Rhoda Hopgood v. Michael Astrue ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2491
R HODA H OPGOOD, on behalf of LG, a minor,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:07-CV-671-PJG—Patricia J. Gorence, Magistrate Judge.
A RGUED M ARCH 30, 2009—D ECIDED A UGUST 25, 2009
Before K ANNE, W OOD , and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. The mother of LG, a minor,
applied for Supplemental Security Income (“SSI”) after
LG’s diagnosis with Attention Deficit Hyperactivity
Disorder (“ADHD”). Following a hearing, the administra-
tive law judge (“ALJ”) denied benefits. In determining
that LG was not disabled within the meaning of the
Social Security Act and ineligible for SSI payments, the
2 No. 08-2491
ALJ made conclusory statements that contradicted the
evidence presented and failed to address portions of
medical and school records that were favorable to LG. As
a result, we conclude that the ALJ’s decision was not
supported by substantial evidence, and we remand for
further proceedings.
I. BACKGROUND
Rhoda Hopgood filed an application in June 2004 for
SSI on behalf of LG, her minor son, alleging disability
due to ADHD. The SSI application was initially denied,
and Ms. Hopgood sought a hearing. Testimony at the
August 15, 2006 hearing and other evidence established
that LG was born in 1990 and was diagnosed in 1997
with ADHD, which resulted in academic and behavioral
problems.1 LG, who was 15 at the time of the hearing,
testified that he sometimes forgot to brush his hair and
that his mother had to tell him to take a shower and
brush his teeth. He also testified that he had difficulties
in school and did not understand some of the work
despite help from his teacher. LG stated that he some-
times walked out of his classroom, wandered the
halls, and received many suspensions and detentions
from school for fighting. Finally, he mentioned that he
fought with his sister, who was 12 at the time, broke
drawers and hit doors when he became angry, and ex-
plained that the medication he took made him sleepy.
1
We refer to LG’s medical and school records where relevant
in the analysis section of the opinion.
No. 08-2491 3
Ms. Hopgood testified that in the previous school year
LG frequently had been suspended or had to serve deten-
tion for being disrespectful to teachers, fighting, and
walking the halls. She further explained that in addition
to having to remind LG daily to bathe and brush his
teeth and hair, she also had to tell him to complete his
weekly chores and that as a result LG talked back to
her. She testified that police were called once when LG
and his friends got into a fight with a group of other
boys. As a result, LG received court-ordered community
service, and he completed his service by performing
maintenance at the Salvation Army where Ms. Hopgood
worked. She also said that LG failed the fourth grade
and that in the previous school year had brought home-
work home only two or three times. Ms. Hopgood testified
that she always asked him about his homework and
that when LG’s explanations did not pan out, she moni-
tored a progress report system created by his teachers
until LG suddenly stopped bringing the reports home.
Ms. Hopgood explained that LG had been taking
Risperdal for more than a year, but that he remained
off task at school until she brought this to the attention
of his psychiatrist, who then increased his dosage to
twice a day. She further stated that the Adderall LG
had previously been prescribed made him act “like
a zombie”—he would just sit in his room, watch tele-
vision and sleep. Ms. Hopgood explained that LG was
incapable of riding a city bus or going to the mall by
himself.
Following the hearing, the ALJ issued a decision
finding that LG suffered from ADHD, but was not
4 No. 08-2491
disabled because his impairments did not meet, or medi-
cally or functionally equal, the criteria required under
the Social Security Administration’s Listing of Impair-
ments. The ALJ also found the testimony of Ms. Hopgood
to be “generally credible,” but tending to show that
LG was not disabled. The Appeals Council denied review,
leaving the ALJ decision as the final one of the Commis-
sioner of Social Security. Ms. Hopgood sought judicial
review pursuant to 42 U.S.C. § 405(g), and a magistrate
judge, presiding by consent, upheld the denial of bene-
fits. This appeal follows.
II. ANALYSIS
A. The ALJ’s determination was not supported by
substantial evidence.
We reverse the Commissioner’s final decision only if it
is not supported by substantial evidence or is based on a
legal error. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir.
2009). “An ALJ’s findings are supported by substantial
evidence if the ALJ identifies supporting evidence in
the record and builds a logical bridge from that evidence
to the conclusion.” Giles ex rel. Giles v. Astrue, 483 F.3d
483, 486 (7th Cir. 2007). But if the decision “lacks eviden-
tiary support or is so poorly articulated as to prevent
meaningful review,” a remand is required. Steele v.
Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
We begin our discussion with the ALJ’s finding that
LG’s impairment is not functionally equivalent to the
listing for ADHD. See 20 C.F.R. pt. 404, subpt. P, App. 1,
No. 08-2491 5
§ 112.11. A child qualifies as disabled and therefore may
be eligible for SSI if he has a “medically determinable
physical or mental impairment, which results in marked
and severe functional limitations” and the impairment
“has lasted or can be expected to last for a continuous
period of not less than 12 months.” See 42 U.S.C.
§ 1382c(a)(3)(C)(i). Whether a child meets this definition
requires a three-step analysis. 20 C.F.R. § 416.924(a). First,
if the child is engaged in substantial gainful activity,
the Social Security Administration (“SSA”) will deny
the claim. Id. Second, if the child does not have a severe
medical impairment or combination of impairments,
then he is not disabled and his claim will be denied. Id.
Third, the child’s impairments must meet a duration
requirement and must meet, medically equal or function-
ally equal, the severity of any of the Listings of Impair-
ments contained in 20 C.F.R. pt. 404, subpt. P, App. 1. Id.
At issue is whether LG’s impairments functionally
equaled the listings. To determine if an impairment is
functionally equivalent to a listing, an ALJ analyzes
the severity of the impairment in 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 oneself; and (6) health and physical well-being.
20 C.F.R. § 416.926a(b)(1). To functionally equal the
listings, the ALJ must find an “extreme” limitation in one
category or a “marked” limitation in two categories.
20 C.F.R. § 416.926a(a). A “marked” limitation exists
when the impairment seriously interferes with the
child’s “ability to independently initiate, sustain, or
6 No. 08-2491
complete activities.” 20 C.F.R. § 416.926a(e)(2)(i). An
“extreme” limitation exists when a child’s “impairment
interferes very seriously with [his] ability to independently
initiate, sustain or complete activities.” 20 C.F.R.
§ 416.926a(e)(3)(I) (emphasis added).
The ALJ found that LG established the first two steps
of the three-part inquiry because he had not engaged in
substantial gainful activity and because he suffers from
ADHD. The ALJ then determined that LG had less
than “marked” limitations in acquiring and using infor-
mation, attending and completing tasks, and interacting
and relating with others. The ALJ found no limitations
in the other categories. Only the three domains in
which the ALJ found less than marked limitations are
at issue in this appeal.
1. Acquiring and using information
Acquiring and using information refers to how well
a child acquires or learns information and how well
he uses the information he has learned. 20 C.F.R.
§ 416.926a(g). Adolescents between the ages of 12 and
18 should be able to demonstrate what they have
learned in academic assignments and be able to use
what they have learned in daily living situations with-
out assistance (e.g., going to the store and using public
transportation). 20 C.F.R. § 416.926a(g)(2)(v). They
should be able to “comprehend and express both simple
and complex ideas” and use “complex language in
learning and daily living situations.” Id. They should
also learn to apply these skills practically in order to
enter the workplace after finishing school. Id.
No. 08-2491 7
The ALJ found LG had less than marked limitations
in this domain based on statements from his teachers
and the conclusions of four of LG’s doctors, but the ALJ
did not articulate what statements or reports supported
this finding. The ALJ acknowledged LG’s placement in
special education and noted his level of academic knowl-
edge. The ALJ stated LG’s grades improved to As, Bs, Cs
and Ds in his Individualized Education Program (“IEP”).
The ALJ also noted a February 1, 2006 IEP report, which
stated LG had difficulties beginning and completing
assignments, but was capable when he remained focused
and on task. Finally, the ALJ mentioned that an eighth
grade teacher reported LG required additional explana-
tion and examples to grasp new concepts.
Ms. Hopgood argues that the ALJ did not explain what
in the teachers’ reports supported the ALJ’s findings and
that the ALJ failed to discuss several portions of the teach-
ers’ reports that were favorable to LG. Specifically, the ALJ
did not address the report of Ms. Johnson, LG’s eighth
grade special education teacher, that indicated “obvious”
or “serious” problems in six of the ten activities listed
on an SSA form for acquiring and using information.
The ALJ also did not address the report of Ms. Mathew,
another of LG’s special education teachers, explaining
that he had “obvious” problems in all areas related to
this domain. Ms. Hopgood criticizes the ALJ for finding
LG improved his grades, when under his IEP he was
required to turn in only 60% of the assignments given to
other children in his special education class. Ms. Hopgood
further argues that the ALJ failed to explain his reliance
on the doctors’ reports and that he ignored portions of
8 No. 08-2491
these reports favorable to LG, including, for example,
Dr. Polczinki’s opinion that LG’s medications signifi-
cantly impacted his ability to function. Finally, the ALJ
failed to address the testimony of Ms. Hopgood, who
testified that LG could not catch a city bus or go to
the store alone. The Commissioner counters that the
ALJ was not required to describe all of the evidence in
detail, that he did not need to explain the teachers’
reports because they were consistent with his findings,
and that the ALJ indirectly took the effects of LG’s med-
ications into account because the evaluations occurred
when he was on medication.2
Several aspects of the ALJ’s analysis in this domain
strike us as deficient. Specifically, the ALJ failed to
explain why he did not credit portions of the record
that were favorable to LG, including the teachers’ reports
that found LG had serious or obvious problems in this
domain. See Murphy v. Astrue, 496 F.3d 630, 634-35 (7th
Cir. 2007). The ALJ’s conclusion that LG’s grades im-
proved to As, Bs, Cs and Ds, did not take into account
that LG’s IEP required him to turn in only 60% of his
assignments, which shows that teachers recognized
LG’s limitations. Moreover, the ALJ’s assessment of
Ms. Hopgood’s testimony is less than complete. The ALJ
found Ms. Hopgood to be “generally credible,” but did not
2
We decline to address the Commissioner’s final argument
that the teachers’ reports stating LG had “obvious” problems
equated to less than marked limitations because the ALJ
never offered this rationalization in making his determination.
No. 08-2491 9
explain why he did not find her testimony regarding
LG’s limited functioning in this domain persuasive.
Ms. Hopgood testified about LG’s inability to use
public transportation or go the store alone—a skill set
specifically addressed in the regulation related to this
domain. See Giles, 483 F.3d at 489 (“If . . . [claimant’s]
testimony was credible, the ALJ was required to
explain why the testimony did not support a finding
that [the child] was markedly limited in attending and
completing tasks.”). Furthermore, the ALJ did not
explain its reason for finding Ms. Hopgood generally
credible, as required for the benefit of subsequent re-
viewers. See id. at 488.
2. Attending and completing tasks
Attending and completing tasks refers to how well
the child is able to focus and maintain his attention, and
how well he begins, carries through, and finishes
his activities, including the pace at which he performs
activities and the ease with which he changes them. 20
C.F.R. § 416.926a(h). Adolescents should be able to pay
attention to increasingly longer presentations and dis-
cussions, maintain concentration while reading text-
books, independently plan and complete long-range
academic projects, organize materials and plan time to
complete school assignments. 20 C.F.R. § 416.926a(h)(2)(v).
They should also be able to maintain attention on a
task for extended periods of time and not be unduly
distracted by peers or unduly distracting to them in a
school or work setting. Id.
10 No. 08-2491
The ALJ reasoned that he accepted LG’s testimony
that he needed to be in a collaborative environment to
stay on task. The ALJ acknowledged that LG struggled
in reading, math, and writing. But the ALJ found that
LG’s academic deficiencies were likely due to his
frequent absences and failure to complete assignments
outside the classroom. He noted that teachers described
LG’s lack of interest and failure to participate in school-
work. The ALJ noted LG’s A, B and C grades in the previ-
ous school year. The ALJ accepted LG’s ADHD diagnosis
and concluded that any limitations he had were based
on his absences, incomplete homework, volitional
choices on his part and lack of parental supervision and
involvement.
Ms. Hopgood argues that the ALJ did not point to any
evidence that she was a contributing factor in LG’s prob-
lems and that the ALJ improperly blamed LG for his
difficulties by attributing them to volitional choices.
Ms. Hopgood further contends the ALJ ignored favor-
able portions of doctors’ and teachers’ reports relating to
this domain. Finally, she argues that LG never made
the statement that he needed to work in a collaborative
environment to stay on task. The Commissioner main-
tains that teachers’ and doctors’ reports are consistent
with the ALJ’s findings because none said LG had a
“serious” limitation in this domain, and the teachers
stated that he missed class and frequently failed to do
homework. The government also notes that Ms. Hopgood
testified that sometimes LG did not just forget to
complete tasks, he refused to do them.
No. 08-2491 11
We find Ms. Hopgood’s arguments relating to this
domain to be persuasive. Even if we accept the Com-
missioner’s argument that the teachers’ and doctors’
reports do not conclusively establish marked or extreme
limitations, which in and of itself would be difficult to
do since the ALJ failed to address these reports with
specificity, we are troubled by the ALJ’s conclusion that
LG’s problems are a result of volitional choices or lack of
parental involvement. Indeed, the record shows the
contrary to be true. School reports indicate that Ms.
Hopgood was involved with LG’s teachers and
informed the school that she was concerned about his
academics and behavior problems. Ms. Hopgood
requested that he receive extra help at school in order
to make academic progress. She also asked that the
school start a daily behavior sheet so she could monitor
LG, and she developed a system to reward LG for
good behavior. Moreover, Ms. Hopgood attended
family therapy sessions with LG at Shorehaven
Behavioral Health. The ALJ failed to point to any
evidence supporting the theory that Ms. Hopgood was
a contributing factor in LG’s problems and in fact
ignored evidence that she made efforts to assist him. See
Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir.
2003) (“There is little evidence in the record regarding
the origin of [claimant’s] low IQ scores and no evidence
that an enriched school environment would remedy
the situation. This assessment is the result of a hunch
and an ALJ may not rely on a hunch.”).
Furthermore, we are troubled by the ALJ’s conclusion
that LG’s problems were a result of volitional choices.
12 No. 08-2491
The ALJ did not point to any medical evidence sup-
porting his finding that LG’s difficulties were of his own
doing, which flies in the face of our instruction that
determinations must be based on testimony and medical
evidence in the record. See Rohan v. Chater, 98 F.3d 966,
970 (7th Cir. 1996) (“ALJs must not succumb to the tempta-
tion to play doctor and make their own independent
medical findings.”). The record demonstrates that
LG could not control himself, which is precisely why
doctors prescribed numerous medications to him and
why his IEP required him to complete only 60% of the
assignments given to his classmates. These special ac-
commodations indicate that teachers and medical profes-
sionals do not believe LG’s problems occur by choice. As
a result, we reject the ALJ’s line of thinking that LG is
to blame for his difficulties, which are textbook symptoms
of ADHD. We further note that, like Ms. Hopgood,
we failed to find any reference in LG’s testimony that
he needed to work in a collaborative setting in order
to remain on task.
3. Interacting and relating with others
Interacting and relating with others refers to how well
the child initiates and sustains emotional connections
with others, cooperates with others, complies with rules,
responds to criticism, and respects and takes care of
the possessions of others. 20 C.F.R. § 416.926a(i). An
adolescent should be able to initiate and develop friend-
ships with same-aged children, relate appropriately to
other children and adults, and begin to be able to solve
No. 08-2491 13
conflicts between himself and peers or family members
or other adults. 20 C.F.R. § 416.926a(i)(2)(v). The child
should be able to express his feelings and follow
social rules for interaction and conversation. Id.
The ALJ found LG’s ability to interact socially was not
“completely impaired.” The ALJ found that LG
socializes with friends in the neighborhood and gets
along relatively well with his family, save for argu-
ments with his sister over use of the phone. The ALJ
noted that Ms. Hopgood testified that there were no
significant problems with his behavior except a tendency
to become quickly grumpy, moody, or rebellious. The
ALJ acknowledged that LG’s behavior escalated in
April 2006, evidenced by several suspensions, but that it
improved with medication according to Dr. Semon. The
ALJ also noted LG leaves class and wanders the halls,
but that his eighth grade teachers said he is a good
worker and can understand concepts when focused.
Finally, the ALJ stated records showed LG could behave
acceptably, but that he often was not motivated to do so.
Ms. Hopgood asserts that the ALJ’s conclusion that
he was not “completely impaired” misstates the regula-
tions, which require only a serious interference.
Ms. Hopgood also contends that the ALJ blamed LG for
his problems when he found LG was not “motivated” to
comport his behavior. Ms. Hopgood finally argues the
ALJ ignored favorable portions of doctors’ and teachers’
reports relating to this domain and ignored Ms. Hopgood’s
testimony about his behavior problems that resulted in
suspensions and a call to police. The Commissioner
14 No. 08-2491
counters that the ALJ aptly described LG, and not the
legal standard, as not “completely impaired.” The Com-
missioner also maintains that the ALJ did not have to
fully discuss teachers’ and doctors’ reports, because
his findings were consistent with the reports that
indicated LG had only “slight” or “obvious” problems
in this domain.
Ms. Hopgood is correct that the regulations
do not require a complete impairment, only serious
interference, to qualify as a marked limitation, see 20
C.F.R. § 416.926a(e)(2)(i), but we are not convinced that
the ALJ’s statement referred to the regulations them-
selves and not merely his analysis of LG’s limitations.
Although the ALJ stated LG’s behavior could be dif-
ferent if he was motivated, he did not point to any evi-
dence demonstrating this. In fact, LG had been
prescribed medication since 2004, but even the medica-
tion did not ameliorate his behavior as shown through
his continued fights and multiple suspensions. The
ALJ’s conclusion that eighth grade teachers reported that
LG could be a good worker if he remained focused
ignores the evidence that shows LG could not focus
because of his ADHD. For example, in the same report
to which the ALJ referred, the teacher wrote that LG’s
disability affected his involvement and progress with
the curriculum and that his attention span, inability
to focus and impulsivity interferes with his learning.
The ALJ failed to explain how this and other favorable
portions of the record did not persuade him that LG
was disabled. See Giles, 483 F.3d at 488. Although the
ALJ pointed to Dr. Semon’s opinion that LG was better
No. 08-2491 15
on medication, the ALJ did not address a portion of
Dr. Semon’s notes where he stated that Adderall was not
helpful and that LG continued to be combative with
his younger sister. Finally, the ALJ failed to address
reports favorable to a finding of disability, including an
October 28, 2004 report from one of LG’s special educa-
tion teachers, Mr. Eckman. Contrary to the Com-
missioner’s assertion that teachers found LG’s limitations
in this domain to be “slight” or “obvious,” Mr. Eckman
determined that LG had a “very serious” problem
with respecting/obeying adults in authority on an
hourly basis. He further reported that LG had a “serious”
problem in following rules on an hourly basis and in
using language appropriate to the situation and listener
on a daily basis. The ALJ erred when he failed to
explain why he disregarded this pertinent evidence.
Murphy, 496 F.3d at 634-35.
III. CONCLUSION
For the reasons explained above, we V ACATE the
decision of the district court, and R EMAND the case to the
Social Security Administration for further proceedings
consistent with this opinion.
8-25-09