UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Dawn Eaton

 v. Case No. 08-cv-186-PB

Opinion No. 2009 DNH 102

Michael Astrue, Commissioner

Social Security Administration

MEMORANDUM AND ORDER

Dawn Eaton challenges the Commissioner of Social Security’s

(“the Commissioner”) ruling that Eaton’s daughter, Justine, is

not entitled to Social Security Income (“SSI”) payments. The

case turns on whether the record contains substantial evidence to

support the Administrative Law Judge’s (“ALJ”) determination that

Justine’s mental impairments were not so severe as to constitute

an “extreme limitation” in her ability to care for herself. 

Although Eaton can point to evidence that favors her position,

there is also substantial evidence to support the ALJ’s decision. 

Accordingly, I deny Eaton’s motion to reverse the ALJ’s ruling

and grant the Commissioner’s motion to affirm. 

Case 1:08-cv-00186-PB Document 15 Filed 07/07/09 Page 1 of 29
 The parties jointly submit that Eaton filed an SSI 1

application on December 12, 2006; however, the record reflects

that said filing occurred on December 1, 2006. This distinction

is immaterial, but noted. 

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I. BACKGROUND 

Eaton filed an application for SSI payments on Justine’s

behalf in December 2006. Concerns about Justine’s behavior, 1

however, can be traced back to July 14, 2004, when Megan Davis, a

social worker at Health and Education Services, completed a

clinical evaluation of then three-year-old Justine. Davis noted

that Justine presented “symptoms of tantrums, defiance,

hyperactivity, bitting and aggression toward animals, which begun

[sic] three weeks prior, after moving from Florida to Haverhill,

Massachusetts.” (Joint Statement of Facts, Doc. No. 11, at 2.) 

It was Davis’s belief that Justine’s trauma “stemmed from

witnessing domestic violence in her family.” (Id.) Davis filled

out a mental status evaluation form, wherein she noted that

Justine’s general appearance, thought content, speech,

orientation, motor skills, memory, and mood were “unremarkable.” 

Justine’s insight and judgment were assessed as “age

appropriate,” her thought process as “logical,” her intellect as

“average,” and her attitude as “negative.” (Tr. at 292.) Davis

Case 1:08-cv-00186-PB Document 15 Filed 07/07/09 Page 2 of 29
 “Axis IV incorporates Psychosocial and Environmental 2

problems with the following checklist: a) problems with primary

support group; b) problems related to the social environment; c)

educational problems; d) occupational problems; e) housing

problems; f) economic problems; g) problems w/access to health

care; h) problems related to interaction w/ the legal system,

etc.” (Pl.’s Mot., Doc. No. 8-2, at 3 n.2.)

 The Global Assessment of Functioning (“GAF”) scale is 3

used “to track the clinical progress of individuals in global

terms, using a single measure. The GAF scale is to be rated with

respect only to psychological, social, and occupational

functioning.” Am. Psychiatric Ass’n, Diagnostic & Statistical

Manual of Mental Disorders 32 (4th ed. 1994). GAF scores are

assigned on a scale of 0-100, and that scale is “divided into 10

ranges of functioning.” Id. A score within the range of 100-91

indicates “[s]uperior functioning in a wide range of

activities...,” a score within the range of 90-81 indicates

“[a]bsent or minimal symptoms (e.g., mild anxiety before an

exam), good functioning in all areas...,” a score within the

range of 80-71 suggests that if “symptoms are present, they are

transient and expectable reactions to psycho-social stressors

(e.g., difficulty concentrating after family argument); no more

than slight impairment in social, occupational, or school

functioning (e.g., temporarily falling behind in schoolwork,” a

score within the range of 70-61 reveals “[s]ome mild symptoms

(e.g., depressed mood or mild insomnia) OR some difficulty in

social, occupational, or school functioning (e.g., occasional

truancy, or theft within the household), but generally

functioning pretty well, has some meaningful interpersonal

relationships,” a score within the range of 60-51 indicates

“[m]oderate symptoms ... OR moderate difficulty in social,

occupational, or school functioning (e.g., few friends, conflicts

with peers or co-workers,”) a score within the range of 50-41

reveals “[s]erious symptoms (e.g., suicidal ideation, severe

obsessional rituals, frequent shoplifting) OR any serious

impairment in social, occupational, or school functioning (e.g.,

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listed asthma on Axis II, described Axis IV as severe, and 2

listed Justine’s Global Assessment of Function (“GAF”) score as 3

Case 1:08-cv-00186-PB Document 15 Filed 07/07/09 Page 3 of 29
no friends, unable to keep a job),” a score within the range of

40-31 indicates “[s]ome impairment in reality testing or

communication (e.g., speech is at times illogical, obscure, or

irrelevant) OR major impairment in several areas, such as work or

school, family relations, judgment, thinking, or mood (e.g.,

depressed man avoids friends, neglects family, and is unable to

work; child frequently beats up younger children, is defiant at

home, and is failing at school),” a score within the range of 30-

21 indicates “[b]ehavior is considerably influenced by delusions

or hallucinations OR serious impairment in communication or

judgment (e.g., sometimes incoherent, acts grossly

inappropriately, suicidal preoccupation) OR inability to function

in almost all areas (e.g., stays in bed all day, no job, home, or

friends),” a score within the range of 20-11 indicates “[s]ome

danger of hurting self or others (e.g., suicide attempts without

clear expectation of death; frequently violent; manic excitement)

OR occasionally fails to maintain minimal personal hygiene (e.g.,

smear feces) OR gross impairment in communication (e.g., largely

incoherent or mute),” and finally, a score within the range of

10-1 indicates “[p]ersistent danger of severely hurting self or

others (e.g., recurrent violence) OR persistent inability to

maintain minimal personal hygiene OR serious suicidal act with

clear expectation of death.” Id. at 34.

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50.

On August 11, 2004, Justine was admitted to the Anna Jaques

Hospital for treatment of her behavioral problems. Judith

Williams, a social worker, examined Justine, noted that she

suffered from attention deficit hyperactivity disorder (“ADHD”),

and assigned her a GAF score of 35. At that time, Justine was

not on any medication or undergoing any treatment for her mental

impairments. A medication regimen was initiated at some point

during the hospital stay, and Justine was assigned to see Susan

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Blodget at Health and Education Services for an appointment on

August 12, 2004. She was discharged on August 16, 2004, at which

point her GAF score was 45. (Joint Statement of Facts, Doc. No.

11, at 3-4.)

By August 23, 2004, Blodget’s progress notes indicate that

Justine showed increasingly positive behavior. She was sleeping

and eating better and she “stopped acting out aggressively since

start of meds [sic].” Blodget’s notes show that Justine was

“talkative, curious . . . , acting appropriate for her age . . .

, [and] pleasant.” (Tr. at 307.) Justine’s progress was erratic

throughout September 2004; on September 7, Blodget reported an

increase in Justine’s bad behaviors, including tantrums; on

September 15, an increase in medications appeared to be having a

positive impact; and, on September 25, Blodget noted that

Justine’s “tantrums could not be controlled.” (Joint Statement

of Facts, Doc. No. 11, at 4.) On September 20, 2004, Pawtucket

Medical Associates wrote a certificate of health, which held that

Justine’s special problems included “ADHD, bipolar [disorder],

and asthma.” (Tr. at 193.) The report showed that Justine was

“healthy,” and had “no apparent contraindications to

participating in routine school and camp activities.” (Id.) 

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On October 8, 2004, Blodget reported that Justine was

compliant with her medications and her mood was “stable.” (Id.

at 315.) Blodget had to continuously redirect Justine from her

attempts to open a door to a playroom, and Justine also felt

frustrated by outside noises coming from others in the building. 

(Joint Statement of Facts, Doc. No. 11, at 5.) Eaton reported

that although the medications were making Justine drowsy,

Justine’s temper tantrums were also less frequent, she “displayed

good spirit,” and, as of October 21, 2004, she appeared to be

functioning more normally. (Id.) Records indicate that by

January 18, 2005, Justine was doing well in preschool, and her

“mood instability and behavior concerns were much improved.” 

(Id.) 

Justine’s “out-of-control” behavior grew worse throughout 

February 2005, and as a result, Justine was taken to the

emergency room in March. (Id.) Emergency room records indicate

that Justine was banging her head against the wall, grabbing

scissors while threatening to cut her own hair, and biting. 

(Id.) Justine was referred for additional clinical treatment to

work on behavior and boundaries, and by April 15, she “appeared

happy, compliant,” and displayed unremarkable speech during her

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treatment sessions. (Tr. at 361.) The same was true on May 5,

when it was also noted that she was doing well in school and not

having any problems with her schoolmates. Clinical notes from

May 12 indicate that Justine’s “mood instability with symptoms of

angry outbursts, tantrums, and crying was reported to have

improved,” as well as her symptoms of aggression. (Joint

Statement of Facts, Doc. No. 11, at 5-6.) 

On October 11, 2005, Justine began treatment under Kala

Kumar, M.D., at the Mental Health Center of Greater Manchester. 

An initial objective mental assessment showed normal results,

with the exception of a mild increase in motor activity and

mildly poor insight. Justine was diagnosed with ADHD,

oppositional defiant disorder (“ODD”), and asthma, and was given

a GAF score of 51. She missed two appointments with Dr. Kumar,

but on November 14, Eaton reported that Justine was doing well at

school, though she had four outbursts over the previous week,

especially when Eaton responded “no” to certain of Justine’s

behaviors. (Id. at 6.) 

As of February 7, 2006, Justine was compliant with her

medications and was showing positive results; however, on March

8, Dr. Kumar gave her a GAF score of 45, thereby indicating that

Case 1:08-cv-00186-PB Document 15 Filed 07/07/09 Page 7 of 29
 The results of these exams revealed that Justine 4

“demonstrated age-appropriate skills, intellect, and behavior.” 

(Joint Statement of Facts, Doc. No. 11, at 7.) Hutton also

explained that Justine’s cognitive skills were intact and in the

average range, with attention being her only weakness, and having

low average verbal intellectual functioning. Hutton believed

Justine to be a visual learner, which she maintained might result

in misconception or misjudgment. She also noted “weakness

including verbal cognitive skills, sustained attention and fine

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Justine continued to exhibit “serious symptoms or impairment in

overall functioning.” (Id.) Eaton reported on April 4 that her

daughter was doing well at school, and on June 6 that “her

emotional outbursts were improving and were less frequent.” 

(Id.) Justine was promoted to the first grade, with her

kindergarten report card showing improved or satisfactory

performance in all areas of development. (Tr. at 138.) 

Nonetheless, Gossler Park School -- a school outside of Justine’s

Parker-Varney school district -- denied her application for

admission for the 2006-2007 school year, solely for the reason

that she had “been absent 12 times and has been tardy 26 times

this year with 6 dismissals.” (Id. at 136.) 

On September 21, 2006, Eaton referred Justine to the ParkerVarney Special Education Team to assess whether Justine had any

educational disabilities. Ann Hutton, Psy.D., conducted two

neuropsychological evaluations in early November. The Parker- 4

Case 1:08-cv-00186-PB Document 15 Filed 07/07/09 Page 8 of 29
motor strength, adding that academic skills are also a weakness

for [Justine].” (Id. at 7-8.) 

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Varney Special Education Team’s report from December 12, 2006,

explained that “the results of Dr. Hutton’s evaluations indicated

that [Justine] did not suffer from any educational disability and

that there were no indications that further testing was

warranted.” (Joint Statement of Facts, Doc. No. 11, at 8.) 

Meanwhile, on November 29, 2006, Eaton had filed an application,

on Justine’s behalf, for SSI childhood disability benefits. 

Megan Waligura, Justine’s first grade teacher, completed a

questionnaire on February 6, 2007, wherein she opined that

Justine displayed no problems in her ability to move around and

manipulate objects, none to slight problems in her ability to

engage others, none to slight problems in her ability to finish

tasks, and none to obvious problems in her ability to acquire and

use information. Waligura further added: “Although Justine is

working below grade level [in math and reading] she has made good

progress and certainly is not the only child in the class working

below expected levels at this point in first grade.” (Tr. at

166.)

Case 1:08-cv-00186-PB Document 15 Filed 07/07/09 Page 9 of 29
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On February 15, 2007, after reviewing Justine’s records,

Michael Schneider, Psy.D., completed a Childhood Disability

Evaluation Form, wherein he opined that Justine’s impairments

were severe, but not such that they met or were medically or

functionally equal to any listed impairment. (Id. at 424.) He

maintained that Justine “suffered from less than marked

limitations in the domains of acquiring and using information,

attending and completing tasks, and health and physical wellbeing.” (Joint Statement of Facts, Doc. No. 11, at 9.) With

respect to the domains of moving and manipulating objects, caring

for one’s self, or interacting and relating with others,

Schneider found no limitations. In July 2007, Eaton reported

that her daughter was doing well and that her “temper tantrums

were few and far between.” (Id. at 10.) She further reported

that Justine “had not needed any emergency support, had completed

the first grade, and obtained good grades.” (Id.) Also at that

time, Dr. Kumar gave Justine a GAF score of 65-70. 

Stephanie Simpson, Justine’s second grade teacher, completed

a questionnaire on November 27, 2007, wherein she explained that

Justine was reading at a second grade level, performing math and

written language at a 1.5 grade level, and not receiving any

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special education services. (Id.) No limitations were reported

with respect to Justine’s ability to interact with others, move

around and manipulate objects, or care for herself; however,

“none to obvious” problems were reported in Justine’s ability to

obtain and use information, as well as attend and complete tasks. 

(Id.) Simpson further explained that when Justine complies with

her ADHD medication schedule, “she is able to focus [with]

minimal issues.” (Id. at 10-11.) Two days later, on November

29, 2007, Nancy Thompson, a registered nurse practitioner who had

been treating Justine since August 20, 2007, made an assessment

of Justine’s residual functional capacity. She noted that

Justine suffered from ADHD, ODD, and asthma, and she assigned

Justine a GAF score of 45, “indicating serious symptoms or

impairment in functioning.” (Id. at 11.) She further opined:

[Justine] suffered from none to slight impairments in

the domains of acquiring and using information,

interacting and relating to others, moving about and

manipulating objects, and health and physical well

being; moderate impairments in the domain of attending

and completing tasks; and extreme limitation in the

domain of caring for yourself. 

(Id.) Thompson qualified her assessment of “extreme limitation”

in self care, explaining that Justine had poor hygiene, talked

frequently to strangers, and inflicted injury on herself. (Id.

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at 12.)

On November 29, 2007, Eaton and Justine appeared before

Administrative Law Judge James L. D’Alessandro (the “ALJ”)

regarding her application for SSI benefits. Eaton first

testified that Justine recently had been having trouble sleeping,

and so her dosage for Clonidine had been increased from three per

day to three and a half per day. (Tr. at 23.) She explained

that during an October 2007 parent-teacher conference she learned

from Justine’s second grade teacher that Justine was having

trouble in math and reading. The teacher determined that extra

help would be appropriate, and she planned to reassess Justine’s

progress after a few weeks. (Id. at 24.) Eaton reported that,

up until the date of the hearing, Justine had only been absent

from school roughly four times, due to illness and medical

appointments. She also explained that Justine’s asthma had been

under control with medication, and that although Justine was very

hyper when she got home from school, behavior and chore charts

had been effective tools in controlling that energy. (Joint

Statement of Facts, Doc. No. 11, at 12.) Eaton testified that

most of Justine’s behavioral problems occurred outside of school,

but that Justine’s desire to always want to be near Eaton was

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improving with medication. Only once during the school year had

Justine received detention due to hyperactivity in the classroom. 

(Id.) 

Justine testified that she had friends in the neighborhood

with whom she played common childhood games such as hide-and-seek

and tag, and that she did chores around the house, put away her

own laundry, and “t[ook] showers two days in a row.” (Tr. at 33-

34.) Eaton explained that she previously had trouble getting

Justine into a routine for taking showers and brushing her teeth,

but that using chore charts was having positive results and

Justine was doing “pretty well.” (Tr. at 34.) Eaton testified:

“I still struggle with her, and I do have to watch her, but its

not as bad as it used to be.” (Id. at 36.) 

On December 12, 2007, the ALJ issued his written decision

denying Eaton’s application for SSI benefits, finding that

Justine was not disabled under section 1614(a)(3)(C) of the

Social Security Act. (Id. at 16.) In accordance with 20 C.F.R.

§ 416.924(a), the ALJ followed the three-step sequential

evaluation process used to determine whether a person under

eighteen years of age is disabled. At step one, the ALJ

determined that Justine had “not engaged in substantial gainful

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activity at any time relevant to this decision.” (Id. at 11.) 

At step two, the ALJ found that Justine suffered from two

medically determinable “severe” impairments, ODD and ADHD. 

Having found that Justine had a severe impairment, the ALJ

proceeded to step three; however, at this step, he found that she

did not have “an impairment or combination of impairments that

meets or medically equals one of the listed impairments in 20

C.F.R. Part 404, Subpart P, Appendix 1.” (Id. at 12.) The ALJ

also found that Justine did not have an impairment or combination

of impairments “that functionally equals the listings.” (Id. at

13.) In reaching this conclusion, he noted Eaton’s comments

about the problems Justine had been having at home, but also her

belief that Justine had been responding to a behavior chart. He

also referenced Justine’s own testimony that she helped her

mother with household cleaning, put away her own laundry, and

took showers. The ALJ considered reports from Justine’s

teachers, one of which maintained that Justine had “no problems

caring for herself.” (Id. at 15.) Finally, the ALJ noted Nurse

Thompson’s view about Justine’s ability to care for herself, but

determined that the weight of the evidence did not support the

conclusion that Justine was “extremely” impaired with regard to

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caring for herself. (Id.)

The Federal Decision Review Board upheld the ALJ’s decision

on March 12, 2008, thus making that ruling the final decision of

the Commissioner. 

II. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), a district court, following

a timely request, may review the administrative record and “enter

. . . a judgment affirming, modifying, or reversing the decision

of the Commissioner of Social Security, with or without remanding

the cause for a hearing.” However, the “findings of the

Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). 

It is also solely within the purview of the Commissioner to make

determinations as to “credibility and to draw inferences from the

record evidence.” Irlanda Ortiz v. Sec'y of Health & Human

Servs., 955 F.2d 765, 769 (1st Cir. 1991). Accordingly, in

reviewing the record for substantial evidence, a district court

may not reweigh the evidence or substitute its own judgment for

Case 1:08-cv-00186-PB Document 15 Filed 07/07/09 Page 15 of 29
 Substantial evidence is “more than a mere scintilla” of 5

evidence; it “means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Currier v.

Sec'y of Health, Educ. & Welfare, 612 F.2d 594, 597 (1st Cir.

1980)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

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that of the Commissioner's. Id. 5

The reviewing court is not bound to the Commissioner's

findings in all instances. Where the Commissioner has committed

some legal or factual error in his evaluation of the disability

claim, deference is not be appropriate. See Manso-Pizarro v.

Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). 

Further, the ALJ's findings of fact will not be conclusive when

they are “derived by ignoring evidence, misapplying the law, or

judging matters entrusted to experts.” Nguyen v. Chater, 172

F.3d 31, 35 (1st Cir. 1999) (citation omitted).

III. ANALYSIS

A determination as to whether a child-claimant is disabled

is made pursuant to a three-step process. After examining

whether the child-claimant has engaged in substantial gainful

activity and suffers from a severe impairment, an ALJ must 

determine whether the impairment “meet[s], medically equal[s], or

functionally equal[s] the listings. In the event that an ALJ

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 20 C.F.R. § 416.926a(e) sets out in depth definitions of 6

“marked” and “extreme.”

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concludes that a claimant’s impairments do not correspond to any

of the listed impairments, he is next required to evaluate

whether the claimant’s impairments cause limitations that are the

functional equivalent of the listed impairments. 20 C.F.R. §

416.926a. Functional equivalence requires an ALJ to assess six

domains of functioning: acquiring and using information,

attending and completing tasks, interacting and relating to

others, moving about and manipulating objects, caring for

yourself, and health and physical well-being. § 416.926a(g)-(l). 

In order for a claimant’s impairment to “functionally equal the

listings,” it must “result in ‘marked’ limitations in two domains

of functioning or an ‘extreme’ limitation in one domain.” §

416.926a(a).6

Eaton asserts that Justine’s impairments “interfere very

seriously” with the domain entitled “caring for yourself,” and

that, as a result, she suffers an extreme limitation in one of

the major domains. (Pl.s’ Mot., Doc. No. 8-2, at 12.) As

support for this position, she points most forcefully to the

opinion espoused by Nurse Thompson, who wrote on November 29,

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 When making disability decisions, ALJs are required to 7

give a treating physician’s opinion “controlling weight” if it is

“well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other 

substantial evidence” in the record. 20 C.F.R. § 404.1527(d)(2). 

“Medical sources who are not ‘acceptable medical sources,’ such

as nurse practitioners . . . are important and should be

evaluated on key issues such as impairment severity and

functional effects.” SSR 06-03p. In short, regardless of its

source, a court “will evaluate every medical opinion” it

receives. § 404.1527(d). 

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2007, “Justine refuses to brush her teeth daily and a hygiene

chart was implemented on 11/07 to work on hygiene, including

bathing. Safety concerns include speaking freely to strangers. 

Justine also head bangs and punches self on the body.” (Tr. at

572.) Although Eaton first asserts that the ALJ “ignored”

Thompson’s assessment -- an accusation that is without merit --

she later refines her argument to say that “the ALJ did not

afford proper weight to Nurse Thompson’s opinion.” (Pl.’s Mot., 7

Doc. No. 8-2, at 12-13.) 

Eaton offers what she believes to be evidence corroborating

Nurse Thompson’s view. First, she cites Dr. Kumar’s reports,

which document Justine’s “horrific experiences,” illnesses, and

“severe behavioral issues.” (Id. at 14.) She also points to Dr.

Kumar’s consistent assessments between December 7, 2005 through

February 6, 2007, of Justine’s GAF scores between 45 to 48, which

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is “indicative of severe limitations in functioning.” (Id.) She

next turns to school records, highlighting the first grade

teacher’s view that Justine was working below grade level in math

and reading. In a portion of her brief entitled, “Fine Motor

Skills,” Eaton cites teacher evaluations from September 2006,

which note that Justine completed her homework less often than

her peers, was easily distracted, had difficulty skipping,

forming letters, and spacing out her math problems, used both

feet when climbing stairs, and often broke her pencil tip. (Id.

at 16.) Finally, Eaton cites empirical evidence of the types of

problems that children who witness domestic violence often have,

such as aggressive behavior and reduced social competencies. 

(Id. at 17.) All this, she maintains, supports Nurse Thompson’s

view that Justine is extremely limited in her ability to care for

her physical health and safety.

Examining the record as a whole, it is clear that Nurse

Thompson’s view is not supported by substantial evidence. On the

contrary, there is ample evidence to support the Commissioner’s

finding in this case. With respect to Nurse Thompson’s view,

there is no other source cited in the record willing to claim

that Justine is severely limited in the domain of caring for

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herself. Without question, Dr. Kumar’s records of her dealings

with Justine reveal some troubling realities. She diagnosed

Justine with ADHD, ODD, and asthma, and gave her a GAF score of

51 in October 2005. Dr. Kumar noted progress in early 2006, but

assessed her GAF score at 45 at that time, which indicated

“serious symptoms or impairment in overall functioning.” (Joint

Statement, Doc. No. 11, at 6.) By April, however, Eaton herself

reported that Justine’s emotional outbursts were improving and

were less frequent. Short of diagnosing certain medical

impairments and assessing a GAF score, Dr. Kumar never made the

claim that Justine was severely limited in her ability to care

for her own physical health and safety. Merely diagnosing an

impairment does not mean that the impairment is so severe that it

“functionally equals the listings.” 20 C.F.R. § 416.924(a); see

Foster v. Brown, 853 F.2d 483, 488-89 (6th Cir. 1988)

(diagnosable impairment is not necessarily disabling); Alvarado

v. Weinberger, 511 F.2d 1046 (1st Cir. 1975) (“[t]he mere

existence of a psychoneurosis or an anxiety reaction does not

constitute a disability”). Moreover, in July 2007, Dr. Kumar

gave Justine a GAF score in the range of 65-70, which reflects

her belief that Justin had “some mild symptoms or some difficulty

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in social, occupational, or school functioning, but [was]

generally functioning pretty well, [and had] some meaningful

interpersonal relationships.” (Joint Statement of Facts, Doc.

No. 11, at 10 n.9.) This assessment of Justine’s limitations is

quite different from the one put forth by Nurse Thompson in

November 2007. 

Eaton points to a series of GAF scores as evidence

supporting Nurse Thompson’s position, but the utility of GAF

scores for this purpose is limited. As the evidence in this case

demonstrates, GAF scores tend to fluctuate. In this case alone,

the parties’ joint filing notes several different GAF scores,

ranging from a 35 on August 12, 2004, to a 65-70 range in July

2007. Moreover, fluctuations also occur within short spans of

time. For example, on August 12, 2004, Justine’s GAF score was

35, but just a few days later on August 16, her score had risen

to 45. GAF scores offer a snapshot of one’s state at the time of

the evaluation, but for an impairment to functionally equal a

listing it must also meet the duration requirement, about which

the GAF score says nothing. See 20 C.F.R. § 416.909 (“Unless

your impairment is expected to result in death, it must have

lasted or must be expected to last for a continuous period of at

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least 12 months.”). Though they can be helpful in evaluating the

extent of one’s mental impairments, GAF scores are not

dispositive when deciding whether a disability exists. See

Chanbunmy v. Astrue, 560 F. Supp. 2d 371, 383 (E.D. Pa. 2008).

The rest of the evidence that Eaton cites as support for

Nurse Thompson’s opinion is attenuated in its relationship to the

domain of “caring for yourself.” The reports from Justine’s

teachers do little to suggest that she is severely limited in her

ability to care for herself. In fact, Justine’s second grade

teacher reported that Justine “did not suffer from any

limitations in her abilities . . . to care for herself.” (Joint

Statement of Facts, Doc. No. 11, at 10.) Whether a student uses

two feet to climb stairs and presses too firmly on her pencil may

be indicative of other problems, but it does not support the

inference that Justine is severely limited in her ability to care

for herself. Eaton also cites empirical evidence related to the

impact that domestic abuse can have on a child’s development. 

These reports are troubling, as well as painful reminders of the

lasting impact that such abuse can have on innocent children;

however, they are general studies that have not been adequately

connected to Nurse Thompson’s view of this particular case.

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There is substantial evidence cutting against Nurse

Thompson’s opinion. Most striking is the fact that no other

educator or medical professional involved in Justine’s case has

articulated the same, extreme opinion. To refute this, Eaton

cites an August 11, 2004, assessment by social worker Judith

Williams, wherein she assigned Justine a GAF score of 35. This

raw number, however, does not necessarily amount to a statement

that Justine is severely limited in the domain of “caring for

yourself.” In fact, Williams’s report suggests that there has

been significant progress -- or, at least, changes in treatment -

- since she first saw Justine in August 2004. At that time,

Justine was neither undergoing treatment nor receiving medication

for her problems. (Joint Statement of Facts, Doc. No. 11, at 3-

4.) By November 27, 2007, her second grade teacher reported that

because of her medications, Justine was able to focus with

minimal issues. (Id. at 11.) On March 5, 2005, Justine was

taken to the emergency room for her out-of-control behavior,

including banging her head against the wall, but by April 28,

2005, clinical reports showed that Justine was happy and

compliant during clinical treatment and doing well in school. In

May 2005, Justine’s outbursts, tantrums, and crying had all

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improved. (Id. at 5.) While there were undoubtedly setbacks in

Justine’s progress, the record reveals a child coping with

serious issues, but who is also making progress.

State agency physician Michael Schneider reviewed Justine’s

records, and on February 15, 2007, reported that her limitations

were severe, but not to the extent that they equaled any listed

impairment. (Id. at 9.) He also found less than marked

limitations in the domain of health and well-being. This is

consistent with a report from Justine’s first grade teacher dated

February 6, 2007, which stated that Justine had no problems in

the domain of “caring for herself” and that her behavior was ageappropriate. (Tr. at 170.) Eaton offered her own assessment of

Justine in July 2007, when she explained that there was no need

for any emergency support and that Justine’s “temper tantrums

were few and far between.” (Id. at 559.) Reports from her

second grade teacher were also consistent in noticing this trend

in Justine’s behavior. As the ALJ noted in his written order and

Eaton testified to at Justine’s hearing, the use of charts at

home was having a positive impact in getting Justine to do her

chores and clean herself. (Tr. at 12, 36.) Eaton stated at the

hearing, “I still struggle with her, and I do have to watch her,

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but it’s not as bad as it used to be. . . . The behaviors,

honestly, with the medication and stuff that she’s on, and the

help that we’re getting through the charts and everything, I see

a little bit of an improvement.” (Id. at 36.) Nurse Thompson’s

opinion is the outlier in a record replete with evidence

unsupportive of her view; therefore, the ALJ was not acting

improperly when he disregarded her opinion that Justine was

severely limited in her ability to care for herself.

The ALJ’s ultimate conclusion that Justine is not disabled

is supported by substantial evidence in the record. The written

opinion from December 12, 2007, notes Justine’s history as a

witness to domestic violence, the hospitalization that resulted

from her behavioral problems at home, her generally good behavior

at school, the medications prescribed for her use, and the

various reports and records that have amassed from years of

undergoing tests and counseling. (Id. at 12.) The decision

examines whether Justine’s ADHD resulted in an impairment that

meets or medically equals one of the listings. The ALJ assessed

her cognitive functioning, noting Nurse Thompson’s view that

Justine had only slight limitations in her ability to acquire and

use information, as well as Justine’s progress in school. The

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ALJ determined, based on this evidence, that Justine had less

than marked impairments in cognitive functioning. Next, the ALJ

noted the generally positive reports from teachers and Anna

Hutton, Psy.D., as to Justine’s social skills. Despite some

problems Justine had at home with her temper, the ALJ found less

than marked impairments in Justine’s social skills. With regard

to Justine’s personal functioning, the ALJ considered evidence of

Justine’s tendency to “express[] emotions inappropriately through

tantruming at home and in counseling sessions.” (Id.) He noted

reports from Justine’s second grade teacher, which revealed that

Justine had no problems handling frustration, caring for her

physical needs, or maintaining personal hygiene. The ALJ added

that while Nurse Thompson had concerns about Justine’s refusal to

brush her teeth, testimony from Eaton evidenced that progress was

being made by using charts. He noted that Justine was also

working on issues of safety, such as talking to strangers. 

Considering this evidence, the ALJ refused to endorse Nurse

Thompson’s view that Justine’s “functioning is significantly

below age level,” and therefore, found that her functioning in

this domain to be less than markedly impaired. (Id.) 

After having found that Justine did not have an “impairment

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or combination of impairments that either meets or equals the

severity of an impairment described in Appendix 1, subpart P,

Regulations No. 4,” the ALJ turned to assess whether Justine’s

impairments “functionally” equal the listings. (Id. at 13.) 

Here, a variety of evidence was considered, including Justine’s

problems at home, the introduction of behavior charts, and

Justine’s own testimony about her interactions with her friends

and family. The ALJ determined that although the evidence showed

that Justine’s impairments could have caused many of the symptoms

addressed in the record, it did not support the more aggressive

statements concerning the intensity, persistence, and limiting

effects of those symptoms. (Id.) He contrasted Eaton’s

testimony about Justine’s problems at home with the generally

positive reflections offered by Justine’s teachers, one of whom

opined that Justine had no problems either dealing with others or

caring for herself, and had only minimal issues with taking her

medications. He weighed Nurse Thompson’s opinion against

opinions from others associated with Justine, and ultimately

determined that Nurse Thompson’s opinion was not the best

assessment of Justine’s limitations. As a result, the ALJ

determined that Justine did not have an impairment functionally

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equivalent to a listing, and that therefore, she was not

disabled. 

A few additional points about the ALJ’s opinion are worth

noting. First, while the ALJ ultimately determined that Nurse

Thompson’s opinion was not controlling, he nonetheless referenced

her views at various points in the decision, often concurring

with her assessments. For example, in his evaluations of

Justine’s cognitive functioning, the ALJ cited Nurse Thompson’s

November 2007 report that Justine had no more than slight

limitations in acquiring and using information. Second, in

explaining why he did not think Nurse Thompson’s opinion with

respect to the domain of “caring for yourself” was supported by

the record, the ALJ cited the report of state psychologist

Schneider; however, he did not rely solely on Schneider’s report

in making his determination. Rather, it was simply another piece

of evidence tending to cast doubt on Thompson’s opinion. 

Finally, the ALJ did not list any specific GAF scores as part of

his analysis, but he did consider Justine’s mental impairments in

a way consistent with her GAF scores. He acknowledged the long

road she has faced, but also the progress that has been made

thanks to the diligent efforts of educators, medical

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professionals, and family. GAF scores are a useful tool in

assessing one’s capacity, but, like the opinions of those

involved in the case, they must be considered in light of the

evidence as a whole. Here, the whole of the evidence

substantially supports the Commissioner’s disability

determination.

IV. CONCLUSION

Although the Commissioner could have reached a different

result, there is substantial evidence in the record to support

his decision. Having made that determination, this Court is

without authority to overturn it. The plaintiff’s motion for

order reversing the decision of the Commissioner (Doc. No. 8) is

denied. 

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

July 7, 2009

cc: Raymond Kelly, Esq.

Gretchen Leah Witt, Esq.

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