* This order and judgment is not binding precedent, e xcept under the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

### APR 7 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JASON MURRAY, By and through his next friend, LaVon Bohannon,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner, Social Security Administration,

Defendant-Appellee. No. 97-5043 (D.C. No. 95-CV-481-W) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , and BRISCOE , 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. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Claimant, Jason Murray, brought this action by and through his mother, LaVon Bohannon. He appeals the district court’s af firmance of the Commissioner’s denial of his application for supple mental security income benefits. The claim was denied initially and upon reconsideration. Claimant requested a hearing, and the Administrative Law Jud ge (ALJ) also denied benefits. The Appeals Council denied review, and t he ALJ’s denial of benefits became the Commissioner’s final decision. Claimantbrought an action in the United States District Court for the Northern Distr ict of Oklahoma, and the parties consented to having a magistrate judge cond uct the proceedings and enter judgment in the case. We affirm. We review the district court’s order de novo. See Brown v. Callahan , 120 F.3d 1133, 1135 (10th Cir. 1997). To that end, we must independently determine whether the Commissioner’s decision is both support ed by substantial evidence in the record and free of legal error. See id. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequ ate to support a conclusion.” Richardson v. Perales , 402 U.S. 389, 401 (1971) (quotation omitted).1 First, the ALJ determined that claimant was not eng aged in substantial

gainful activity. Because he was not, the ALJ wenton to the second step and determined that claimant did have a severe impairme nt. At step three, the ALJ decided that claimant’s impairment did not meet or equal an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1 (listings). Fi nally, the ALJ considered the individualized functional assessment (IFA) preparedby the medical expert and concluded that claimant’s impairment was of comparable severity to that which would prevent an adult from engaging in substantial gainful activity. See App. at 26. -3- The ALJ evaluated the benefits claim pursuant to a four-step process in effect at that time. See 42 U.S.C. § 1382(a)(3)(A) (1994), as implemented b y 20 C.F.R. § 416.924 (1994). 1 After the ALJ issued his decision, Congress changed the evaluation process for children’s disab ility claims and, because claimant’s request for judicial review was still pe nding, we apply the new law.
See Brown , 120 F.3d at 1135; notes following 42 U.S.C. § 138 2c. The revised statute eliminates the fourth step of t he prior analysis. Accordingly, the new regulation provides that if th e child’s impairment or impairments do not meet or equal a listing at the t hird step of the evaluation, the child is not disabled. See 20 C.F.R. § 416.924(d)(2) (1997). Consequently, w e will not review the ALJ’s findings or decision at s tep four of the evaluation, and the sole issue in this appeal is whether the ALJ’s finding that claimant did not meet or equal a listing is supported by substantial evidence. See Brown , 120 F.3d
at 1135.-4-

Claimant was born on May 10, 1985. He filed his ap plication for benefits on September 15, 1992. Claimant has been diagnosedwith attention deficit hyperactivity disorder (ADHD) and, at the time of the hearing, was taking 20 mg. of Ritalin three times a day. It is because of thi s affliction that he claims disability. The relevant listing identifies ADHD a s “manifested by developmentally inappropriate degrees of inattentio n, impulsiveness, and hyperactivity.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 112.11 To meet or equal § 112.11, claimant must satisfy both parts A and B. Part A requires medically documented findings of marked inattention, marked i mpulsiveness, and marked hyperactivity. See id. Part B requires that two of the criteria in § 112 .02B2 be
met: a. Marked impairment in age-appropriate cognitive/ communicative function, documented by medical findings (including consideration of historical and other information from parents orother individuals who have knowledge of the child, when such informat ion is needed and available) and including, if necessary, the res ults of appropriate standardized psych[o]logical tests, or for childrenunder age 6, by appropriate tests of language and communication; or b. Marked impairment in age-appropriate social fun ctioning, documented by history and medical findings (includi ng consideration of information from parents or other individuals wh o have knowledge of the child, when such information is needed and available) and including, if necessary, the results of appropriate standardized tests; or c. Marked impairment in age-appropriate personal f unctioning, documented by history and medical findings (includi ng consideration of information from parents or other individuals wh o have knowledge-5-

of the child, when such information is needed and available) and including, if necessary, appropriate standardized t ests; or d. Deficiencies of concentration, persistence, or pace resulting in frequent failure to complete tasks in a timely mann er. The ALJ made no specific finding regarding whether claimant satisfied part A of the listing, although there is evidence to support that claimant exhibited marked inattention, impulsiveness, and hyperactivity. Nev ertheless, even if we assume that, based on the medical expert, Dr. Kisher’s, te stimony, the ALJ found that claimant met the first part of the listing, the ALJ clearly detailed his findings relevant to the part B requirements and his conclus ion that claimant exhibited no marked limitations in any of those areas. Relevantto part B, however, the ALJ referred to the IFA completed by Dr. Kisher and spe cifically found that claimant had no limitation of communicative development; les s than moderate limitation in cognitive development; moderate limitation of socia l development; moderate limitation of personal/behavioral development; and less than moderate limitation of concentration, persistence, and pace. Because c laimant did not have marked limitations in even one of these areas, his impairm ent was not of the required level of severity to meet or equal the listing. Su bstantial evidence in the record, including the medical expert’s testimony, supports these findings. The district court accurately and thoroughly summar ized the record evidence, and we will not repeat those details here . Suffice it to say, the record2 We note the apparent facial inconsistencies in the medical expert’s

testimony, but it is clear from reading his testimo ny as a whole that he was of the indisputable opinion that claimant suffered from no more than moderate limitations in any of the IFA areas, which mirror the part B listing areas. -6- evidence bears out the medical expert’s insistent c onclusion 2 that claimant has no more than moderate limitations in any of the areas referenced in part B of § 112.11. The record shows that claimant’s mother thought of claimant as an active child and noted that he completed regular ho usehold chores, played with and helped his younger sister, and even when he burned his sister once, it was not maliciously. The medical evidence support’s claimant’s diagnosis of ADHD, but it also shows improvement in his behavioral problems with p roper medication. The testing and medical opinions also indicate average to above-average intelligence and performance. Similarly, claimant’s teachers an d other school evaluators noted instances of specific behavioral problems onl y when claimant did not take his medication. The record shows significant impro vement in claimant’s school behavior over time, average or above-average academ ic achievement, and behavior appropriate for school and in line with ag e expectations. Claimant was eventually main streamed for reading, art, music, P .E., recess, and lunch. The record contains substantial evidence supporting the ALJ’s conclusion that claimant’s limitations in the areas referenced in part B of § 112.11 are not-7-

marked. The ALJ’s decision at step three that clai mant’s impairment did not meet or equal the listings is supported by substantial e vidence, and claimant was, therefore, not disabled.
AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge