Blakes, Sandra v. Barnhart, Jo Anne ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2178
SANDRA BLAKES, on behalf of
LAMANUEL WOLFE, JR.,
a minor,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
Commissioner of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 7—Rudolph T. Randa, Chief Judge.
____________
ARGUED DECEMBER 12, 2002—DECIDED JUNE 4, 2003
____________
Before FLAUM, Chief Judge, MANION and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Sandra Blakes sought Social Se-
curity Income disability benefits for her minor son,
Lamanuel Wolfe, Jr. An Administrative Law Judge found
that Lamanuel was not disabled, the Appeals Council de-
nied his request for review, and the district court affirmed
the ALJ’s ruling, finding it was supported by substantial
2 No. 02-2178
evidence. Because the ALJ failed to apply the proper stan-
dard in considering Lamanuel’s claim, we vacate and
remand.
I.
Blakes filed an application for Social Security Income
(“SSI”) disability benefits with the Social Security Adminis-
tration (“SSA”) on behalf of her son. Lamanuel, born August
25, 1993, was five years old as of the effective date of his
application and six years old at the time of his hearing be-
fore the ALJ. Blakes presented evidence to the ALJ that
Lamanuel was being treated for a seizure disorder and also
received services for speech and language delays. Various
medical records indicated that Lamanuel suffered from an
“atypical seizure disorder,” a “seizure disorder,” and a “sta-
ble seizure disorder.” R. 12, at 105, 116, 139. Lamanuel took
two medications to control his disorder but nonetheless
occasionally still suffered seizures. According to Milwaukee
Public School records, Lamanuel underwent testing in
February 1999 that showed he was delayed 17 months to
three years in speech intelligibility and receptive and ex-
pressive language. R. 12, at 85. In intelligence testing,
Lamanuel received scores of 70 in visual reasoning and
short-term memory, 97 in verbal reasoning, 98 in quantita-
tive reasoning, and 81 composite. R. 12, at 81. On a Pea-
body Picture Vocabulary Test, Lamanuel scored a 40, which
placed him below the first percentile.1 R.12, at 80.
Lamanuel repeated kindergarten at the recommendation of
his teacher. R. 12, at 62, 129.
1
Although the scale used in the Peabody Picture Vocabulary Test
differs from the more familiar IQ tests, Lamanuel’s test scores
were all consistent when translated to percentile rankings. See
Scott v. Barnhart, 297 F.3d 589, 592 n.3 (7th Cir. 2002).
No. 02-2178 3
An examiner at the Wisconsin Hearing Aid Centers eval-
uated Lamanuel in February 1999 and found that he
exhibited delays in following sequential instructions and
receptive vocabulary. He also lacked a good vocabulary for
some basic items. The examiner stated that Lamanuel had
a “relatively good prognosis” for achieving age-appropriate
language functioning, and suggested that some of the de-
lays may have been caused by environmental factors. How-
ever, the examiner also emphasized that “[e]xtremely im-
portant at this point in time is to rule out any learning
problems via psychometrics.” R. 12, at 112-13.
The ALJ accepted as valid the intelligence testing scores.
She acknowledged that Lamanuel was receiving services for
speech and language delays and that he was being treated
for a possible seizure disorder. She noted the speech and
language assessment which demonstrated severe delays in
speech intelligibility and receptive and expressive language.
She also remarked on Lamanuel’s lack of social or behav-
ioral problems and noted that his kindergarten teacher
attributed some of his delays to immaturity. The ALJ
rejected Lamanuel’s claim that he met the requirements of
the listing for mental retardation based on several IQ
subscores of 70:
The requirements of section 112.05 are satisfied if an
individual has at least one score of 60 to 70 and another
severe impairment. His speech\language delays could
be considered “another severe impairment.” However,
the examiner in [exhibit] 3F specifically stated that the
claimant has good prognosis and that his language
problems caused only minimal effects on his activities
of daily living. This is not a description of a person who
is mentally retarded. His attorney argued that his
mother is retarded and receives benefits for the condi-
tion. This appears to be relevant in suggesting that the
claimant’s delays are caused by poor environmental
4 No. 02-2178
stimulation and can be remedied by an enriched school
environment.
See Decision, R. 12, at 14. The ALJ found on the basis of the
evidence that Lamanuel suffered from severe impairments,
namely speech and language delays and a possible seizure
disorder. However, she also found that his condition did not
meet or medically equal the requirements of any impair-
ment listed in Appendix 1, Subpart P, Regulations No. 404.
The ALJ ruled that Lamanuel’s impairments did not cause
him to functionally equal the requirements of any section of
the listing, that he suffered no disabling limitations from a
chronic illness or from his treatment and medications, and
that he has no disabling limitations in broad areas of
functioning. She found marked impairment in communica-
tion and cognition based on “substantial current delays in
speech and language and over-all low average intellectual
functioning.” R. 12, at 14. But she also found there was no
evidence that the delays are permanent. Id. She found less
than marked impairment in motor functioning due to a
possible mild seizure disorder, less than marked impair-
ment in personal functioning and in concentration, and no
impairment in social functioning. R. 12, at 15. On that ba-
sis, she concluded that, although Lamanuel was suffering
from two severe impairments (speech and language delays
and a seizure disorder), he was not disabled as that term is
defined in the Social Security Act. Id.The SSA Appeals Council denied Lamanuel’s request for
review of the ALJ’s decision, and Lamanuel then appealed
to the district court. R. 12, at 4-5. A magistrate judge rec-
ommended that the ALJ’s denial of benefits be affirmed be-
cause her conclusion that Lamanuel is not mentally re-
tarded was supported by substantial evidence. The district
court adopted the report and recommendation of the magis-
trate judge, finding that the ALJ adequately supported her
conclusion that Lamanuel was not mentally retarded. See
No. 02-2178 5
Blakes v. Barnhart, No. 01-CV-7 (E.D. Wisc. March 7, 2002).
The district court also found that the magistrate considered
all of the evidence, even the evidence favorable to Lamanuel
in reaching this conclusion and that because of the district
court’s limited review, the denial of benefits must be
affirmed. Lamanuel appeals.
II.
On appeal, Lamanuel contends that his impairment
meets the requirements of listing 112.05(D), that the ALJ
failed to build a logical bridge between the evidence and her
conclusions, that the ALJ relied on her own judgment about
the cause of Lamanuel’s impairments without any medical
support in the record for that judgment, that the ALJ
should have called upon a medical expert under the circum-
stances, and that Lamanuel’s seizure disorder and speech
and language impairments meet the requirements of the
second prong of listing 112.05(D). Lamanuel also complains
that the ALJ failed to determine the credibility of key wit-
nesses and failed to discuss significant evidence favoring
his claim.
Because the SSA’s Appeals Council denied Lamanuel’s re-
quest for review, the ALJ’s ruling constitutes the final deci-
sion of the Commissioner. See Scott v. Barnhart, 297 F.3d
589, 593 n.4 (7th Cir. 2002). We must affirm the ALJ’s find-
ings so long as they are supported by substantial evidence.
Scott, 297 F.3d at 593; Powers v. Apfel, 207 F.3d 431, 434
(7th Cir. 2000). Although a mere scintilla of proof will not
suffice to uphold an ALJ’s findings, the substantial evidence
standard requires no more than such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion. Scott, 297 F.3d at 593; Young v. Secretary of
Health & Human Services, 957 F.2d 386, 388-89 (7th Cir.
1992). We may not decide the facts anew, re-weigh the
6 No. 02-2178
evidence or substitute our own judgment for that of the ALJ
to decide whether the claimant is or is not disabled. Powers,
207 F.3d at 434-35. “Both the evidence favoring the claim-
ant as well as the evidence favoring the claim’s rejection
must be examined, since the review of the substantiality of
the evidence takes into account whatever in the record
fairly detracts from its weight.” Bauzo v. Bowen, 803 F.2d
917, 923 (7th Cir. 1986).
With those standards in mind, we turn to the provision on
which Lamanuel rests his claim for disability:
112.05 Mental Retardation: Characterized by signifi-
cantly subaverage general intellectual functioning with
deficits in adaptive functioning.
The required level of severity for this disorder is met
when the requirements in A, B, C, D, E, or F are
satisfied. . . .
D. A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment
imposing an additional and significant limitation of
function[.]
20 C.F.R. Part 404, Subpart P, Appendix 1, Rule 112.05. As
we noted above, the ALJ found that Lamanuel had valid IQ
scores of 70 in both visual reasoning and short-term mem-
ory. She also found that he suffered from other severe im-
pairments, namely speech and language delays and a pos-
sible seizure disorder. She nonetheless concluded that
Lamanuel did not meet the listing because he is not men-
tally retarded. Because the speech examiner predicted a
good prognosis and stated that Lamanuel’s speech and lan-
guage problems caused only minimal effects on his activi-
ties of daily living, the ALJ found that Lamanuel could not
meet the listing. She also opined that Lamanuel’s delays
could have been caused by poor environmental stimulation
because his mother has been diagnosed as mentally re-
No. 02-2178 7
tarded, and she suggested that Lamanuel’s problems could
therefore be remedied by an enriched school environment.
She thus concluded that Lamanuel’s “condition does not
meet or medically equal the requirements of any impair-
ment listed in Appendix 1, Subpart P, Regulations No. 404”
and that his impairments do not cause him to “functionally
equal the requirements of any section of the listings.” R. 12,
at 14.
We require the ALJ to build an accurate and logical
bridge from the evidence to her conclusions so that we may
afford the claimant meaningful review of the SSA’s ultimate
findings. Scott, 297 F.3d at 595; Steele v. Barnhart, 290 F.3d
936, 941 (7th Cir. 2002) (regardless of whether there is
adequate evidence in the record to support an ALJ’s
decision, the ALJ must rationally articulate the grounds for
her decision, building an accurate and logical bridge
between the evidence and her conclusion because we confine
our review to the reasons supplied by the ALJ); Sarchet v.
Chater, 78 F.3d 305, 307 (7th Cir. 1996) (“we cannot uphold
a decision by an administrative agency, any more than we
can uphold a decision by a district court, if, while there is
enough evidence in the record to support the decision, the
reasons given by the trier of fact do not build an accurate
and logical bridge between the evidence and the result.”). If
the evidence on which the ALJ relied does not support her
conclusion, the decision cannot be upheld. Steele, 290 F.3d
at 941.
Here, the ALJ failed to build that bridge, instead relying
on conjecture and her own assessment of the medical evi-
dence to reach conclusions unsupported by the record. For
example, the ALJ opined that a person with a severe speech
and language disorder who nonetheless has a good progno-
sis cannot be considered mentally retarded. In drawing this
conclusion, the ALJ apparently assumed that a child who
could improve his language skills was not retarded. We say
8 No. 02-2178
“apparently” because we see no medical evidence in the rec-
ord tying together Lamanuel’s speech and language prob-
lems with his low IQ scores, for example. Indeed, the speech
examiner emphasized that it was extremely important to
rule out any learning problems via psychometrics. The
ALJ’s conclusion that a possibility for improvement in
speech equals a lack of mental retardation has no more sup-
port in the record than a conclusion that an improvement in
Lamanuel’s seizure disorder would equal a lack of mental
retardation. There is simply no basis in the record to tie the
two disorders together and the ALJ should not have as-
sumed a connection in the absence of record evidence. See
Steele, 290 F.3d at 941 (an ALJ may not assume that non-
compliance with medication caused seizures to become un-
controllable in the absence of record evidence establishing
a causal link between non-compliance and ongoing seizure
episodes); Sarchet, 78 F.3d at 307-08 (ALJ may not require
evidence of objectively discernable symptoms such as joint
swelling as proof of fibromyalgia when joint swelling is not
a known symptom of the disease).
The ALJ also concluded that Lamanuel’s mental retarda-
tion may have been the result of poor environmental stimu-
lation because of his mother’s diagnosis of the same disa-
bility, and that his problems could thus be remedied by an
enriched school environment. Here again, the ALJ appears
to have been reaching conclusions unsupported by evidence
in the record. There is little evidence in the record regard-
ing the origin of Lamanuel’s low IQ scores and no evidence
that an enriched school environment would remedy the sit-
uation. This assessment is the result of a hunch and an ALJ
may not rely on a hunch. Wilder v. Chater, 64 F.3d 335, 338
(7th Cir. 1995) (a claimant is entitled to a decision based on
the record rather than on a hunch). See also Herron v.
Shalala, 19 F.3d 329, 334 (7th Cir. 1994) (ALJ may not
make independent medical conclusion that air conditioning
would improve a claimant’s lung disorder by eliminating
No. 02-2178 9
pollutants). Moreover, the ALJ seems to have succumbed to
the temptation to play doctor when she concluded that a
good prognosis for speech and language difficulties was
inconsistent with a diagnosis of mental retardation because
no expert offered evidence to that effect here. See Rohan v.
Chater, 98 F.3d 966, 970-71 (7th Cir. 1996) (ALJ’s may not
make independent medical findings regarding whether
certain activities are inconsistent with a particular medical
diagnosis). Under the circumstances, the ALJ should have
summoned an expert to provide an informed basis for
determining whether Lamanuel is disabled. Green v. Apfel,
204 F.3d 780, 781 (7th Cir. 2000). Without a logical bridge
between the evidence and the ALJ’s conclusions, we must
vacate and remand for further proceedings consistent with
this opinion.
Before we depart, we must comment on a dispute brewing
between the parties that will affect the handling of the case
on remand. At the time the ALJ rendered a decision in this
case, the Code of Federal Regulations stated that
Listing 112.05 (Mental Retardation) contains six sets of
criteria, any one of which, if satisfied, will result in a
finding that the child’s impairment meets the listing.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00A (2000). We
have previously concluded that under this formulation, the
regulations did not require that a claimant meet the diag-
nostic definition of the listing as well as one of the six sets
of criteria. See Scott, 297 F.3d at 595-96 n.6. Meeting one of
the six sets sufficed. See, e.g., Maggard v. Apfel, 167 F.3d
376, 380 (7th Cir. 1999) (an adult claimant is considered
disabled due to mental retardation under listing 12.05(C)
when he has a valid verbal, performance or full scale IQ of
60 through 70 and a physical or other mental impairment
imposing additional and significant work-related limitation
of function). See also Sullivan v. Zebley, 493 U.S. 521, 530
n.7 (1990) (delineating what a child claimant must show to
10 No. 02-2178
meet the listing for mental retardation). The next year, the
regulations introduced a new, dual requirement:
If an impairment satisfies the diagnostic description of
the introductory paragraph and any one of the six sets
of criteria, we will find that the child’s impairment
meets the listing.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00A (2001) (em-
phasis added). It is not apparent from our review of the
ALJ’s decision whether she applied the first formulation or
the second. We suspect she applied the second because she
appears to have found that Lamanuel meets the criteria of
one of the six sets (he has an IQ of 70 and another severe
impairment), and yet she concluded he did not meet the
listing, that he is not mentally retarded. On remand, she
should apply the formulation in effect at the time of
Lamanuel’s hearing. That is, if he meets any one of the six
sets of criteria in the listing, he meets the listing. She
should not require that he also show that he satisfies the
diagnostic description of the introductory paragraph.
VACATED AND REMANDED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-4-03