UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Melissa Rex, on behalf of

her daughter, A.R.,

Claimant 

v. Civil No. 07-cv-48-SM

Opinion No. 2007 DNH 154

Michael J. Astrue, Commissioner,

Social Security Administration,

Respondent

O R D E R

Melissa Rex moves to reverse the Commissioner’s denial of

her daughter’s application for children’s Supplemental Security

Income benefits. See 42 U.S.C. §§ 405(g) and 1383(c)(3) (the

“Act”). In support of that motion, Ms. Rex asserts that: the

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

daughter’s impairments did not functionally equal a listed

impairment; the ALJ failed to provide her with a fair hearing and

neglected to adequately develop the record; and the ALJ failed to

properly inform her of her right to (and the benefits associated

with) obtaining legal counsel. Respondent objects and moves for

an order affirming the final decision of the Commissioner.

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For the reasons set forth below, the Commissioner’s motion

for an order affirming his decision is denied. Claimant’s motion

to reverse is granted to the extent it seeks a remand to the ALJ

for further proceedings. 

Factual Background

I. Procedural History.

Claimant, A.R., was born on January 27, 1999. On June 9,

2005, her mother filed an application for Supplemental Security

Income (“SSI”) on her behalf, alleging an onset of disability

date of December 1, 2002. After that claim was denied, Ms. Rex

requested a hearing before an ALJ. 

On September 28, 2006, A.R.’s parents appeared and testified

before an ALJ. Approximately one month later, the ALJ issued his

decision, concluding that A.R. was not disabled. At the time,

A.R. was seven years old and in second grade. The ALJ’s decision

became final when the Appeals Council denied Ms. Rex’s request

for review. She then filed this timely appeal and, in due

course, a “Motion to Reverse The Unfavorable Action of the

Commissioner” (document no. 10). The Commissioner objected and

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filed a “Motion for Order Affirming the Decision of the

Commissioner” (document no. 12). Those motions are pending. 

II. Stipulated Facts.

Pursuant to Local Rule 9.1(d), the parties have submitted a

comprehensive statement of stipulated facts which, because it is

part of the court’s record (document no. 13), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. Properly Supported Factual Findings by the ALJ

are Entitled to Deference. 

Pursuant to 42 U.S.C. § 405(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” Factual findings of the Commissioner are

conclusive if supported by substantial evidence. See 42 U.S.C.

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1 Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938). It is something less than the weight of the evidence,

and the possibility of drawing two inconsistent conclusions from

the evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence. Consolo v. Federal

Maritime Comm’n., 383 U.S. 607, 620 (1966).

4

§§ 405(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health &

Human Services, 955 F.2d 765, 769 (1st Cir. 1991).1 

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v. Secretary

of Health & Human Services, 747 F.2d 37, 40 (1st Cir. 1984)

(citing Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It

is “the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence. 

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner] not the courts.” Irlanda Ortiz, 955 F.2d at 769

(citation omitted). Accordingly, the court will give deference

to the ALJ’s credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaglia v. Secretary of Health & Human Services, 829 F.2d 192,

195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health &

Human Services, 803 F.2d 24, 26 (1st Cir. 1986)). 

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II. Entitlement to Children’s Disability Benefits. 

In August of 1996, Congress enacted the Personal

Responsibility and Work Opportunity Reconciliation Act of 1996,

which included a new (more rigorous) standard for defining

childhood disabilities under the Social Security Act. It

provides, in pertinent part, that: 

An individual under the age of 18 shall be considered

disabled for the purposes of this subchapter if that

individual has a medically determinable physical or

mental impairment, which results in marked and severe

functional limitations, and which can be expected to

result in death or 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). See also 20 C.F.R. § 416.924.

In evaluating a child’s application for SSI benefits, an ALJ

must engage in a three-part inquiry and determine: (1) whether

the child is engaged in substantial gainful activity; (2) whether

the child has an impairment or combination of impairments that is

severe; and, finally, (3) whether the child’s impairment meets or

equals an impairment listed in Appendix 1, Subpart P of the

regulations. See 20 C.F.R. §§ 416.924(b)-(d). If, at the third

step of the analysis, the ALJ determines that the child’s

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impairment does not meet or equal a listed impairment, the ALJ

must then consider whether the child’s impairment “results in

limitations that functionally equal the listings.” 20 C.F.R. §

416.926a(a). 

An impairment “functionally equals” the listings if it

results in “marked” limitations in two domains of functioning, or

if it results in an “extreme” limitation in one domain. Id. The

six domains of functioning in which the child’s abilities are

assessed 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 one’s

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

416.926a(b)(1). An “extreme” limitation is one that “interferes

very seriously with [the child’s] ability to independently

initiate, sustain, or complete activities. . . . It is the

equivalent of the functioning we would expect to find on

standardized testing with scores that are at least three standard

deviations below the mean.” 20 C.F.R. § 416.926a(e)(3). 

Consequently, an “extreme” limitation would, generally speaking,

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place the child in the lowest one percent (1%) of functioning in

that domain for the child’s age group. 

A “marked” limitation is one that “interferes seriously with

[the child’s] ability to independently initiate, sustain, or

complete activities. . . . It is the equivalent of the

functioning we would expect to find on standardized testing with

scores that are at least two, but less than three, standard

deviations below the mean.” 20 C.F.R. § 416.926a(e)(2). In

other words, a “marked” limitation would, generally speaking,

place the child in the lowest five percent (5%) of functioning in

that domain for the child’s age group. It is, then, a

substantial limitation. 

Discussion

I. Background - The ALJ’s Findings.

In concluding that A.R. was not disabled within the meaning

of the Act, the ALJ properly employed the mandatory three-step

sequential evaluation process described in 20 C.F.R. § 416.924. 

Accordingly, he first determined that A.R. had not been engaged

in substantial gainful activity since her alleged onset date - an

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unremarkable finding given her age. Next, the ALJ concluded that

the medical evidence of record indicates that A.R. does suffer

from a “severe” impairment of attention deficit hyperactivity

disorder (“ADHD”). Transcript at 19. 

At the third and final step of the sequential analysis,

however, the ALJ concluded that A.R. does not have an impairment

or combination of impairments that meets or medically equals one

of the impairments listed in the pertinent regulations, nor does

she have an impairment or combination of impairments that

functionally equals a listed impairment. Accordingly, the ALJ

concluded that A.R. is not disabled within the meaning of the

Social Security Act. 

II. Procedural Challenges.

Based on her filings, it is difficult to know whether Ms.

Rex claims that A.R. suffers from an “extreme” limitation in one

domain of functioning, or that she suffers from “marked”

limitations in two domains; neither her complaint nor her

memorandum of law addresses the issue in any detail. Instead,

Ms. Rex has focused on her assertion that the ALJ’s adverse

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2 The non-examining physician’s report provides, in its

entirety, as follows: “Mother alleges all sorts of limitations,

but teacher reports and testing reveals little in the way of

limitations. Most likely a parent/child relational problem.” 

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disability determination was not supported by substantial

evidence in the record. She goes on to assert that, because the

ALJ committed various procedural errors, he denied A.R. a fair

hearing on her claim. 

To be sure, there is not a great deal of evidence in the

record to support the conclusion that A.R. is disabled (that is,

“extremely” limited in one domain of functioning or “markedly”

limited in two). Nevertheless, the court agrees that the ALJ was

obligated to more fully develop the record - particularly since

the Childhood Disability Evaluation form completed by the nonexamining physician, to which the ALJ ascribed “significant

weight,” transcript at 20, is so deficient as to be worthy of

little, if any, discussion.2 

Additionally, some of the conclusions reached by the ALJ are

simply unsupported by logic or reason. For example, in his

decision, the ALJ wrote that, “The claimant’s parent’s

explanation that [A.R.’s] absence at the hearing was because she

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was at school demonstrates the claimant’s ability to function in

age appropriate activities just as any other unimpaired child at

like age.” Transcript at 20. Later, the ALJ concluded that her

presence at school “demonstrates [A.R.’s] ability to function in

a school setting.” Transcript at 22. The court disagrees. At

most, all one can infer from A.R.’s attendance at school is that

she was able to successfully navigate the half-mile walk to

school that day with her mother. See Transcript at 195. It says

nothing about her ability to function well or appropriately in a

school setting, nor does it shed any light on whether she might

be disabled within the meaning of the Act. 

While the differential diagnostic report prepared by Dr.

Fitzgerald, transcript at 121-30, may not be sufficiently

conclusive to constitute “substantial evidence” of A.R.’s

disability, it does suggest the need for further investigation

and, possibly, additional testing. Among other things, Dr.

Fitzgerald concluded that, given the results of his testing,

there were “suggestions of learning disability issues [] across

Verbal Comprehension, Perceptual Reasoning, Working Memory, and

Processing Speed areas.” Transcript at 128. He also noted that

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it “would be helpful to make sure that there are no significant

difficulties with hearing or vision that might be contributing to

[A.R.’s] learning problems.” Ultimately, Dr. Fitzgerald

concluded that: 

There is every indication that [A.R.] has an ADHD

substrate. It would be beneficial for her parents to

talk with Mr. Jacobson about the possibility of a trial

on stimulant medication to see if that helps [A.R.]

function more effectively. However, it is also

important to rule out any hearing or vision issues, and

to further explore the ocular motor difficulties (lazy

eye), for which she has already been treated. There

were also indications of language processing

difficulties, particularly receptive language, visual

perceptual motor difficulties, and reading difficulties

that require further specialized assessment from the

speech and language specialist, occupational therapist,

and reading teacher, respectively. [A.R.] shows a

profile with several co-occurring issues. They all

need to be fully assessed and treated for [A.R.] to

function successfully. 

Transcript at 129-30 (emphasis supplied). 

Given the largely undeveloped nature of the record,

particularly in light of Dr. Fitzgerald’s recommendation that

A.R. undergo further testing, the ALJ’s independent obligation to

fully develop the record, and the limited abilities of A.R.’s

parents (and the adverse effect that plainly had on their ability

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to fully present A.R.’s case), see claimant’s memorandum at 4-5,

principles of fairness and equity counsel in favor of remanding

this matter to the ALJ for further consideration on a better

developed record. Among other things, the ALJ should determine

whether further testing of A.R. is warranted and, if not, he

should articulate the basis or bases for that conclusion. He

might also wish to solicit a more complete evaluation from either

an examining or a non-examining physician. And, if he should

elect to give greater weight to the non-examining physician’s

opinions than those of Dr. Fitzgerald (or another examining

physician), the ALJ should explain his reasons for doing so. 

Conclusion

Ms. Rex bears a heavy burden to demonstrate that A.R. is

disabled within the meaning of the Act. And, it might well be

that she cannot carry that burden, particularly given A.R.’s

apparent improvement with medication, her reasonably successful

performance in school, and the fact that the behaviors that gave

rise to her parents’ concerns about dyslexia appear to have

resolved themselves as A.R. has matured. Nevertheless, any

decision regarding A.R.’s disability should be based upon a

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reasonably developed record, including, if the ALJ deems it

appropriate, the additional testing recommended by Dr.

Fitzgerald. 

For the foregoing reasons, as well as those set forth in

claimant’s memorandum, claimant’s motion to reverse the

unfavorable action of the Commissioner (document no. 10) is

granted in part, and denied in part. It is granted to the extent

it seeks an order remanding this proceeding to the ALJ for

further consideration. In all other respects, that motion is

denied. The Commission’s motion for order affirming his decision

(document no. 12) is denied. 

Pursuant to sentence four of 42 U.S.C. § 405(g), this matter

is hereby remanded to the ALJ for further proceedings consistent

with this order and, if the ALJ deems it appropriate, taking

additional evidence and/or ordering additional testing of A.R. 

The Clerk of Court shall enter judgment in accordance with this

order and close the case. 

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge 

December 10, 2007

cc: Francis M. Jackson, Esq.

Karen B. Fitzmaurice, Esq.

David L. Broderick Esq.

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