Case: 13-12511    Date Filed: 01/28/2014   Page: 1 of 10


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-12511
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 2:12-cv-03494-AKK



T R C,
through her mother and next friend, Towana Boyd,

                                                              Plaintiff-Appellant,

versus

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

                                                             Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                         ________________________

                              (January 28, 2014)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      T.R.C., a minor, by and through her mother and next friend, Towana Boyd,

appeals the district court’s order affirming the Social Security Administration’s

denial of her application for child’s supplemental security income pursuant to 42

U.S.C. § 1383(c)(3). The administrative law judge determined that T.R.C. was not

disabled, and denied the claim. The ALJ found that, although T.R.C.’s borderline

intellectual functioning and learning disorder were severe impairments, they did

not meet, medically equal, or functionally equal one of the listed impairments. The

Appeals Council denied review, and the district court affirmed. This appeal

followed.

      On appeal, T.R.C., through Ms. Boyd, argues that (1) the ALJ improperly

accorded weight to certain evidence; (2) T.R.C. met or equalled the criteria for

Listing 112.05, Mental Retardation; and (3) the ALJ failed to fully develop the

record.

                              I. Weighing of Evidence

      T.R.C. argues that substantial evidence does not support the ALJ’s decision

that she is not disabled. We review the Commissioner’s decision for substantial

evidence. Winschel v. Comm’r of Soc. Sec., 

, 1178 (11th Cir. 2011).

Substantial evidence is “more than a scintilla and is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.” 

marks omitted).


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      First, T.R.C. contends that the ALJ failed to use proper legal standards and

did not show good cause why the opinions of her treating sources, which she

alleges to be the University of Alabama-Birmingham Civitan-Sparks Clinic

(“UAB”) and Marilyn H. Wisely, a psychometrist with Birmingham City Schools,

along with her mother’s testimony, should not be given substantial or considerable

weight.

      “[T]he ALJ must state with particularity the weight given to different

medical opinions and the reasons therefor.” 

Absent good cause, the

ALJ is to give the medical opinions of treating physicians “substantial or

considerable weight.” 

source is a claimant’s own physician,

psychologist, or other acceptable medical source who provides, or has provided the

claimant with medical treatment or evaluation and who has, or has had, an ongoing

treatment relationship with the claimant. 20 C.F.R. § 416.902. Acceptable

medical sources include, inter alia, licensed physicians, psychologists, and

qualified speech-language pathologists. 

      Here, we cannot say that the ALJ erred in giving “some” rather than

“substantial” weight to the opinions of the examiners at UAC and T.R.C.’s mother,

(Ms. Boyd), and “little” weight to Ms. Wisely’s opinion. The examiners at UAC

and Ms. Wisely met with T.R.C. on only one occasion and did not have any

“ongoing treatment relationship” with her sufficient to accord them status as


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treating physicians. Thus, the ALJ had discretion to give their opinions less than

“substantial or considerable” weight. Her mother likewise is not a treating

physician and so the ALJ had the discretion to use her statements to establish the

severity of T.R.C.’s condition, but not to establish the existence of an impairment.

(explaining that the ALJ may use information from “other

sources” such as parents to establish the severity of an impairment). We also

cannot say that the ALJ erred in according Ms. Wisely’s opinion little weight,

because he found that her observations, that T.R.C. was easily frustrated and had

trouble reading and completing the tests, did not support her conclusion, that the

below average test results nevertheless reflected T.R.C.’s actual abilities. Not only

did the ALJ find this conclusion internally inconsistent, but also in conflict with

the opinion of another medical examiner who indicated that T.R.C.’s frustration

and marginal test-taking efforts undermined the test results. See 

(stating that, if any record evidence is inconsistent, the ALJ will weigh the relevant

evidence to determine disability); see also Sryock v. Heckler, 

, 835

(11th Cir. 1985) (holding that the ALJ is free to reject the opinion of any physician

when the evidence supports a contrary conclusion).

      Second, T.R.C. argues that the ALJ erred in relying on the opinions of Dr.

Robert Estock, who neither treated nor physically examined her, and Dr. Dan

Lowery, who is not an expert on speech and language. Generally, when


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considering an examining, non-treating medical opinion, “[t]he more a medical

source presents relevant evidence to support an opinion, particularly medical signs

and laboratory findings, the more weight [the ALJ] will give that opinion. The

better an explanation a source provides for an opinion, the more weight [the ALJ]

will give that opinion.” 

Moreover, “because nonexamining

sources have no examining or treating relationship with [the claimant], the weight

[the ALJ] will give their opinions will depend on the degree to which they provide

supporting explanations for their opinions.” 

“the more consistent

an opinion is with the record as a whole, the more weight [the ALJ] will give to

that opinion.” 

      Although Dr. Estock was not an examining source, the ALJ was entitled to

accord his opinions substantial weight because he provided supporting

explanations for them, and the record supported them. Likewise, the ALJ did not

err in according some weight to Dr. Lowery’s opinion because it supported Dr.

Estock’s finding and was based on direct observation of T.R.C. during testing

evaluations.

                                 II. Listing 112.05

      Next, T.R.C. argues that she meets or functionally equals Listing 112.05,

Mental Retardation. She asserts that she functionally meets the listing with a full

scale intelligence quotient (“FSIQ”) of 71 along with “documented marked


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restrictions in the areas of speech and language.”1 She contends that the results

from her treating sources show that she has marked limitations in the domains of

(1) acquiring and using information, (2) attending and completing tasks, and

(3) interacting and relating with others.

       A claimant under the age of 18 is considered disabled if she has a medically

determinable physical or mental impairment that results in marked and severe

functional limitations, and that is expected to result in death or has lasted or is

expected to last for a continuous period of not less than 12 months. 42 U.S.C.

§ 1382c(a)(3)(C)(i). The Social Security regulations provide a three-step

sequential analysis to determine whether a child is disabled: (1) whether the child

is working; (2) whether the child has a severe impairment or combination of

impairments; and (3) whether the child’s impairment or combination of

impairments meet, medically equal, or functionally equal the severity of an

impairment in the Listing of Impairments. See 20 C.F.R. § 416.924(a).



       1
          To the extent that T.R.C. argues that her speech impairment is a severe disability
separate from her intellectual disabilities, she failed to articulate that argument before the district
court. Thus, we will not consider it for the first time on appeal. See Passopulos v. Sullivan, 

, 645 (11th Cir. 1992) (refusing to consider a party’s contentions for the first time on
appeal in a Social Security case). Nonetheless, the ALJ did not ignore the evidence regarding
T.R.C.’s speech difficulties, but instead noted that her “speech problems are considered a
symptom of her learning disorder, as she has no trouble with articulation or her voice and only
has trouble with receptive and expressive language.” This conclusion is supported by substantial
record evidence.



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       To functionally equal an impairment in the List of Impairments, a claimant

must have marked limitations in two domains or an extreme limitation in one of

the following six domains: (1) acquiring and using information; (2) attending and

completing tasks; (3) interacting and relating with others; (4) moving about and

manipulating objects; (5) caring for herself; and (6) health and physical well-being.

See 

(d). A child’s limitation is “marked” where it is “more

than moderate,” but “less than extreme” and “interferes seriously with [the child’s]

ability to independently initiate, sustain, or complete activities.” 

       The Listing of Impairments provides that mental retardation 2 is

“[c]haracterized by significantly subaverage general intellectual functioning with

deficits in adaptive functioning.” 20 C.F.R. § 404, Subpt. P, App. 1,

Listing 112.05 (2012). A child is mentally retarded when she satisfies any of the

following requirements: (A) a child between the ages of 3 and 18 who meets at

least two of the appropriate age-group criteria in paragraph B2 of Listing 112.02;

(B) mental incapacity evidenced by dependence upon others for personal needs

(grossly in excess of age-appropriate dependence) and inability to follow directions

such that the use of standardized measures of intellectual functioning is precluded;

       2
        The 2013 version of the Listing of Impairments replaced the term “Mental Retardation”
with “Intellectual Disability.” Compare 20 C.F.R. § 404, Subpt. P, App. 1, Listing 112.05
(2013) with 

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(C) a valid verbal, performance, or full scale IQ of 59 or less; (D) a valid verbal,

performance, or full scale IQ of 60 through 70 and a physical or other mental

impairment imposing an additional and significant limitation of function; (E) a

valid verbal, performance, or full scale IQ of 60 through 70 and, for a child

between the ages of 3 and 18, meeting the requirements in at least one of several

specified paragraphs of Listing 112.02; or (F) for a child between the ages of 3 and

18, satisfaction of Listing 112.02B2a, and a physical or other mental impairment

imposing an additional and significant limitation of function. 

counseled brief, T.R.C. does not specify under which section of

Listing 112.05 she qualifies, although it appears that she relies on Listing

112.05(D), because she cites her FSIQ, claims additional marked restrictions, and

does not even mention Listing 112.02. However, Listing 112.05(D) requires an

FSIQ of 60 through 70, and T.R.C. incorrectly asserts that she meets the listing

based on her FSIQ of 71. To the extent that T.R.C. makes the general assertion

that the ALJ erred in concluding that T.R.C. does not functionally equal Listing

112.05, she fails to develop any arguments demonstrating that the ALJ erred in his

conclusions regarding the six domains of functioning. See N.L.R.B. v. McClain of

Ga., Inc., 

, 1422 (11th Cir. 1998) (“Issues raised in a perfunctory

manner, without supporting arguments and citation to authorities, are generally

deemed to be waived.”). Even assuming that T.R.C. has not waived this argument,


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we find that substantial evidence supports the ALJ’s conclusion that T.R.C.

exhibited no more than “less than marked” or “no limitation” in each of the six

domains.

                   III. ALJ’s Full Development of the Record

      Finally, T.R.C. argues that the ALJ failed to fully develop the record when

he failed to: (1) “re-contact the expert who provided the Psychological Evaluation

for any question(s) regarding the validity of the IQ score”; and (2) obtain an

updated IQ test score.

      Generally, an ALJ has “a basic obligation to develop a full and fair record.”

Ellison v. Barnhart, 

, 1276 (11th Cir. 2003). Nevertheless, the

claimant carries the burden of proving that she is disabled, and, thus, is responsible

for producing evidence to support her claim. 

ALJ is not

required to order a consultative examination if the record contains sufficient

evidence for the ALJ to make an informed decision. Ingram v. Comm’r of Soc.

Sec., 

, 1269 (11th Cir. 2007).

      Because T.R.C. did not identify whom the ALJ should have re-contacted

regarding the validity of the IQ score, she has waived that argument. See McClain

of Ga., 

. Moreover, it was T.R.C.’s responsibility to provide

an updated test score. See 

. Finally the record contained

sufficient evidence including inter alia, several medical and other reports from


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examiners from UAC, Ms. Wisely, Dr. Lowery, Dr. Estock, and another

unidentified examiner as well as T.R.C. and her mother’s testimony, for the ALJ to

make an informed decision. See 

.

      Accordingly, upon review of the record and consideration of the parties’

briefs, we affirm.

      AFFIRMED.




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