Marisol Moreno, on behalf of MARICELIS MORENO v. Commissioner of Social Security

* The Honorable Myron H. Bright, Senior Judge, United
States Court of Appeals for the Eighth Circuit, sitting by
designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4771
MARISOL MORENO,
on behalf of MARICELIS MORENO,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY,
Appellee.
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 04-cv-03758)
District Judge: Honorable William G. Bassler
Argued September 12, 2006
Before: FUENTES, FISHER, and BRIGHT, * Circuit Judges.
(Filed: September 29, 2006)

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Abraham S. Alter, Esq. (Argued)
2096 St. Georges Avenue
Rahway, New Jersey 07065
COUNSEL FOR APPELLANT
Karla J. Gwinn, Esq. (Argued)
Social Security Administration
Office of General Counsel, Region II
New York, NY
COUNSEL FOR APPELLEE
_______________________
OPINION OF THE COURT
_______________________
FUENTES, Circuit Judge.
Marisol Moreno (“Moreno”) brings this appeal on behalf of her minor daughter
Maricelis Moreno (“Maricelis”). Moreno appeals a final decision of the District Court that
affirmed the decision of the Commissioner of Social Security (“Commissioner”). The
Commissioner denied Moreno’s application for Child’s Supplemental Security Income
(“SSI”) benefits. We will affirm the District Court.
I.
This Court exercises jurisdiction over the District Court’s grant of summary
judgment under 28 U.S.C. § 1291. The appellate court employs a substantial evidence
standard to review a Commissioner’s final denial of benefits. See 42 U.S.C. § 405(g).
“[T]he existence [or absence] of substantial evidence is not merely a quantitative exercise.
. . . Nor is evidence substantial if it is overwhelmed by other evidence-particularly certain

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types of evidence (e.g., that offered by treating physicians)-or if it really constitutes not
evidence but mere conclusion.” Id. at 317 (quoting Kent v. Schweiker, 710 F.2d 110, 114
(3d Cir. 1983)). A court cannot adequately review an administrative decision if an ALJ
fails to provide “not only an expression of the evidence s/he considered which supports
the result, but also some indication of the evidence which was rejected.” Cotter v. Harris,
642 F.2d 700, 705 (3d Cir. 1981). Otherwise, the court has no way of knowing whether
probative evidence was not credited or simply ignored. Id.
II.
For a child under the age of eighteen (18) to be considered disabled and eligible
for SSI under the Social Security Act, she must have 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).
The Commissioner applies a three-part sequential analysis to evaluate whether a
child is disabled and eligible for SSI. First, if the child is doing substantial gainful
activity, the Commissioner will determine that the child is not disabled. 20 C.F.R. §
416.924(a). Second, if the child is not working, the Commissioner will determine
whether the child’s impairment is severe. Id. Third, if the impairment is severe, the
Commissioner must determine whether the impairment “meets, medically equals, or
functionally equals the listings.” Id.
Medical Equivalence: To qualify as disabled based on asthma, an applicant must

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meet the requirement for continuing signs and symptoms despite a regimen of prescribed
treatment: Specifically, the applicant may qualify if she shows that she has suffered from
“[a]ttacks (as defined in 3.00C), in spite of prescribed treatment and requiring physician
intervention, occurring at least once every 2 months or at least six times a year.” 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 103.03B (“[A]n evaluation period of at least 12
consecutive months must be used to determine the frequency of attacks.”). According to
Listing § 3.00C, “[a]ttacks of asthma, . . . are defined as prolonged symptomatic episodes
lasting one or more days and requiring intensive treatment, such as intravenous
bronchodilator or antibiotic administration or prolonged inhalational bronchodilator
therapy in a hospital, emergency room or equivalent setting.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 3.00C.
Functional Equivalence: To determine whether an impairment is functionally
equivalent to a listing the Commissioner must determine that the impairment results in a
“marked” limitation in two domains of functioning or an “extreme” limitation in one
domain. 20 C.F.R. § 416.926a(a). The domains which the Commissioner is to analyze
are: 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 oneself;
and 6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). A marked limitation
is present where the impairment interferes “seriously” with one’s ability to
“independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i).
An extreme limitation is present where one’s impairment interferes “very seriously” with

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one’s ability to “independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a (e)(3)(i).
III.
The ALJ’s analysis of Moreno’s claim followed the three-step sequence proscribed
by 20 C.F.R. § 416.924(a). Moreno challenges the ALJ’s step-three finding of no
medically-equivalent impairment. Moreno alleges that Maricelis suffered at least six (6)
asthma attacks in one year, seven (7), if the Court considers the 368 day period between
March 2002 through the end of March 2003. Therefore, Moreno alleges, Maricelis’s
asthma is the medical equivalent of a listed impairment, under § 103.03B. App. Br. at 13.
Moreno alleges that the ALJ failed to mention all but three of Maricelis’s asthma attacks
in his step-three analysis, and that this oversight was a “deliberate Cotter violation.” See
App. Br. at 13. Moreno also argues that the ALJ’s functional-equivalence analysis, and
his analysis in general, is insufficiently detailed to permit meaningful review.
A. Medical Equivalence
Moreno’s version of the number of asthma attacks that Maricelis suffered in 2002
is allegedly indicated by “7 emergency room and emergency physician treatments for
asthma.” See App. Br. at 13. There is substantial evidence in the record to support the
ALJ’s finding that Moreno has shown evidence of only three “attacks,” between March
21, 2002 and March 24, 2003, that rise to the level of severity required under the
Commissioner’s § 3.00C listing. The number of Maricelis’s physician visits in 2002 does
not accurately reflect the number of actual asthma attacks that Maricelis suffered that

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year.
The three qualifying attacks are as follows: First, on March 21, 2002, Maricelis
was treated for acute asthma and an upper respiratory infection in the emergency room of
Trinitas Hospital. Second, on the morning of May 28, 2002, Maricelis was treated at her
doctor’s office, for a “persistent cough, difficulty breathing and a lot of wheezing.” At
11:13 p.m., the same night, Maricelis was treated for bronchitis, acute asthma, and early
pneumonia at Trinitas Hospital. The Trinitas report indicates that Maricelis complained
of “difficulty breathing . . . onset - this morning.” Tr. at 255. Maricelis was discharged at
2:50 a.m. on May 29, 2002. Moreno argues that these two visits should have been
counted by the ALJ as two separate asthma attacks in 2002. But because these two visits
were due to a single “prolonged symptomatic episode” occurring within a 24 hour period,
the symptoms constitute a single attack. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3.00C
(“Attacks of asthma, . . . are defined as prolonged symptomatic episodes lasting one or
more days . . . .”). Third, on December 27, 2002, Maricelis received treatment for
asthma, fever, dry cough and wheezing at Trinitas Hospital.
Moreno claims to have presented evidence of three additional asthma attacks
during the relevant twelve (12) month period, for which she sought treatment from Dr.
Helen Aguila of the Pediatric Pulminary Group at University Hospital. The record shows
three such visits on October 1, 2002; December 10, 2002 and March 24, 2003. There is,
however, substantial evidence that shows these visits were scheduled, regular
examinations of Maricelis, not emergency visits. The three “Medication Instruction

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Sheets” in the record that document these visits indicate that Maricelis was given a
routine examination; prescribed medication on a schedule based on the symptoms that she
may expect to experience on any given day; and was given a date for her next
appointment. See Tr. at 197-204. This evidence does not indicate asthma attacks of the
severity apparent in the Trinitas Hospital records.
B. Cotter v. Harris and the ALJ’s Analysis
Appellant argues that the ALJ violated Cotter by not discussing the University
Hospital records. As Judge Bassler correctly held, however, Cotter does not require an
explanation from the ALJ for why evidence that is not probative has been rejected. See
Cotter, 642 F.2d at 707. Under Burnett v. Commissioner, 220 F.3d 112, 121 (3d Cir.
2000), an ALJ must “consider and explain his reasons for discounting all of the pertinent
evidence before him in making his . . . determination.” Id. (emphasis added) (citing,
among other cases, Cotter, 642 F.2d at 705). Because the University Hospital records do
not indicate “[a]ttacks . . . , in spite of prescribed treatment and requiring physician
intervention,” they are not probative or pertinent to the ALJ’s determination of disability.
Furthermore, the ALJ created a sufficiently developed record without discussion of
the University Hospital documents because he explained in detail the other evidence that
he relied upon and that which he rejected. This evidence includes the findings of a State
Agency medical consultant, who found that Maricelis’s impairments do not meet or
medically equal any listing; and other medical opinions in the record, including
Maricelis’s treating physician, Dr. Abich, none of which indicate an impairment more

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serious than “moderate persistent asthma” or “chronic asthma, causing mild obstructive
lung disease.” See, e.g., Tr. at 190-196 (Dr. Patel consultative examination diagnosing
Maricelis with “chronic asthma, causing mild obstructive lung disease”); Tr. at 129 (Dr.
Turcios finding that Maricelis suffered from Mild Persistent Asthma, complicated by
Allergic Rhinitis, but that her physical exam revealed a “healthy school aged girl in no
respiratory distress.”).
C. Functional Equivalence
Appellant’s brief does not make any specific arguments regarding the ALJ’s
analysis of functional equivalence other than that the “ALJ simply announced his findings
without much explanation and predictably found appellant not to suffer an ‘extreme’
limitation in any one of th[e] six domains or a ‘marked’ limitation in any two of those
domains. . . . [A]t the third and fourth steps of the sequential evaluation the ALJ ‘mailed
in’ his presumptive self-serving denial without bothering to explain how the evidence led
to his conclusions.” App. Br. at 8.
The ALJ’s Opinion shows that he found that Maricelis demonstrated a slight
limitation in the first domain, “acquiring and using information;” a slight limitation in the
second domain, “attending and completing tasks;” a slight limitation in the third domain,
“interacting and relating with others;” a moderate limitation in the fourth domain,
“moving about and manipulating objects;” no limitations in the fifth domain, “caring for
oneself;” and a moderate limitation in the sixth domain, “health and physical well-being.”
See Tr. at 20-22; 20 C.F.R. § 416.926a (b)(1).

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The District Court properly rejected Moreno’s claim that the ALJ’s explanation of
these findings was insufficient, because the ALJ went through each of the six domains
and gave an explanation for his findings, citing to the medical treatment records
discussed above; teacher questionnaires completed by Maricelis’s teachers; a “daily
living questionnaire” completed by Maricelis’s mother, among other things. The ALJ
noted which evidence he gave significant weight to and which he discounted, with
reasons. See, e.g., Tr. at 20 (The ALJ notes that he did not give significant weight to the
teacher questionnaire because the limitations at school that Maricelis’s teacher described
were “clearly not related to the claimant’s sole severe impairment of asthma.”).
The District Court therefore correctly found that the ALJ’s discussion permitted
“meaningful review.” Burnett, 220 F.3d at 119-20; Jones v. Barnhart, 364 F.3d 501, 506
(3d Cir. 2004). The ALJ “does not need to use particular language or adhere to a
particular format in conducting his analysis.” Jones, 364 F.3d at 505.
IV. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court in all
respects.

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