Annie Garrett v. Jo Anne Barnhart ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 03-2081
_____________
Annie Garrett, on behalf of Myron *
Moore, *
*
Plaintiff-Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Jo Anne B. Barnhart, Commissioner, *
Social Security Administration, *
*
Defendant-Appellee. *
*
_____________
Submitted: November 19, 2003
Filed: May 4, 2004
_____________
Before MELLOY, RICHARD S. ARNOLD, and SMITH, Circuit Judges.
_____________
MELLOY, Circuit Judge.
Annie Garrett, on behalf of her minor child, Myron Moore, appeals a judgment
affirming the denial of her claim for Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Because the
administrative law judge (“ALJ”) failed to properly assess the impact of Myron’s
repeated suicide attempts when considering Myron’s personal functioning, we reverse
and remand.
I. BACKGROUND
At the time of Myron’s SSI hearing, he was fifteen years old. When his
mother, Annie, filed an SSI application on his behalf, Myron was thirteen years old
and had been diagnosed with a cognitive disorder, recurrent major depression, bipolar
disorder, and attention deficit hyperactivity disorder. By the time of his hearing,
Myron had attempted suicide four times. Three of these attempts occurred within a
nine-month time span and resulted in extended hospital stays. Myron has undergone
behavioral and psychological treatment, and he takes three medications daily to help
control his depression and attention deficit hyperactivity disorder.
Myron was first diagnosed and treated for depression and for attention deficit
hyperactivity disorder in April of 1998. Since these diagnoses, Myron has undergone
both psychotherapy and pharmacotherapy to treat these illnesses. Despite treatment,
however, Myron continues to have episodes of severe bouts of depression, which
sometimes pose serious threats to his physical safety and well-being. In December
of 1998, Myron was hospitalized for two months after threatening to commit suicide.
According to hospital records, Myron threatened to stab himself because he felt
hopeless. At the time of this suicide attempt, Myron was taking two anti-depressant
medications. In March of 1999, he was hospitalized for one month after overdosing
on four kinds of prescription medications. His discharge papers after this suicide
attempt note that Myron had not been compliant with his medication regimen, but
contrary to the Commissioner’s assertion, the papers do not attribute the suicide
attempt to Myron’s non-compliance. In August of 1999, Myron was hospitalized a
third time after playing Russian Roulette with a gun.
Academically, Myron struggles but is of average intelligence and performs
competently at school. He has been held back one grade, and he attends resource
classes in reading and science. He has taken two IQ exams, which resulted in vastly
different full scale scores of 69 in 1997 and 85 in 1998. Myron’s difficulties at
-2-
school appear to stem mainly from his psychological and behavioral problems, rather
than from any intellectual shortcomings. He has frequent, unpredictable temper
outbursts, despite having completed anger management therapy. These outbursts are
oftentimes violent and have resulted in serious disciplinary actions at school. He has
been placed in detention and suspended several times for fighting, threatening a
teacher, and using vulgar language. One such suspension occurred after Myron
assaulted a teacher.
In 1997, a school psychology specialist completed a psychoeducational
evaluation on Myron. As part of this evaluation, she formulated a Burks Behavior
Rating Scale profile of him. This profile indicated significant weaknesses in
academics, impulse control, sense of identity, anger control, sense of persecution,
aggressiveness, and resistance. The following year, in 1998, Myron’s math teacher
completed a school questionnaire, which mirrored much of the specialist’s findings.
The math teacher reported that Myron responded poorly to change, possessed low
self-confidence, and was immature. He also noted that Myron had frequent temper
outbursts, was easily intimidated, and was disobedient. The math teacher did not
believe that Myron had problems communicating or functioning socially.
At the time of the hearing on Myron’s SSI application, Myron practiced
basketball with his school’s team to prepare for team tryouts. His mother reported
that he prefers to socialize with children who are significantly younger than himself,
that he acts like a five-year old child despite being a teenager, and that, when he is
experiencing a bout of depression, he isolates himself. In spite of these limitations,
Myron cares for his two younger siblings, has some friends at school, practices a team
sport, briefly held a job, performs household chores, and enjoys shooting hoops with
neighborhood friends.
-3-
II. DISCUSSION
A. Standard of Review
We must affirm the ALJ’s decision if it is supported by substantial evidence on
the record as a whole. 42 U.S.C. § 405(g) (2001); Bailey v. Apfel, 230 F.3d 1063,
1065 (8th Cir. 2000); Metz v. Shalala, 49 F.3d 374, 376 (8th Cir. 1995). Substantial
evidence is relevant evidence that reasonable minds might accept as adequate to
support the ALJ’s decision. Hunt v. Massanari, 250 F.3d 622, 623 (8th Cir. 2001).
It “is less than a preponderance [of evidence], but is enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusions.” Prosch v. Apfel,
201 F.3d 1010, 1012 (8th Cir. 2000). “[W]e may not substitute our judgment for that
of the ALJ.” Metz, 49 F.3d at 376. “Our task is to consider whether the
Commissioner’s decision is supported by substantial evidence in the record as a
whole.” Harris v. Barnhart, 356 F.3d 926, 928 (8th Cir. 2004). In undertaking this
task, “[w]e review de novo a district court decision affirming a denial of social
security benefits.” Strongson v. Barnhart, 361 F.3d 1066, 1069 (8th Cir. 2004).
In 1996, Congress enacted the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Pub. L. No. 104-193 §§ 211 to 212, 110 Stat. 2105,
2188-94 (1996). Under this Act, a child is considered disabled and entitled to SSI
benefits if the child “has a medically determinable physical or mental impairment,
which results in marked and severe functional limitations, and which can be expected
to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i).
The Social Security Administration published interim final rules interpreting
the childhood disability provisions of the 1996 statute in February of 1997. These
interim rules were in force until January 2, 2001 when the final rules went into effect.
-4-
See 65 Fed. Reg. 54747 (Sept. 11, 2000). The ALJ issued his decision in this case on
April 27, 2000 and, accordingly, applied the interim rules.
The Social Security Appeals Council declined review on August 1, 2001.
When it declined review, the ALJ’s decision became the Commissioner’s final
decision. We apply the rules that were in effect at the time the Commissioner’s
decision became final. See 65 Fed. Reg. 54751 (“With respect to claims in which we
have made a final decision, and that are pending judicial review in Federal court, we
expect that the court’s review of the Commissioner’s final decision would be made
in accordance with the rules in effect at the time of the final decision.”).
Consequently, because the new final rules were in effect at the time the
Commissioner’s decision became final on August 1, 2001, we apply these final rules.
See id.
B. Analytical Framework
A three-step sequential analysis is applied to determine whether a child is
eligible for SSI benefits on the basis of disability. Pepper ex rel. Gardner v. Barnhart,
342 F.3d 853, 854 (8th Cir. 2003). First, the minor child cannot be gainfully
employed. Id. If the child meets this threshold requirement and is not engaged in
substantial gainful activity, the ALJ must next consider whether the child’s
impairment or combination of impairments is “severe.” E.g, id. If so, the ALJ
determines whether the child’s impairments meet, medically equal, or functionally
equal a listed impairment set out in Appendix 1 of 20 C.F.R. Part 404, Subpart P. Id.
If they do, and if the twelve-month durational requirement is met, disability is
established. See id.
C. Procedural History
The ALJ found that Myron had not engaged in substantial gainful activity and
further found Myron’s impairments to be severe. However, the ALJ found that
-5-
Myron was not disabled at step three of the sequential evaluation. That is, the ALJ
found that Myron’s limitations did not meet a listed impairment, nor did his
impairment or combination of impairments medically equal in severity the criteria for
a listed impairment. Accordingly, the ALJ considered whether Myron had an
impairment that was functionally equivalent in severity to a listed impairment. The
ALJ ultimately concluded that Myron did not have such an impairment and denied
benefits.
The Social Security Appeals Council declined review of Myron’s case and
upheld the ALJ’s determination. Myron’s mother sought judicial review. The district
court concluded that the Commissioner’s decision to deny benefits was supported by
substantial evidence on the record as a whole. On appeal to our court, the appellant
first argues that Myron’s major depressive syndrome indeed meets the requirements
for a listed impairment. Second, the appellant argues that Myron’s limitations are the
functional equivalent of a listed impairment because he has marked limitations in two
areas of functioning—social and personal development. The appellant particularly
objects to the ALJ’s cursory consideration of Myron’s suicide attempts in the
personal functioning domain. She contends that, if the ALJ had properly considered
the impact of Myron’s suicidal tendencies on his ability to care for himself, the ALJ
would have found marked impairments in this area.
D. Review of the Commissioner’s Decision
Because the appellant does not contest the ALJ’s finding regarding substantial
gainful activity, we bypass the first step. Under the second step, we agree that
Myron’s impairments of attention deficit hyperactivity disorder, depression, and a
cognitive disorder are severe. We turn, therefore, to the issues raised on appeal
concerning the third step of the child disability test, namely, whether Myron’s
impairments meet or medically equal a listed impairment and, alternatively, whether
they are functionally equivalent to a listed impairment.
-6-
1. Medically equal to a listed impairment
First, Myron contends that his impairments medically equal a listed impairment
and that substantial evidence does not exist to support the ALJ’s conclusion to the
contrary. Under the third step of the sequential analysis, a child’s impairment is
medically equal to a listed impairment if it is at least equal in severity and duration
to the medical criteria of the listed impairment. 20 C.F.R. § 416.926(a) (2003).1 The
ALJ’s decision reflects his recognition that Myron suffers from “attention deficit
hyperactivity disorder, depression and a cognitive disorder.” (Admin. Tr. at 17.)
However, after considering the listings for mental problems at 112.02 through 112.12,
the ALJ found that Myron’s impairments do not meet or equal in severity the criteria
for a listed impairment.
Myron submits that his impairments meet or medically equal in severity the
mood disorder listing, 112.04. To meet or medically equal the mood disorder listing,
a claimant must satisfy two separate prongs. Id. Part 404, Subpt. P, App. 1, § 112.04.
The first prong demands “[m]edically documented persistence, either continuous or
intermittent,” of a major depressive syndrome that is characterized by at least five of
the following ten symptoms:
a. Depressed or irritable mood; or
b. Markedly diminished interest or pleasure in almost all activities;
or
c. Appetite or weight increase or decrease, or failure to make
expected weight gains; or
d. Sleep disturbance; or
e. Psychomotor agitation or retardation; or
f. Fatigue or loss of energy; or
g. Feelings of worthlessness or guilt; or
h. Difficulty thinking or concentrating; or
1
Unless otherwise indicated, all citations to the Code of Federal Regulations
are to the 2003 edition.
-7-
i. Suicidal thoughts or acts; or
j. Hallucinations, delusions, or paranoid thinking[.]
Id. Pt. 404, Subpt. P, App. 1, § 112.04(a)(1)(a)-(j) (hereinafter sometimes referred to
as “the A criteria”). The second prong, pertinent to a child Myron’s age, requires a
showing of marked impairment in at least two of four specified areas of functioning,
which we will discuss in greater detail later.
Myron argues that his impairments meet the A criteria for listing 112.04
because he has been diagnosed with both major depression and bipolar disorder,
which have persisted for several years. He contends that the medical evidence shows
depressed mood, suicidal thoughts and acts, decreased sleep, increased anhedonia,
decreased energy, decreased concentration, and mild psychomotor retardation. The
ALJ did not explain his reasoning underlying his finding that Myron’s impairments
did not meet nor medically equal a listed impairment, thus making judicial review
difficult. He stated, however, that he considered listed impairments related to mental
problems at listings 112.02 through 112.12. His failure to elaborate is not reversible
error so long as substantial evidence in the record supports his conclusion. See
Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001) (holding a failure to explain
why the claimant did not meet the listing for rheumatoid arthritis was not error);
Briggs v. Callahan, 139 F.3d 606, 609 (8th Cir. 1998) (stating that “[a]lthough the
ALJ did not specifically discuss [the] condition in the context of listing 112.05(D),”
the record supported the conclusion).
On review to the district court, the court rejected Myron’s contention that he
met listing 112.04. The court noted that some of Myron’s medical records supported
his argument that he experienced at least five of the ten A criteria symptoms. Still,
the court determined that the documentation did not support the medically
documented persistence requirement and that, in any event, the second prong of
listing 112.04 was not satisfied.
-8-
In the application for SSI benefits, Myron’s mother indicated an onset date of
April 1998, which is the date on which Myron’s treating psychiatrist, Dr. Millicent
Dudley, first diagnosed Myron as suffering from major depressive disorder and
attention deficit hyperactivity disorder. Myron saw Dr. Dudley one to two times per
month during the time period of April 7, 1998 through June 2, 1999—more than ten
visits in total. All of Dr. Dudley’s progress notes were in evidence at Myron’s
hearing. Moreover, Myron submitted the treatment notes of the attending
psychiatrists and counselors from each of his several hospital and treatment center
admissions. None of any doctors’ or therapists’ notes indicates that Myron’s
symptoms had subsided or had been cured.
Although we apply a de novo standard of review to the district court’s decision
affirming the ALJ’s decision, Depover v. Barnhart, 349 F.3d 563, 565 (8th Cir. 2003),
we address the medically documented persistence of Myron’s impairments primarily
because the Commissioner contends on appeal that the lack of evidence in this regard
supports denial of benefits. However, we disagree that substantial evidence in the
record supports a finding that Myron’s claim of disability fails for lack of medically
documented persistence. Not only has Myron adduced substantial evidence that he
satisfies the A criteria of listing 112.04(A)(1), major depressive syndrome, our
thorough review of Myron’s medical and scholastic records convinces us that the
record does not contain relevant evidence that reasonable minds might consider as
adequate to support a conclusion that Myron’s symptoms were not either continuous
or intermittent. Medication at times adequately controls Myron’s symptoms, but the
record shows that the symptoms regularly recur.
For example, one discharge summary notes:
The patient has a history of acting out in a self-destructive fashion with
a history of overdose in the past. The patient was found by his
grandmother, playing Russian Roulette with a gun, and was admitted to
-9-
[St. Bernard’s Behavioral Health] due to imminent risk for harm to self.
The patient has been treated with a combination of Depakote, Zoloft and
Trazodone in an outpatient setting, and this appears not to have had an
effect as yet.
It should be noted that present neurovegetative signs and symptoms
have been reported off and on for the past 3 years. Most notable are
decreased sleep, with initial insomnia, not restful, increased anhedonia,
with no ruminations reported, decreased energy, decreased
concentration, no change in appetite, mild psychomotor retardation and
history of suicidal behaviors and actions.
(Admin. Tr. at 276) (Discharge Summary, St. Bernard’s Behavioral Health, dated
Sept. 17, 1999.) In short, substantial evidence does not support a finding that Myron
has not satisfied the A criteria of meeting or medically equaling listing 112.04.
2. Marked Impairment
As noted above, the second prong of the medical equivalency test of listing
112.04 requires marked impairment in two of four functional categories. These
categories are:
a. Marked impairment in age-appropriate cognitive/
communicative function, documented by medical findings (including
consideration of historical and other information from parents or other
individuals who have knowledge of the child, when such information is
needed and available) and including, if necessary, the results of
appropriate standardized psychological tests . . . ; or
b. Marked impairment in age-appropriate social functioning,
documented by history and medical findings (including consideration of
information from parents or other individuals who have knowledge of
the child, when such information is needed and available) and including,
if necessary, the results of appropriate standardized tests; or
-10-
c. Marked impairment in age-appropriate personal functioning,
documented by history and medical findings (including consideration of
information from parents or other individuals who have knowledge of
the child, when such information is needed and available) and including,
if necessary, appropriate standardized tests; or
d. Marked difficulties in maintaining concentration, persistence,
or pace.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.02(B)(2), cross-referenced by id. Pt. 404,
Subpt. P, App. 1, § 112.04(B).
Similarly, to be found to be disabled by virtue of suffering from a “functionally
equal” impairment, a claimant Myron’s age must show marked impairment in at least
two functional categories.2 Prior to the effective date of the final rules, “personal
functioning” and “social functioning” appeared in both the meet or medically equal
provisions and in the functionally equivalent provisions of the interim final rules.
Compare id. § 416.926a(c)(4)(i)-(iii), (v)-(vi) (2000) (functional equivalence domains
for children age three to age eighteen under interim rules were:
cognition/communication, motor, social, personal, and concentration, persistence, or
pace), with id. Pt. 404, Subpt. P, App. 1, § 112.02(B)(2)(a)-(c) (meet or medically
equal domains included: cognitive/communicative function, social functioning,
personal functioning). However, the final rules, which apply in this appeal, see supra,
extensively reorganized and revised 20 C.F.R. § 416.926a, the section that governs
the functional equivalence of children. 65 Fed. Reg. 54,752 (Sept. 11, 2000). Under
the final rules, the broad areas of functioning pertaining to the “functionally
equivalent” route of establishing disability are: (1) acquiring and using information;
2
A child may be found functionally equivalent to a listed impairment based
upon an extreme limitation in one area of functioning, as well. 20 C.F.R. §
416.926a(a). Myron, however, does not claim that he suffers from an extreme
limitation in any broad area of functioning. Therefore, for purposes of this case, we
confine our analysis to whether Myron’s impairments cause marked limitations.
-11-
(2) attending and completing tasks; (3) interacting and relating with others; (4)
moving about and manipulating objects; (5) caring for yourself; and (6) health and
physical well-being. 20 C.F.R. § 416.926a(g)-(l) (2003).
Our ability to review the Commissioner’s final decision regarding functional
equivalency is severely curtailed by the fact that the ALJ’s decision was made under
the interim rules, and this difficulty is compounded by the Social Security Appeals
Council’s cursory review of Myron’s case. The Social Security Appeals Council
merely stated that it had considered the final rules but found that the new final rules
did not provide a basis to change the ALJ’s decision.3 (Admin. Tr. at 7.)
The parties in this case did not address the personal and social functioning
domains with regard to the changes that the final rules made in § 416.926a. Even
though these domains no longer appear in both § 416.926a and in the “meet or
medically equal” provisions of the final rules, for purposes of this appeal we will treat
the final rules’ “interacting and relating with others,” 20 C.F.R. § 416.926a(i), and
“caring for yourself,” id. § 416.926a(k), functional domains as analogous to the
“social” and “personal” functioning domains, respectively.
Under the final rules as expressed in § 416.926a, a child will be found to have
a “marked” limitation when the impairment interferes seriously with the child’s
ability to “independently initiate, sustain, or complete activities.” Id. §
416.926a(e)(2). Further, “‘[m]arked’ limitation also means a limitation that is ‘more
than moderate’ but ‘less than extreme.’” Id. For purposes of comparison, a child will
be found to have an “extreme” limitation when the impairment “interferes very
3
The appellant does not submit that the ALJ’s application of the interim rules
and the Appeals Council’s summary affirmance deprives us of the opportunity to
conduct a meaningful judicial review of the Commissioner’s decision. Indeed,
neither party even cites to the new rules nor argues that they would impact the result
in this case.
-12-
seriously with [the child’s] ability to independently initiate, sustain, or complete
activities.” Id. § 416.926a(e)(3).
Similarly, the regulations pertaining to meeting or medically equaling a listed
impairment define “marked” as “more than moderate but less than extreme.” Id. Pt.
404, Subpt. P., App.1 § 112.00(C). The rules provide: “[a] marked limitation may
arise when several activities or functions are impaired, or even when only one is
impaired, as long as the degree of limitation is such as to interfere seriously with the
ability to function (based upon age-appropriate expectations) independently,
appropriately, effectively, and on a sustained basis.” Id.
We agree that substantial evidence in the record supports the ALJ’s
determination that Myron’s impairments do not result in marked limitations in the
areas of cognition/communication, motor, and concentration, persistence, or pace.
Myron does not challenge these findings on appeal. Instead, he argues that he meets
listing 112.04, or at least his limitations are functionally equivalent to a listed
impairment, because he has marked impairment in social functioning and in personal
functioning. The ALJ concluded that Myron had marked limitations of functioning
in only one domain—social.
The principal issue on appeal is whether the ALJ adequately considered
Myron’s suicide attempts in the domain of personal functioning and, consequently,
whether substantial evidence supports his finding that Myron had only slight
limitations in this area. According to the appellant, the ALJ’s analysis in finding that
Myron only had slight limitation of functioning in personal development
demonstrates that the ALJ failed to adequately consider the gravity and impact of
Myron’s suicide attempts on his ability to care for himself.
“Personal functioning in adolescents pertains to self-care.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 112.00(C)(4)(a). The focus of the personal functioning domain
-13-
in adolescent children is on “the adolescent’s ability to take care of his or her own
personal needs, health, and safety without assistance.” Id. The analogous “caring for
yourself” provision of § 416.926a of the final rules “consider[s] how well you
maintain a healthy emotional and physical state, including how well you get your
physical and emotional wants and needs met in appropriate ways; how you cope with
stress and changes in your environment; and whether you take care of your own
health, possessions, and living area.” Id. § 416.926a(k).
The regulations specifically address self-injurious actions, such as suicide
attempts, in the domain of personal functioning and caring for oneself. For example,
the regulations provide: “Personal functioning in adolescents pertains to self-care.
. . . Impaired ability in this area is manifested by failure to take care of these needs
or by self-injurious actions.” Id. Pt. 404, Subpt. P, App. 1, § 112.00(C)(4)(a)
(emphasis added). Section 416.926a lists examples of limited functioning in caring
for oneself. One such example is, “You engage in self-injurious behavior (e.g.,
suicidal thoughts or actions, self-inflicted injury, or refusal to take your medication),
or you ignore safety rules.” Id. § 416.926a(k)(3)(iv). In addition, the regulations
state that self-injurious behavior should not be considered in the social functioning
domain: “Impaired social functioning may be caused by inappropriate externalized
actions (e.g., running away, physical aggression—but not self-injurious actions,
which are evaluated in the personal area of functioning),” id. § 112.00(C)(2)(b)
(discussing social function in preschool children) (emphasis added), and “Note that
self-injurious actions are evaluated in the personal area of functioning.” Id. Part 404,
Subpt. P, App. 1, § 112.00(C)(4) (discussing marked impairment in adolescents age12
to eighteen).
Despite this clear direction to consider suicidal behavior in the area of personal
functioning and not in the area of social functioning, the ALJ’s opinion only briefly
addresses suicide in personal functioning and arguably places a greater emphasis on
it in considering Myron’s social functioning. With regard to personal functioning,
the ALJ found,
-14-
In the personal area of development, the claimant has slight limitation
of functioning. From the testimony and written statements of the
claimant’s mother, he is quite capable of handling all his own personal
needs, including household chores, when he wants to. When he does
not want to, she has not pushed the matter. Obviously, limitations
related to the claimant’s lack of desire are not the result of a medically
determinable impairment. The only medically determinable limitations
documented in this area result on rare occasions when the claimant is
severely depressed and fails to care for his own safety. At least one of
these episodes has been clearly associated with non-compliance with
medication. (Exhibit 9F, page 9)[.] Considering the record as a whole,
it is found that any limitations in this area are only slight, if the claimant
adheres to proper treatment.
(Admin. Tr. at 21.)
Substantial evidence on the record as a whole does not support the ALJ’s
conclusion for several reasons. First, contrary to the ALJ’s finding, the hospital
records documenting Myron’s March 1999 suicide attempt do not attribute Myron’s
actions to non-compliance with his medication regimen. Instead, they merely note
that Myron had not been compliant: “Myron Moore was admitted due to a suicide
attempt (overdose). He was also non compliant with his medication.” (Admin. Tr.
at 256.) Thus, to the extent the ALJ found that Myron’s non-compliance was the
cause of his self-injurious behavior, substantial evidence does not support this
conclusion. There is no indication that non-compliance was related to any of
Myron’s other attempted suicides.
Second, the record does not support the ALJ’s conclusion that “any limitations
in this area [of personal development] are only slight, if the claimant adheres to
proper treatment.” (Admin. Tr. at 21.) Again, there is no evidence in the record that,
prior to his other suicide attempts, Myron failed to adhere to his medication regimen.
The only evidence in this regard relates to the single March 1999 hospitalization. As
we noted above, the inference that the ALJ made from this evidence is tenuous and
-15-
certainly does not amount to substantial evidence that all of Myron’s suicide attempts
were the result of his non-compliance with medication.
Moreover, we do not agree with the Commissioner’s position that substantial
evidence shows that Myron’s depression is controlled. “An impairment which can
be controlled by treatment or medication is not considered disabling.” Estes v.
Barnhart, 275 F.3d 722, 725 (8th Cir. 2002). The record evidence shows that, despite
ongoing treatment and medication, Myron continues to suffer from episodic bouts of
recurrent major depression. Medication helps to control Myron’s condition, but it
does not cure it. We know this to be true because Myron’s condition improved after
his hospitalization and treatment in December of 1998, for example, yet he attempted
suicide three months later. And again, after having been counseled about the
importance of taking his medications and undergoing treatment, Myron again
attempted suicide and was hospitalized in August of 1999. Therefore, substantial
evidence does not support the Commissioner’s argument that Myron’s depression is
controlled by medication and treatment and that, consequently, he is not disabled.
Third, substantial evidence in the record as a whole does not support the ALJ’s
characterization of Myron’s suicide attempts as “rare.” The undisputed evidence
shows that Myron was hospitalized after attempting suicide on three separate
occasions during a nine-month period. Moreover, the appellant claims there was a
fourth attempted suicide that did not result in hospitalization. The ALJ only noted
three suicide attempts in his analysis, and it is unclear whether he discredited the
appellant’s account of the undocumented attempted suicide or simply failed to
address it.
Notwithstanding the foregoing, we do not find that Myron has marked
limitation in the area of personal functioning. Indeed, we recognize that, when
Myron is not experiencing an episodic bout of depression, he is capable of caring for
his own needs, such as doing household chores and attending to his personal hygiene.
However, we also do not find that substantial evidence in the record supports the
-16-
ALJ’s decision to discount Myron’s suicide attempts in this area of functioning and
to find that they were rare and resulted from Myron’s failure to follow his prescribed
course of treatment. On remand, the ALJ should evaluate whether Myron has marked
limitations in personal functioning, giving proper weight to his serious history of self-
injurious actions.
2. Social Functioning
The rules state that “[s]ocial functioning refers to a child’s capacity to form and
maintain relationships with parents, other adults, and peers. Social functioning
includes the ability to get along with others (e.g., family members, neighborhood
friends, classmates, teachers).” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
112.00(C)(2)(b). The analogous “interacting and relating with others” provision of
§ 416.926a “consider[s] how well [the child] initiate[s] and sustain[s] emotional
connections with others, develop[s] and use[s] the language of [his or her]
community, cooperate[s] with others, compl[ies] with rules, respond[s] to criticism,
and respect[s] and take[s] care of the possessions of others.” Id. § 416.926a(i). The
regulations expect that adolescents, among other things, will be able to develop
friendships with children their own age; relate appropriately to other children and to
adults; solve problems; express feeling; and tell stories. Id. § 416.926a(i)(v).
In considering Myron’s degree of impairment in social functioning, the ALJ
reasoned,
In the social area of development, the claimant has marked limitation of
functioning. Due to the claimant’s attention deficit hyperactivity
disorder and depression, his social [sic] the undersigned Administrative
Law Judge concludes that he is markedly limited for significant periods
of time. He has attempted suicide on three occasions and he has
demonstrated temper outbursts that have resulted in serious disciplinary
actions at school. However, much of the time the claimant is quite able
to function in the social area. He has participated in team sports at
-17-
school and, as noted by his resource teacher, he is generally quite
capable of relating to classmates. (Exhibit 1E). In a structured setting
the claimant has demonstrated the ability to improve his depression and
anger control and has been quite pleased with his success (Exhibit 20F).
When the evidence, as developed at the hearing level, is considered in
its entirety, the Administrative Law Judge finds that the claimant is more
limited in his social abilities than was concluded by the State Agency
physicians. Nonetheless, he does retain significant abilities in this area.
Although his mother has asserted that the claimant only hangs around
with children who are eight to ten years old, this is not consistent with
his school records, the knee injury he received playing on the school
basketball team or the claimant’s own testimony. He stated that he liked
to spend his free time at home by going to shoot baskets or skateboard
with his friends. These activities are certainly consistent with the
activities of someone the claimant’s age.
(Admin. Tr. at 20-21.)
The Commissioner and the appellant agree that the ALJ improperly considered
Myron’s suicide attempts in the social functioning domain. The appellant urges us
to sustain the ALJ’s finding of marked impairment because, according to the
appellant, there is more than sufficient evidence of marked impairment even in the
absence of Myron’s suicide attempts. We agree that much of the ALJ’s analysis is
unaffected by his consideration of Myron’s self-injurious acts. For example, Myron
has documented temper outbursts, has difficulty controlling his anger, cries easily,
and has been suspended from school for fighting and for assaulting a teacher.
Moreover, Myron’s mother claims that his friends are significantly younger than he.
However, it is impossible for us to determine the extent to which, if any, the ALJ’s
consideration of self-injurious acts in the area social functioning undermines his
finding of marked limitation. Accordingly, we remand to give the ALJ an
opportunity to re-evaluate Myron’s degree of impairment in social functioning and,
if appropriate, in the final rules’ domain of “interacting and relating with others.”
-18-
III. CONCLUSION
For the reasons stated above, we reverse and remand to the district court with
instructions to remand to the ALJ for further proceedings consistent with this opinion.
______________________________
-19-