IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

GAGE FORD, by and through :

his mother APRIL GRIFFIN,

:

Plaintiff,

vs. : CA 05-0472-WS-C

JO ANNE B. BARNHART, :

Commissioner of Social Security,

:

Defendant.

REPORT AND RECOMMENDATION

The plaintiff, April Green, brings this action on behalf of her son, Gage

Ford, pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial review of a final

decision of the Commissioner of Social Security denying Gage’s application

for child’s insurance benefits. This action has been referred to the Magistrate

Judge for entry of a report and recommendation pursuant to 28 U.S.C. §

636(b)(1)(B). Upon consideration of the administrative record, plaintiff's

proposed report and recommendation, and the Commissioner's proposed report

and recommendation, the undersigned recommends that the Commissioner's

decision denying child’s insurance benefits be affirmed. 

The Administrative Law Judge (ALJ) made the following findings:

1. The claimant has not engaged in substantial gainful

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activity since the alleged onset of disability (20 CFR § 416.972).

2. The claimant has ADHD and developmental delay, which

together are “severe impairments” (20 CFR § 416.924(c)).

3. The claimant’s and his mother’s allegations of symptoms

and limitations are only partially credible, as discussed in the

body of this decision.

4. The limitations resulting from the effects of the

claimant’s impairments do not meet, medically equal, or

functionally equal the criteria of any of the listed impairments

in Appendix 1, Subpart P, Regulations No. 4 (20 CFR §

416.924(d)).

5. The claimant has a less than marked limitation in

attending [to] and completing tasks, interacting and relating with

others, and caring for himself, but no limitations in the other

areas of functioning. He does not have a combination of

medically determinable physical or mental impairments that

result in two categories of marked and severe functional

limitations or one with extreme limitations.

6. The claimant has not been under a “disability” as defined

in the Social Security Act, at any time through the date of this

decision (20 CFR § 416.924(d)(2)).

 

(Tr. 24-25) The Appeals Council affirmed the ALJ's decision (Tr. 6-8) and

thus, the hearing decision became the final decision of the Commissioner of

Social Security.

DISCUSSION

Prior to February 20, 1990, a child claimant would be found eligible for

benefits under the Commissioner's regulations only if he was not performing

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substantial gainful activity, if his impairment met the duration requirement,

and if his impairment was medically equivalent to a listed impairment.

Sullivan v. Zebley, 493 U.S. 521, 526, 110 S.Ct. 885, 889, 107 L.Ed.2d 967

(1990). The Commissioner's regulations made no inquiries corresponding to

the fourth and fifth steps of the adult analysis. Id. In Zebley, the Supreme

Court stated in plain words that "a child is entitled to benefits if his impairment

is as severe as one that would prevent an adult from working." Id. at 529, 110

S.Ct. at 890. The High Court rejected the Commissioner's argument that

analysis of child disability claims of the type performed at steps four and five

of the adult analysis is not feasible. See id. at 539, 110 S.Ct. at 896.

The fact that a vocational analysis is inapplicable

to children does not mean that a functional

analysis cannot be applied to them. An inquiry

into the impact of an impairment on the normal

daily activities of a child of the claimant's age --

speaking, walking, washing, dressing, feeding

oneself, going to school, playing, etc. -- is, in our

view, no more amorphous or unmanageable than

an inquiry into the impact of an adult's

impairment on his ability to perform "any other

kind of substantial gainful work which exists in

the national economy[.]"

Id. at 539-540, 110 S.Ct. at 896 (citation omitted).

Following the Zebley decision, the Commissioner made wholesale

revisions in the regulations addressing child disability claims. The

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Commissioner began employing a four-step sequential analysis for

determining whether a child is disabled. See 20 C.F.R. § 416.924(c)-(f). The

four steps were as follows: (1) If the child is working and that work is

substantial gainful activity, he will be found not disabled regardless of his

medical condition or age, education, or work experience; (2) If the child does

not have any severe impairment(s) he will be found to be not disabled; (3) If

the child has an impairment(s) which meets the duration requirement and is

listed in appendix 1, or is equal to a listed impairment, he will be found to be

disabled; and (4) If the child has a severe impairment(s) but that impairment(s)

does not meet or equal in severity a listed impairment, the impact of the child's

impairment(s) on his overall ability to function independently, appropriately,

and effectively in an age-appropriate manner is assessed and this

individualized functional assessment will be used to decide whether the child

has an impairment(s) that would prevent an adult from engaging in substantial

gainful activity and, thus, to determine whether or not the child is disabled. Id.

The comparable severity standard was eliminated with passage of the

Personal Responsibility and Work Opportunity Act of 1996. See Pub.L. No.

104-193, 110 Stat. 2105 § 211(b)(2) (1996) (directing the Commissioner to

eliminate the individual functional assessment set forth in the regulations at 20

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C.F.R. §§ 416.924d and 416.924e). This act, which was signed into law on

August 22, 1996, wrought another change in the disability determination

process for children. The 1996 Act provides that “[a]n 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).

The regulations implementing this definition of disability provide a three-step

process for determining eligibility for benefits which is identical to the first

three steps of the post-Zebley analysis, save with respect to the third step. The

first step still requires the ALJ to determine whether the child is engaged in

substantial gainful activity and the second step still requires the ALJ to

determine whether the child has a severe impairment or combination of

impairments. At the third step, the ALJ must determine whether the severe

impairments “meet, medically equal, or functionally equal the listings. An

impairment(s) causes marked and severe functional limitations if it meets or

medically equals the severity of a set of criteria for an impairment in the

listings, or if it functionally equals the listings.” 20 C.F.R. § 416.924(d)

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(2004) (emphasis in original). 

A child’s impairment is recognized as causing “marked and

severe functional limitations” if those limitations “meet[],

medically equal[], or functionally equal[] the [L]istings.” A

child’s limitations “meet” the limitations in the Listings if the

child actually suffers from the limitations specified in the

Listings for that child’s severe impairment. A child’s limitations

“medically equal” the limitations in the Listings if the child’s

limitations “are at least of equal medical significance to those of

a listed impairment.”

Finally, even if the limitations resulting from a child’s particular

impairment are not comparable to those specified in the Listings,

the ALJ can still conclude that those limitations are

“functionally equivalent” to those in the Listings. In making this

determination, the ALJ assesses the degree to which the child’s

limitations interfere with the child’s normal life activities. The

C.F.R. specifies six major domains of life:

(i) Acquiring and using information;

(ii) Attending and completing tasks;

(iii) Interacting and relating with others;

(iv) Moving about and manipulating objects;

(v) Caring for [one]self; and 

(vi) Health and physical well-being.

The C.F.R. contains various “benchmarks” that children should

have achieved by certain ages in each of these life domains. A

child’s impairment is “of listing-level severity,” and so

“functionally equals the listings,” if as a result of the limitations

stemming from that impairment the child has ‘marked’

limitations in two of the domains [above], or an ‘extreme’

limitation in one domain.”

Shinn ex rel. Shinn v. Commissioner of Social Security, 391 F.3d 1276, 1279

(11th Cir. 2004) (internal citations omitted). 

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The new standard clearly is more stringent given Congress’s decision,

as stated in the House conference report, to confine the definition of childhood

disability to the first three steps of the sequential evaluation process. Hart ex

rel. Thomas v. Chater, 963 F.Supp. 835, 839 (W.D.Mo. 1997). The report

reads in pertinent part as follows:

“The conferees intend that only needy children with severe

disabilities be eligible for SSI, and the Listing of Impairments

and other current disability determination regulations as

modified by these provisions properly reflect the severity of

disability contemplated by the new statutory definition. . . . The

conferees are also aware that SSA uses the term ‘severe’ to often

mean ‘other than minor’ in an initial screening procedure for

disability determination and in other places. The conferees,

however, use the term ‘severe’ in its common sense meaning.”

Id. (quoting 142 Cong. Rec. H8829-92, 8913 (1996 WL 428614), H.R. Conf.

Rep. No. 104-725 (July 30, 1996)); see also 20 C.F.R. § 416.924(a) (2004)

(“We follow a set order to determine whether you are disabled. If you are

doing substantial gainful activity, we will determine that you are not disabled

and not review your claim further. If you are not doing substantial gainful

activity, we will consider your physical or mental impairment(s) first to see if

you have an impairment or combination of impairments that is severe. If your

impairment(s) is not severe, we will determine that you are not disabled and

not review your claim further. If your impairment(s) is severe, we will review

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1 Plaintiff’s attorney at the administrative level contended only that Gage’s

impairments medically or functionally equal Listing 112.11. (See, e.g., Tr. 141 (the response to

the ALJ’s pre-hearing order reveals the position of plaintiff’s attorney that Gage’s limitations

meet or equal listing 112.11)) Although plaintiff now has another attorney, given counsel’s

admission that Gage is not autistic (Doc. 23, at 7 (“Gage certainly does not suffer from

autism[.]”)), the undersigned recommends that the Court find that Gage does not have

impairments which medically equal or functionally equal Listing 112.10. 

Listing 112.10 provides the following:

Autistic Disorder and Other Pervasive Developmental Disorders: Characterized

by qualitative deficits in the development of reciprocal social interaction, in the

development of verbal and nonverbal communication skills, and in imaginative

activity. Often, there is a markedly restricted repertoire of activities and interests,

which frequently are stereotyped and repetitive.

The required level of severity for these disorders is met when the

8

your claim further to see if you have an impairment(s) that meets, medically

equals, or functionally equals the listings. If you have such an impairment(s),

and it meets the duration requirement, we will find that you are disabled. If

you do not have such an impairment(s), or if it does not meet the duration

requirement, we will find that you are not disabled.”). 

Plaintiff contends that there does not exist in the record substantial

support for the ALJ’s determination that Gage’s ADHD and developmental

delay problems do not medically or functionally equal a listed impairment.

More specifically, it is plaintiff’s contention that the ALJ erred in failing to

find that Gage’s limitations do not medically equal or functionally equal

Listings 112.11 and 112.10.1

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requirements in both A and B are satisfied.

A. Medically documented findings of the following:

...

2. For other pervasive developmental disorders, both of the

following:

a. Qualitative deficits in the development of reciprocal social

interaction; and 

b. Qualitative deficits in verbal and nonverbal communication and in

imaginative activity;

AND

B. For older infants and toddlers (age 1 to attainment of age 3),

resulting in at least one of the appropriate age-group criteria in paragraph B1 of

112.02; or, for children (age 3 to attainment of age 18), resulting in at least two of

the appropriate age-group criteria in paragraphs B2 of 112.02.

Id. The appropriate criteria in paragraph B2 of 112.02 are:

a. Marked impairment in age-appropriate cognitive/communicative function,

documented by medical findings (including consideration of historical and other

information from parents or other individuals who have knowledge of the child,

when such information is needed and available) and including, if necessary, the

results of appropriate standardized psychological tests, or for children under age

6, by appropriate tests of language and communication; or

b. Marked impairment in age-appropriate social functioning, documented by

history and medical findings (including consideration of information from parents

or other individuals who 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 functioning, documented

by history and medical findings (including consideration of information from

parents or other individuals who have knowledge of the child, when such

9

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information is needed and available) and including, if necessary, appropriate

standardized tests; or

d. Marked difficulties in maintaining concentration, persistence, or pace.

Id.

As noted in Shinn ex rel. Shinn, supra, “[a] child’s limitations ‘medically equal’ the

limitations in the Listings if the child’s limitations ‘are at least of equal medical significance to

those of a listed limitation.’” 391 F.3d at 1279. In her proposed report and recommendation,

plaintiff simply has not provided the undersigned with an appropriate road map for concluding

that Gage’s limitations are of equal medical significance to Listing 112.10. (See Doc. 23, at 7-9) 

Most significant, plaintiff makes no showing whatsoever that Gage has limitations medically

equal to qualitative deficits in verbal and nonverbal communication and in imaginative activity.

Therefore, plaintiff’s argument that Gage’s limitations medically equal Listing 112.10 is due to

be rejected. That Gage’s limitations are not functionally equal in severity to Listing 112.10 will

be made clear infra.

10

Listing 112.11 provides, as follows:

Attention Deficit Hyperactivity Disorder: Manifested by

developmentally inappropriate degrees of inattention,

impulsiveness, and hyperactivity.

The required level of severity for these disorders is met

when the requirements in both A and B are satisfied.

A. Medically documented findings of all three of the

following:

1. Marked inattention; and

2. Marked impulsiveness; and

3. Marked hyperactivity;

AND

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B. For older infants and toddlers (age 1 to attainment

of age 3), resulting in at least one of the appropriate age-group

criteria in paragraph B1 of 112.02; or, for children (age 3 to

attainment of age 18), resulting in at least two of the appropriate

age-group criteria in paragraph B2 of 112.02.

Id. The appropriate criteria in paragraph B2 of 112.02 have been set forth

above. See, supra, n.1.

As previously indicated, in Shinn ex rel. Shinn the Eleventh Circuit held

that “[a] child’s limitations ‘medically equal’ the limitations in the Listings if

the child’s limitations ‘are at least of equal medical significance to those of a

listed impairment.’” 391 F.3d at 1279. Again, in this case plaintiff has not

established that Gage’s limitations are medically equal to Listing 112.11.

Significantly, plaintiff makes the conclusory argument that Gage exhibits

marked inattention, impulsiveness and hyperactivity but provides this Court

with no citations to evidence in the record from which it can conclude that

Gage’s limitations rise to the level of medical equivalence to marked

inattention, impulsiveness and hyperactivity. In particular, the report from the

Sparks Clinics upon which plaintiff primarily relies does not contain a

diagnosis of Attention Deficit Hyperactivity Disorder. (Tr. 173 (list of

diagnoses); see also Tr. 175 (“Although Gage exhibits many of the behaviors

associated with ADHD, e.g., overactivity, impulsivity[,] it is important to

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implement needed changes in the school and home environment before making

this particular diagnosis.”)) Moreover, because no other medical evidence

makes mention of marked inattention, impulsiveness and hyperactivity, this

Court, under Shinn ex rel. Shinn, cannot find that Gage’s limitations

“medically” equal Listing 112.11.

Plaintiff makes the alternative argument that Gage’s limitations are

functionally equal to Listings 112.10 and 112.11. In making the determination

of functional equivalence, “the ALJ assesses the degree to which the child’s

limitations interfere with the child’s normal life activities.” Shinn ex rel. Shinn,

supra, 391 F.3d at 1279. The Commissioner’s regulations set forth six major

domains of life:

(i) Acquiring and using information;

(ii) Attending and completing tasks;

(iii) Interacting and relating with others;

(iv) Moving about and manipulating objects;

(v) Caring for [one]self; and 

(vi) Health and physical well-being.

20 C.F.R. § 416.926a(b)(1) (2005). A child’s impairments will be found to

functionally equal the listings if they result in “‘marked’ limitations in two

domains of functioning or an ‘extreme’ limitation in one domain[.]” 20 C .F.R.

§ 416.926a(a). 

The undersigned finds that there is substantial support in the record for

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the ALJ’s determination that Gage’s impairments do not functionally equal

Listings 112.10 and 112.11. In particular, the only teachers to complete

questionnaires on Gage either noted no problems in any of the six domains of

life or less than marked limitations in each of the six domains. (Tr. 113-121 &

146-149) In addition, a non-examining, reviewing physician, Dr. Larry Dennis,

completed an evaluation of the six domains, based upon a review of the

evidence of record, and determined that Gage had no limitation or a less than

marked limitation in each of the six domains. (Tr. 229-236) Finally, nothing

contained in the medical evidence of record, particularly the report from the

Sparks Clinics, leads this Court to the conclusion that Gage has marked

impairments in two domains of functioning, or extreme impairments in one

domain of functioning, as conclusorily argued by plaintiff (see Doc. 23, at 8

(“Even assuming arguendo that neither listing was medically equaled, the

evidence was compelling that there was indeed marked limitation in Gage’s

ability to attend and complete tasks, acquire and use information, interact and

relate to others, and care for himself.”)). Therefore, the undersigned

recommends that the Court find that substantial evidence in the record supports

the Commissioner’s decision that Gage Ford’s impairments and limitations do

not meet or medically or functionally equal a listed impairment.

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CONCLUSION

Based upon the foregoing, the Magistrate Judge recommends that the

Commissioner's decision denying the application made on behalf of Gage Ford

for child’s insurance benefits be affirmed. 

The attached sheet contains important information regarding objections

to the report and recommendation of the Magistrate Judge.

DONE and ORDERED this the 21st day of June, 2006.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

within ten days of the date of service of this document, file specific written objections with

the Clerk of this court. Failure to do so will bar a de novo determination by the district

judge of anything in the recommendation and will bar an attack, on appeal, of the factual

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en

banc). The procedure for challenging the findings and recommendations of the Magistrate

Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C.

§ 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original

records in this case are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the

cost of the transcript.

_s/WILLIAM E. CASSADY________ 

UNITED STATES MAGISTRATE JUDGE

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