1Though this action was actually filed by his mother (Tr. 32),

the Court will refer to the minor child as the Plaintiff. 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

VERA MARKS, on behalf of J.M., : 

: 

Plaintiff, : 

: 

v. : CIVIL ACTION 09-0425-M 

: 

MICHAEL J. ASTRUE, : 

Commissioner of : 

Social Security, : 

: 

Defendant. : 

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 1383(c)(3), Plaintiff1

seeks judicial review of an adverse social security ruling which

denied a claim for Supplemental Security Income (hereinafter SSI)

for children (Docs. 1, 16). The parties filed written consent

and this action has been referred to the undersigned Magistrate

Judge to conduct all proceedings and order the entry of judgment

in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see

Doc. 24). Oral argument was waived in this action (Doc. 23). 

Upon consideration of the administrative record and the memoranda

of the parties, it is ORDERED that the decision of the

Commissioner be AFFIRMED and that this action be DISMISSED. 

This Court is not free to reweigh the evidence or substitute

its judgment for that of the Secretary of Health and Human SerCase 1:09-cv-00425-M Document 28 Filed 03/03/10 Page 1 of 7
2

vices, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported

by evidence sufficient to justify a reasoning mind in accepting

it; it is more than a scintilla, but less than a preponderance." 

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting

Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

At the time of the administrative hearing, Plaintiff was

five years old and was beginning kindergarten (Doc. 27 Fact

Sheet). In claiming benefits, Plaintiff alleges disability due

to borderline intellectual functioning, developmental delays, and

asthma (id.).

The Plaintiff filed an application for SSI on January 19,

2006 (Tr. 72-74). Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that although Marks

had severe impairments, they were not severe enough to render him

disabled (Tr. 15-29). Plaintiff requested review of the hearing

decision (Tr. 7-10) by the Appeals Council, but it was denied

(Tr. 2-4).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Marks alleges

the single claim that the ALJ improperly determined that his

borderline functioning was not a severe impairment (Doc. 16). 

Case 1:09-cv-00425-M Document 28 Filed 03/03/10 Page 2 of 7
3

Defendant has responded to—and denies—this claim (Doc. 18). The

relevant evidence of record follows.

On May 1, 2006, Thomas S. Bennett, Clinical Psychologist,

examined Plaintiff, who was not quite three years old at the

time, and noted average activity level for his age (Tr. 192-95). 

Marks “said a few recognizable words. He did not demonstrate any

two word combinations” (Tr. 193). Though alert, he did “not

demonstrate any level of orientation;” his fund of information

was mildly impaired (id.). He “probably functions with mild

impairment in the area of abstract reasoning” (id.). Marks’s

“social judgment is slightly below average but not impaired; . .

. he is probably limited in his judgment about safety issues”

(id. at 194). Administration of the Wechsler Pre-school and

Primary Scale of Intelligence-Third Edition resulted in a Verbal

IQ score of 74, a Performance IQ score of 90, and a Full Scale IQ

score of 73, placing him in the borderline range of cognitive

ability. The Psychologist’s diagnostic impression was borderline

intellectual functioning and asthma. Bennett’s written comments,

though lengthy, were as follows:

Overall, [Plaintiff] is a child who

appears to function in the borderline range

intellectually at this time. His motor

skills seem to be somewhat better developed

than that. He is getting services now for

individuals who are developmentally delayed

and will get more services in the near

future. He probably does have a lifelong

history of mental slowness. The test results

Case 1:09-cv-00425-M Document 28 Filed 03/03/10 Page 3 of 7
4

are considered to be a valid estimate of his

actual level of ability. His effort was

sufficient for the purposes of the testing. 

His activities and interests do not seem to

be significantly constricted relative to

other children his age. His ability to

relate to others is slightly below average

for his age, but not impaired. His ability

to function age-appropriately cognitively is

mildly impaired. His ability to function

communicatively is mildly to moderately

impaired. His ability to function socially

is slightly below average. His ability to

function adaptively is not measured formally,

but is probably slightly below average. His

ability to function behaviorally is slightly

below average. His concentration,

persistence, and pace were adequate for the

purposes of the test and were not outside

normal age for children his age in this

evaluation. His presentation and today’s

evaluation is probably fairly consistent with

his day to day functioning.

(Tr. 195). 

Records from the Mobile County Public School System for the

2007-08 school year indicate that Plaintiff is in a “blended

preschool program” in which he receives a total of seven and onehalf hours of special education services a week for daily living

skills, language and literacy, fine motor skills, and math; he

has developmental delays, “particularly in communication and self

help skills” (Tr. 127, 129-32). Over the course of the school

year, Marks showed improvement in designated goals, but still

needed help in the following areas: retelling story events and

identifying high-frequency words in the language and literacy

category; recognizing longest/shortest words and sentences,

Case 1:09-cv-00425-M Document 28 Filed 03/03/10 Page 4 of 7
5

recognizing number of words and word families/rhyming words in

the phonological category; and, in mathematics, sorting objects

by characteristics and identifying, describing, copying, and

extending patterns (Tr. 151). Plaintiff was found to be

satisfactory in all measures of initiative and social relations

as well as the following measures: in language and literacy,

identifying alphabet letters, printing his name correctly, using

complete sentences, and identifying letter sounds; and, in

mathematics, recognizing numerals, matching sets of objects,

counting objects using 1-1 correspondence, and recognizing shapes

(Tr. 151). This is the conclusion of all of the evidence cited

by Plaintiff (see Doc. 16). 

The ALJ determined that although Marks had severe

impairments of asthma and a developmental delay, they were not

severe enough to render him disabled (Tr. 21). The ALJ

specifically found that Plaintiff did not “have a severe mental

or emotional impairment” (id.). Nevertheless, the ALJ went

through domain analysis and determined that Plaintiff had less

than marked limitation in acquiring and using information, no

limitation in attending and completing tasks, less than marked

limitation in interacting and relating with others, no limitation

in moving about and manipulating objects, less than marked

limitation in the ability to care for himself, and less than

marked limitation in health and physical well-being as defined in

Case 1:09-cv-00425-M Document 28 Filed 03/03/10 Page 5 of 7
6

20 C.F.R. § 416.926a(g-l) (Tr. 23-29). 

The only claim raised by Plaintiff is that the ALJ

improperly determined that his borderline functioning was not a

severe impairment (Doc. 16). In Wilson v. Apfel, 179 F.3d 1276,

1278 (11th Cir. 1999), the Eleventh Circuit Court of Appeals held

that “[a] severe impairment is one that is more than ‘a slight

abnormality or a combination of slight abnormalities that causes

no more than minimal functional limitations.’” Wilson, 179 F.3d

at 1278 (quoting 20 C.F.R. § 416.924(c)).

The Court finds substantial support for the ALJ’s conclusion

that Marks’s borderline intellectual functioning is not severe. 

The report by Psychologist Bennett fully supports this

determination; though Bennett found mild-to-moderate impairments

during his examination, he indicated no severe impairments at

all. While the school records indicate deficiencies, it is

difficult to quantify them on a scale measuring degree of

impairment.

In any event, even if these limitations are severe, the ALJ

has explained his conclusions relative to the domain analysis,

finding that Marks did not meet the requirements of any of the

Listings. Plaintiff has not challenged this determination. This

being the case, the ALJ’s finding that Marks’s borderline

intellectual functioning is not a severe impairment would amount

to, at most, harmless error.

Case 1:09-cv-00425-M Document 28 Filed 03/03/10 Page 6 of 7
7

Plaintiff has raised a single claim in bring this action. 

That claim is without merit. Upon consideration of the entire

record, the Court finds "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Perales,

402 U.S. at 401. Therefore, it is ORDERED that the Secretary's

decision be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947,

950 (5th Cir. 1980), and that this action be DISMISSED. Judgment

will be entered by separate Order. 

DONE this 3rd day of March, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00425-M Document 28 Filed 03/03/10 Page 7 of 7