Moore ex rel. Moore v. Barnhart

• Decision Date: 05 July 2005
• Docket Number: No. 04-3540.,04-3540.
• Citation: 413 F.3d 718
• Parties: Tammy MOORE, on behalf of Breanna MOORE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

413 F.3d 718

Tammy MOORE, on behalf of Breanna MOORE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Defendant-Appellee.

No. 04-3540.

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2005.

Filed: July 5, 2005.

E. Gregory Wallace, argued, Buies Creek, NC (Anthony W. Bartels, Jonesboro, AR, on brief), for appellant.

Earnie A. Joe, Social Security Administration, Dallas, TX, argued (James A. Garrett of the Social Security Administration, Dallas, TX, on brief), for appellee.

Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.

HANSEN, Circuit Judge.

Tammy Moore, on behalf of her daughter, Breanna Moore, appeals from the district court's judgment affirming the Commissioner of Social Security's denial of Moore's claim for supplemental security income, 42 U.S.C. §§ 1381-1383f (2000). After careful review, we affirm.

I.

Thirteen-year-old Breanna Moore has been diagnosed as mentally retarded. She is enrolled in a regular public elementary school, where she attends resource classes for reading, math, and language arts, and remains in a regular classroom for social studies and science, with some modified course work. Although Breanna has generally received low scores on her academic skills tests, she receives grades in the 80s and 90s in most of her classes. On an IQ test in April 2001 Breanna achieved a verbal score of 70, a performance score of 58, and a full scale score of 61.¹ (Admin. Tr. at 100.)

Her mother applied for supplemental security income on Breanna's behalf on March 27, 2001. Applying the standard three-step analysis for determining childhood disability, see 20 C.F.R. § 416.924 (2004), the ALJ first determined that Breanna had not engaged in substantial gainful activity. Next, he determined that Breanna Moore's impairment-mild mental retardation—was "severe" for social security purposes. Ultimately the ALJ determined that Breanna's impairments were not medically or functionally equivalent to any of the mental impairments found in 20 C.F.R. pt. 404, subpt. P, app. 1, listing 112.05. (Admin. Tr. at 11.) As to medical equivalency, the ALJ stated that he had specifically considered listing 112.05C, but the ALJ never explicitly addressed the application of listing 112.05E. As to functional equivalency, the ALJ found no evidence in the record that Breanna had limitations in five of the six functional domains listed in the regulations. See 20 C.F.R. § 416.926a(b)(1) (2004). While the ALJ did find that Breanna experienced a "marked" limitation in one of the domains, "acquiring and using information," ultimately the ALJ found that Breanna did not have a marked limitation in two or more domains, and that she had no "extreme" limitations. (Admin. Tr. at 14.) Benefits were denied initially and on reconsideration, and the Appeals Council denied review. The ALJ's determination stands as the Commissioner's final decision. See Dixon v. Barnhart, 353 F.3d 602, 604 (8th Cir.2003).

Moore appealed to the United States District Court, and the experienced United States Magistrate Judge² found that substantial evidence supported the Commissioner's decision to deny benefits. The judge rejected Moore's contention that Breanna's impairments were medically equivalent to Listings 112.05D or 112.05E. The court also rejected Moore's assertion that Breanna's impairments were functionally equivalent to any impairment in listing 112.05 because Breanna's limitation in the regulatory domain of "acquiring and using information" was allegedly "extreme." See 20 C.F.R. § 416.926a(b)(1). The court held that substantial evidence in the record as a whole supported the Commissioner's conclusion that Breanna had a marked, but not an extreme, limitation in the domain of "acquiring and using information," and rejected Moore's contention that Breanna had a marked limitation in either the domain of "moving about and manipulating objects" or "attending and completing tasks."

Appealing the district court's judgment, Moore argues before this court that the Commissioner erred in determining that Breanna's impairments were not medically or functionally equivalent to those listed in 20 C.F.R. pt. 404, subpt. P, app. 1, listings 112.05C or E. However, because Moore did not argue before the district court that the ALJ erred in determining that Breanna's impairments did not meet the requirements of listing 112.05C, Moore may not raise this argument for the first time on appeal. See Dixon, 353 F.3d at 606. In addition, we note that although Moore made a medical equivalency argument based on listing 112.05D in the district court, before this court Moore does not dispute the district court's decision as it related to that particular listing. Thus the only medical equivalency argument that remains is based on listing 112.05E.

II.

We review de novo a district court decision affirming a denial of social security benefits. Ellis v. Barnhart, 392 F.3d 988, 993 (8th Cir.2005). We will affirm the decision of the Commissioner if the Commissioner's findings are supported by substantial evidence on the record as a whole. Id. Substantial evidence is relevant evidence that a reasonable mind might find adequate to support the Commissioner's decision. Id. "We consider the whole record, including evidence that detracts from as well as evidence that supports the Commissioner's decision, and we will not reverse as long as substantial evidence supports the outcome." Id.

The Social Security Administration applies a three-step sequential test to determine childhood disability. Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 854 (8th Cir.2003); 20 C.F.R. § 416.924. At the first step, the Administration determines whether the child is engaged in substantial gainful activity. See 20 C.F.R. § 416.924(b). At the second step, an ALJ determines whether the child has an impairment that is "severe." 20 C.F.R. § 416.924(c). At the third step, an ALJ determines whether the child's impairment is medically or functionally equivalent in severity to the impairments listed in the disability regulations. 20 C.F.R. § 416.924(d); 20 C.F.R. pt. 404, subpt. P, app. 1. Because Moore only disputes the district court's findings as to the medical and functional equivalency of Breanna Moore's impairment, we address only the third step of the analysis. See Scales v. Barnhart, 363 F.3d 699, 703 (8th Cir.2004).

Moore first contends that substantial evidence does not support the Commissioner's determination that Breanna Moore's impairments were not medically equivalent to the impairments in listing 112.05E.³ The Social Security Administration evaluates medical equivalency pursuant to 20 C.F.R. § 416.926 and 20 C.F.R. pt. 404, subpt. P, app. 1. Medical equivalency exists if the child's impairment "is at least equal in severity and duration to the medical criteria of the listed impairment." Neal ex rel. Walker v. Barnhart, 405 F.3d 685, 689 (8th Cir.2005). In order to meet the requirements of listing 112.05E for mental retardation, the applicant must demonstrate "[a] valid verbal, performance, or full scale IQ of 60 through 70" and "at least one of paragraphs B2b or B2c or B2d of 112.02." 20 C.F.R. pt. 404, subpt. P, app. 1, listing 112.05E (2). Moore argues that Breanna meets both prongs of 112.05E—that Breanna had two IQ scores between 60 and 70, as required by Listing 112.05E(1), and marked difficulties in concentration, persistence, and pace, as required by listings 112.05E(2) and 112.02B(2)(d). In support of her argument that Breanna has difficulties in concentration, persistence, or pace, Tammy Moore argues that in 1998 a psychologist noted that Breanna had difficulty with tasks requiring "sustained attention" and "concentration" and that Breanna sometimes lost motivation in school. (Admin Tr. at 186, 188.)

The regulations provide that difficulties in "concentration, persistence, or pace" are shown by "deficiencies resulting in failure to complete tasks in a timely manner." See 20 C.F.R. pt. 404, subpt. P, app. 1, listing 112.00C(3) and (4)(b). The regulations also explain that the Social Security Administration evaluates applicants for difficulties in concentration, persistence, or pace "[in order] to identify the child who cannot adequately function in primary school because of a mental impairment." Listing 112.00C(3). In this case, despite the one report of difficulty with sustained attention in 1998, the record clearly supports a conclusion that Breanna had no marked difficulties in concentration, persistence, or pace. First, in May 2001 her teachers and her school counselor filled out a questionnaire for the Social Security Administration which contained a section specifically pertaining to "Concentration, Persistence, and Pace." (Admin. Tr. at 81.) The school officials indicated that Breanna had "no significant problems" concentrating on class work, working independently, staying on task, concentrating on tasks of interest to her, or completing tasks on time. Second, Tammy Moore provided evidence that Breanna did not have difficulties in these areas. In April 2001 Tammy Moore completed a Social Security Administration Function Report which asked the question, "Is the child's ability to pay attention and stick with a task limited?" (Id. at 143.) In response she indicated that Breanna was able to stay busy on her own, finish tasks that she had started, complete homework and household chores. (Id.) Furthermore, Tammy Moore testified before the ALJ that Breanna is able to read at home and complete her homework. (Id. at 36-41.) Finally, Breanna's grades for the 2001-2002 school year were nearly all in the 90s, except for some 70s in social studies. (Id. at 177-78.) We conclude that even though an earlier psychological evaluation suggested that Breanna had some level of difficulty with tasks requiring sustained attention, the other evidence in the record suggests that Breanna is not "[a] child who cannot adequately function in primary school because of a mental...