Jefferson Ex Rel. Jefferson v. Barnhart , 64 F. App'x 136 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 21 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOYCE JEFFERSON, on behalf of
Ray Lee Jefferson,
Plaintiff-Appellant,
v. No. 02-5115
(D.C. No. 01-CV-291-M)
JO ANNE B. BARNHART, (N.D. Okla.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Joyce Jefferson filed an application for Supplemental Security Income on
behalf of her minor son Ray Lee Jefferson. The Commissioner denied benefits
and the district court 1
affirmed the decision. Ms. Jefferson appeals. Our
jurisdiction arises under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We reverse
and remand for further proceedings.
Ray Lee was born on July 9, 1989. He was nine years old when the
application for benefits was filed, and he was ten at the time of the hearing before
an administrative law judge (ALJ). The ALJ took testimony from Ray Lee and
his mother and received documentary evidence, including records from Tulsa
Public Schools and a developmental psychological report by A. Owen Fonkalsrud,
M.A., the consulting expert. The ALJ denied benefits, concluding that Ray Lee
had a learning disability that qualified as a severe impairment, but his impairment
did not meet or equal a listing.
On appeal, Ms. Jefferson challenges the ALJ’s determination that
Ray Lee’s disability did not meet a listing. She also maintains that the ALJ
improperly discounted her testimony.
We review de novo the district court’s judgment; therefore, we
independently evaluate the agency’s decision to determine whether it is free of
1
The parties consented to proceed before a magistrate judge, pursuant to
28 U.S.C. § 636(c)(1).
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legal error and supported by substantial evidence. Briggs ex rel. Briggs v.
Massanari , 248 F.3d 1235, 1237 (10th Cir. 2001). Substantial evidence
“is adequate relevant evidence that a reasonable mind might accept to support
a conclusion.” Kepler v. Chater , 68 F.3d 387, 388-89 (10th Cir. 1995). The ALJ’s
decision, affirmed by the Appeals Council, is the final agency decision. Id. at 388.
I. THE LISTINGS
A. Statutory and Regulatory Framework
A child under age eighteen is “disabled” if he or she “has a medically
determinable physical or mental impairment, which results in marked and severe
functional limitations, and which can be expected to . . . last for a continuous
period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). An ALJ
applies a three-step process to evaluate (1) whether the child is engaged in
substantial gainful activity, (2) whether the child has an impairment or
combination of impairments that is severe, and (3) whether the 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).
Ms. Jefferson asserts that Ray Lee meets the requirements of listing 112.05,
the listing for mental retardation. She argues that her son meets the criteria for
sub-listings 112.05A, 112.05D, and 112.05E. Each sub-listing requires
“significantly subaverage general intellectual functioning with deficits in adaptive
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functioning.” 20 C.F.R. Pt. 404, App. 1, Subpt. P, Part B, § 112.05. For
sub-listing 112.05A, the child must also exhibit “marked” impairment 2
in at least
two of the following areas: cognitive/communicative functioning, social
functioning, personal functioning, or maintaining concentration, persistence,
or pace.
Sub-listing 112.05D requires an IQ of “60 through 70 and a physical or
other mental impairment imposing an additional and significant limitation of
function.” Listing 112.05D. The additional limitation must be “severe” to meet
this sub-listing. Id. 112.00(A).
Sub-listing 112.05E requires an IQ of 60 through 70 and marked impairment
in at least one of the following areas: social functioning, personal functioning,
and maintaining concentration, persistence, or pace.
B. Discussion
The ALJ evidently determined that Ray Lee met the threshold requirement
for listing 112.05 (significantly subaverage general intellectual functioning with
deficits in adaptive functioning) and then evaluated Ray Lee’s functioning in the
other areas identified above. He found that Ray Lee had (1) moderate, but less
2
“Marked” applies when the “impairment(s) interferes seriously with [the]
ability to independently initiate, sustain, or complete activities.” 20 C.F.R.
§ 416.926a(e)(2)(i). It is equivalent to the functioning expected on standardized
testing “with scores that are at least two, but less than three, standard deviations
below the mean.” Id.-4-
than marked limitation of functioning in the cognitive/communicative area,
(2) no limitation of motor functioning, (3) no limitation of social functioning,
(4) no limitation of personal functioning, and (5) moderate, but less than marked
limitation of concentration, persistence, and pace. R. Vol. II, at 17-19. He also
found that Ray Lee had an IQ of 70. See id. at 16. The ALJ provided only very
limited reasoning and analysis, thus hampering our review of his decision.
“‘It is well settled that administrative agencies must give reasons for their
decisions.’” Kepler , 68 F.3d at 391 (quoting Reyes v. Bowen , 845 F.2d 242, 244
(10th Cir. 1988)). The ALJ is required to consider carefully all relevant evidence
and to link his findings to specific evidence. Drapeau v. Massanari , 255 F.3d
1211, 1213 (10th Cir. 2001). Although the ALJ is not required to discuss every
item of evidence, the record must show that he considered all of the evidence.
Clifton v. Chater , 79 F.3d 1007, 1009-1010 (10th Cir. 1996). The ALJ “may not
ignore evidence that does not support his decision, especially when the evidence
is significantly probative.” Briggs , 248 F.3d at 1239 (quotation omitted).
Ms. Jefferson challenges the ALJ’s findings regarding Ray Lee’s limitations
in the areas of cognitive/communicative functioning, social functioning, and
maintaining concentration, persistence, or pace.
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(i) Cognitive/communicative functioning
The ALJ’s finding that Ray Lee had moderate, but less than marked
limitation of functioning in the cognitive/communicative area was based on the
ALJ’s determination that he “scored IQ’s within the borderline range of
intellectual functioning, requiring part time special education classes.” R. Vol. II,
at 17. Although “[p]lacement in a special education program is a relevant factor,
[it] is not conclusive because of the variability in school districts as to their
criteria for special education placement.” Briggs , 248 F.3d at 1238 n.5. The ALJ
apparently determined that Ray Lee’s cognitive and communicative functioning
was moderately limited because he was in special education classes only part time.
But even in special education classes, “[h]is progress, even with individual
attention[,] has been limited.” R. Vol. II, at 88. He was described as often being
“lost” in class. Id.The ALJ interpreted as evidence of nondisability a statement in a school
report that Ray Lee’s “measured achievement [was] near to above expectancy.”
Id. at 132. The statement can reasonably be interpreted to mean that Ray Lee was
achieving as expected for a mentally retarded child. But Ray Lee’s abilities and
limitations must be compared to those of children his age who do not have
impairments. 20 C.F.R. § 416.924a(b)(3). Therefore, on remand, the ALJ should
consider and discuss whether this statement is evidence of nondisability.
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The record contains standardized test results that Ms. Jefferson alleges
demonstrated that Ray Lee’s functioning was two standard deviations below the
mean, which qualified as marked limitations. See 20 C.F.R. § 416.926a(e)(2)(i).
In assessing the severity of a child’s limitations, “[t]he use of standardized tests is
the preferred method of documentation if such tests are available.” 20 C.F.R.
Pt. 404, App. 1, Subpt. P, Part B, § 112.00(C). When he was a fifth-grader,
Ray Lee’s standardized test scores were in the first percentile for reading, with
only two scores above the ninth percentile. R. Vol. II, at 130. Accordingly, in
addition to the other evidence pertaining to Ray Lee’s cognitive and
communicative functioning, on remand the ALJ should evaluate whether the
standardized test scores were two or more standard deviations below the mean.
(ii) Social functioning
The record contains several references to Ray Lee’s limitations in social
functioning. His mother testified that he had no friends. R. Vol. II, at 39. His
fourth grade special education teacher wrote that Ray Lee tended “to play by
himself or stand and watch others,” although he was thoughtful and eager to
please. Id. at 86. She referred to “one good friend that helps him remain
‘on task,’” and that student was a peer tutor. Id. A public school referral for
multidisciplinary services noted that Ray Lee had no discipline problems, but he
exhibited “an extreme lack of social judgment.” Id. at 88. A comprehensive
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assessment report noted that one of Ray Lee’s relative weaknesses was “social
judgment.” Id. at 112. On remand, the ALJ should evaluate and discuss the
evidence pertaining to Ray Lee’s social functioning.
(iii) Concentration, persistence, and pace
The ALJ assessed Ray Lee’s limitation in concentration, persistence, and
pace as moderate, but less than marked, relying on a contradiction between
Ms. Jefferson’s statement that Ray Lee had behavioral problems, 3
and the
consulting expert’s finding that his Attention Deficit Hyperactivity Disorder was
“only ‘mild.’” R. Vol. II, at 19. The record contains statements by Ray Lee’s
public school teachers and evaluators that he had difficulty concentrating, he gave
up easily and he required additional time and supervision to complete assignments.
See id. at 86-87, 95, 113. “[S]chool records are an excellent source of information
concerning function . . . .” 20 C.F.R. Pt. 404, App. 1, Subpt. P, Part B,
§ 112.00(C)(3). In addition, Ms. Jefferson testified that Ray Lee required close
supervision to perform household chores and homework. R. Vol. II, at 39-40.
Mr. Fonkalsrud also reported that Ray Lee was distracted and “gave up quickly”
when the examiner refused to give him test items to take home. Id. at 116.
Mr. Fonkalsrud described Ray Lee’s attention span as “fair.” Id. at 117.
3
The ALJ did not explain what “behavioral problems” Ms. Jefferson
reported. She testified at the hearing that Ray Lee had no problems with behavior
at school. R. Vol. II, at 39.
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On remand, the ALJ should discuss and evaluate the evidence pertaining to Ray
Lee’s limitations on concentration, persistence, and pace.
II. CREDIBILITY OF CHILD’S PARENT
If the child claimant is unable adequately to describe his symptoms, the
ALJ must accept the description provided by testimony of the person most familiar
with the child’s condition, such as a parent. 20 C.F.R. § 416.928(a). “In such
a case, the ALJ must make specific findings concerning the credibility of
the parent’s testimony, just as he would if the child were testifying.” Briggs ,
248 F.3d at 1239.
In this case, the ALJ made no findings about Ms. Jefferson’s credibility.
He simply rejected it as “credible only to the extent that [it was] supported by the
evidence of record as summarized in the text of [his] decision.” R. Vol. II, at 20.
This “[s]tandard boilerplate language will not suffice” as an explanation for
finding Ms. Jefferson’s testimony not credible, particularly since her testimony
was supported by other evidence in the record. Briggs , 248 F.3d at 1239.
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The judgment of the United States District Court for the Northern District of
Oklahoma is REVERSED and REMANDED. The district court is directed to
remand the case to the Commissioner for further proceedings consistent with this
order and judgment.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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