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Rhoda Hopgood v. Michael Astrue ( 2009 )


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  •                              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