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w . v i l l a no va . e du/thir dc ir c uit_2003/526NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 02-3881 MARY ANN GLENN, o/b/o JASON NORFLEET

v. THE COMM ISSI ONER OF SOCIAL SECURITY

Jason No rfleet, Appellant App eal from th e Un ited States District Co urt for the We stern D istrict of P enns ylvania (D.C. Civi l No. 02-cv- 00526) District Court Judge: Honorable William L. Standish
Submitte d Under Third Circ uit LAR 34.1(a)

May 16, 2003 Be for e: R EN DE LL , SM ITH and AL DI SE RT , Circu it Judges

(Fil ed May 28, 2003)
OPINI ON OF THE COURT
RE ND EL L, Circuit

Judge
.1 Because Glenn is reall y the actor in thes e proceedi ngs, we willtreat her as the plaint iff i n this discuss ion. 2 Mary Ann Glenn, 1 on beh alf of her so n Jason N orfleet, appeals the D istrict Court’s grant of s ummary judgment for the Commissi oner of Socia l Securi ty and affirmance of th e Comm is si one r’ s de ni al of h ercl ai m for chi ld ’s Supp le ment al Sec ur ity In come Bene fi ts . We wil l a ffirm. In January 2000, Glenn fil ed an appli cati on for benefi ts on behal f of her son under Titl e XVI of the SocialSecurity Act, 42 U.S.C. § 1381, alle ging that Jason had been disa bled sinc e D ece mb er 1 999 due to att entio n de ficit h ypera ctivi ty diso rde r (“A DH D” ). Benefits were denied i niti ally and on reconsi derati on. Glenn then requested a heari ng bef ore an A dm inistr ative La w J udg e (“A LJ” ). Glenn and Jason ar

rived at the hearing without

counsel. At the openi ng of the hearing, the ALJ advised Gle nn that J ason had a ri ght to couns el becaus e there were legal issues involved. The ALJ further expl ained that the benefit s decis ion would not be ba sed upon whether Jas on had an att orney or not, and that the proce edings were i nformal and were simply

intende d to all ow the ALJ to gather information that

might have a bearing on Jason ’s app lication. T he A LJ th en state d that if Glen n w anted to ob tain co unse l, it wou ld be necessary t o reschedul e the hearing. He asked Gle nn if she wante d to procee d under these circumstance s, and s he said y es. R146. The ALJ then asked Glenn if s he had had an opportunity to revi ew the fil e. Glenn3

responded that she had not . The ALJ asked if t he fil e had been made avail able t o her pri or t o th e heari ng, to whi ch Gl enn h ad “n o aud ibl e re spon se. ” R147. Fin al ly , the ALJ aske d if sh e had any obje ction to his co nside ration o f any of the m aterial in J ason ’s file in dec idin g th e ca se, to wh ich G lenn resp ond ed, n o. Id. The AL J then proc eede d w ith the h earing , first exp laining to G lenn th at he w ould be looking at Jason’ s functi oning in fi ve broad are as, t hen asking her

questi ons about Jason’s progress in school , his Indivi dualiz ed Education Pl an (“IEP”), speech the rapy classe s, mo tor skills, frie nds, o utside a ctivities, pe rsona l safety, ho useh old task s, ability to maintai n atte ntion, and his r eacti on to the medi cati on Rital in. R149-54. Glenn stated that Jason wa s hyper a nd w ould som etime s bec om e ang ry whe n he lo st at gam es or w as told to do chor es, bu t that he could play gam es like n orm al kids, h ad frie nds, p lays footb all and basketba ll, could dres s himsel f and put hi s thi ngs away, loves t o draw and write, and had b een c alme d do wn by the R italin. Th e A LJ th en as ked J ason ques tions ab out h is teacher , his friends , and hi s acti viti es, and off ered Glenn the opportuni ty to add any thing furthe r that sh e thou ght rele vant. After the hearing, the ALJ denied benefits. First , the ALJ found that Jason was a minor and had never

performed subs tanti al gai nful activit y. Then, the ALJ consi dered whether Jas on had a disabi lit y suc h that hewas entitled to be nefit s. The ALJ found that Jason’s ADH D was a severe impai rment, but that Jason’s low average i ntell igence was not a severe impairment. I n coming to the conclusi on that J ason had low avera ge4

intel ligenc e, the ALJ credit ed the most recent I Q score rather than a lower scor e from an earlier test. The ALJ later explained that t he higher IQ score was m ore reliabl e because the te sti ng was performed more re centl y, under the s upervis ion of a hi ghly qualif ied st aff, and the r esu lts w ere m ore con siste nt w ith Ja son ’s cu rren t per for ma nce in sc hoo l. A4 0. Having found that

Jason’s ADH D was a severe impai rment, the ALJ then evaluat ed whether Jas on’s subj ecti ve complaint s establis hed a tot ally disabl ing impairment , whether hi s impairment met or equal ed any of t he Liste d Impairment s, and whether Jas on had any marked or extreme limit ations in anyarea of functioning or any impa irment s that

were func ti onal lyequi val ent to any of the Li st ed I mpai rmen ts . TheALJ considered medical e vidence i ncluding t he two inte lli gence evaluations discuss ed above and a doctor ’s dia gnosis of ADHD; a report from Jason’s fi rst gr ade teache r that he had some diffi culti es in r eading and math but was working at the earl y fi rst gr ade level , had been better a ble to sta y on task after b eing p ut on Ritalin , and w orke d w ell with others ; a Children’ s Activi ties Questionnai re indi cati ng that J ason was working bel ow school level and w as rece iving s peec h thera py; Jason ’s curre nt IEP , wh ich ind icated that Jas on w ould be parti cipating in t

he regular generaleducati on curri culum with some modifi cati ons, that he was well-beha ved and enjoy ed drawing, but needed to i mprove his r eading ski lls ; and finally, G lenn’s testimo ny and J ason ’s beh avior d uring the he aring. T aking all of th is evide nce in to con sidera tion, the AL J deter mine d that Ja son w as no t disable d as d efine d in the S ocial S ecurity A ct.5

Glenn appealed t

he ALJ’s decis ion to t

he Appeals Council , which affi rmed the decisi on. Glenn then fil ed a complaint in the Dis tri ct Court f

or revi ew of the Commissioner’ s finaldetermi nation de nyi ng her claim. Both parties file d motions for summary j udgment. The Dist rict Court granted summary j udgment in favor of the Comm issioner and affirmed the denial of benefits . Glenn appeals. The D istri ct Court had jurisdiction under 42 U.S.C.§ 405(g). W e exercise juri sdiction over t

he finalorder of t

he District Court

pursuant to 28 U.S.C. § 1291. On appeal, Glenn presents three ba ses for reversalor remand: 1) that he r waiver of counsel was not

knowing and voluntary , 2) t hat the ALJ’s denialis not supporte d by subs tantial ev idenc e, and 3) that th e A LJ d id no t fulfill his duty of f ully and f airly developi ng the rec ord, as he is r equired to do when the appli cant i s an unrepr esented minor. We find all t

hree argument s without merit. First , we find that Glenn’s waiver of
counse l on Jason’s b ehalf w as know ing and v oluntary. Glenn w as notified of Jason’s right to counselin noti ces mail ed to her prior to the hearing and agai n by the ALJ at the start of the hearing. R27, 33, 146. Her repeat ed statements in he r bri ef that she never recei ved notic e of the right to counsel, of the avai labil ity of counsel at a reduc ed fee, or of the f act th at Ja son ’s file wa s av ailab le fo r rev iew are b latan tly con trad icted by the reco rd. See id. Sh e w as a deq uate ly info rme d of the r igh t and cho se n ot to exe rcise it. Furthermore, befor e we will re mand for lack of couns el, we require ashowing of clear6

prejud ice o r un fair nes s, see Dobrowolsky v. Califano , 606 F.2 d 40 3, 40 7 (3 d C ir. 19 79) , neith er o f w hich Gle nn h as sh ow n. Second, Glenn urge s us to fi nd that t he ALJ’s decis ion was not suppor ted by
su bs t an t i alev i de nc e. Ou r r ev i ew of t he ALJ ’ s d etermi na t i on i s d ef eren t i al
. We determine only whether the ALJ’s findings are supported by “such rel evant evidence as a reasonabl e mind might ac cept as a dequate. ” Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir . 199 9). Glenn does not cha llengethe ALJ’s enunci ation of the proper

legal standar d, rat

her she sug ges ts tha t the e vid enc e do es n ot su ppo rt the AL J’s d eterm inati on o f no disa bility. We disag ree. A s detaile d abo ve, the AL J con ducte d a tho roug h hea ring, qu estionin g bo th Glen n andJas on ab outJas on’ s be havi or, activi ti es, fri ends , a nd fu nction ing . TheALJ also thoroug hly reviewed the presented m edical eviden ce and sc hool repo rts. The A LJ’s determi nation t

hat Jas on is not

disabl ed is suppor

ted byJason’s low average i ntell igence, his enr ollment

in regul ar cla sses at

school, the fact

that he is well -behaved and a good worker, hi s abil ity

to play footbal l, dr aw, and color , his having a number of friends and inter acti ng appropri atel y with them, and hi s abil ity to concent

rate whil e taki ng Rital in. A4 3-4 4. Glenn att acks the ALJ’s decisi on to credi t the l ater, higher I Q score over the earli er, lo we r on e, arg uin g th at the AL J did not pro vid e an y reaso nin g fo r his d ecis ion
. We requ ire an A LJ to “give som e indic ation o f the e viden ce tha t he reje cts and his7

reasons f or disc ounting t

he evidence. ” Fargno li v. Massan ari , 247 F.3d 34, 43 (3d Cir. 200 1). H ere, the AL J did so ; his exp lanatio n that th e high er IQ score wa s mo re rece nt, was ad ministered by a high ly qualified staff, and w as more consistent w ith Jason’s
cur ren t per for ma nce in sc hoo l is ad equ ate. Glenn also argues that

the ALJ should have i nquired about more medical e vidence and/or s ent Jas on to anothe r doctor for more te sti ng, but s he does not pr ovide any indication of what

probati ve evidence t

he ALJ might have been abl e to uncover , and theref ore ca nno t dem onstra te any pre judice . Ab sent a c lear sh ow ing o f preju dice, w e w ill not rem and
. Dobrowolsky , 606 F.2d at 407. Fina lly, Glenn argu es that th e A LJ d id no t live up to his d uty to fully and fairly develop the record. We have disapproved of an ALJ’s passivi ty when faced with an
unr epr ese nted claim ant. See id. (remanding where ALJ failed t o pursue the possibi lit y of clai mant’s meeting the l isting for heart di sease where cl aimant’ s medical hist ory include d hospitalization for “c oronary insufficien cy” and claima nt testified that he had “sharp pains” when moving hi s arms). Here, however, the ALJ conducted a ful l heari ng and thoroughl y r eviewed the medi cal evi dence, r eports , and t esti mony. The ALJ asked Glenn and Jason quest

ions about

Jason’s daily

functi oning that

are very close to the questions Gle nn s ugg ests a n atto rne y wo uld hav e as ked
. See Ap p. Br. a t 31. T he A LJ f ulfilled h is responsibili ties ; his conduct her e was thorough and far from the l ackadais ical ty pe of
con duc t we hav e pr evio usly fo und to b e pr ejud icial.8

Bec ause we find th at Gle nn k now ingly and volu ntarily wa ived th e right to coun sel, that the AL J’s den ial wa s sup ported by subs tantial ev idenc e, and that the AL J fulf illed his duty to full y and fairlydevelop the record, we will affirm the Dist rict Court’s gr ant of summary judgment in favor of the Com missioner and the denial of benefits.

__________________________9

TO THE CLERK OF COU RT: Please fi le the foregoing not precedential opi nion.

/s/ M arjorie O . Ren dell Circuit Judge