United States District Court, S.D. Mississippi, Northern Division
ANGELA STILES o/b/o B.B. PLAINTIFF
NANCY A BERRYHILL, Acting Commissioner of Social Security DEFENDANT
KEITH BALL UNITED STATES MAGISTRATE JUDGE.
Stiles filed for supplemental security benefits on behalf of
her son, B.B., on August 14, 2012. After the application was
denied both initially and upon reconsideration, she requested
and was granted a hearing before an ALJ. The hearing was held
on May 8, 2014, and on September 10, 2014, the ALJ issued a
decision finding that B.B. is not disabled. The appeals
council denied review. Plaintiff now brings her appeal
pursuant to § 205(g) of the Social Security Act, 42
U.S.C. § 405(g). She alleges that B.B. is disabled based
upon asthma, intellectual disability, and a learning
Facts and Evidence before the ALJ
was born on August 17, 2001, and was 13 years of age at the
time of the decision of the ALJ. He has a history of asthma.
In June of 2012, his school district evaluated him for
placement in special education. As a part of this assessment,
B.B. was administered the Woodcock-Johnson III achievement
test (WJ-III) and the Reynolds Intellectual Assessment Scales
(RIAS). At the time of testing, B.B. was 10 years of age and
had completed the fourth grade. The WJ-III indicated that he
was functioning at a grade level between 2.0 and 2.7 in all
areas. R. 136,  at 139. On the RIAS, he achieved a verbal
intelligence score of 78, a nonverbal intelligence score of
102, and a composite score of 88. R. 138,  at 141. It was
determined that B.B. met the eligibility guidelines for a
Specific Learning Disability (SDL) in basic reading skills.
R. 133,  at 136.
September of 2012, Stephanie Thornton, B.B.'s special
education teacher, completed a questionnaire. Ms. Thornton
stated that B.B. was in the fifth grade and received special
education services five hours a week. R. 164-65,  at
167-68. She indicated that in the area of acquiring and using
information, B.B. had serious to very serious problems,
explaining that he needed much extra help and support to
function in the inclusion classroom and that his tests were
read to him. R. 166,  at 169. She stated that B.B.
struggled in all subjects and that anything involving reading
caused him stress. Id. Ms. Thornton indicated that
in the area of attending and completing tasks, B.B needed
extra encouragement to complete tasks and extra help to
organize, and prepare. R. 167,  at 170. It was her
observation that he did not work well in independent
activities. Id. As to the domain of interacting and
relating to others, she indicated that B.B. had some problems
and that he needed a very structured environment. R. 168,
 at 171. Ms. Thornton stated that B.B. had no problems in
the domains of moving about/manipulating objects, caring for
himself, and health and physical well-being. R. 169-71, 
second special education assessment was completed in May of
2013. The report stated that B.B.'s learning disability
in basic reading skills had a significant impact on his
progress in the general education classroom. R. 186,  at
189. It indicated that he struggled with anything involving
reading, including language and particularly math, and that
he needed the assistance of an inclusion teacher in the
general education classroom. Id. Finally, the report
noted that B.B. had been involved in a couple of fights at
school and had been suspended because of them. Id.
school records indicate more discipline problems in the
following school year, the most serious of which was an
incident of fighting. R. 208-212,  at 211-15.
of 2014, B.B. underwent a psychological evaluation by Dr.
Criss Lott. B.B. was accompanied by his mother at the
evaluation. Ms. Stiles reported to Dr. Lott that B.B.
maintained appropriate hygiene and grooming, and she
described his daily living skills as age-appropriate. R. 295,
 at 298. She stated that B.B. helped to clean his room,
fed his dog, and took out the trash. Id. As to his
social skills, she reported that B.B. enjoyed spending time
with friends and relatives and would occasionally stay
overnight with his friends. Id. He enjoyed playing
outside and playing basketball and football. Id. She
said that he had been suspended several times from school,
but she indicated that there were no management problems at
home or in the community. R. 295, 297,  at 298, 300.
During the examination, B.B. was polite and cooperative. R.
295,  at 298. He was alert and attentive and responded
appropriately to questions. Id. It was Dr.
Lott's opinion that B.B. put forth a genuine effort
during testing. R. 296,  at 299. On the Wechsler
Intelligence Scale for Children (WISC-IV), B.B. achieved a
full scale IQ of 65. Id. On the Wide Range
Achievement Test (WRAT-4), he achieved scores of grade level
2.4 to 3.0 in all subject matter areas. Id. Dr.
Lott's provisional diagnoses were borderline intellectual
functioning and an SDL in reading and math. Id. In
connection with the examination, Dr. Lott completed a
questionnaire in which he assessed B.B.'s functional
capabilities. He described as “impaired”
B.B.'s cognitive development, personal/behavioral
patterns, and concentration, persistence and pace in task
completion. R. 300-301,  at 303-304. With reference to
this latter domain, Dr. Lott explained that B.B.'s
working memory score was in the extremely low range. R. 301,
 at 304.
administrative record contains the opinions of several agency
consultants who examined the records. Dr. Eva Henderson
opined that B.B.'s asthma is non-severe. R. 276-77, 
at 279-80. Dr. James Herzog opined that B.B.'s learning
disability constitutes a severe impairment but that it is not
of listing severity. R. 270-71,  at 273-74. Dr. Herzog
rated B.B.'s functional limitations as follows: No
limitation in interacting and relating with others and caring
for himself, a less than marked limitation in acquiring and
using information, and a marked limitation in attending and
completing tasks. R. 272-74,  at 275-76. Dr. Lisa Yazdani
stated that B.B.'s learning disability and asthma
constitute a severe impairment or combination of impairments
but that they are not of listing severity. R. 282-83, 
¶ 285-86]. She assigned ratings to B.B.'s
limitations in several of the domains as follows: No
limitation in interacting and relating with others, in caring
for himself, or in health and physical well-being; a less
than marked limitation in acquiring and using information,
and a marked limitation in attending and completing tasks. R.
204-205,  at 287-88.
hearing, B.B. testified that he likes to play sports in the
neighborhood, watch television, and play video games. R. 57,
60,  at 60, 63. He can ride a bike. R. 59-60,  at
62-63. Concerning chores, he stated that he has a dog that he
takes care of and that he also takes out the garbage. R. 57,
60,  at 60, 63. B.B. said that he does his homework. R.
58,  at 61.
testifying was Ms. Stiles. She reported that B.B. takes care
of his dog but that she has to remind him to do so. R. 62,
 at 65. He is able to play in a group with other
children, but he becomes angry when things do not go his way.
R. 68-69,  at 71-72. According to Ms. Stiles, B.B. can
stay on task with his homework only about three minutes
before he wants to get up and do something else. R. 67, 
The Decision of the ALJ
claims by children are determined using a three-step
sequential analysis. See 20 C.F.R. § 416.924.
At step one, the ALJ determines whether or not the claimant
is engaged in substantial gainful activity. 20 C.F.R. §
416.924(b). If not, the ALJ moves on to step two, which is a
determination of whether the child suffers from a severe
impairment or a combination of impairments that is severe. 20
C.F.R. § 416.924(c). If the ALJ finds that the child
suffers from a severe impairment, or a combination of
impairments that is severe, the analysis continues to step
three, which involves a determination as to whether the
child's impairment ...