Harriett Hudson v. Jo Anne Barnhart ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-4107
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Harriet Hudson, on behalf of *
Sterling Jones, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Jo Anne B. Barnhart, Commissioner, *
Social Security Administration, *
*
Appellee. *
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Submitted: May 16, 2003
Filed: September 30, 2003
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Before WOLLMAN, MAGILL, and BEAM, Circuit Judges.
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WOLLMAN, Circuit Judge.
In April 1999, Harriet Hudson applied for Supplemental Security Income
benefits on behalf of her son, Sterling Jones (Sterling). After her application for
benefits was denied, she requested a hearing before an Administrative Law Judge
(ALJ), who determined that Sterling was not disabled. Hudson’s administrative
appeal was unsuccessful, and she then sought judicial review. Hudson now appeals
from the district court’s1 affirmance of the Commissioner’s denial of benefits. We
affirm.
I. Background
Sterling was born on May 15, 1986. During his seventh grade year, Sterling’s
parents and his school requested a multidisciplinary evaluation. A Special School
District Evaluation Summary, dated February 9, 1999, certified that Sterling, who was
then functioning in the lower third of his class, required special education and related
services. Hudson reported that Sterling seemed to enjoy school and made friends
easily but became frustrated when doing homework. The summary indicated that
Sterling had problems that “may interfere with learning,” including “difficulty
organizing time and work materials, difficulty initiating and remaining on task,
needing directions/lessons repeated, requiring one-to-one instruction, not completing
class assignments or homework, working slowly, and having difficulty working
independently.” The summary also indicated that teachers did not believe Sterling
was “mean-spirited”; rather, they viewed him as “excessively impulsive and
immature,” frequently acting as a “class clown.”
On February 24, 1999, Sterling was seen by Dr. Michael J. Shanker at
Northwest Psychiatric Associates. Sterling was diagnosed as suffering from
attention-deficit/hyperactivity disorder (ADHD) and oppositional defiant disorder.
He was assigned a rating of 55 on the Global Assessment of Functioning Scale
(GAF).2 Dr. Shanker recommended that Sterling resume taking the drug Ritalin.
1
The Honorable Mary Ann L. Medler, United States Magistrate Judge for the
Eastern District of Missouri, to whom the case was submitted by consent of the
parties pursuant to 28 U.S.C. § 636(c).
2
According to the Diagnostic and Statistical Manual of Mental Disorders 32
(4th ed. Text Revision 2000), the Global Assessment of Functioning Scale is used to
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By letter dated March 24, 1999, Hudson was informed that Sterling would be
suspended from school for the remainder of his seventh grade year. An earlier letter
indicated that Sterling had been referred to the assistant principal’s office twenty-nine
times during the school year.
Sterling was seen again at Northwest Psychiatric Associates in March and April
1999. During the April visit, his parents reported that when on medication Sterling
was more compliant, talked back less, and had fewer arguments with his siblings.
On a teacher questionnaire dated June 4, 1999, school counselor Marilyn Edds-
England stated that Sterling had attention problems and difficulty keeping up with the
class. She commented that Sterling was a “sweet little boy” in one-on-one situations,
but that because of his immaturity he could be difficult in a classroom setting.
On July 9, 1999, Sterling was evaluated by Sherman Sklar, a consultative
psychologist. Hudson reported that Sterling had earlier been taking Ritalin and that
although she had noticed improvements in his behavior, she had taken him off the
medication because of concerns about depression. Hudson also reported that the
medication was subsequently restarted, but that Sterling had quit taking it at the end
of the school year. Sklar observed that Sterling was very quiet; that his behavior was
socially appropriate with no signs of overactivity; that his focus was good; and that
he showed no sign of attentional deficit. Sklar determined that Sterling did not
report “the clinician’s judgment of the individual’s overall level of functioning.”
GAF scores of 41 to 50 reflect “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” Manual
at 34. GAF scores of 51-60 indicate “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-
workers).” Id.-3-
exhibit any symptoms of ADHD, but that his history instead pointed to a conduct
disorder. He characterized Sterling’s social attitudes and behaviors as “oppositional
and rebellious.” Sklar opined that Sterling was “capable of understanding and
remembering simple instructions” and that he would “have no difficulty with tasks
requiring sustained concentration and persistence.” He assigned Sterling a GAF of
57.
Sterling returned to Northwest Psychiatric Associates on August 9, 1999, and
was diagnosed with major depressive disorder, ADHD, and oppositional defiant
disorder. He was prescribed an additional medication.
During the 1999-2000 academic year, Sterling repeated the seventh grade. On
a November 17, 1999, questionnaire, Elizabeth Bellis, Sterling’s teacher, reported
that he was constantly disruptive and did not seem to be able to control his behavior.
Bellis indicated that Sterling was not keeping up with his class work, which had
already been modified, did not follow instructions, and needed one-on-one attention.
Bellis also reported that although Sterling aggravated other students, he was
“somewhat likable to them” and was “accept[ed].
Sterling was seen again at Northwest Psychiatric Associates in both November
and December 1999. During the December session, Sterling reported that he was
passing all his classes, that he was completing his assignments at school, and that his
focus had improved.
Sterling’s Individualized Education Program (IEP) was reevaluated in February
2000, and his IEP team agreed that he continued to require special education.
Teachers observed Sterling’s “high activity level, difficulty following rules,
impulsiv[eness], excessive need for attention, verbal outbursts, and inability to accept
any personal blame.” He was described as the “‘class clown’ to excess.” His formal
discipline record documented at least seventeen office referrals for a variety of
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violations and at least two out-of-school suspensions. According to the Reevaluation
Summary, “Behaviors which were noted at the time of the 2/99 initial SSD evaluation
have escalated in frequency and intensity. The reevaluation team determines that
behaviors have now become diagnostically significant.” Nevertheless, Sterling also
demonstrated academic skills that, although below grade level, “[were] certainly
functional.” In addition, he enjoyed “creative endeavors” and could “write at length
on topics of personal interest.” The IEP team observed that Sterling’s “chances of
success appear to be increased in a smaller group.” Teachers also opined that
medication was “a helpful intervention for [Sterling],” noting that that “it [was]
quickly apparent if [the medication] [had] been missed or delayed.” It was
recommended that he be moved from a modified regular program to a self-contained
program.
Sterling returned to Northwest Psychiatric Associates in March 2000, at which
time it was reported that he was maturing, had friends, and was not fighting with his
siblings as much. No additional suspensions from school were reported.
Sterling was seen by Dr. Kabir, a psychiatrist, in August and September 2000.
Dr. Kabir diagnosed Sterling with dysthymic disorder and assigned him a GAF of 50.
During the administrative hearing held on September 7, 2000, Hudson testified
that three of Sterling’s classes were in regular classrooms and that his other three
classes were in a resource room. She testified that Sterling had difficulty
concentrating, was in a “playful mood all the time,” had difficulty keeping friends,
and was overly emotional, crying “at least three times a day.” Nevertheless, Hudson
reported that Sterling’s behaviors had improved somewhat with medication. She
indicated that she had not recently had any notes or telephone calls from the school
regarding his behavior.
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At the close of the hearing, the ALJ ordered a new psychological evaluation.
On October 31, 2000, Alan Reeves, Ph.D., conducted this evaluation, during which
Hudson reported that Sterling’s grades had “improved tremendously,” and that he was
now a “B” student. Dr. Reeves made the following conclusions:
[Sterling] appears to have the ability to understand[] and remember
simple instructions. He has the ability to follow simple instructions. He
has the ability to sustain his concentration and persist on a task. He
appears to have a low frustration tolerance however and his judgment is
in question. He has the ability to perform activities on a schedule and
to maintain . . . regular attendance, with assistance. He will have
difficult[y] however with any type of monitoring or supervision on a
task. . . . He will need to have some type of special supervision (a
person that will be patient and understanding of him, for him to
complete a task or to stay on a job). His ability to make daily decisions
is poor and will effect [sic] his success in school and in life. . . . His
ability to complete a normal school or work day will be interrupted by
his psychological based symptoms . . . and will cause him to need more
rest from task[s] tha[n] normal . . . . [Sterling’s] social skills are poor as
with most ADHD children. His difficulty getting along with others will
interfere with his academic and work success. His conflict with peers
will be distracting and will isolate him. . . . H[e] has some restrictions
of daily activities in the form of his poor social skills and his poor
judgment.
(Admin. R. at 165-166.) Dr. Reeves diagnosed Sterling with ADHD and dysthymia
and assigned him a GAF of 59. Dr. Reeves also completed a Medical Source
Statement Of Ability To Do Work-Related Activities, dated November 6, 2000, on
which he marked blocks indicating that Sterling had no useful ability to function in
a wide array of work-related activities.
During the January 11, 2001, administrative hearing, Hudson testified that
Sterling was taking medication for both ADHD and depression and that the
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medication was helping. She stated that during the first quarter of the current school
year, Sterling was a “B” student.
Medical expert Allan Barclay, Ph.D., also testified at the January 11 hearing.
Dr. Barclay opined that Sterling had less than “marked” limitations in the relevant
areas of functioning. Dr. Barclay indicated that he had reviewed Dr. Kabir’s progress
notes and that he disagreed with Dr. Kabir’s GAF rating of 50. According to Dr.
Barclay, the present record did not reflect such significant limitations. Dr. Barclay
also disagreed with Dr. Reeves’s GAF rating of 59, which, he said, indicated a
relatively mild impairment. This rating, Dr. Barclay explained, was inconsistent with
the November 6, 2000, medical source statement, in which Dr. Reeves opined that
Sterling had no useful ability to function in many work-related areas. In addition, Dr.
Barclay noted that the teacher reports in the record were not current and were
inconsistent with Hudson’s testimony regarding Sterling’s improved academic
performance. In Dr. Barclay’s opinion, Hudson’s testimony “suggest[ed] that
[Sterling is] able to maintain attention in the classroom and to concentrate on tasks
presented to him in order to achieve a better than average level of function in the
academic environment.” Considering the record as a whole, Dr. Barclay opined that
a GAF rating in the range of 70-75 would be appropriate. In summarizing Dr.
Barclay’s testimony, the ALJ noted Dr. Barclay’s belief “that [Sterling] had a
longitudinal history of improvement in behavior and academic functioning.”
Relying in part on Dr. Barclay’s testimony, the ALJ concluded that Sterling
was not disabled. After exhausting her administrative remedies, Hudson filed a
complaint pursuant to 42 U.S.C. § 405(g), challenging the ALJ’s reliance on Dr.
Barclay’s testimony and the adequacy of the evidence supporting the ALJ’s disability
determination. Concluding that substantial evidence supported this determination,
the district court dismissed the complaint.
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II. Analysis
As we recently noted, “[t]here are many ways to demonstrate that a child is
disabled.” Collins v. Barnhart, 335 F.3d 726, 729 (8th Cir. 2003) (citing 20 C.F.R.
§ 416.926a(b) (1999)). As in Collins, only one of these ways is at issue in this
appeal. Had the ALJ found that Sterling’s impairments resulted in an “extreme”
limitation in one functional area, or “marked” limitations in two functional areas,
Sterling would have been entitled to benefits. 20 C.F.R. § 416.926a(a) (2003).3 The
six relevant functional areas are (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). Hudson’s appeal concerns only the second and third
areas.
Hudson first contends that Dr. Barclay failed to testify in accordance with
Social Security guidelines in that he explicitly stated that he was considering
Sterling’s level of functioning within the special education setting, and not in
comparison to children without impairments, as required by the applicable
regulations. See 20 C.F.R. § 416.924a(b)(3)(i) (2003) (“Information about what you
can and cannot do, and how you function on a day-to-day basis at home, school, and
in the community, allows us to compare your activities to the activities of children
your age who do not have impairments.”); see also id. § 416.924a(b)(7)(iv) (“[W]e
will consider that good performance in a special education setting does not mean that
you are functioning at the same level as other children your age who do not have
impairments.”). Hudson also asserts that Dr. Barclay’s response to a particular
question by her counsel demonstrated that he was not applying the definitions of
“marked” and “extreme” that are set forth in the regulations. Thus, Hudson
3
As did the ALJ and the district court, we set forth the most current standards
in evaluating Sterling’s impairments.
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concludes, Dr. Barclay’s opinions were founded upon “misinterpretations or
misapplications of Social Security law.”
The passages cited by Hudson do not persuade us that Dr. Barclay’s testimony
was inconsistent with the applicable regulations. With respect to the first passage,
Dr. Barclay’s responses simply were not as explicit as Hudson contends and reflect,
at most, confusion stemming from counsel’s form of questioning. As for the second
passage, Dr. Barclay’s statements indicated that he was not responding to counsel’s
hypothetical as Hudson suggests; rather, he was explaining his reasons for concluding
that Sterling’s limitations were less than marked.
Next, Hudson contends that by “contradicting” the medical evidence in the
record, rather than “interpreting or explaining” it, Dr. Barclay “supplanted the
evidence of record with his own opinions.” Again, we disagree. As discussed above,
Dr. Barclay outlined why Dr. Reeves’s assessments were inconsistent with one
another. He also emphasized Hudson’s testimony regarding Sterling’s recent
academic progress. This testimony, Dr. Barclay explained, suggested that Sterling’s
current limitations were not as significant as either Dr. Reeves’s or Dr. Kabir’s GAF
ratings indicated. Thus, we are satisfied that Dr. Barclay did just what he was
retained to do--aid the ALJ in evaluating the medical evidence. We therefore cannot
agree that Dr. Barclay was called merely “to create his own evidence,” as Hudson
contends.
Hudson also argues that the ALJ failed to weigh the medical experts’ opinions
properly. The record belies this contention. Initially, we note that the ALJ did not,
as Hudson suggests, rely solely on Dr. Barclay’s testimony in finding that Sterling
was not disabled. As the district court noted, the ALJ addressed the reports and
findings of all the medical professionals at length. In doing so, the ALJ observed
several inconsistencies, noting that the medical evidence varied as to whether Sterling
had ADHD. The ALJ also noted “considerable inconsistencies” between the
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narrative portion of Dr. Reeves’s report and his functional assessments. Finally, the
ALJ agreed that the GAF ratings assigned by the various treating and examining
providers did not appear to reflect Sterling’s current abilities, given Hudson’s
testimony during the hearings. In short, the well-drafted administrative decision
demonstrates that the ALJ considered all of the medical evidence, including Dr.
Barclay’s testimony, weighed this evidence in accordance with the applicable
standards, and attempted to resolve the various conflicts and inconsistencies in the
record. This is precisely what an ALJ is instructed to do. See Bentley v. Shalala, 52
F.3d 784, 785 (8th Cir. 1995) (“It is the ALJ's function to resolve conflicts among
‘the various treating and examining physicians.’” (citations omitted)); Cantrell v.
Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000) (discussing an ALJ’s role in resolving
conflicts among medical opinions); 20 C.F.R. § 416.927(d) (2003) (outlining how
medical opinions are to be weighed). Finally, there is nothing in the ALJ’s decision
indicating that Dr. Barclay’s opinion was afforded more weight than it was due under
the regulations. We find it significant that Dr. Barclay was the only witness to offer
an opinion based on the record as a whole, including Sterling’s medical records, his
educational records, and Hudson’s testimony. See, e.g., 20 C.F.R. § 416.927(d)(3)
(“[B]ecause nonexamining sources have no examining or treating relationship with
you, the weight we will give their opinions will depend on the degree to which they
provide supporting explanations for their opinions. We will evaluate the degree to
which these opinions consider all of the pertinent evidence in your claim, including
opinions of treating and other examining sources.”). Accordingly, we are satisfied
that the ALJ properly weighed the medical opinions in the record.
Hudson concludes by challenging the sufficiency of the evidence underlying
the ALJ’s findings. According to Hudson, “[t]he medical evidence supports only
[one] conclusion”--that Sterling suffers at least marked limitations in the two disputed
functional areas. “Our scope of review is narrow; we must affirm the Commissioner’s
decision so long as it conforms to the law and is supported by substantial evidence
on the record as a whole.” Collins, 335 F.3d at 729 (citation omitted). “Substantial
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evidence is less than a preponderance, but enough that a reasonable mind might find
adequate to support the ALJ’s conclusion.” Id. (citation omitted).
With respect to the first area at issue, attending and completing tasks, the
Commissioner considers “how well [the child is] able to focus and maintain [his]
attention, and how well [he] begin[s], carr[ies] through, and finish[es] [his] activities,
including the pace at which [he] perform[s] activities and the ease with which [he]
change[s] them.” 20 C.F.R. § 416.926a(h). In concluding that Sterling’s limitations
were less than marked in this area, the ALJ noted that the medical opinions varied as
to whether Sterling had ADHD. The ALJ also recognized that although Sterling’s
seventh grade teacher had reported that Sterling had had some difficulties with
beginning and completing assignments, Hudson’s testimony suggested improvement
in these areas. The ALJ then noted (1) psychologist Sklar’s opinion that Sterling was
capable of understanding and remembering simple instructions and would not have
difficulty with tasks requiring sustained concentration and persistence, and (2) Dr.
Reeves’s narrative report, in which he, too, opined that Sterling was able to sustain
concentration and persistence on tasks. Finally, the ALJ observed, based on
Hudson’s testimony it appeared that Sterling was able to sustain attention sufficiently
to obtain above-average grades in his self-contained classroom setting. Although Dr.
Reeves’s functional assessments indicated that Sterling’s limitations were more
severe, the ALJ properly discounted these assessments, and the evidence was
sufficient to support the ALJ’s finding that Sterling had less than marked limitations
in the area of attending and completing tasks.
With regard to the second area at issue, interacting and relating with others, the
ALJ noted that although Sterling had a history of relatively minor disciplinary
infractions at school, Hudson testified regarding the recent improvements in his
behavior. The ALJ also cited the teacher report in which Sterling was described as
the “class clown,” whom other students generally liked. In addition, the ALJ
observed that (1) Sterling was able “to communicate with others,” (2) he had not
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engaged in any high risk or dangerous behavior, and (3) his depression had improved
with medication. This evidence supports the ALJ’s finding that Sterling’s limitations
in the area of interacting and relating with others were less than marked.
III. Conclusion
Substantial evidence on the record as a whole supports the decision of the
Commissioner. Accordingly, the judgment is affirmed.
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