Giles, Damien v. Astrue, Michael J. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2293
DAMIEN GILES, a Minor, by DENISE
GILES, his Mother and Natural Guardian,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE,Œ
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 C 1102—Thomas J. Curran, Judge.
____________
ARGUED JANUARY 23, 2007—DECIDED APRIL 16, 2007
____________
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. On September 1, 1995, Damien
Giles began receiving Supplemental Security Income
(“SSI”) benefits for physical and cognitive deficiencies. In
1997, Congress passed the Personal Responsibility and
Work Opportunity Reconciliation Act, which re-defined
childhood disability. As a result, the Social Security
Œ
Pursuant to Federal Rule of Appellate Procedure 43(c), we
have substituted Michael J. Astrue for Jo Anne B. Barnhart
as the named defendant-appellee.
2 No. 06-2293
Administration (“SSA”) found Damien no longer disabled
under the new definition, and thus ineligible to receive
disability benefits. Damien’s mother, Denise Giles, ap-
pealed and testified at a hearing before an Administrative
Law Judge (“ALJ”). The ALJ found that Damien was no
longer disabled, and Ms. Giles brought suit in federal
district court pursuant to 42 U.S.C. § 405(g). The district
court affirmed the ALJ and Ms. Giles appeals. For the
following reasons, we reverse the decision of the district
court and remand for further proceedings.
I. BACKGROUND
Damien Giles was born in June 1994. Within his first
year, Damien was diagnosed with developmental delays
and underwent casting to correct the alignment of his
feet. He had frequent ear infections and underwent
surgery to receive ear tubes. These impairments qualified
him for physical and speech therapy at Curative Rehabili-
tation Services (“CRS”) in Milwaukee. In 1995, when
Damien was a year old, his mother, Denise Giles, filed an
application for SSI, alleging that Damien was disabled.
The SSA granted the application and, beginning in Sep-
tember 1995, Damien began to receive SSI benefits.
On September 29, 1995, Damien underwent testing
performed by Dr. Roland Manos, during which Damien
displayed delayed mental development and significantly
delayed psychomotor development. In January 1996,
Damien began walking with a normal gait, although it
was wide-based. In August 1996, he scored in the twenty-
fifth percentile in gross motor skills and did not qualify
for continued physical therapy at CRS. He did, however,
continue to receive services at CRS for speech developmen-
tal delays. In December 1996, CRS staff noticed that
Damien had “really opened up,” was talking a lot, and was
following classroom routines and simple directions. In
No. 06-2293 3
March 1997, a progress report indicated that Damien was
making further progress in speech therapy, and shortly
thereafter, CRS discharged him from its care. Though he
was three years old, Damien functioned at the 18-19
month cognitive level.
After CRS discharged him, Damien began receiving
special education services from the Milwaukee Public
School system. In April 1997, Damien underwent a Multi-
disciplinary Team (M-Team) evaluation to determine
whether he needed further special care. The M-Team was
comprised of teachers, educational specialists, and psycho-
logists. Their evaluation revealed that Damien had
continuing speech and language delays as well as a
learning disability. As a result, the M-Team developed
an Individualized Education Program (“IEP”) for Damien.
The IEP’s “Speech/Language Report” stated that on the
preschool language scale, Damien had expressive lan-
guage skills at the 14-month level. The M-Team noted
that Damien had a short attention span and became
easily distracted. The evaluating psychologist observed
that it was very difficult to maintain his attention and
that Damien exhibited impulsive, wilful, and oppositional
behavior.
On October 30, 1997, Damien underwent a consultative
examination with Dr. Christopher Morano of the Milwau-
kee County Department of Public Health. During the
examination, Damien focused his attention “very well” and
put forth a good effort. He was responsive and cooperative,
although his speech was poor. Dr. Morano opined that
Damien had mild problems “across the board” with no
severe deficits in any area. On October 31, 1997, Damien’s
pre-school teacher completed a school activities question-
naire in which she reported that Damien had a “very
short” attention span and needed constant reminders
to stay on task. She also noted Damien’s difficulties
4 No. 06-2293
following routines and getting along with other children.
She further mentioned that his speech was not clear or
understandable.
In November 1997, SSA re-evaluated Damien’s eligibility
for benefits.1 Two agency physicians reviewed Damien’s
record and determined that he no longer qualified for
SSI. Ms. Giles appealed the SSA’s decision to an ALJ.
While the appeal was pending, Damien’s teachers
continued to complete progress reports for him. In October
1998, his teacher reported that his attention span was
improving, but that it was still not age-appropriate. He
needed constant supervision and reminders to stay on
task. His speech was still difficult to understand, although
he was beginning to interact more with his peers. The
following year, in October 1999, Damien’s teacher ob-
served his short attention span and noted that he
engaged in overactive behavior and had difficulty with
regular classroom routines.
A November 1999 psychological assessment revealed
that Damien was cooperative and willing to be tested, but
that he was distracted from tasks he found too difficult.
The assessment also noted that Damien was very active;
he had difficulty staying on task in the classroom setting
and appeared to be “daydreaming.” In October 2002,
Damien’s special education teacher completed a question-
naire and reported that Damien was reading, writing,
and performing math at an early first-grade level and
was able to follow up to three-step directions without
difficulty. She also noted that he had a short attention
span compared with his same aged peers.
1
The Personal Responsibility and Work Opportunity Reconcilia-
tion Act directed SSA to redetermine the eligibility of children
who qualified for benefits prior to the date of enactment. Pub. L.
No. 104-193, 110 Stat. 2105, 2188 (1996).
No. 06-2293 5
On October 21, 2002, the ALJ assigned to Damien’s
appeal held a hearing during which both Damien and Ms.
Giles testified. Damien testified that he could dress and
groom himself. He stated that he did chores, homework,
and enjoyed playing video games. Ms. Giles testified that
Damien’s mind tended to wander when he did his home-
work after school. She further stated that Damien had
difficulty paying attention and “catching on” to things
in school. She told the ALJ that Damien was not taking
any medication for his attention or behavior difficulties.
She also reported that Damien had not exhibited any
behavioral problems in school within the last year. Ms.
Giles also offered the various doctor and school reports
discussed above.
On June 27, 2003, the ALJ concluded that Damien was
not disabled. The ALJ found that:
1. The claimant is eight years of age and is not
engaging in substantial gainful work activity
2. The medical evidence establishes that the claimant
has severe speech/language disorder, learning
disability, asthma and developmental delays, but
does not have an impairment or combination of
impairments that meets or medically or function-
ally equals the severity of any impairment on the
Listing of Impairments.
3. Aside from being markedly limited in terms of the
domain of acquiring and using information and the
cognitive functioning area, the claimant is less
than markedly limited in all other areas of func-
tioning.
4. When the claimant’s complaints and allegations
about his limitations and impairments are consid-
ered in light of all of the objective medical evidence
as well as the record as a whole, they reflect a
6 No. 06-2293
child who has improved and who does not have
any impairment or combination of impairments
in the Listing of Impairments.
5. The claimant is not under a “disability” as defined
in the Social Security Act and is not eligible for
child’s supplemental security income benefits
under the provisions of section 1614(a)(3). The
claimant’s disability ceased in November 1997.
Following this decision, Ms. Giles filed a request for
review to the SSA’s appeals council, which denied the
request, leaving the ALJ’s decision as the final decision of
the Commissioner. Ms. Giles then filed a complaint in
federal court challenging the ruling. The district court
affirmed, holding that the substantial evidence sup-
ported the ALJ’s finding. Ms. Giles filed a timely appeal
with this Court, asking us to review the ALJ’s decision.
II. ANALYSIS
Ms. Giles contends that the ALJ did not adequately
articulate the basis for denying Damien benefits. This
Court reviews the Commissioner’s final decision to deter-
mine whether it is supported by substantial evidence.
Young v. Sec’y of Health and Human Servs., 957 F.2d 386,
388 (7th Cir. 1992). 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. Haynes v. Barnhart, 416 F.3d
621, 626 (7th Cir. 2005). However, where the ALJ’s
decision “lacks evidentiary support or is so poorly articu-
lated as to prevent meaningful review, the case must be
remanded.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.
2002).
No. 06-2293 7
A. Disability Determination
Under the Personal Responsibility and Work Opportu-
nity Reconciliation Act, a child is disabled if he or she has
a “physical or mental impairment, which results in
marked and severe functional limitations, and . . . 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 SSA employs a three-step analysis
to decide whether a child meets this definition. 20 C.F.R.
§ 416.924(a). First, if the child is engaged in substantial
gainful activity, his or her claim is denied. Id. Second, if
the child does not have a medically severe impairment
or combination of impairments, then his or her claim is
denied. Id. Finally, the child’s impairments must meet, or
be functionally equivalent, to any of the Listings of
Impairments contained in 20 CFR pt. 404, subpt. P, App.
1. Id.
To find an impairment functionally equivalent to one
in the list, an ALJ must analyze its severity in six age-
appropriate categories: 1) acquiring and using informa-
tion, 2) attending and completing tasks, 3) interacting
and relating with others, 4) moving about and manipulat-
ing objects, 5) caring for yourself, and 6) health and
physical well-being. 20 C.F.R. § 416.926a(a). The ALJ must
find an extreme limitation in one category or a “marked”
limitation in two categories. A marked limitation is one
which interferes seriously with the child’s ability to
independently initiate, sustain, or complete activities. 20
C.F.R. § 416.926a(e)(2)(I). In this case the ALJ found that
Damien was markedly limited in acquiring and using
information, but was not markedly limited in any other
domain.
Ms. Giles alleges that the ALJ’s decision does not
connect the evidence with the conclusion reached. We have
not hesitated to remand an ALJ’s decision that does not
8 No. 06-2293
sufficiently articulate the basis for the denial of benefits.
See Brindisi v. Barnhart, 315 F.3d 783, 784 (7th Cir.
2003); Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002).
In Brindisi, the plaintiff applied for SSI benefits on behalf
of her son, who had hearing impairments, speech delays,
oppositional defiant disorder, attention deficit disorder,
and separation anxiety. 315 F.3d at 784. An ALJ found
that the plaintiff ’s son was not disabled. Id. at 786. In so
finding, the ALJ merely stated, “[t]he claimant has a
combination of severe impairments . . . . However, none of
these impairments meet the requirements of an impair-
ment listed in Appendix 1 to subpart P of regulation
no. 400.” Id. We held that “this conclusion [was] devoid of
any analysis that would enable meaningful judicial re-
view.” Id. The Court noted that the analysis omitted any
discussion of the boy’s impairments in conjunction with
the listings, and stated that “[s]uch a lack of reasoning
prevents us from applying the decision structure under-
girding disability determinations to a substantive
analysis of [the boy’s] impairments.” Id.
In Scott, although the plaintiff ’s son had mild mental
retardation, the SSA denied the plaintiff’s application for
SSI benefits. 297 F.3d at 592. The ALJ found that “there
is evidence which shows that the claimant is hyperac-
tive with language, speech, and cognitive delays.” Id.
Nevertheless, the ALJ concluded that “these difficulties
did not meet or equal any impairments in the SSA’s
listings.” Id. We remanded the case because the ALJ did
not discuss or even reference the specific listing under
which the plaintiff had applied for benefits. Id. at 595. The
Court stated that “[b]y failing to discuss the evidence
in light of [the specific listing’s] analytical framework, the
ALJ has left this Court with grave reservations as to
whether his factual assessment addressed adequately
the criteria of the listing.” Id.
No. 06-2293 9
Just as in Brindisi and Scott, the ALJ in this case did
not adequately “build an accurate and logical bridge from
the evidence to [the] conclusion” so that, as a reviewing
court, we may assess the validity of the agency’s final
decision and afford Ms. Giles meaningful review. Scott, 297
F.3d at 595. Although the ALJ found that Damien was
markedly limited in acquiring and using information, the
ALJ summarily concluded that “in all other domains
and areas of functioning the claimant has some deficits,
but is less than markedly limited.” Such a conclusion
standing alone does not sufficiently articulate the ALJ’s
assessment of the evidence as we have repeatedly re-
quired. See, e.g., Hickman v. Apfel, 187 F.3d 683, 689 (7th
Cir. 1999).
This lack of specificity is particularly striking with
regard to the domain of attending and completing tasks.
Under this domain, the regulations provide that, “we
consider how well you are able to focus and maintain your
attention and how well you begin, carry through, and
finish activities, including the pace at which you perform
activities and the ease with which you change them.” 20
C.F.R. § 416.926a. The ALJ noted that Damien has
difficulty in maintaining attention and concentration in
order to complete tasks, that his teachers reported numer-
ous attention problems, and that he needed nearly con-
stant supervision to finish classroom tasks; however, the
ALJ did not explain why these findings were insufficient
to find a marked limitation in attending and completing
tasks. Indeed, it is unclear what evidence the ALJ relied
upon in finding that Damien was not markedly limited
in this domain. We require an explanation of why strong
evidence favorable to the plaintiff is overcome by the
evidence on which an ALJ relies. See Zurawski v. Halter,
245 F.3d 881, 889 (7th Cir. 1995). In the instant case, this
has not occurred.
Moreover, Ms. Giles contends that the ALJ relied on
an inappropriate medical finding to conclude that Damien
10 No. 06-2293
is not disabled. The ALJ noted that “the claimant has not
been assessed as having attention deficit hyperactivity
disorder or treated for attention deficit hyperactivity
disorder (“ADHD”).” The ALJ appears to have assumed
that because Damien was not diagnosed with ADHD, his
attention problems could not have been “marked.” As Ms.
Giles points out, however, the ALJ did not hear any
medical evidence that attention problems exist only in
children with ADHD.2 Consequently, the ALJ’s inference
lacked evidentiary support. The Commissioner argues
that the ALJ considered the totality of the evidence,
which included the absence of any diagnosis of a specific
attention deficit disorder. However, the absence of an
ADHD diagnosis was the only evidence that the ALJ
referred to in the discussion. Accordingly, we are left
with the inference that the ALJ assumed that because
Damien was not diagnosed with ADHD, he could not have
had marked impairments in attending to his tasks.
B. Credibility Determination
A deficiency also exists in the evaluation of Ms. Giles’
testimony. In evaluating the credibility of statements
supporting a Social Security application, this Court has
said that an ALJ must comply with the requirements of
Social Security Ruling 96-7p. Steele, 290 F.3d at 942. SSR
96-7p requires an ALJ to articulate the reasons behind
credibility evaluations.
The reasons for the credibility finding must be
grounded in the evidence and articulated in the
determination or decision. It is not sufficient to make
2
Indeed, there are many causes of attention and impulsivity
problems, such as learning disabilities, sensory deficits, neurolog-
ical problems, organization, and stress.
No. 06-2293 11
a conclusory statement that ‘the individual’s allega-
tions have been considered’ or that ‘the allegations
are (or are not) credible.’ The determination or decision
must contain specific reasons for the finding on credi-
bility, supported by the evidence in the case record,
and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s state-
ments and the reasons for that weight.
SSR 96-7P, 1996 WL 374186, at *4 (S.S.A. July 2, 1996).
Here, the ALJ did not make a credibility assessment as
to Ms. Giles’ testimony, though the ALJ did recite some
parts of the testimony. If Ms. Giles’ testimony was not
credible, the ALJ was obligated to explain the basis of that
assessment. If, on the other hand, Ms. Giles’ testimony
was credible, the ALJ was required to explain why the
testimony did not support a finding that Damien was
markedly limited in attending and completing tasks.
III. CONCLUSION
For the above reasons, we REVERSE the decision of the
district court and REMAND for further proceedings con-
sistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-16-07