that he made in his decision, and are contrary to some

other evidence in the record. Plaintiff notes that in the ALJ’s

evaluation of the evidence, he wrote that E “displays episodic

anger, temper tantrums,” exhibits “a highly impulsive and poorly

regulated response style,” and manifests “demanding, manipulative,

destructive, negative and/or provocative behavioral patterns” (Tr.

325-326). Plaintiff also asserts that E was referred to the

emergency psychiatric unit in October 1998 after threatening

suicide at age 8 (Tr. 225-239). 

Case 2:04-cv-02278-BWK Document 14 Filed 07/29/05 Page 20 of 24
21

However, like the previous discussed domain, while the record

contains some evidence of problems in this domain in E’s younger

years, the evidence does not establish that such caused E

limitations at the time of the ALJ’s decision, and the evidence

clearly does not establish limitations that are of a marked or

extreme severity.

In a January 2000 psychological evaluation, Dr. Dybner-Madero

stated that E’s emotional functioning appeared quite poor. He was

having “significant trouble managing his feelings and impulses. He

is quite insecure about himself and has trouble expressing his

feelings, not to mention his thoughts and ideas. This leads him to

often act out his feelings” (Tr. 279-280). However, in February

2000, Dr. Daniel Schwarz gave E a psychological disability

evaluation and found him to have some low self esteem, but no other

significant mood or affect problems. He further found E to have no

clear perceptual disturbances and described him as a “nine years

old, sweet, Puerto Rican male, who manifest only slightly regressed

behavior” (Tr. 281-283).

In addition, Ms. Jimenez wrote in her December 2002

Teacher/Counselor Questionnaire that E’s “behavior is an average

behavior for his age” (Tr. 336). Moreover, in the Child

Functioning Questionnaire that she completed in January 2003, Ms.

Jimenez wrote that E gets along with other children and authority

figures. He shares, takes turns, and never displays unprovoked

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hostility. She added that E “gets along with his peers. He has a

good approach to them. He was aggressive on one occasion because

he felt he was treated unfair” (Tr. 354). She also opined that

plaintiff acts “like a normal boy. He plays and follows

instructions very well. Outdoor recess, he gets along well with

peers. Participating in group activities interacting very good”

(Tr. 358). 

Regarding the other domains of interacting and relating to

others, moving about and manipulating objects, and health and

physical well-being, the evidence supports the ALJ’s decision that

E has either minimal limitations or no limitation of functioning.

Moreover, plaintiff does not challenge these findings in her

summary judgment motion.

Likewise, plaintiff does not challenge in her motion that the

ALJ failed on remand to do what he was instructed to do in our

previous Report and Recommendation. As noted earlier, in such, we

found that the ALJ failed to properly consider whether E suffered

with a mental impairment and that he failed to consider evidence of

a speech impairment. Upon remand, the ALJ was required to consider

such in addition to whether E’s impairments meet, equal, or are

functionally equivalent to a listing.

Although plaintiff does not argue that the ALJ failed to

consider evidence of a speech impairment and an emotional

impairment upon remand, we will briefly address these issues. A

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review of the ALJ’s decision indicates that he properly considered

both upon remand. He specifically, considered listings for Organic

Mental Disorders (§112.02), Affective Disorders (§112.04), Mental

Retardation Disorder (§112.05), Autistic/Development Disorders

(§112.10), and Attention Deficit Hyperactivity Disorder (§112.11).

He found that although E has some symptoms of these listings, the

evidence does not establish a severity to meet one or more of these

listings. 

The ALJ also considered evidence of a speech impairment. He

specifically considered whether E had a speech impairment which met

or equaled listing 2.09. He went on to list a number of reasons

why the evidence did not establish that E has a speech impairment

that meets the listing. He correctly noted that plaintiff

testified at the first administrative hearing that E is able to

express himself to her, his teachers, and his friends. His

teachers have reported no significant difficulties with a speech

problem, and that part of E’s speech problem with the English

language was the fact that he was an immigrant from Puerto Rico

(Tr. 319-320). Accordingly, the ALJ considered all issues on

remand that were required. 

In conclusion, the ALJ considered and analyzed all the

relevant medical evidence, and indicated both the evidence relied

upon and his rationale in making his determination. Cotter v.

Harris, 650 F.2d 481 (3d Cir. 1981). Accordingly, the

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Commissioner's motion for summary judgment should be granted.

Therefore, the court makes the following:

RECOMMENDATION

AND NOW, this day of , 2005,

IT IS RESPECTFULLY RECOMMENDED that Plaintiff’s Motion for Summary

Judgment be DENIED and the Commissioner’s Motion for Summary

Judgment be GRANTED.

 ______________________________

 LINDA K. CARACAPPA

 UNITED STATES MAGISTRATE JUDGE

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