Flener, Mary v. Barnhart, Jo Anne ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2274
MARY FLENER, on behalf of RAY FLENER, a minor,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART, Commissioner of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00 C 4152—Michael J. Reagan, Judge.
____________
SUBMITTED JANUARY 27, 2004*—DECIDED MARCH 19, 2004
____________
Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
PER CURIAM. Ray Flener, who applied for Supplemental
Security Income (“SSI”) in 1997 at the age of nine, appeals
from the denial of his application for benefits. The adminis-
trative law judge (“ALJ”) determined that Ray had oppo-
*
This appeal was submitted on the briefs and the record after we
granted the appellant’s motion to waive oral argument. See Fed.
R. App. P. 34(f); Cir. R. 34(e).
2 No. 03-2274
sitional defiant disorder and an unnamed learning disabil-
ity, but that these impairments neither constitute, nor
functionally equal, a listed impairment. Ray argues that the
ALJ’s decision is not supported by substantial evidence and
that the ALJ erred by failing to use a medical expert to
interpret the results of two psychological tests. We affirm.
I. History
We draw the facts from the evidence admitted at the April
1998 hearing on Ray’s application for benefits. Since he was
a small child, Ray has exhibited difficulty controlling his
anger and behaving appropriately. Early on doctors diag-
nosed him with Attention Deficit Disorder (“ADD”) and
Attention Deficit Hyperactivity Disorder (“ADHD”). In April
1995, when Ray was six years old and in kindergarten, a
human services therapist certified in mental health care
diagnosed Ray with oppositional defiant disorder, which the
American Psychiatric Association defines as “a recurrent
pattern of negativistic, defiant, disobedient, and hostile
behavior toward authority figures that persists for at least
6 months.” American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders § 313.81 (4th
ed. 1994). The therapist noted that Ray was “very defiant,
[threw] temper tantrums, [and became] very angry very
quickly.” She ranked him as “poor” in the areas of socializa-
tion skills, leisure activities, interpersonal relationships,
and age-appropriate independence of function. Ultimately,
however, she characterized his prognosis as “fair.”
Beginning in 1995 Ray and his mother visited a family
practice physician, Dr. Jeffrey Parks, once or twice a month.
The subject of Ray’s behavioral problems was occasionally
discussed. Parks recommended that Ray “continue” taking
Ritalin and visiting a counselor, although the record does
not reflect how long Ray had been doing these things. Parks
also referred Ray to a pediatric neurologist, but here again
No. 03-2274 3
the record does not disclose whether Ray followed up on
that referral. In his notes from a visit later that year, Parks
memorialized a conversation with an unnamed counselor in
which they discussed Ray’s ongoing psychotherapy and use
of Ritalin and agreed he was “doing well.”
In October 1995, when Ray started first grade, he was
placed in special education classes. The school psychologist
tested Ray and opined that he had a preoccupation with
violence and seemed to have “difficulty distinguishing his
fantasies from reality.” She further noted that Ray had
difficulty working in large groups and required repeated
instruction. Based on the Kaufman Test of Educational
Achievement, which measures a child’s abilities compared
to others of his grade level, the psychologist determined
that Ray’s scores were below average in reading, but above
average in spelling and math.
Ray continued to take special education classes, and in
October 1996 the school reevaluated his progress. Ray’s
teacher and his mother both answered a series of written
questions comprising the Behavior Assessment System for
Children (“BASC”), in which they assessed the frequency
with which Ray engaged in inappropriate behaviors like
making threats, playing with fire, and throwing tantrums.
The school social worker then analyzed these answers using
BASC computer software and opined that Ray had problems
with hyperactivity, aggression, depression, attention, study
skills, and adaptability. She noted that the results from
both the teacher and parent rating scales identified “ex-
treme” behaviors on Ray’s part, but she cautioned that the
results might be suspect because internally inconsistent
answers to some of the test questions showed that Ray’s
teacher may have been “excessively negative in describing
the child’s behaviors.”
At that same time, the school social worker also ad-
ministered the Vineland Adaptive Behavior Scale, which
4 No. 03-2274
takes the form of a survey, to Ray’s mother. The test
included questions about Ray’s ability to function socially
and cope with the challenges of daily living. The social
worker scored Mrs. Flener’s responses according to the in-
structions contained in the test and calculated Ray’s stand-
ardized scores, which he compared to the norms for child-
ren of Ray’s age. The social worker opined that, although
Ray’s chronological age was eight years, four months, his
communication level was five years, ten months, his daily
living skills level was five years, nine months, and his
socialization level was two years, six months. The social
worker believed that Ray’s maladaptive behavior level was
significant.
Ray continued to visit Dr. Parks, who noted for the first
time in November 1996 that Ray had been taken off Ritalin
by his father the previous May. Parks spoke with Mrs.
Flener, who reported that Ray had had a number of recent
behavioral problems at school. Parks personally observed
that Ray had a short attention span and could not sit still,
although he was not verbally or physically aggressive
during the exam. He attributed Ray’s behavior to ADD and
recommended a psychiatric referral.
The school social worker also recommended that Ray
undergo a psychiatric evaluation and in December 1996
referred him to Tammy Bowles, a certified art therapist and
mental health care provider at St. Elizabeth Medical
Center. Bowles reported that Ray had a history of display-
ing aggression and threatening to hurt himself, as well as
a fascination with fire. During her interview with Ray,
Bowles judged him to be “extremely impulsive” but still
“very engageable” and anxious to please others. She noted
that Mrs. Flener seemed “extremely concerned” about Ray’s
poor judgment. Ultimately, Bowles characterized Ray as
needing “some help” with socialization, and recommended
that he see an adolescent psychiatrist and engage in play or
art therapy.
No. 03-2274 5
Beginning in April 1997 Ray attended several counseling
sessions with Constance J. Close, a certified mental health
care practitioner with a background in school psychology.
She talked with Ray about handling his anger and behaving
appropriately. They made a list of things Ray could work on
to improve himself, and she concluded that Ray was “willing
to try.” However, Close noted that Ray continued to behave
inappropriately throughout their sessions.
In June 1997 Mrs. Flener filed an application for SSI on
Ray’s behalf, alleging that he was disabled due to scoliosis,
a learning disorder, and a behavior disorder. The Social
Security Administration (“SSA”) denied the application
initially and upon reconsideration. Ray petitioned for
de novo review by an ALJ.
Ray was examined in August 1997 by Dr. Ramesh M.
Patel, a family practitioner whose evaluation was appar-
ently requested by the SSA in anticipation of the upcoming
hearing before the ALJ. Patel observed that Mrs. Flener
was very concerned about Ray’s trouble in school and
tendency to lie and argue. Patel reported that Ray told him
he earned “B grades” in his third-grade special education
classes and enjoyed biking, fishing, and playing video
games. Patel also noted, but did not discuss, Ray’s history
of attention deficit and behavior disorder.
Later that month the Illinois Bureau of Disability Deter-
mination Services (“state agency”) requested that Ray be
examined by Dr. James W. Whisenhunt, a clinical psycholo-
gist. Whisenhunt reviewed Ray’s records, including the
BASC and Vineland tests, and examined him for two and
one-half hours. Whisenhunt began with a summary of Ray’s
record—he was in special education classes, where teachers
reported he engaged in attention-getting, aggressive
behavior such as using obscenities, making threats, and
fighting. Ray’s teachers and mother stated that his behavior
was difficult to control, and that he often acted impulsively
6 No. 03-2274
and vindictively. Occasionally, he even threatened to kill
himself. Whisenhunt then administered an IQ test and
determined that Ray’s scores were in the low end of the
average range. He concluded that Ray’s range of factual
information, his comprehension, his verbal conceptual
abilities and expression of concepts, his sequencing, and his
speed of learning by association all fell less than one
standard deviation below the average. Ray’s skills with
vocabulary, arithmetic, discriminating objects, focusing on
details, and understanding spatial relations of abstract
figures were all between one and two standard deviations
below average. Based on his testing and observations,
Whisenhunt concluded that Ray suffered from oppositional
defiant disorder of moderate severity and “a non specified
learning disability associated with attention deficit prob-
lems.” He also identified the possibility that Ray suffered
from depression and recommended medication and counsel-
ing. Overall, Whisenhunt believed that Ray’s abilities fell in
the low end of the average range.
State agency psychologist Dr. M. A. Wharton and state
agency physician Dr. Julio Pardo also reviewed Ray’s full
medical and school records in August 1997, although they
apparently did not personally examine or interview him.
They opined that Ray suffered from a severe impairment,
i.e., oppositional defiant disorder, but that it did not meet,
or medically or functionally equal, a listed impairment.
Employing the terminology used by the social security
regulations, they opined that Ray had “less than marked”
limitations in the areas of cognitive/communicative func-
tioning, motor skills, and concentration, meaning the limi-
tations did not “interfere seriously” with his functioning.
They also found that he had a marked limitation in social
functioning. Although the doctors read Ray’s records to
show that he had problems with behavior and attention,
they opined that his behavior disorder was of only moderate
severity.
No. 03-2274 7
In October 1997, approximately six months before the
hearing on Ray’s application for benefits, the state agency
sent Ray’s then-current teacher, Lisa Studacher, a school
activities questionnaire. She reported that she had not no-
ticed any problems with Ray’s ability to work with others,
pay attention, work independently, or act appropriately.
Although she believed that he became frustrated easily and
could not keep up with his peers in sports and games, she
did not observe any problems with Ray’s ability to complete
assignments or adapt to change.
Also in October 1997, Dr. Wharton and state agency
physician Dr. B. Rock Oh again reviewed Ray’s complete
file. They opined that Ray had a severe impairment, but
that it did not meet or medically or functionally equal a
listed impairment. In their opinion, again using the termi-
nology of the social security regulations, Ray’s record de-
monstrated a less than marked limitation in the area of
“concentration, persistence, or pace” and a marked limita-
tion in social functioning. They found no evidence of any
other kind of limitation.
Ray’s special education teacher and the school social
worker reviewed his academic progress and educational
plan in February 1998. Ray’s teacher had administered the
PIAT test of written expression to him, and his scores
showed improvement in the areas of spelling, math, phon-
ics, and general information. These scores met many of the
goals Ray’s teacher had set out for him. However, he was
not working at grade level, and his teacher noted that he
still had “trouble dealing with anger, getting along with
classmates and following orders.”
Ray’s hearing before the ALJ was in April 1998, and he
was represented by counsel. All of the medical and aca-
demic records discussed to this point were received into
evidence without objection. Ray testified that he was in
special education class, where he sometimes got in trouble
8 No. 03-2274
for misbehaving, but “not too often.” He said that he did not
want to do his work and got into fights about once a week,
although he “usually” got along with his classmates. Mrs.
Flener, the only other live witness besides Ray, testified
that Ray had “flunked three times” and that he suffered
from ADHD, but was not currently taking any medication
for it. She said Ray’s oppositional defiant disorder made it
difficult for him to understand boundaries and pay atten-
tion to instructions. She testified that Ray had thrown a cat
at a tree and made threats to other students, and that he
had symptoms of depression, including nightmares and
thoughts of suicide. Counsel waived opening and closing
statements.
In June 1998 the ALJ issued a written decision denying
Ray SSI, reasoning that his impairments did not meet,
or medically or functionally equal, the requirements of a
listed impairment. The ALJ found that Ray had no limita-
tion in motor functioning and a less than marked limitation
in the areas of cognitive/communicative functioning,
personal hygiene, and concentration, persistence or pace.
He found Ray to have a marked limitation in social func-
tioning. In reaching this conclusion, the ALJ relied on
Dr. Whisenhunt’s opinion that Ray’s abilities were in the
average range. He noted that, although Ray’s academic
performance was deficient and he got into fights, Ray had
not been suspended from school, and his current teacher
had discerned “no problems” with his behavior other than
a tendency to become quickly frustrated. Further, he
pointed out that Ray did not take medication for his
oppositional defiant disorder, although it had been recom-
mended. The ALJ reviewed the “entire medical record” and
found no evidence of “severe” limitations in Ray’s function-
ing. Because the Appeals Council denied Ray’s request for
review, the ALJ’s decision stands as the final decision of the
Commissioner.
No. 03-2274 9
Ray filed a timely complaint in the district court seeking
judicial review of the Commissioner’s decision pursuant to
42 U.S.C. § 405(g). The action was referred to a magistrate
judge. Ray filed a memorandum arguing that the ALJ’s
decision is not supported by substantial evidence, and that
the ALJ should have called a medical expert to analyze the
results of the BASC and Vineland tests administered by the
school’s social worker to Ray’s teacher and mother in 1996.
The magistrate judge recommended that the decision be
reversed, addressing only the need for a medical expert at
the hearing. He noted that social security regulations
contained language that “strongly suggested” that the ALJ
should have obtained standard deviations, and that a
medical expert might have found significant the deviations
in the BASC scores for externalizing problems, aggression,
and conduct problems. The Commissioner objected to the
magistrate judge’s recommendation, arguing that the BASC
and Vineland scores for which Ray sought expert analysis
were too old to be relevant to his application for benefits,
and that, regardless, they were not reliable “standardized
tests” within the meaning of the social security regulations
because they were not administered by a psychologist or
physician, but rather by a social worker. The district court
agreed that the Vineland and BASC scores were not
“appropriate primary evidence of Ray’s disability,” and
accordingly affirmed the decision of the ALJ.
II. Analysis
Under the rules in effect at the time of Ray’s application,
a child could be eligible for SSI on the basis of disability if
he could show (1) that he was not working; (2) that he had
a “severe” impairment or combination of impairments; and
(3) that his impairment or combination of impairments met,
medically equaled, or functionally equaled the severity of
one of the specifically listed impairments. See 20 C.F.R.
10 No. 03-2274
§ 416.924 (2000). A claimant’s impairments would be
deemed functionally equivalent to a listed impairment if
they resulted in an extreme limitation of function in one
broad area of functioning or marked limitations of function
in two broad areas. 20 C.F.R. § 416.926a(b)(2) (2000).
In this case Ray’s challenge appears to be to the ALJ’s
determination that his behavioral disorders caused only a
marked, rather than an extreme, limitation on his social
function. A claimant’s social function is his
ability or inability to play alone, with another child, and
in a group; to initiate and develop friendships; to
respond to . . . social environments through appropriate
and increasingly complex interpersonal behaviors, such
as empathizing with others and tolerating differences;
and to relate appropriately to individuals and in group
situations.
20 C.F.R. § 416.926a(c)(5)(iv)(C) (2000). A “marked” limi-
tation is “more than moderate and less than extreme,” and
can arise due to a limitation or combination of limitations
that “interfere[s] seriously with the child’s functioning.” 20
C.F.R. § 416.926a(c)(3)(i)(C) (2000). An “extreme” limitation
occurs when there is “no meaningful functioning in a given
area.” 20 C.F.R. § 416.926a(c)(3)(ii)(C) (2000).
Ray initially contends that the ALJ’s determination that
he did not have an extreme limitation on his social function
is not supported by substantial evidence. Substantial
evidence is evidence that is sufficient for a reasonable per-
son to accept as adequate to support the decision. Jens v.
Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). To determine
if substantial evidence exists, we review the record as a
whole but do not substitute our judgment for that of the
ALJ by reweighing facts or witness credibility. Id.
We conclude that substantial evidence supports the ALJ’s
determination that Ray had a marked, but not extreme,
limitation on his social functioning. Dr. Whisenhunt, a state
No. 03-2274 11
agency psychologist, and two state agency physicians
reviewed Ray’s complete medical and educational records
and opined that, although Ray had problems with behavior
and attention, his ability to interact socially was not
completely impaired. They concluded, as the ALJ did, that
Ray was not disabled within the meaning of the guidelines.
It is appropriate for an ALJ to rely on the opinions of
physicians and psychologists who are also experts in social
security disability evaluation. 20 C.F.R. § 416.927(f)(2)(I)
(2000). The fact that these physicians reviewed the entire
record strengthens the weight of their conclusions. Hudson
v. Barnhart, 345 F.3d 661, 667 (8th Cir. 2003). The ALJ’s
finding is also supported by the observations of Ray’s most
recent teacher, who stated that she had not noticed any
problems with his ability to interact with others. Teachers
and parents who observe a child’s behavior may provide
substantial evidence of a mental disorder, or the lack
thereof. 20 C.F.R. § 416.913(e); see Pepper v. Barnhart, 342
F.3d 853, 855 (8th Cir. 2003). The testimony of Ray and his
mother—that Ray had difficulties socially and often acted
out, but had some friends and performed satisfactorily
within his special education program—also supports the
ALJ’s conclusion. Because the ALJ analyzed the correct
criteria and relied on appropriate medical evidence, a
reasonable person could accept his decision as adequate. See
Sims v. Barnhart, 309 F.3d 424, 430 (7th Cir. 2002).
Ray also argues that the ALJ erred when he failed
to independently recruit a medical expert to calculate
the standard deviations on the scores from the Vineland
and BASC tests. The magistrate judge apparently calcu-
lated the standard deviations himself and stated that the
scores in some categories on the BASC were more than
three standard deviations below the norm, which might
have been evidence of an “extreme” limitation. 20 C.F.R.
§ 416.926a(c)(3)(ii)(A) (2000). It is unclear, however, if Ray’s
argument is that the ALJ’s purported omission was proce-
12 No. 03-2274
dural (in failing to develop the standard deviation evidence)
or substantive (in failing to give the proper weight to these
tests). Either way, his argument is unavailing.
An ALJ does have a duty to develop a claimant’s medical
record, and thus may be required to consult medical ad-
visors where that record appears to be incomplete. 20
C.F.R. § 416.912(d) (2000); Henderson v. Apfel, 179 F.3d
507, 513 (7th Cir. 1999). However, the primary responsibil-
ity for producing medical evidence demonstrating the
severity of impairments remains with the claimant. 20
C.F.R. § 416.912(c) (2000). Further, we have recognized
that, because it is always possible to identify one more test
or examination an ALJ might have sought, the ALJ’s rea-
soned judgment of how much evidence to gather should
generally be respected. Luna v. Shalala, 22 F.3d 687, 692
(7th Cir. 1994).
The ALJ in this case followed the proper procedure and
developed the record adequately. The record included not
only the raw tests scores Ray now claims were not ap-
propriately developed, but also the reports of Ray’s treating
physician, several other consulting physicians, Ray’s
counselors and social workers, and his past and present
teachers. Moreover, two state agency physicians and a state
agency psychologist reviewed Ray’s complete medical
records, including the tests he claims required further
development, and concluded that Ray was not disabled
within the meaning of the regulations. Dr. Whisenhunt
reached a similar conclusion on his review of the complete
record. Given all the current, reliable medical evidence in
the record, the ALJ could conclude that further develop-
ment of Ray’s BASC and Vineland scores was not necessary.
Hudson, 345 F.3d at 667; Dotson v. Peabody Coal Co., 846
F.2d 1134, 1139 (7th Cir. 1988) (“an ALJ may permissibly
accord greatest weight to the most recent medical evi-
dence”). The ALJ had a “fairly complete picture” of Ray’s
condition, and the failure to obtain standard deviations on
No. 03-2274 13
the BASC and Vineland scores was certainly not a signifi-
cant, prejudicial omission of the type compelling reversal.
See Nelson v. Apfel, 131 F.3d 1228, 1236 (7th Cir. 1997).
More importantly, Ray makes too much of language in the
current SSA regulations stating that an ALJ “will consider”
scores from “standardized tests” along with their standard
deviations. See 20 C.F.R. § 416.926a(e)(ii) (2001). Ray
apparently contends that the ALJ should have given
dispositive weight to standard deviations from the BASC
and Vineland tests, but the language he cites was added
after his hearing; the version relevant here mentioned
standardized test scores as a potentially useful tool, but
contained no mandatory language. 20 C.F.R. § 416.926a
(c)(3)(ii)(A) (2000). And in any event the regulations define
“standardized tests” as those administered by a “psycholo-
gist, psychiatrist, pediatrician, or other physician specialist
qualified by training and experience to perform such an
evaluation.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00D
(2000). Because the tests in this case were administered by
a social worker, they are not “standardized,” and the ALJ
would not have a duty to give them the weight Ray suggests
even under the regulations he cites. In fact, the BASC
results Ray claims deserved more weight contained a
warning that they should be interpreted “with caution”
because the teacher evaluating Ray evidenced signs of ex-
cessive negativity. We believe the ALJ gave these tests
adequate weight, fully in keeping with his duty to consider
all “medical evidence that is credible, supported by clinical
findings, and relevant to the question at hand.” Nelson, 131
F.3d at 1237.
III. Conclusion
Because the ALJ properly developed the record and ren-
dered a decision that is supported by substantial evidence,
14 No. 03-2274
the district court did not err in upholding his determination
that Ray was not entitled to social security benefits.
Accordingly, the judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-19-04