Brindisi, Tina v. Barnhart, Jo Anne B. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1365
TINA BRINDISI, ON BEHALF
OF ROBERT BRINDISI, A MINOR,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00-C-6495—Matthew F. Kennelly, Judge.
____________
ARGUED SEPTEMBER 25, 2002—DECIDED JANUARY 8, 2003
____________
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. This is an appeal from the
denial of Supplemental Security Income benefits to Rob-
ert Brindisi, a minor. Because we find that the administra-
tive law judge’s opinion does not adequately articulate
the basis for the denial of benefits to Robert, we reverse
the decision of the district court upholding the opinion
and remand for further proceedings.
2 No. 02-1365
I. BACKGROUND
Tina Brindisi applied for Supplemental Security In-
come (“SSI”) benefits on behalf of her son, Robert, in April
1996, when Robert was four years old. Ms. Brindisi claims
that Robert suffers from a hearing impairment, speech
delay, oppositional defiant disorder, attention deficit dis-
order, hyperactivity, and separation anxiety, qualifying him
as “disabled” and entitling him to SSI benefits. Robert
has a history of visiting doctors and specialists for hear-
ing and speech-related problems and has had numerous
surgical procedures to place tubes in his ears. In addition,
Robert began to take Ritalin in 1997, and Ms. Brindisi
claims that Robert displays a variety of inappropriate
acts of physical aggression, refuses to separate from her,
and has poor interaction skills.
After a hearing to consider Robert’s application, an
administrative law judge (“ALJ”) found that Robert is
not disabled. Following this decision, Ms. Brindisi filed
a request for review to the Social Security Administra-
tion’s appeals council, which denied the request, leaving
the decision of the ALJ as the final decision of the Com-
missioner. Brindisi then filed a complaint challenging
the ruling of the Commissioner in federal court. The dis-
trict court granted summary judgment in favor of the
Commissioner. Brindisi filed a timely appeal with this
court, asking us to review the decision of the ALJ.
II. ANALYSIS
We must affirm the factual findings of the ALJ if they
are supported by substantial evidence. 42 U.S.C. § 405(g);
Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). How-
ever, where the Commissioner’s decision “lacks evidentiary
support or is so poorly articulated as to prevent meaning-
ful review, the case must be remanded.” Steele v. Barnhart,
290 F.3d 936, 940 (7th Cir. 2002).
No. 02-1365 3
A. Disability determination
The Social Security Administration’s determination of
Robert’s claim was made under the Interim Final Rules
adopted by the Commissioner in accordance with the
changes to children’s disability benefits in the Personal
Responsibility and Work Opportunity Reconciliation Act.
See 42 U.S.C. § 1382c. Under the Act, to be considered
disabled, a child must have a “physical or mental impair-
ment, which results in marked and severe function-
al 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.” Id.
§ 1382c(a)(3)(C)(I). In order to understand the ALJ’s de-
termination in this case we think it necessary to outline
the process of determining disability under the new rules.
A three-step process is employed to decide whether a
child is disabled. First, if the child is engaged in substan-
tial gainful activity, his or her claim is denied. 20 C.F.R.
§ 416.924(a). Second, if the child does not have a medi-
cally determinable “severe” impairment or combination of
impairments, then his or her claim is denied. Id. Final-
ly, for a child to be considered disabled, the child’s im-
pairment(s) must meet, medically equal, or functionally
equal the requirements of a listed impairment in 20
C.F.R. Pt. 404, Subpt. P, App. 1. Id. To find an impairment
functionally equivalent to a listing, an ALJ must analyze
its severity in five age-appropriate categories and find
an “extreme” limitation in one category or a “marked” lim-
itation in two categories. 20 C.F.R. § 416.926a(a).1 It is
at this third step—determining whether Robert’s impair-
1
For children ages three to six, an ALJ examines the catego-
ries of limitation including cognition/communication, motor
skills, social skills, personal skills, and concentration/persis-
tence/pace. 20 C.F.R. § 416.926a(g)-(1).
4 No. 02-1365
ments meet or medically equal a listing or are functionally
equivalent to a listing—that the ALJ determined Robert
is not disabled.
We begin our discussion with the ALJ’s finding that
Robert’s impairment does not meet nor is medically equal
to a listing. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the
“listings”). Robert applied for benefits under three list-
ings: 102.08 (hearing impairments), 112.06 (anxiety disor-
ders),2 and 112.11 (attention deficit hyperactive disorder).3
See id. The ALJ’s finding that Robert did not qualify
as disabled because he did not meet listing requirements
102.08, 112.06, or 112.11 is extremely brief:
The claimant has a combination of severe impair-
ments which include: speech and language delays,
recurrent otitis media, and ADD. However, none
of these impairments meet the requirements of
an impairment listed in Appendix 1 to subpart P of
regulation no. 4.
We find this conclusion to be devoid of any analysis that
would enable meaningful judicial review. See Steele, 290
F.3d at 940. First, the ALJ’s opinion does not even men-
2
Listing 112.06 requires medically documented findings of one
of several factors, including “excessive anxiety manifested when
the child is separated” from a parent. 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 112.06. The anxiety must result in at least two of the
age-specific findings listed in § 112.02(B)(2): marked impairment
in cognitive/communicative function, marked impairment in so-
cial functioning, marked impairment in personal functioning,
and marked difficulties in maintaining concentration, persis-
tence, or pace. Id. at § 112.02(B)(2).
3
Listing 112.11 compels findings of marked inattention, marked
impulsiveness, and marked hyperactivity resulting in at least
two of the age-specific findings listed in § 112.02(B)(2). 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 112.11.
No. 02-1365 5
tion the specific listings under which it considered Rob-
ert’s impairments. As we have recently noted, failure to
discuss or even cite a listing, combined with an otherwise
perfunctory analysis, may require a remand. Id. at 936.
The omission of any discussion of Robert’s impairments
in conjunction with the listings frustrates any attempt
at judicial review, especially in a case such as this where
a claim is made under three different listings. Such a lack
of reasoning prevents us from applying the decision struc-
ture undergirding disability determinations to a substan-
tive analysis of Robert’s impairments. See Scott, 297 F.3d
at 595 (failure to reference the listing left the court with
“grave reservations as to whether [the ALJ’s] factual
assessment addressed adequately the criteria of the list-
ing”).
In addition, the ALJ’s opinion does not sufficiently dis-
cuss the conflicting evidence regarding Robert’s impair-
ments. Most significantly, the opinion fails to mention
the strongest piece of evidence supporting Robert’s claim
for benefits under the listing for hearing impairments—
an audiogram administered on December 18, 1995. In
order to meet listing 102.08, Robert must have an “inabil-
ity to hear air conduction thresholds at an average of 40
decibels or greater in the better ear, and a speech and
language disorder which significantly affects the clarity
and content of the speech.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 102.08(B)(3). The December 1995 audiogram
found Robert had a hearing level of an average of 50
decibels in his right ear and 40 decibels in his left ear. The
parties disagree as to whether these results meet the
criteria of listing 102.08 or fall just short. The fact that
the parties agree that Robert meets the second half of
the listing, a significant speech disorder attributable to
his hearing impairment, only increases the importance of
the consideration of this audiogram. Yet the ALJ’s opinion
is silent as to this critical piece of evidence, despite the
6 No. 02-1365
ALJ’s duty to acknowledge potentially dispositive evidence,
Stephens v. Heckler, 766 F.2d 284, 288 (7th Cir. 1985), since
“[t]he ALJ’s opinion is important not in its own right
but because it tells us whether the ALJ has considered
all the evidence, as the statute requires him to do.” Id. at
287. Without even a mention, we are left to wonder wheth-
er the audiogram was even considered. Here the ALJ
should have discussed not only the results of the Decem-
ber 1995 audiogram, but also whether those results meet
the requirements of listing 102.08.
While the ALJ’s discussion of whether Robert function-
ally equals a listing is lengthier, even here the opinion’s
failure to clearly identify which impairments were con-
sidered leaves us without means to review its conclusion.
Of course an ALJ, when considering whether a child is
disabled under a functional analysis, must consider the
combined effect of the impairments. 24 C.F.R. § 926a(a);
Sims v. Barnhart, 309 F.3d 424, 432 (7th Cir. 2002); Clif-
ford v. Apfel, 227 F.3d 863, 873 (7th Cir. 2000); Green
v. Apfel, 204 F.3d 780, 782 (7th Cir. 2000). The ALJ deter-
mined that Robert has a marked limitation in the area of
cognitive/communication development; less than a marked
limitation in personal development, social development,
and concentration/persistence/pace; and no evidence of lim-
itations in his motor development. In considering each
area of functioning, however, the ALJ appears to have
alternated between discussion of Robert’s hearing and
speech impairments and those related to his behavioral
problems. For example, the ALJ’s conclusion about Rob-
ert’s limitation in cognition/communication development
does not discuss the impact of Robert’s behavioral impair-
ments on his functioning, despite an acknowledgment
that several language evaluations were hampered by
Robert’s poor cooperation. Similarly, the ALJ states that
his analysis of Robert’s social development accounts for
both behavioral and speech and hearing impairments,
No. 02-1365 7
but his discussion focuses exclusively on Robert’s hyperac-
tivity and attention difficulties. We recognize that even
a “sketchy opinion” is sufficient if it assures us that an
ALJ considered the important evidence and enables us
to trace its reasoning. Stephens, 766 F.2d at 287. But in
this case, the conclusory and conflated analysis prevents
this court from finding that substantial evidence sup-
ports the ALJ’s conclusions.
B. Credibility determination
The ALJ’s opinion is also seriously deficient in its evalu-
ation of the Brindisis’ testimony at the hearing. In evalu-
ating the credibility of statements supporting a Social
Security application, we have noted that an ALJ must
comply with the requirements of Social Security Ruling
96-7p. Steele, 290 F.3d at 942. SSR 96-7p requires ALJs
to articulate the reasons behind credibility evaluations:
The reasons for the credibility finding must be
grounded in the evidence and articulated in the
determination or decision. It is not sufficient to
make a conclusory statement that “the individual’s
allegations have been considered” or that “the
allegations are (or are not) credible.” . . . The deter-
mination or decision must contain specific reasons
for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator
gave to the individual’s statements and the rea-
sons for that weight.
1996 WL 374186, at *4 (S.S.A. July 2, 1996).
The ALJ’s opinion describes the Brindisis’ testimony
as generally, but not fully, credible. The entire credibility
evaluation reads:
8 No. 02-1365
In considering the claimant’s functioning and the
areas of development, the undersigned has con-
sidered the testimony of the claimant and his
mother, and find it generally credible. However
to the extent that the claimant’s parents alleged
total disability, the undersigned do not find them
fully credible, as it is not supported by the objec-
tive medical evidence and other evidence of record
(SSR 96-7p and 20 CFR 416.929).
This is precisely the kind of conclusory determination SSR
96-7p prohibits. Indeed, the apparently post-hoc state-
ment turns the credibility determination process on its
head by finding statements that support the ruling cred-
ible and rejecting those statements that do not, rather
than evaluating the Brindisis’ credibility as an initial
matter in order to come to a decision on the merits. Specifi-
cally, the ALJ does not explain the weight given to the
Brindisis’ statements and does not support its determina-
tion with any evidence in the record. In short, the determi-
nation is lacking any explication that would allow this
court to understand the weight given to the Brindisis’ state-
ments or the reasons for that consideration as required
by SSR 96-7p.
We find it particularly troubling that the determina-
tion references Robert’s credibility even though only Mr.
and Ms. Brindisi, and not Robert, testified at the hear-
ing. Indeed, the ALJ commented on Robert’s silence dur-
ing the hearing, stating: “[T]his may be the only child
that age that has never spoken up. They all at least will
say something.” This error only underscores our concern
about the brevity and conclusory nature of the credibility
determination. See Herron v. Shalala, 19 F.3d 329, 336 (7th
Cir. 1994) (remanding determination when credibility find-
ing was based on facts that did not exist).
No. 02-1365 9
III. CONCLUSION
In arriving at our conclusions about the deficiencies in
the ALJ’s opinion we make no finding as to the merits
of Robert’s SSI claim. We think it unfortunate that, by
our calculations, Robert is now ten years old and has not
yet received a final determination on his claim. However,
we find the weaknesses of the ALJ’s opinion preclude
any meaningful judicial review. Therefore, the judgment of
the district court is REVERSED, and the case is REMANDED
to the Social Security Administration for further proceed-
ings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-8-03