1The claimant in this case is a minor whose mother filed an

application on her behalf. The claimant is represented by

counsel. The Commissioner refers to the claimant by her

initials, “G.P.,” although the claimant’s counsel uses her full

name. While counsel spells the claimant’s first name as

“Gillian,” the administrative record indicates that her name is

actually “Gillan.” Therefore, the court will use the claimant’s

name, Gillan Peabody.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Gillan Peabody1

v. Civil No. 08-cv-371-JD

Opinion No. 2009 DNH 058

Michael J. Astrue, Commissioner,

Social Security Administration

O R D E R

Gillan Peabody seeks review, pursuant to 42 U.S.C. § 405(g),

of the Commissioner’s decision denying her application for

supplemental security income. Peabody contends that the

Administrative Law Judge (“ALJ”) erred in concluding that she did

not meet a listed impairment, which resulted in a denial of her

application. The Commissioner moves to affirm the decision.

Background

Gillan Peabody was born in September of 1996. She

maintained an average weight during her first six months. From

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2

six months to nine months, however, Gillan did not grow, and she

dropped to the 10th percentile for weight and the 10th to 25th

percentile for height. She resumed a normal growth pattern after

nine months. During the first year, she had some reflux

symptoms, was not very interested in food, but was otherwise

normal.

In April of 1998, when she was a year and a half, Gillan was

seen by Dr. Ellen Elias at Children’s Hospital in Boston. Her

height was in the 25th percentile, and her weight was in the 25th

to 50th percentile. Dr. Elias found that Gillan had Sprengel’s

deformity (abnormally high shoulder blade) with some scoliosis

and chest wall asymmetry and that she appeared to have an

immunological deficiency and mild symptoms of gastroesophageal

reflux. Gillan was doing well developmentally. Dr. Elias noted

that Gillan would be tested for chromosome 22 abnormality.

Dr. Elias saw Gillan again in July of 1999. Her height

remained in the 10th percentile, and her weight remained in the

25th to 50th percentile. Her head circumference was in the 75th

percentile. Dr. Elias noted that she was growing along her usual

curve. Gillan continued to show Sprengel’s deformity and mild

asymmetry of the chest wall. She continued to do well

developmentally. Gillan was diagnosed with Klippel-Geil syndrome

(fusion of the cervical vertebrae) and mosaic Turner’s syndrome

Case 1:08-cv-00371-JD Document 11 Filed 04/23/09 Page 2 of 10
3

(absence of one X-chromosome in some cells). Dr. Elias noted

that Gillan would have surgery to correct Sprengel’s deformity.

In June of 2000, Dr. Elias noted that Gillan’s height was in

the 10th to 25th percentile; her weight was in the 50th

percentile, and her head size was at the 98th percentile. 

Developmentally, Gillan was making “nice progress” and would be

starting preschool in the fall. Gillan had some allergies and

had colds during the winter.

A year later, in September of 2001, Gillan was seen in the

Coordinated Care Service Clinic at Children’s Hospital by Dr.

Jane O’Brien. Dr. O’Brien noted that Gillan was enrolled in a

regular kindergarten program. She was growing well with height

and weight percentiles the same as previously noted. She

continued to have allergies. In April of 2002, her height and

weight maintained the same percentages, and she continued to do

well developmentally. Gillan continued to do well when seen by

Dr. Fishman in April of 2003.

During this period, Gillan was followed in the Endocrine

Program at Children’s Hospital because of her Turner’s Syndrome

diagnosis. Dr. Holm noted in October of 2003 that Gillan was

seven years old; her height was in the 10th to 25th percentile

and that she was growing well. She was expected to attain five

feet in height if she maintained the same growth pattern. Her

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4

examination findings were normal. A year later, in October of

2004, Dr. O’Brien reported that Gillan remained in relatively

good health, was continuing to grow normally without growth

hormone, had normal cognitive development, and was doing well

socially and academically in public school. 

Dr. Holm reported in April of 2005 that Gillan continued to

do well with normal skeletal maturation, normal thyroid function,

and excellent growth. In September of 2005, Gillan maintained a

height between the 10th and 25th percentiles and weight in the

50th to 75th percentile, despite stress caused by the divorce of

her parents. Dr. O’Brien noted that Gillan’s height and weight

were in the same percentiles in October of 2005. At a well-child

visit in August of 2006, Gillan was maintaining the same height

and weight percentiles; she had done well in fourth grade, and

she was starting fifth grade soon. 

Gillan’s mother, Michelle Peabody, filed an application for

Supplemental Security Income (“SSI”) for Gillan in September of

2005. Dr. Dorsey, a state agency reviewing physician, concluded

in November of 2005 that Gillan’s medical problems did not amount

to a severe medical impairment. After the SSI application was

denied, Michelle requested a hearing before an ALJ, which was

held on September 20, 2006. Gillan and her mother, who were

represented by counsel, testified at the hearing.

Case 1:08-cv-00371-JD Document 11 Filed 04/23/09 Page 4 of 10
5

The ALJ issued a decision on February 23, 2007. The ALJ

found that Gillan had severe impairments caused by her latex

allergy and Turner’s syndrome. He concluded, however, that her

impairments did not meet or equal a listed impairment and that

she was not disabled within the meaning of the Social Security

Act. The Appeals Council denied review, making the ALJ’s

decision the final decision of the Commissioner. 

Discussion

A child is entitled to SSI benefits if she is disabled under

the Social Security Act, meaning that she has a “physical or

mental impairment which results in marked and severe functional

limitations, and . . . which has lasted or can be expected to

last for a continuous period of not less than 12 months.” 42

U.S.C. § 1382c(a)(3)(C)(I). A three-step inquiry is used to

determine disability. 20 C.F.R. § 416.924(a); see also Giles ex

rel Giles v. Astrue, 483 F.3d 483, 486 (7th Cir. 2007). At the

third step, the child’s impairments must meet or functionally or

medically equal an impairment listed at 20 C.F.R. Pt. 404, Subpt.

P, App. 1. 20 C.F.R. § 416.926(d); Murphy v. Astrue, 496 F.3d

630, 633 (7th Cir. 2007).

Gillan contends that the ALJ’s conclusion that she does not

have an impairment or combination of impairments that meet or

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2Although Gillan, through counsel, states that the ALJ

failed to consider evidence that she had a disorder of the spine

that met Listing 1.04A, that Listing is not mentioned again, and

the remainder of the memorandum focuses on Listing 100.02. 

Listing 1.04A, which requires evidence of nerve root compression,

does not appear to apply to Gillan’s impairments. 

6

equal a listed impairment was contrary to the information in the

administrative record. Specifically, Gillan argues that her

treating physicians’ opinions show that she met the Listings at

100.02, 109.02, and 109.13 in Appendix 1.2 The Commissioner

responds that under the Social Security Administration’s internal

guidelines, the Program Operations Manual System (“POMS”) at

section DI 24598.020(3) clarifies the requirements of Listing

100.02 and precludes Gillan’s claim.

The court’s review under § 405(g) is “limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999). If the ALJ’s factual findings

are supported by substantial evidence in the record, they are

conclusive, even if other evidence would support a contrary

conclusion. Id.; Tsarelka v. Sec’y of Health & Human Servs., 842

F.2d 529, 535 (1st Cir. 1988). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971).

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In his decision, the ALJ noted that Listing 109.13 applies

to a child with Turner’s Syndrome and requires evaluation under

“the criteria for the appropriate body system.” The ALJ found

that Gillan had a thyroid condition that has affected her height. 

Pursuant to Listing 109.02B(2), which pertains to thyroid

disorders affecting growth, the impairment is evaluated under

Listing 100.02A or B. The ALJ concluded that Gillan’s

impairments did not meet the requirements of Listing 100.02A or B

because “[m]easurements [of Gillan’s growth] have been consistent

and have been well above the third percentile with no instance of

sustained fall of 15 percentiles.”

Listing 100.02A pertains to a growth impairment, related to

an additional specific medically determinable impairment, and a

“[f]all of greater than 15 percentiles in height which is

sustained.” Gillan points out that between her sixth and ninth

months her height fell from the 50th to 75th percentiles down to

the 10th to 25th percentiles, a drop of more than fifteen

percentiles. Gillan also correctly states that although she

began growing again, she never regained the loss in percentile

points. 

The Commissioner responds that although the ALJ did not cite

to it, the decision is consistent with Social Security

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3A question might arise as to whether the Commissioner’s

reliance on the POMS is an impermissible post hoc rationalization

by counsel to support the ALJ’s decision. See, e.g., Fed. Power

Comm’n v. Texaco Inc., 417 U.S. 380, 397 (1974); Motor Veh. Mfrs.

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 50 (1983); Warre, 439 F.3d at 1005, n.3; Dubois v. U.S. Dep’t

of Agric., 102 F.3d 1273, 1289 (1st Cir. 1996); Rebensdorf v.

Astrue, 2009 WL 648892, at *5 (D. Ariz. March 11, 2009). Gillan,

however, did not challenge the Commissioner’s motion on that

basis and, in fact, did not address the POMS at all. 

8

Administration policy expressed in POMS DI 24598.020.3 POMS are

“publicly available operating instructions for processing Social

Security claims,” and “[w]hile these administrative

interpretations are not products of formal rulemaking, they

nevertheless warrant respect . . . .” Wash. Dep’t of Soc. Servs.

v. Keffeler, 537 U.S. 371, 385 (2003); accord James v. Richman,

547 F.3d 214, 218 n.2 (3d Cir. 2008). Courts defer to POMS

provisions unless they are arbitrary, capricious, or contrary to

existing law. Ramey v. Reinertson, 268 F.3d 955, 964 (10th Cir.

2001). Therefore, POMS are not given deference to the extent a

POMS provision contradicts a Social Security regulation. See

Fast v. Barnhart, 397 F.3d 468, 472 (7th Cir. 2005); McNamar v.

Apfel, 172 F.3d 764, 766 (10th Cir. 1999).

The POMS provision cited by the Commissioner states:

A fall in growth to, or persistence of growth below,

the 3rd percentile without a continuing reduction in

linear growth velocity does not meet the severity of

Listing 100.02B because short stature, in and of

itself, is not a medically determinable impairment. 

Case 1:08-cv-00371-JD Document 11 Filed 04/23/09 Page 8 of 10
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Even though the child will be short, he or she is now

growing normally. Likewise a child whose growth delay

satisfies the criteria specified in Listings 100.02A or

100.03 but whose fall in growth is not also accompanied

by a continuing reduction in growth velocity, does not

meet the severity level of these listings. A

continuing reduction in growth velocity is established

in accordance with the procedure in DI 24598.025B.

POMS DI 24598.020, ¶ 3 at 2. As to Listing 100.02A, the Ninth

Circuit concluded that it was ambiguous because a sustained fall

in percentiles could mean either that the reduced height

continued or that the percentiles continued to fall. Warre v.

Comm’r of Soc. Sec., 439 F.3d 1001, 1005 (9th Cir. 2006). The

court interpreted “sustained” to mean that the child continued to

lose percentiles in height. Id. That interpretation was based

on the contrast in language used in Listing 100.02B, which

explicitly provided for a “persistence of, height below the third

percentile,” not included in Listing 100.02A and on the POMS DI

24598.020 interpretation of Listing 100.02A. Id.

The provision in POMS DI 24598.020 supports the ALJ’s

decision that Listing 100.02A requires a continued or sustained

loss in growth percentiles. In Warre, the Ninth Circuit

determined that Listing 100.02A was entitled to deference as

persuasive authority. Id. Gillan has not argued to the

contrary. Therefore, the ALJ’s decision, based on a

determination that Gillan did not meet Listing 100.02A because

Case 1:08-cv-00371-JD Document 11 Filed 04/23/09 Page 9 of 10
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she did not have a sustained reduction in height of fifteen or

more percentiles is affirmed.

Conclusion

For the foregoing reasons, the motion to reverse the

decision of the Commissioner (document no. 7) is denied. The

motion to affirm (document no. 9) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 23, 2009

cc: T. David Plourde, Esquire

Christopher G. Roundy, Esquire

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