Taylor v. Berryhill

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 14, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DORIS TAYLOR, o/b/o N.A.T.,

Plaintiff - Appellant,

v. No. 16-5046
(D.C. No. 4:14-CV-00464-JED-FHM)
NANCY A. BERRYHILL,* (N.D. Okla.)
Acting Commissioner of Social Security
Administration,

Defendant - Appellee.
_________________________________

ORDER AND JUDGMENT**
_________________________________

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________

Doris Taylor, on behalf of her minor granddaughter N.A.T., appeals the

Commissioner’s denial of N.A.T.’s application for supplemental security income

benefits. She argues the ALJ erred in finding her testimony concerning N.A.T. less

than credible and in not finding N.A.T. has marked limitations in attending and

completing tasks. Because substantial evidence supports the agency’s factual

*
Pursuant to Fed. R. App. P. 43(c)(2), Nancy A. Berryhill is substituted for
Carolyn Colvin as the Acting Commissioner of the Social Security Administration.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
findings and the agency applied the correct legal standards, we affirm. See Briggs ex

rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001) (describing our

review of the Commissioner’s disability determinations).

BACKGROUND

Taylor sought benefits for N.A.T. when N.A.T. was six years old and had

completed first grade. Taylor claimed N.A.T. was disabled due to Attention Deficit

Hyperactivity Disorder (ADHD) and behavioral problems. The Commissioner had

denied an earlier application on N.A.T.’s behalf, so the relevant period for evaluating

N.A.T.’s disability began on June 29, 2011.

A child is considered disabled if she has “a medically determinable physical or

mental impairment, which results in marked and severe functional limitations,

and . . . 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 Commissioner has established

a three-step sequential evaluation process to determine whether a child claimant is

disabled. 20 C.F.R. § 416.924(a); Briggs, 248 F.3d at 1237. The first step asks if the

child is engaged in substantial gainful activity. If not, the next step is to determine if

the child has an impairment or combination of impairments that is severe. If so, the

third step asks if the child’s impairment meets or equals an impairment listed in

Appendix 1, Subpart P of 20 C.F.R. Pt. 404. 20 C.F.R. § 416.924(a); Briggs,

248 F.3d at 1237. A child’s impairment or combination of impairments functionally

equals the listings and, thus, constitutes a disability, when it results in “marked”

limitations in two domains or an “extreme” limitation in one domain, as described in

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20 C.F.R. § 416.926a. The Commissioner assesses how a child functions “‘in terms

of six domains: (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 [ones]self; and, (vi) Health and physical well-being.’” Briggs,

248 F.3d at 1238 (footnote omitted) (quoting 20 C.F.R. § 416.926a(b)(1)(i)-(vi)).

Here, the ALJ found at step two that N.A.T. had severe impairments of

ADHD, behavioral problems, and language delay. But the ALJ concluded at step

three that none of N.A.T.’s impairments met or equaled a listing. In considering the

six domains, the ALJ found that N.A.T. had a marked limitation in only one domain:

acquiring and using information. The ALJ considered Taylor’s testimony that

N.A.T.’s impairments had worsened since her previously denied application for

benefits, but found her testimony was not fully credible because it was inconsistent

with the medical evidence and appeared to be exaggerated. Thus, the ALJ found

N.A.T. wasn’t disabled at any time from June 29, 2011, through January 14, 2013,

the date of the ALJ’s decision. The Appeals Council denied review, and the district

court (adopting the report and recommendation of a magistrate judge) affirmed the

denial of benefits.

DISCUSSION

On appeal, Taylor argues the ALJ (1) failed to perform a proper credibility

determination as to her testimony, and (2) erred in relying only on the evidence of

one of N.A.T.’s teachers in determining N.A.T. had less than a marked limitation in

acquiring and completing tasks.

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 Credibility Determination. Taylor testified that N.A.T.’s impairments

worsened since her first application for benefits. She also testified that N.A.T.

becomes angry; won’t communicate; doesn’t follow directions at school; and stomps

her feet or crawls under a table when she doesn’t get her way at school and home.

She testified N.A.T. doesn’t play well with others, is easily frustrated, and needs help

with homework, cleaning her room, and being bathed. And according to Taylor,

N.A.T.’s behavior continued to worsen even though she was on medication. The ALJ

accurately described Taylor’s testimony, but found her assertion that N.A.T.’s

condition had worsened was not fully credible because it was inconsistent with the

medical record.

The ALJ is best suited to assess credibility, and we will not disturb credibility

findings that are supported by substantial evidence. Wilson v. Astrue, 602 F.3d 1136,

1144 (10th Cir. 2010). Taylor argues the ALJ failed to closely and affirmatively link

her adverse credibility finding to substantial evidence. See Knight ex rel. P.K. v.

Colvin, 756 F.3d 1171, 1176 (10th Cir. 2014). But the ALJ did precisely that, citing

specific evidence in the record that was inconsistent with Taylor’s testimony. The

ALJ noted that a pediatric physician at Oklahoma State University stated in 2011 that

N.A.T.’s school progress had improved, her peer relationships were normal, and her

behavior at home was adequate.1 The ALJ also noted that Taylor told a physician in

October 2012 that medication prescribed for N.A.T. seemed to help with school,

1
The ALJ incorrectly identified the date of this report was September 15,
2011, but the medical record containing these findings is dated October 6, 2011. The
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which was inconsistent with her testimony that N.A.T.’s behavior continued to

worsen even with medication.

Taylor argues the ALJ ignored evidence that was consistent with her

testimony. For example, she says the ALJ ignored evidence in the same 2011

Oklahoma State medical report that N.A.T. continued to have outbursts at school, and

though N.A.T.’s behavior was noted to be improved, it was still described as

inadequate at school. She also contends the ALJ ignored an October 2012 report

describing N.A.T.’s oppositional behavior when she doesn’t get her way and

evidence from N.A.T.’s teacher that N.A.T. was sullen, loses her temper easily, is

easily frustrated, and disturbs others. But Taylor’s reliance on this evidence is

misplaced. The ALJ didn’t question the credibility of Taylor’s testimony that N.A.T.

has ADHD or behavioral issues; rather, the ALJ questioned Taylor’s assertion that

N.A.T.’s condition had worsened since the original benefits application.

Taylor also argues the ALJ ignored evidence that the Oklahoma State

physician referred N.A.T. to a specialist, which she claims indicates N.A.T. wasn’t

improving. But that note indicates that the physician referred N.A.T. to a specialist

because an ADHD testing questionnaire was inconclusive—not because N.A.T.’s

condition had worsened. Thus, we conclude the evidence that Taylor claims the ALJ

ignored doesn’t contradict or overwhelm the substantial evidence in the record

supporting the ALJ’s credibility determination, and we find no legal error.

ALJ’s incorrect date is a harmless mistake. “[C]ommon sense, not technical
perfection, is [the] guide” of a reviewing court. Keyes–Zachary v. Astrue, 695 F.3d
1156, 1167 (10th Cir. 2012).
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 Attending and Completing Tasks. The ALJ found that N.A.T. had marked

limitations in acquiring and using information; less than marked limitations in

attending and completing tasks, interacting and relating with others, and ability to

care for herself; and no limitations in moving about and manipulating objects and

health and physical well-being. Taylor argues the ALJ’s determination that N.A.T.

had a less than marked limitation in attending and completing tasks is not supported

by substantial evidence because the ALJ relied on only one piece of evidence, the

report from N.A.T.’s special education teacher Faulk. But this argument relies on a

faulty description of the ALJ’s decision. True, in the ALJ’s specific discussion of the

attending-and-completing-task domain, the ALJ only referenced Faulk’s evidence,

but at the outset of her global discussion of all six domains, the ALJ discussed in

detail all of the substantial evidence supporting her functionality and domain

findings. This detailed discussion included the evidence from multiple state agency

experts who all concluded N.A.T. had a marked limitation only in acquiring and

using information and less than marked or no limitations in the other five domains,

including as relevant here, attending and completing tasks.

Taylor also argues that, notwithstanding Faulk’s evidence that N.A.T.

experiences only slight problems in nine of thirteen areas related to attending and

completing tasks, the combination of at least some problem in all thirteen areas

suggests a “cumulative impact greater than slight.” Opening Br. at 28. But the ALJ

wasn’t tasked with determining whether N.A.T. experienced a “greater than slight”

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impact. Rather, the ALJ was required to determine whether N.A.T. has marked or

extreme limitations.

Taylor also points to evidence that N.A.T. sometimes sat under her desk and

refused to work as evidence that N.A.T. had a marked limitation in attending and

completing tasks. But the record doesn’t contain any evidence indicating that this

behavior occurred with such frequency as to seriously interfere with N.A.T.’s ability

to attend to and complete tasks. 20 C.F.R. § 416.926a(e)(2)(i) (defining a “marked”

limitation as when the impairment “interferes seriously with [the child’s] ability to

independently initiate, sustain, or complete activities”). Taylor essentially asks this

court to reweigh the evidence, which we cannot do. Hackett v. Barnhart, 395 F.3d

1168, 1172 (10th Cir. 2005) (“We consider whether the ALJ followed the specific

rules of law that must be followed in weighing particular types of evidence in

disability cases, but we will not reweigh the evidence or substitute our judgment for

the Commissioner’s.” (citation and internal quotation marks omitted)).

Finally, Taylor argues the ALJ erred by not addressing the report from

N.A.T.’s first grade teacher Kovin that N.A.T. often or very often experienced

difficulty with attention and task completion. Taylor notes the report is undated, but

suggests Kovin completed it in April 2012 while the Commissioner says Kovin

completed the report in August 2011. In any event, we agree with the district court

that regardless of its completion date, the report related to N.A.T.’s performance in

first grade, which was prior to N.A.T.’s June 29, 2011 benefit application date, and

thus was outside the relevant disability period. We are aware that the ALJ could

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have considered evidence from a time preceding the relevant period if it shed light on

the nature and severity of N.A.T.’s condition during the relevant time period. But

even if we assume Kovin’s report sheds light on N.A.T.’s condition, the ALJ stated

she considered all of the evidence in the record, including that not specifically cited

in her decision. We have repeatedly held that while an ALJ must consider all of the

evidence in the record, nothing requires the discussion of every piece of evidence.

See, e.g., Clifton v. Chater, 79 F.3d 1007, 1009–10 (10th Cir. 1996). Thus, we

conclude the ALJ appropriately focused her discussion on the evidence during the

relevant period, and did not err in omitting any explicit discussion of Kovin’s report.

The ALJ’s determination that N.A.T. has less than marked limitations in

attending and completing tasks is supported by substantial evidence and we find no

legal error.

Affirmed.

Entered for the Court

Nancy L. Moritz
Circuit Judge

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