Russell ex rel. C.G. v. Astrue (742 F. Supp. 2d 1355, 2010)

ORDER AND MEMORANDUM OPINION

ALAN J. BAVERMAN, United States Magistrate Judge.

Plaintiff, Lashauna Russell on behalf of C.G., (“Plaintiff’), brought this action pursuant to § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”) denying the application for Supplemental Security Income (“SSI”) Benefits. For the reasons stated below, the Court REVERSES AND REMANDS the Commissioner’s final decision.

I. PROCEDURAL HISTORY

Plaintiff initially filed an application for SSI benefits on March 8, 2005, alleging disability commencing on December 22, 1997, the date of his birth. [Record (hereinafter “R”) 48-51]. Plaintiffs application was denied initially and on reconsideration. [R23-24, 35-38, 41-44]. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). [R33]. An evidentiary hearing was held on March 26, 2008. [R375-400]. Following the hearing, the ALJ issued an unfavorable decision on June 27, 2008. [R9-22]. Plaintiff sought review of the AL J’s decision and submitted additional records for the Appeals Council to review. [See R374A-374G]. The Appeals Council denied Plaintiffs request for review on January 29, 2009, rendering the ALJ’s decision the final decision of the Commissioner. [R2-5, 8].

Plaintiff then filed a civil action in this Court on March 26, 2009, seeking review of the Commissioner’s final decision. La-Shauna Russell o/b/o C.G. v. Michael J. Astrue, Civil Action File No. 1:09-CV-01123-AJB. [Doc. 2]. The answer and transcript were filed on December 1, 2009. [Docs. 13-14]. Plaintiff filed the initial brief on January 4, 2010, [Doc. 17], and the Commissioner filed a response on January 28, 2010, [Doc. 18]. Plaintiff did not file a reply brief. [See Dkt.]. The undersigned held a hearing on March 5, 2010. [See Doc. 19]. The matter is now before the Court upon the administrative record, oral argument, and the parties’ pleadings and briefs and is ripe for review pursuant to 42 U.S.C. § 1383(c)(8) and 42 U.S.C. § 405(g).

II. STATEMENT OF FACTS

A. Evidence before the ALJ

1. Administrative Records

A March 10, 2005, disability report indicated that Plaintiffs asthma was his disabling illness. This illness prevented him from running or doing other activities outside. [R73]. Plaintiff indicated that he had received treatment from Dr. Faull Trover from 1997 through 2005 and from the Newton General Hospital for this same period. [R73-74]. Plaintiff indicated that he was taking four medications for his asthma, none of which caused side effects — Albuterol, Prednisone, Singulair Tab, and Singulair. [R74]. At the time of the disability report, Plaintiff had completed kindergarten and was attending elementary school. [R76]. He had not been tested for behavioral problems and was not in special education classes. [R76].

In a March 2005 Function Report, Plaintiff indicated that he sometimes had trouble seeing. [R95]. He had no trouble with hearing and talking. [R95-96]. Plaintiffs ability to communicate was limited because he could not deliver telephone messages, repeat stories, tell jokes accurately, explain why he did something, speak in complex sentences, and talk with family. [R97]. Plaintiff was unsure whether his learning was limited because he could not: read, read letters, print letters, write in long hand, write simple stories, perform addition or subtraction, understand money, or tell time. [R98]. Plaintiffs physical abilities were limited because he could not run, use roller skates, swim, or dress/undress dolls. [R99]. Plaintiffs impairment prevented him from playing team sports, but he could make friends and get along with adults. [R100]. Plaintiffs impairment interfered with his ability to take a bath, wash his hair, hang up his clothes, help around the house, get to school on time, and accept criticism. [R100]. Plaintiff had problems working on arts and crafts projects. [R102],

In an August 5, 2005, disability report— appeal form, Plaintiff listed four medications that he was taking for asthma— Singulair, Flovent, Albuterol Sulfate, and Albuterol Inhaler. [R59]. The Singulair made Plaintiff nervous while the Flovent increased Plaintiffs heart rate. [Id.]. Plaintiff indicated that his illness made it difficult for him to care for his daily needs and that he was more limited than his initial disability report. [R60].

2. Medical Records

On December 28, 1997, Plaintiff went to the Newton General Hospital (“Newton Hospital”) emergency room for stuffy nose and congestion. [R112], He was diagnosed with a viral infection and instructed to take Tylenol for his fever and to see a doctor. [R114],

Plaintiff was seen by Dr. Faull Trover on December 29, 1997. The doctor noted that Plaintiff was one week old and would be rechecked at one month. [R314], Dr. Trover saw Plaintiff four times in February 1998 for diaper rash, congestion, cough, facial rash, and ear infections. [R312-14].

Plaintiff returned to the Newton Hospital emergency room on March 2, 1998, with a head cold and “chocking with coughs.” [R121], Plaintiff was given antibiotics, and his mother was instructed on temperature control. [R122-23]. Dr. Trover saw Plaintiff the following day and diagnosed Plaintiff with acute obstructive nasopharyngitis (inflammation of the nose and pharynx) and diaper rash. [R311].

Dr. Trover saw Plaintiff on March 12, 1998, for nasal congestion and a cough. He was diagnosed with acute pharyngitis and bronchitis. [R310]. Plaintiff presented with the same complaints and a low grade fever to Dr. Trover on March 23. Dr. Trover gave the same diagnosis of acute pharyngitis and bronchitis. [R309].

Plaintiff was seen at the Newton Hospital emergency room on March 24, 1998, because he was crying and would not sleep. [R131, 133]. The doctor’s notes are largely illegible, but indicate that Plaintiff had severe diaper rash. [R131]. Plaintiff was given a prescription for his congestion. [R133].

Plaintiff went to Dr. Trover on May 4, 1998, because of wheezing and a cough. Plaintiff was diagnosed with bronchial asthma, bronchitis, and acute pharyngitis and prescribed Proventil nebulization treatment (a process by which a machine delivers medication that relaxes and opens air passages as a mist that can be inhaled). [R309]. One month later, Dr. Trover saw Plaintiff for nasal drainage, a cough, and wheezing at night. Dr. Trover diagnosed Plaintiff with acute pharyngitis and tracheobronchitis (inflammation of the trachea and bronchi), and noted that he would watch for central pneumonia. Plaintiff was told to elevate his head and chest, take Tylenol or Advil, take Zithromax (an antibiotic), and take Prednisolone liquid. [R308]. On July 30, 1998, Dr. Trover diagnosed Plaintiff with a right ear infection and bronchial asthma. [R307].

In August 1998, Plaintiff was seen at Newton Hospital for shortness of breath and a night cough. He was diagnosed with asthma, [R141], and he was discharged in stable condition. [See R144],

An x-ray revealed a normal chest film. [R148].

On September 10, 1998, Dr. Trover saw Plaintiff for ear pain, nasal drainage, and cough. Plaintiff was diagnosed with an acute right ear infection. [R307].

On September 23, 1998, Plaintiff went to Newton Hospital complaining of wheezing. [R149], He was diagnosed with having an acute asthma episode. [R151]. An x-ray revealed pulmonary hypoinflation, but no acute abnormality. [R159].

On November 27, 1998, Plaintiff complained of wheezing, cough, and a rash at Dr. Trover’s office. He was assessed with Reactive Airway Disease exacerbation and mild diaper rash for which he was prescribed medication. [R306].

Dr. Trover saw Plaintiff on January 22, 1999, for nasal drainage, cough, and low-grade fever. Plaintiff was diagnosed with acute tracheobronchitis, told to rest, take fluids, take Tylenol, and prescribed Azithromycin (antibiotic). [R306]. Plaintiff returned to Dr. Trover on February 16, 1999, with the same symptoms and was diagnosed with acute respiratory tract infection for which Plaintiff was given an antibiotic. [R305]. Dr. Ronald Eith saw Plaintiff on February 25, 1999, for a cough and congestion. Dr. Eith diagnosed Plaintiff with asthma and prescribed an antibiotic, Prelone (a steroid), and Proventil syrup. [R305]. Dr. Trover diagnosed Plaintiff with tracheobronchitis on March 9, 1999, and prescribed rest, fluids, Tylenol, and an antibiotic. [R304]. Plaintiff was again diagnosed with tracheobronchitis on June 1, 1999, July 26, 1999, August 11, and August 24,1999. [R303-02].

On December 15, 1999, Dr. Trover diagnosed Plaintiff with an upper respiratory tract infection. Thirteen days later he diagnosed Plaintiff with acute tracheobronchitis. [R301]. On February 3, 2000, Dr. Trover determined that Plaintiff had tracheobronchitis, and he diagnosed Plaintiff on February 25 with bronchial asthma and respiratory tract infection. [R300].

On July 27, 2000, Plaintiff was seen for nasal drainage, cough, and a low grade fever, which led Dr. Trover to diagnose him with tracheobronchitis. The next day Plaintiff was lethargic and had pain when he breathed. Plaintiff was also wheezing. Dr. Trover diagnosed Plaintiff with “[b]ronchial asthma-acute exacerbation-mild.” [R299]. ' Dr. Trover diagnosed Plaintiff on August 22, 2000, with tracheobronchitis after he presented with nasal drainage, cough, and low grade fever.

Plaintiff was seen on November 27, 2000, for low grade fever and cough. Dr. Trover determined that Plaintiff had bronchial asthma and tracheobronchitis. [R298], On January 5, 2001, Dr. Trover diagnosed Plaintiff with tracheobronchitis. Plaintiff was not wheezing on this date. [R297].

Plaintiff was seen at Newton Hospital because of cough/wheezing on May 11, 2001. [R169]. Plaintiff was diagnosed with having an acute asthma episode. [R171]. An x-ray of the chest was normal. [R177]. Plaintiff was discharged the same day in stable condition. [R175].

Plaintiff returned to Newton Hospital on May 31, 2001, because of a knot on his neck and a fever. [R178]. The doctor’s diagnosis is illegible, [R180], but Plaintiff was discharged the same day, [R184].

Plaintiff went to Newton Hospital on July 11, 2001, because of asthma. [R186]. Plaintiff had a sudden onset of coughing and wheezing that did not improve after home treatment. [R194], An x-ray of the chest revealed possible lower lobe pneumonia, but a neck x-ray found no irregularities. [R198]. He was diagnosed with asthma exacerbation and rule out pneumonia. [See R188, R189]. Plaintiff was discharged the next day in good and improved condition. [R193].

Dr. Trover saw Plaintiff on March 6, 2002, for a low grade fever and cough. Plaintiff was diagnosed with tracheobronchitis with drainage. Plaintiff had no wheezing. [R296].

Plaintiff went to the Newton Hospital emergency room on April 13, 2002, because of upper back pain. [R225]. Plaintiff was discharged the same day and instructed to apply ice for 24 hours and then heat. He was also told to take Tylenol or Motrin. [R228].

Plaintiff was admitted to Newton Hospital on September 14, 2002, because of wheezing and difficulty breathing, ie., “[a]sthmatie exacerbation with respiratory distress.” [R233, 240]. The medical note indicated that Plaintiff was admitted after he did not improve following treatment with steroids at the emergency room. The note indicated that Plaintiff did not get a lot of asthma attacks, but if he did, they would clear after home treatment. Besides this problem and bronchitis, “he has been a healthy boy.” [R240]. The plan for treatment was to give Plaintiff oxygen, IV fluids, breathing treatments, and steroids. [R241]. Plaintiff was discharged on September 16, 2002. [R234].

Dr. Trover saw Plaintiff on January 26, 2004, for a cough and to refill medications. [R294],

Plaintiff returned to the Newton Hospital emergency room on February 16, 2004, because of a cough/congestion. [See R261, 264, 267]. Plaintiff was discharged and told in part to take Tylenol for the fever. [R266],

Plaintiff was seen at the Newton Hospital emergency room on July 11, 2004, because of shortness of breath. [R280]. Plaintiff received medication, which improved his breath sounds and decreased the dyspnea (difficulty in respiration). [R283]. He was discharged the same day. [R288].

Plaintiff went to Dr. Trover on September 16, 2004, because his asthma was acting up. Plaintiff was prescribed Singulair and Albuterol. [R293]. On October 22, 2004, Dr. Trover, prescribed Plaintiff medication for athlete’s foot. On examination, Plaintiffs lungs were clear to auscultation (act of listening to sounds) bilaterally. [R292]. Dr. Trover diagnosed Plaintiff with acute sinusitis on November 9, 2004, after Plaintiff presented with a cough and sore throat. The neurologic examination indicated that Plaintiff was alert and had age appropriate mental status. Plaintiffs lungs were clear to auscultation bilaterally. [R291],

On January 26, 2005, Dr. Trover diagnosed Plaintiff with asthma after Plaintiff presented with a cough, rattling in his chest, and wheezing. Plaintiffs neurologic examination indicated that he was alert and had age appropriate mental status. Plaintiffs lungs had coarse breath sounds and bilateral occasional expiratory wheezes. Plaintiff was started on Albuterol, Singulair, and a Flovent inhaler. [R290].

On March 31, 2005, Plaintiffs eyesight was 20/40 for the right eye and 20/30 for the left eye. [R315].

On April 12, 2005, a non-examining doctor whose name is illegible completed a Childhood Disability Form. [R316-21]. The doctor indicated that Plaintiffs impairments of asthma and vision were severe but did not medically equal or functionally equal the listings. [R316]. The doctor found that Plaintiff had no limitations in the domains of: acquiring and using information, attending and completing tasks, interacting and relating with others, moving about and manipulating objects, and caring for himself. [R317-19]. The doctor found less than marked limitations in Plaintiffs health and physical well-being due to Plaintiffs asthma and vision. [R319],

On June 11, 2005, Dr. Ramona Munnis completed the Childhood Disability Evaluation Form. [R322-27]. Dr. Munnis made the same findings as the unidentified doctor in the April 12, 2005, form. [See R322, 324, 327]. Dr. Munnis noted that her findings were based in part on the absence of evidence or reports of major ER visits and hospitalizations. [R325].

Dr. Trover saw Plaintiff on July 27, 2005, after Plaintiff fell and hurt his hip. Dr. Trover’s examination found that Plaintiffs lungs were clear to auscultation bilaterally and his mental status was age appropriate. Dr. Trover determined that Plaintiff had a contusion on his arm and asthma. [R330].

Plaintiff went to Dr. Trover on November 9, 2005, because of congestion. An examination revealed that Plaintiffs lungs were clear to auscultation bilaterally and his mental status was age appropriate. Dr. Trover diagnosed Plaintiff with asthma and started an Axmacort inhaler. [R333]. On December 21, 2005, Plaintiff returned to Dr. Trover because of asthma problems and a cough. Plaintiffs lungs had course breath sounds due to upper airway congestion. Plaintiff was assessed with asthma and prescribed medication for nebulizations. [R335].

Dr. Trover saw Plaintiff on March 8, 2006, because of a possible urinary tract infection. Plaintiffs lungs were clear to auscultation and his mental status was age appropriate. Dr. Trover diagnosed Plaintiff with cystitis (inflammation of the urinary bladder). [R338]. On March 22, Plaintiff went to Dr. Trover complaining of wheezing and trouble with asthma. Plaintiffs lungs were clear to auscultation and his mental status was age appropriate. Dr. Trover diagnosed Plaintiff with asthma and started Plaintiff on an inhaler and Singulair. [R340].

On May 5, 2006, Plaintiff apparently had an asthma attack at school and was instructed to take Plaintiff to the emergency room because the inhaler was not helping. [R341],

Plaintiff went to Dr. Trover on January 26, 2007, to have his asthma rechecked. Plaintiff complained of wheezing on Albuterol. Plaintiffs lungs were clear to auscultation, and his mental status was age appropriate. Dr. Trover diagnosed Plaintiff with asthma and started Albuterol premixed nebulization solution. [R342],

On January 10, 2008, Plaintiff went to Dr. Trover complaining of sneezing and shortness of breath. Plaintiffs lungs were clear to auscultation and his mental status was age appropriate. Plaintiff was assessed with asthma and started on an inhaler and Singulair. [R345]. Seven days later, Dr. Trover saw Plaintiff and assessed him with asthma and acute pharyngitis (inflammation of the pharynx). [R346].

3. School Records

Plaintiffs third grade report card for the first three quarters of the 2007-2008 school term indicated that while his reading had improved, he was not meeting third grade reading standards. Also, his math scores were lower because he did not complete assignments. The report card also indicated that Plaintiff needed to keep working on his behavior to see even more improvement. [R108]. Plaintiffs teacher modified his work in reading, language arts, and mathematics based on SST. For the first three quarters, Plaintiffs grades ranged as follows depending on the quarter: (1) 73-74 in reading; (2) 71-74 in language arts; (3) 65-68 in math; (4) 65-70 in social studies; (5) 75-90 in science/health; (6) needs improvement in handwriting; and (7) both needs improvement and progressing depending on the quarter in art, music, and physical education. Finally, Plaintiff received the following evaluations for initiative and work: (1) successful for class participation and responding to adult guidance positively; (2) needs improvement for completing tasks on time, returning homework, demonstrating organizational skills, refraining from unnecessary talking, listening to directions, working independently, and following rules; and (3) progressing for respecting others and cooperating with others. Overall, Plaintiff needed to improve his conduct. [R109].

On March 23, 2005, a teacher, A. Pittman, completed an “Asthma Questionnaire (to the Teacher)” form, indicating that Plaintiff showed symptoms of asthma at school and took medication at school. Plaintiff was short of breath on cold, windy days. He had good attendance during the 2004-2005 school year with only one absence and no tardies, and he had perfect attendance the previous school year. The teacher indicated that Plaintiffs asthma did not affect Plaintiffs school performance, but he did have to miss some morning work for breathing treatments. [R70]. Pittman noted that Plaintiffs behavior and functioning had not worsened and Plaintiff had not exhibited a change in behavior. [R71],

B. Evidence Presented to the Appeals Council

At the Appeals Council stage, Plaintiff submitted school discipline records for three events that occurred while Plaintiff was in the third grade in 2008. On September 26, 2008, Plaintiff was cited for inappropriate behavior and disobedience after he continued to yell, “someone’s calling my name,” banged on a desk, upended his chair, and crumbled and dropped his test on the floor while other children were taking a test. Plaintiff was suspended four days because of this conduct. [R374D374E], On this same day, Plaintiff was cited for disobedience and threatening to bring a gun to school. In this incident, Plaintiff said he would go to the pawn shop to get a gun and “kill” the people at the Board of Education because they kept changing principals. Plaintiff also was yelling for his teacher to start his “time” and banging his hands and pencils on his desk. [R374F]. On October 27, 2008, Plaintiff was suspended for three days after he hit a student in the eye who was pushed into him. Plaintiff also threatened to beat the student up “for real” if Plaintiff was suspended. [R374G].

C. March 26, 2008, Administrative Hearing

At the time of the hearing, Plaintiff was ten years old. [R380]. Plaintiffs mother testified that Plaintiffs asthma was “pretty severe” because he could not play sports. [R380, 389], Plaintiff was not allowed to spend the night at other children’s homes or hang out with other kids because of the asthma. [R384]. Plaintiffs mother also supervised him when he played outside. [R385]. Plaintiff could ride a bike. [R38990]. Plaintiff would sometimes participate in physical education at school and would sometimes watch. If he got into trouble, the teacher would make Plaintiff run. [R395-96],

Plaintiffs family had to move from an apartment to a house because of Plaintiffs asthma and had to remove the carpet from the house. [R385-86]. When Plaintiff would have an asthma attack, he was hooked up to a machine, which would usually calm him down. [R381]. Plaintiff suffered from asthma attacks three or four times a week, and he usually had to use his machine for two of these episodes. [R38182], Plaintiffs asthma sometimes affected his sleep. [R388].

Plaintiffs mother also testified that she had problems with Plaintiffs behavior. [R386]. Plaintiff apparently could not get along with certain types of children, and he did not stay on task all of the time. [R386-87], Plaintiff did not get along with his nine year old brother, but he got along better with his 15 year old sister. [R38990], Also, Plaintiff was not good with chores. At school, Plaintiff was suspended five days for not following directions and for bothering other students. [R387]. Plaintiff testified that he also fought boys at school when they would bother or push him. [R395],

Plaintiffs grades were not good. [R388]. He repeated the second grade. [R390]. His mother also was informed that he would have to repeat the third grade if he did not pass a standardized test because his grades were not good enough. [R388]. The school also informed Plaintiffs mother that it would place Plaintiff in a smaller class to see if that would help. [R390]. The school had not notified Plaintiffs mother that it recommended additional testing of Plaintiff. [R390-91].

III. ALPS FINDINGS OF FACT

On June 27, 2008, the ALJ made the following findings of fact and conclusions of law:

1. The claimant was born on December 22, 1997. Therefore, he was a school-age child on March 1, 2005, the date the application was filed, and is currently a school-age child (20 CFR 416.926a(g)(2)).

2. The claimant has not engaged in substantial gainful activity at any time relevant to this decision (20 CFR 416.924(b) and 416.972).

3. The claimant has the following severe impairment: asthma (20 CFR 416.924(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).

5. The claimant does not have an impairment or combination of impairments that functionally equals the listings (20 CFR 416.924(d) and 416.926a).[]

6. The claimant has not been disabled, as defined in the Social Security Act, since March 1, 2005, the date the application was filed (20 CFR 416.924(a)).

[R15-22],

The ALJ explained that Plaintiffs asthma was severe, but there was no evidence that the asthma resulted in limitations of the level that would meet any of the Listings. [R16]. The ALJ further noted that the non-examining doctors’ opinions were given considerable weight because they were consistent with the evidence. [R17, 22].

As for the six domains of function, the ALJ found no limitations in five of the six domains. [R18-22], First, the ALJ found no limitations in acquiring and using information and attending and completing tasks because evidence showed that Plaintiffs school performance was unaffected by his asthma and the agency doctors found no limitations in this area. [R18-19]. Second, the ALJ determined that Plaintiff was not limited in interacting and relating with others because the 2007-2008 report card indicated that Plaintiff participated in class activities, his school attendance was good, and the agency doctors found no limitations. [R19]. Third, the ALJ determined that Plaintiff did not have limitations in caring for himself and moving and manipulating objects because the state doctors found no limitations in these areas. [R2021]. Fourth, the ALJ determined that Plaintiff had less than marked limitations in his health and physical well-being because Plaintiff missed some school work from shortness of breath. The ALJ indicated that Plaintiffs behavior, not his asthma, affected his school performance, and the ALJ added there was no evidence for learning or behavioral disabilities. [R22]. Since Plaintiffs impairment did not functionally equal a Listing, the ALJ determined that Plaintiff was not disabled. [R15].

IV. STANDARD FOR DETERMINING DISABILITY

“An individual under the age of 18 shall be considered disabled ... 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); 20 C.F.R. § 416.906 (same). The individual who seeks Social Security disability benefits must prove that he or she is disabled. 42 U.S.C. § 1382c(a)(3)(H)(i) (rendering the provisions from 42 U.S.C. § 423(d)(5) applicable to SSI disability applications, which places burden on claimant to prove disability); see also 20 C.F.R. § 416.912(a).

“Federal regulations set forth the process by which the [Social Security Administration] determines if a child is disabled and thereby eligible for disability benefits.” Shinn ex rel. Shinn v. Commissioner, 391 F.3d 1276, 1278-1279 (11th Cir. 2004). Under the regulations, this process begins with the Commissioner determining whether the child is “doing substantial gainful activity.” If the child is performing substantial gainful activity, the child is considered “not disabled” and is ineligible for benefits. 20 C.F.R. § 416.924(a), (b).

If the child is not engaged in substantial gainful activity, the Commissioner next considers whether the child’s “physical or mental impairment(s)” alone or in combination with other impairments are severe. 20 C.F.R. § 416.924(a), (c). An impairment will be considered in a disability application only if it arises from “anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 416.908. Thus, an impairment “must be established by medical evidence.” Id.; see also 20 C.F.R. § 416.913(a) (“[The Commissioner] need[s] evidence from acceptable medical sources to establish whether you have a medically determinable impairment(s).”). In contrast, non-medical evidence, including the testimony of “[educational personnel” and “parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy,” may be used to demonstrate that a child’s impairment is severe. 20 C.F.R. §§ 416.913(d)(2), (4), 416.924a(a)(2).

If the child has a severe impairment or impairments, the Commissioner next assesses whether the impairment “causes marked and severe functional limitations” for the child. 20 C.F.R. §§ 416.911(b), 416.924(d). Limitations arising from pain count in this determination. 20 C.F.R. § 416.924(a) (“[The ALJ] will also evaluate any limitations in your functioning that result from your symptoms, including pain.”) (parenthetical omitted); see also 20 C.F.R. § 416.924a(b)(2) (“[Y]our symptoms (such as pain ...) may limit your functioning.”). The Commissioner uses objective criteria listed in the Code of Federal Regulations (“C.F.R.”) to determine whether the impairment causes severe and marked limitations. “The C.F.R. contains a Listing of Impairments [“the Listings,” found at 20 C.F.R. § 404 app.] specifying almost every sort of medical problem (“impairment”) from which a person can suffer, sorted into general categories.” Shinn ex rel. Shinn, 391 F.3d at 1278 (citing 20 C.F.R. § 416.925(a)). “For each impairment, the Listings discuss various limitations on a person’s abilities that [the] impairment may impose. Limitations appearing in these listings are considered ‘marked and severe.’ ” Id.

A child’s impairment will cause “marked and severe functional limitations” if those limitations “meet[ ], medically equal[ ], or functionally equal[ ] the [Listings.” 20 C.F.R. § 416.911(b)(1); see also §§ 416.902, 416.924(a). The limitations “meet” a Listing if the child actually suffers from the limitations specified in the Listings for that child’s severe impairment. The limitations “medically equal” a Listing if the child’s limitations “are at least of equal medical significance to those of a listed impairment.” 20 C.F.R. § 416.926(a)(2).

Finally, if the limitations resulting from a child’s particular impairment are not comparable to those specified in the Listings, the Commissioner examines whether the impairment is “functionally equivalent” to those in the Listings. Shinn ex rel. Shinn, 391 F.3d at 1279. To make this determination, the Commissioner examines 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.

20 C.F.R. § 416.926a(b)(l). The C.F.R. contains various “benchmarks” that children should have achieved by certain ages in each of these life domains. See 20 C.F.R. § 416.926a(g)-(Z). 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.” 20 C.F.R. § 416.926a(d); see also 20 C.F.R. § 416.925(a).

If the limitations stemming from a child’s severe impairment meet, medically equal, or functionally equal the limitations specified in the Listings, the ALJ then examines whether the impairment “meets the duration requirement.” 20 C.F.R. § 416.924(a). An impairment meets this duration requirement if it “[is] expected to cause death or ... has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § § 416.906, 416.909.

V. SCOPE OF JUDICIAL REVIEW

The scope of judicial review of a denial of Social Security benefits by the Commissioner is limited. Judicial review of the administrative decision addresses three questions: (1) whether the proper legal standards were applied; (2) whether there was substantial evidence to support the findings of fact; and (3) whether the findings of fact resolved the crucial issues. Fields v. Harris, 498 F.Supp. 478, 488 (N.D.Ga.1980). This Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. The findings of the Commissioner are conclusive if they are supported by substantial evidence and the Commissioner applies the correct legal standards. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir.1997); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir.1987); Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir.1986); Bloodsworth v. Heckler, 703 F.2d 1233,1239 (11th Cir.1983). “Substantial evidence” means more than a scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and it must be enough to justify a refusal to direct a verdict were the case before a jury. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth, 703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court] must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir.1986). In contrast, review of the ALJ’s application of legal principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir.1995); Walker, 826 F.2d at 999.

VI. CLAIMS OF ERROR

Plaintiff claims that the Commissioner’s final decision should be remanded because of the following three errors: (1) the ALJ failed to obtain a neuro-psychological evaluation following the administrative hearing; (2) the ALJ failed to consider all of Plaintiffs impairments in evaluating whether he was disabled along the six domains; and (3) the Appeals Council should have remanded the case based on the new evidence submitted to it. [See Doc. 17]. The Court discusses each claim of error below.

A. Neuro-Psychological Evaluation

Plaintiff argues that the ALJ erred by failing to order an evaluation for Plaintiffs psychological issues. [Doc. 17 at 9-14], Plaintiff asserts that since there was evidence of behavioral, psychological, and intellectual problems, the ALJ should have discussed the issue meaningfully in his opinion. [Id. at 9], Plaintiff contends that the record evidence of cognitive and behavioral problems triggered the ALJ’s duty to order a consultative psychiatric exam, citing McCall v. Bowen, 846 F.2d 1317, 1320 (11th Cir.1988) and 42 U.S.C. § 421(h). [Id. at 11-12], Plaintiff points to the evidence of Plaintiffs 2007-2008 report card and the testimony of Plaintiff being held back a grade as evidence of a learning disability, which required the ALJ to order testing. [Id. at 11-12], Plaintiff then contends that the disciplinary records from September and October 2008 raise additional concerns that Plaintiff had a psychological impairment for which the ALJ should have sought an examination. [Id. at 13].

The Commissioner responds that the ALJ did not need to obtain a post-hearing neuropsychological evaluation. [Doc. 18 at 4-6]. First, the Commissioner asserts that there is no evidence that the behavioral problems stem from a medically determinable impairment, and it is the claimant’s job to prove the existence of such an impairment. [Id. at 4-5]. The Commissioner notes that the medical records describe Plaintiff as cooperative and alert and there is no evidence of school testing. [Id. at 5]. Second, the Commissioner eon-tends that Plaintiffs reliance on McCall, 846 F.2d at 1320, is misplaced because there is no evidence of a medically determinable mental impairment in the instant case. [Id. at 5]. Third, the Commissioner asserts that Plaintiffs reliance on 42 U.S.C. § 421(h) is misguided because this provision speaks to state agency level determinations. [Id. at 5-6]. Finally, the Commissioner argues that Plaintiff has not shown that this failure to develop the record prejudiced Plaintiff, which is essential in obtaining a remand for failure to develop the record. [Id. at 6].

“[T]he ALJ has a duty to develop the record fully and fairly.” See, e.g., Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir.1999); see also 20 C.F.R. § 416.912(d). The Commissioner may order a consultative examination if a plaintiffs medical sources cannot or will not give the Commissioner sufficient medical evidence about an impairment to allow him to make a disability determination. 20 C.F.R. § 416.917. A consultative examination will be ordered when, inter alia: (1) the evidence as a whole is insufficient to make a decision; (2) the additional evidence needed is not contained in the medical source’s records; (3) highly technical or specialized medical evidence is needed and not available from another source; (4) a conflict, inconsistency, ambiguity, or insufficiency in the evidence must be resolved; and/or (5) there is a change in the claimant’s condition that is likely to affect the child’s functioning and the current severity of the impairment is not established. 20 C.F.R. § 416.919a(b). In making this decision, the Commissioner considers the medical reports, the disability interview form, and other record evidence. Id. § 416.919a(a)(l). A case will be remanded for failure to develop the record only if the plaintiff shows prejudice. See Robinson v. Astrue, No. 09-12472, 365 Fed.Appx. 993, 995-96 (11th Cir.2010) (citing Brown v. Shalala, 44 F.3d 931, 935 (11th Cir.1995) ). Prejudice “at least requires a showing that the ALJ did not have all of the relevant evidence before him in the record ... or that the ALJ did not consider all of the evidence in the record.” Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir.1985).

The Court concludes that the ALJ did not err in failing to order a consultative neuro-psychologieal evaluation. It is Plaintiffs burden, not the Commissioner’s, to establish a disability. See 20 C.F.R. § 416.912(a). To be disabled, a plaintiff must establish that he has medically determinable impairments through medical evidence. See id. § 416.906, 416.912(c). As a result, Plaintiff had the burden of establishing an impairment that would cause behavioral or cognitive limitations. See id. § 416.912(c) (placing burden on claimant to show how the impairment affects functioning). Plaintiff did not meet this burden. The medical records are devoid of any notes suggesting that Plaintiff had mental impairments. As the Commissioner points out, Dr. Trover’s examinations of Plaintiffs neurological functioning identified Plaintiff as alert and as having an age-appropriate mental status. [See R290-91, 330, 335, 338, 340, 342]. The Newton Hospital records did not reference any concerns about Plaintiff suffering from mental impairments. Also, there is no evidence in the record that Plaintiff even sought treatment for any mental impairments. When Plaintiffs mother was asked whether the school recommended testing Plaintiff for his academic record, Plaintiffs mother indicated that she was unaware of any recommendations for this testing. [R390-91; see also R76 (indicating that plaintiff was not in special education classes and had not been tested for behavioral problems) ]. That Plaintiff presented evidence of poor academic performance and behavioral problems does not establish that some mental impairment caused these problems, thereby triggering the ALJ to seek a consultative exam. Instead, the record evidence indicated that such an examination was not necessary given the absence of medical records indicating that Plaintiff suffered from a mental impairment. As such, the record was sufficient, and the ALJ could make a decision without obtaining a consultative examination. See Sneed v. Barnhart, 214 FedAppx. 883, 886 (11th Cir. Dec.22, 2006) (holding that ALJ was not required to order psychological examination where (1) Plaintiff testified that she was tearful and taking antidepressants and (2) medical evidence revealed that plaintiff was taking an anti-anxiety drug and had a fair prognosis for depression).

Plaintiff claims that the Eleventh Circuit’s McCall decision requires a different conclusion, but the Court is unpersuaded. In McCall, the plaintiff initially sought disability benefits due to physical impairments (arthritis and back and heart problems), but there was also medical evidence from physicians who “at times suggested that [plaintiff] might be suffering from a psychological condition.” McCall, 846 F.2d at 1318, 1320. The Eleventh Circuit remanded the case because: (1) it concluded that remand was needed on another issue; and (2) the evidence of mental impairments might have required a psychological consultative exam under 42 U.S.C. § 421(h). Id. at 1320. McCall does not require the ALJ in this case to order a consultative examination for four reasons.

First, the facts of McCall are distinguishable. In McCall, the plaintiffs doctors suggested that Plaintiff suffered from mental impairments and prescribed medications to alleviate these impairments, but there is no similar record evidence in this case. No medical professional ever suggested that Plaintiff suffered from psychological problems, and Dr. Trover’s notes found Plaintiffs mental status to be “age appropriate.” Second, it is not clear that the McCall decision would have remanded the case solely on the basis of the ALJ’s failure to order a psychological examination given that the McCall case stressed that remand was necessary on another issue. See McCall, 846 F.2d at 1320 (“Certainly, since the case has to be remanded for proper handling of the overweight problem, the applicability of section 421(h) must be carefully considered.”). Third, the McCall decision did not explicitly find that the ALJ erred in opting not to order an examination, only that the Commissioner should “carefully consider[ ]” whether to order an examination under § 421(h). McCall, 846 F.2d at 1320. With even less evidence of a mental impairment (none of which is from a medical professional) and no other reversible errors in this case, the McCall case certainly does not require remand in this case. Finally, the McCall decision, which relied on 42 U.S.C. § 421(h), appears to have misconstrued § 421(h) because the Eleventh Circuit has since indicated that § 421(h) does not apply to cases heard by the ALJ. Sneed, 214 Fed.Appx. at 886 (citing Plummer v. Apfel, 186 F.3d 422, 433 (3d Cir. 1999)). For these four reasons, the Court is unpersuaded by Plaintiffs reliance on McCall.

Even if the evidence of behavioral problems and poor grades suggested that Plaintiff had a mental impairment, this did not place the burden on the ALJ to investigate the existence of a mental impairment. Plaintiff never suggested at the administrative level that he was seeking disability on the grounds that he suffered from a mental impairment. Plaintiffs disability application and administrative filings never sought disability on any grounds other than asthma and perhaps vision. [See R73, 95]. At the hearing, Plaintiffs counsel did not inform the ALJ that Plaintiff was seeking to add a mental impairment as the basis for disability.

The Court recognizes that Plaintiffs mother testified at the hearing about having a “problem” with Plaintiffs behavior, but this testimony did not place the ALJ on notice that Plaintiff was seeking disability due to a mental impairment or even that had severe behavioral problems. Instead, Plaintiffs mother’s testimony identified the behavioral problems as not getting along with other kids, not performing tasks, not performing chores satisfactorily, and being suspended once for not following rules. [R387], These behaviors are unremarkable, and do not suggest the existence of a mental impairment. The Court reaches a similar conclusion concerning Plaintiffs academic problems. Although evidence indicated that Plaintiff repeated the second grade and was in danger of repeating the third grade, [R390], Plaintiffs mother indicated that the school never brought testing Plaintiff to her attention when the ALJ asked about Plaintiffs academic problems. [R390-91]. As a result, the hearing testimony did not somehow notify the ALJ that he needed a consultative exam to explore whether Plaintiffs academic or behavioral problems arose from a mental impairment.

Without notifying the ALJ that Plaintiffs disability claim was also premised on a mental impairment, Plaintiff cannot blame the ALJ for failing to obtain a medical examination to determine whether Plaintiff suffered from potential mental impairments. See Robinson v. Astrue, 365 Fed.Appx. 993, 995-96 (11th Cir.2010) (holding that the ALJ had no duty to consider impairment where neither plaintiffs disability application nor plaintiffs attorney at the hearing suggested that she was disabled based on the impairment); Castillo v. Astrue, No. 1:09-cv-864, 2010 WL 2179881, *4 (M.D.Ala. May 27, 2010) (holding ALJ had no duty to evaluate visual acuity where it was not a basis for disability either in the application or in the testimony); Hale v. Astrue, No. 5:07-cv-103, 2009 WL 742760, *10 (S.D.Ga. Mar. 20, 2009) (“The Commissioner can not be expected to address every minor alleged impairment!)]”); Carter v. Astrue, No. 7:07-ev-148, 2008 WL 4498960, *3 (M.D.Ga. Sept. 30, 2008) (“Merely noting the existence of an impairment does not make it a condition the Commissioner must analyze.”); see also Pena v. Chater, 76 F.3d 906, 909 (8th Cir.1996) (“The [ALJ] is under no ‘obligation to investigate a claim not presented at the time of the application for benefits and not offered at the hearing as a basis for disability.’”) (quoting Brockman v. Sullivan, 987 F.2d 1344, 1348 (8th Cir.1993)); Watson v. Astrue, No. 08-cv-1523, 2010 WL 1645060, *3-4 (S.D.N.Y. Apr. 22, 2010).

Accordingly, the Court concludes that the ALJ DID NOT ERR in failing to order a neuro-psychological examination.

B. Evaluation of Plaintiff’s Impairments

Plaintiff argues that the ALJ’s decision is incomplete because it did not consider his psychological impairments in evaluating the six domains of functioning and it did not adequately consider limitations from Plaintiffs asthma. [Doc. 17 at 14-17]. First, Plaintiff argues that substantial evidence does not support the ALJ’s conclusion that Plaintiff had no limitations in (1) acquiring and using information and (2) attending and completing tasks because the ALJ failed to consider that Plaintiff was held back twice in school, was performing poorly in school, and had behavioral difficulties in school. [Id. at 15]. Second, Plaintiff complains that substantial evidence does not support the ALJ’s finding that the claimant had no limitations in interacting and relating with others because his report card indicated that he needed to improve in a number of behavioral areas and the ALJ did not consider these problems. [Id.]. Third, Plaintiff asserts that the ALJ ignored Plaintiffs breathing difficulties and testimony about his asthma interfering with activities when the ALJ determined that Plaintiff was not limited in moving about and manipulating objects. [Id. at 16]. Fourth, Plaintiff asserts that the finding that Plaintiff had less than marked limitation in health and physical well-being ignores: (1) the medical history and mother’s testimony about asthma; and (2) the evidence of Plaintiffs behavior affecting his learning [Id.]. Finally, Plaintiff complains that the ALJ did not consider Plaintiffs psychological condition in combination with the other impairments. [Id. at 17],

The Commissioner responds that Plaintiffs argument must fail because he has not established the existence of a medically determinable impairment. [Doc. 18 at 7, 9]. The Commissioner contends that Plaintiff was not treated or diagnosed with any medically determinable mental impairment. [Id. at 9]. The Commissioner acknowledges that there is evidence of behavioral problems, but asserts that this evidence cannot establish a medically determinable mental impairment. [Id. at 9-10]. The Commissioner therefore argues that the ALJ did not err by failing to consider Plaintiffs behavioral problems in examining the six domains. [Id. at 10].

Additionally, the Commissioner argues that substantial evidence supports the ALJ’s decision that Plaintiff had less than marked limitation in the domain of health and physical well-being and no limitation in moving about. [/