IN THE UNITED STATES COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JUANITA LARACUENTE, on behalf of E :

:

v. :

:

JO ANNE B. BARNHART, Commissioner of the :

Social Security Administration :

CIVIL ACTION

NO. 04-CV-2278

MEMORANDUM AND ORDER

Kauffman, J. August 18 , 2005

Plaintiff Juanita Laracuente (“Plaintiff”) brings this action on behalf of her son “E”

seeking judicial review of the final decision of the Commissioner of Social Security

(“Commissioner”) denying E’s application for supplemental security income (“SSI”) under Title

XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381-1383(f). Plaintiff and the

Commissioner filed cross motions for summary judgment. The Court designated United States

Magistrate Judge Linda K. Caracappa to submit a Report and Recommendation. See 28 U.S.C. §

636(b)(1)(B); Local R. Civ. P. 72.1(d)(1)(C).

Magistrate Judge Caracappa has recommended that the Court grant the Commissioner’s

Motion for Summary Judgment and deny Plaintiff’s Motion. Because Plaintiff has objected to

the Magistrate Judge’s Report and Recommendation, the Court must “make a de novo

determination of those portions of the record or specified proposed findings or recommendations

to which objection is made.” 28 U.S.C. § 636(b)(1)(C). Having reviewed the Report and

Recommendation and Plaintiff’s objections thereto, the Court will approve and adopt the Report

and Recommendation.

I. Procedural History

E is a fifteen-year-old male born on May 24, 1990. (R. at 67). Plaintiff first applied for

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SSI on his behalf on October 8, 1998. The application was denied and Plaintiff did not seek

further review. (R. at 49-52). Plaintiff reapplied for SSI on October 25, 1999, alleging that he

suffered from attention deficit hyperactivity disorder (“ADHD”), a learning disability, and a

speech and language deficit. (R. at. 53). When the application was denied, Plaintiff requested a

hearing before an administrative law judge (“ALJ”). The hearing took place on March 22, 2001. 

In an opinion issued on April 26, 2001, the ALJ determined that E has “attention

deficit/hyperactivity disorder and a learning disability, which are severe impairments.” However,

the ALJ also found 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)) and that

accordingly, E was not eligible for benefits. (R. at 12-21). The Appeals Council denied

Plaintiff's request for review on July 13, 2001. (R. at 3-5). Plaintiff then appealed to this Court. 

On September 19, 2002, the District Court ruled that the ALJ’s decision should be vacated and

remanded to the ALJ for consideration of additional issues. See Laracuente v. Massanari, No.

01-4675 (E.D. Pa. Sept. 20, 2002) (Ludwig, J.). A second hearing was held on February 26,

2003 and the ALJ rendered his decision on March 24, 2003, once again finding that E was not

entitled to benefits. Plaintiff now appeals the ALJ’s determination to this Court.

II. Standard of Review

A. The Commissioner’s Decision

Judicial review of a Social Security case is based upon the pleadings and the transcript of

the record. 42 U.S.C. § 405(g). The scope of the Court’s review of the Commissioner’s decision

is limited to determining whether the Commissioner applied the correct legal standards and

whether the record, as a whole, contains substantial evidence to support the Commissioner’s

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findings of fact. Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Knepp v. Apfel, 204

F.3d 78, 83 (3d Cir. 2000); Jeserum v. Sec’y of the United States Dep’t of Health & Human

Servs., 48 F.3d 114, 117 (3d Cir. 1995).

“The Court is bound by the ALJ’s findings of fact if they are supported by substantial

evidence in the record.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). “Substantial

evidence ‘does not mean a large or considerable amount of evidence, but rather such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hartranft v.

Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565

(1988)); see also Plummer, 186 F.3d at 427 (noting that “substantial evidence” has been defined

as “more than a mere scintilla”). “The court cannot conduct de novo review of the

Commissioner’s decision or re-weigh the evidence of record.” Palmer v. Apfel, 995 F. Supp.

549, 552 (E.D. Pa. 1998).

B. The Magistrate Judge’s Report and Recommendation

The Court must review de novo those portions of the Magistrate Judge’s Report and

Recommendation to which Plaintiff has objected. See 28 U.S.C. § 636(b)(1)(C). The Court

“may accept, reject, or modify, in whole or in part, the findings and recommendations made by

the magistrate.” Id. In considering the Plaintiff’s objections to the Report and Recommendation,

the Court has independently reviewed the entire record, including the Report and

Recommendation, the ALJ’s decision, the transcript of the hearing, the hearing exhibits, and the

summary judgment briefs.

III. Social Security Law

Title XVI of the Act provides for the payment of disability benefits to indigent persons

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under the SSI program. 42 U.S.C. § 1382(a). A child is considered “disabled” and thereby

entitled to benefits under the Act if he or she “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.” Id. at § 1382c(a)(3)(C)(I). The

claimant carries the initial burden of proving disability. Plummer, 186 F.3d at 428.

Under the Social Security regulations, an application for child disability benefits is

evaluated according to a three-step sequential process. 20 C.F.R. § 416.924. This process

requires the presiding ALJ to review 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 (3) whether the child’s impairments, considered alone or in combination, meet or

equal any listing set forth in Part 404, Subpart P, Appendix 1.

IV. The ALJ’s Decision

Using the sequential evaluation process, the ALJ initially found that E had satisfied the

requirements of step one because he had never engaged in substantial gainful activity since

August 8, 2000. (R. at 327). At step two, the ALJ found that E suffers from 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 within the meaning of 20 C.F.R. § 416.924(c).” (R. at

327). Consequently, the ALJ progressed to step three of the analysis. There, he found that E’s

impairments “are not of such severity so as to medically meet or equal the severity of any

impairment as cataloged in Part B of Appendix 1 to Subpart P, 20 C.F.R. Part 404,” and that E

did not have “any impairment or combination of impairments, which is functionally equivalent in

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severity to the listings of Appendix 1.” Because E’s impairments did not satisfy the step three

requirements, the ALJ found that he was not disabled and consequently not entitled to benefits. 

(R. at 327).

V. Analysis

In her Report and Recommendation, Magistrate Judge Caracappa found that the ALJ’s

determination of whether Plaintiff’s impairments met or equaled the listings was supported by

substantial evidence. Plaintiff has objected to that finding. Accordingly, the question before the

Court is whether there is substantial evidence in the record to support the ALJ’s finding that E’s

impairments are not “functionally equivalent” to a listed impairment.

Under the Social Security regulations, the “functional equivalence” of a child’s

impairments depends on the degree to which the impairment interferes with the child’s ability to

function in each of six domains: “(i) acquiring and using information; (ii) attending and

completing tasks; (iii) interacting and relating with others; (iv) moving about and manipulating

objects; (v) caring for yourself; and (vi) health and physical well-being.” 20 C.F.R. §

416.926a(b)(1). For an applicant’s impairments to be considered “functionally equivalent,” he or

she must have either “marked” limitations in two domains or “extreme” limitations in one

domain. 20 C.F.R. § 416.926a(d). A “marked” limitation is defined as an impairment that

“interferes seriously with your ability to independently initiate, sustain, or complete activities.” 

20 C.F.R. § 416.926a(e)(2). An “extreme limitation,” in turn, is defined as an impairment that

“interferes very seriously with your ability to independently initiate, sustain, or complete

activities.” 20 C.F.R. § 416.926a(e)(3) (emphasis added).

After applying the test to E’s impairments, the ALJ found that E does not have an

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“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

yourself,” and “health and physical well-being.”

Plaintiff objects to the ALJ’s findings with respect to the domains of “attending and

completing tasks” and “caring for yourself.”

A. E’s limitation in attending and completing tasks

Plaintiff first challenges the ALJ’s finding that E’s limitation in the domain of “attending

and completing tasks” was “less than marked.” In his evaluation of E’s functioning in this

domain, the ALJ noted that “the claimant 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.” (R. at 325). The

ALJ nevertheless went on to conclude that the “concentration” and “attention” problems E has

experienced do not rise to the level of a “marked” limitation, citing (1) E’s Global Assessment of

Functioning (“GAF”) score of 55; (2) the improvement in E’s symptomatology when he complies

with his treatment regimens; and (3) reports from E’s teachers that he is able to keep up with his

class. (R. at 325).

The Court finds that the ALJ’s findings are supported by substantial evidence in the

record. In the domain of “attending and completing tasks,” the severity of a child’s limitation,

i.e., whether it is moderate, “marked” or “extreme,” depends on “how well the claimant is able to

focus and maintain attention, and how well the claimant begins, carries through, and finishes

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1 GAF measures the psychological, social, and occupational functioning levels of an

individual. See American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental

Disorders 32 (4th ed.1994).

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activities, including the pace at which the claimant performs the activities, and the ease with

which you change them.” 20 C.F.R. § 416.926a(h). The question, therefore is not whether E’s

impairments interfere with his ability to focus and maintain attention, but the degree of that

interference. A review of the evidence in the record suggests that the interference could

reasonably be characterized as “moderate” rather than “marked.” 

First, many of the experts who have evaluated E have determined that his impairments are

only moderate. Dr. J.J. Kowalski, for example, filled out a Childhood Disability Evaluation form

for E on March 16, 1999. He found that E showed “no evidence of limitation” in the areas of

motor, social, and personal functioning and that E’s limitation in cognitive/communicative

functioning was “less than marked.” (R. at 244-247). Dr. Jaime Loyola, a bilingual

psychologist, evaluated E on January 26, 1999. She found that E’s “high rate of retention and

acquisition indicate that he is making progress in the reading area,” and recommended that E

should be considered a “non-exceptional student.”

Second, as the ALJ noted, E scored a 55 on the GAF test.1 A GAF rating between 51 and

60 means “moderate difficulty in social, or school functioning[.]” See American Psychiatric

Ass'n, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.1994) (emphasis added). 

Third, the record suggests that E is able to perform at a satisfactory level in the classroom. 

In a Teacher/Counselor Questionnaire she filled out, Martha Jimenez, E’s 5th Grade teacher,

stated that E receives special education in math, speech therapy, and counseling at school and

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that he cannot easily remember a concept the first time it is explained to him. Nevertheless, she

represented that “he works at the class pace, except for some occasions when he complains [that

he is] frustrated because he doesn’t understand. But mostly he keeps the rest of the class pace.” 

Ms. Jimenez also completed a Child Functioning Questionnaire in January 2003, in which she

stated that “most of the time [E] finishes tasks without teacher intervention.” (R. at 355).

Plaintiff argues that the teacher’s reports, when properly understood, do not support the

ALJ’s conclusion that E’s limitations in attending and completing tasks is less than marked. E

was held back for two years, which means that the children with which he is keeping pace are

actually two years younger than he is. Thus, she argues, when considered in their proper context,

Ms. Jimenez’s reports actually weigh toward a finding of greater rather than lesser severity. 

Plaintiff’s Objections to the Magistrate’s Report and Recommendations (“Objections”) at 5- 7. 

The Court agrees that Ms. Jimenez’s comments need to be examined in light of the age

discrepancy between E and his classmates. But even in that light, her assessment still favors a

finding that E’s limitations are “less than marked.” That E struggles to keep pace with students

two years younger than he is leaves no doubt that his impairments interfere with his ability to

“attend and complete tasks.” But, as the Court noted above, the inquiry focuses not on whether

E’s impairments interfere, but the extent of the interference. A limitation that does not prevent E

from keeping pace with children two years his junior is not so severe that it must be characterized

as “marked.”

Moreover, there is ample evidence in the record that at least some of the difficulty E has

experienced in school is attributable to his lack of fluency in English. On January 11 and 21,

2000, Dr. Karen Dybner-Madero of the Children’s Crisis Treatment center administered an

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intelligence test. Though E scored particularly poorly on the verbal section of the test, Dr.

Dybner-Madero concluded that E’s verbal scores were actually much higher than the test

indicated. She explained that the low score was “due more to the fact that the verbal section

relies on strong English language and American cultural base.” (R. at 276-279). Thus, E’s lack

of progress in school is not due entirely to his impairments; his English language deficiency is

also to blame. E’s impairments may therefore be less severe than his school performance would

suggest. 

In sum, while the Court would not necessarily have reached the same conclusions as the

ALJ, a reasonable mind could accept E’s GAF score, the psychological evaluations, and Ms.

Jimenez’s reports, as “adequate to support the conclusion” that E has a “less than marked”

limitation in the domain of “attending and completing tasks.” Hartranft v. Apfel, 181 F.3d 358,

360 (3d Cir. 1999).

B. E’s limitation in “Caring for Yourself”

Plaintiff also challenges the ALJ’s finding that E does not have a functional limitation in

the domain of “caring for yourself.” 

In the domain of “caring for yourself,” a child’s limitation is measured by “how well you

maintain a healthy emotional and physical state, including how well you get your physical and

emotional wants and needs met in appropriate ways; how you cope with stress and changes in

your environment; and whether you take care of your own health, possessions and living area.” 

20 C.F.R. § 416.926a(k).

Plaintiff argues that the ALJ’s factual findings show that E has at least a marked

limitation in this domain. Specifically, she points to the ALJ’s findings that E “displays episodic

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2

 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.” The ALJ accordingly concluded

that “in this domain, the claimant has no limitation of functioning.” (R. at. 325-326). 

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

manifests “demanding, manipulative, destructive, negative and/or provocative behavioral

patterns.” (R. at 325-326). As further evidence of E’s limitations in this domain, Plaintiff points

to E’s referral to the emergency psychiatric unit in October 1998 after threatening suicide. (R. at

225-239). Plaintiff argues that the ALJ failed to even address any of this evidence in his analysis

of the “caring for yourself” domain and consequently that his conclusions cannot possibly be

supported by substantial evidence. Objections at 2-4.

Plaintiff is correct that the ALJ did not explicitly consider any of the evidence she has

referred to in his analysis of the “caring for yourself” domain.2 But that is not to say that he

ignored the evidence. To the contrary, he gave the evidence careful consideration in his analysis

of other domains. The ALJ considered E’s “highly impulsive and poorly regulated response

style” in his analysis of the “attending and completing tasks” domain, where, as discussed above,

the ALJ concluded that E’s difficulties did not rise to the level of a marked limitation. The ALJ

specifically addressed E’s “demanding, manipulative destructive, negative and/or provocative

behavioral patterns” in his analysis of the “interacting and relating with others” domain. There,

he noted that despite these troubling behavior patterns, E’s teachers had characterized him as

being “friendly, liked by peers and teachers,” “very respectful,” “very cooperative,” and “sweet

and caring.” (R. at 325). He therefore found that E’s limitations did not interfere with his

functioning to such an extent that they could be characterized as “marked.” 

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The Court finds that the ALJ was correct in analyzing the evidence on which Plaintiff

would base a finding of “marked limitation” in the domain of “caring for yourself” in the

domains of “attending and completing tasks” and “interacting and relating with others.” To the

extent that the evidence in question was probative of E’s limitations in caring for himself, the

substantial evidence on which the ALJ based his conclusions in the other domains controls. 

Accordingly, the Court finds that the ALJ’s finding that E has no limitation in the domain of

“caring for yourself” is supported by substantial evidence in the record.

VI. Conclusion

The ALJ’s decision to deny Plaintiff benefits is supported by substantial evidence in the

record, and Plaintiff’s objections to the Magistrate Judge’s Report and Recommendation are

overruled. Accordingly, Plaintiff’s Motion for Summary Judgment will be denied, and the

Commissioner’s Motion for Summary Judgment will be granted. An appropriate Order follows.

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IN THE UNITED STATES COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JUANITA LARACUENTE, on behalf of E :

:

v. :

:

JO ANNE B. BARNHART, Commissioner of the :

Social Security Administration :

CIVIL ACTION

NO. 04-CV-2278

ORDER

AND NOW, this 18th day of August, 2005, the Court having considered the parties’

Motions for Summary Judgment and reviewed the Report and Recommendation of United States

Magistrate Judge Linda K. Caracappa, Plaintiff’s Objections, and the entire record, including the

ALJ’s decision, the transcript of the hearing, and the hearing exhibits, it is ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED; 

2. Plaintiff’s Motion for Summary Judgment is DENIED; 

3. Defendant’s Motion for Summary Judgment is GRANTED;

4. Judgment is ENTERED in favor of Defendant; and

5. The Clerk of the Court shall mark this case CLOSED.

BY THE COURT:

__S/Bruce W. Kauffman____

BRUCE W. KAUFFMAN, J.

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